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Accounts, critiques, and theoretical conceptualizations of penal systems reveal that the characteristics of these systems may vary in very significant ways. Penological histories show how the “classical school” of the late eighteenth and early nineteenth centuries (epitomized in the famous essay of Cesare Beccaria’s Of Crimes and Punishments) believed that the primary rationale for the penal system was general deterrence and advocated that this should be reflected in sentences proportionate to the seriousness of the offence. They then describe how this ideology was in the latter half of the nineteenth century replaced by individualized sentencing – which in turn gave way a century later to a “just deserts” philosophy (again proportionate). These successive approaches are sometimes referred to as paradigms.

A focus on the discourses prevalent in the literature on contemporary criminal justice, however, indicates that in fact a variety of competing models are identified or advocated – perhaps most famously illustrated by Herbert Packer’s seminal article outlining two apparently alternative models – “due process” and “crime control.” This research paper will attempt to provide an introductory overview of these developments – both the historical and the contemporary. The usefulness of these approaches will be considered, as well as confusions arising from the terminology employed, given that neither the terms “paradigm” nor “model” are always used consistently.

Introduction

While penal systems, whether formal or informal, appear to constitute an integral part of every society (and thus presumably, as argued by Durkheim, fulfill some significant social function), they differ from each other in almost every conceivable aspect: the forms of conduct punished, the procedures for determining guilt, the aims of punishment, its modalities, and its severity. Moreover, individual penal systems fluctuate and indeed undergo radical changes over time. In elaborating on these characteristics, traditional penological texts (e.g., Barnes and Teeters 1959) presented largely descriptive accounts of the historical development of penal systems, mainly in Europe and the Americas – while there has also been a fascination with ancient and “primitive” systems (Diamond 1971). Social theorists since Durkheim have offered generalized theoretical explanations for the form and severity of punitive practices – a development analyzed by Garland in Punishment and Modern Society and applied to contemporary society in his Culture of Control (Garland 1990, 2001). More recently, there has been a wave of research endeavoring to explain the wide differences among nations in the severity of their sanctioning policies (Tonry 2007).

What many of both the descriptive accounts of penal systems and the more critical analyses share in common is that they tend to view the penal system as – indeed – a “system” with a coherent purpose and philosophy, thereby implying a degree of interconnectedness and compatibility among its different component elements and shared values among the various actors. It is also common to identify somewhat dramatic ideologically driven policy transformations believed to have taken place at certain periods of time. Thus, historical accounts will invariably refer to the eighteenth century as the era of classical criminology (and in particular penology), the late nineteenth and most of the twentieth century as the era of positivism, with the 1970s onward as being dominated by the “just deserts” model. The penal systems identified under these different headings are shown to diverge in fundamental ways, in particular having different sentencing rationales, thereby giving rise to their designation as alternative “penal paradigms.” One purpose of this research paper will be to elaborate on and evaluate such historical presentations.

It is suggested here that such analyses may be viewed as being complemented by contemporary discourses relating to the characteristics and ideologies of the present-day criminal justice system, which sometimes echo the typification of past ideologies but with a tendency to describe a multiplicity of trends or ideologies operating simultaneously or in competition.

Such a connection between past and present is indeed made by Jock Young in his much-cited essays “Thinking Seriously about Crime” and “Incessant Chatter: Recent Paradigms in Criminology” (Young 1981, 1994) which incorporate critiques of the traditional presentation of the historical paradigms while using this concept to analyze a number of more recent theoretical approaches. However, Young also uses the term “model” in this context, and this is the term more frequently adopted in current penological discourse when referring to alternative penal options. Much of the discourse relating to criminal justice models, however, seems to have been inspired by the dichotomy developed by Herbert Packer (1964) in his well-known law review article “Two Models of the Criminal Process,” and indeed the relevant literature frequently acknowledges such a debt.

This research paper will provide a brief survey both of the historic “paradigms” and of the contemporary “models,” followed by some reflections on the nature of their contribution and related conceptual issues. The survey will be preceded, however, by a discussion of the terminology employed here and elsewhere in the literature in this field.

Paradigms And Models In A Criminological-Penological Context

The term paradigm was developed in the context of the hard sciences to denote the prevailing understanding or interpretation of natural phenomena. It was popularized by Thomas Kuhn in his Structure of Scientific Revolutions (Kuhn 2012) when analyzing how changes come about in such understandings on the part of the scientific community and came to be applied also to the social sciences. While Kuhn’s analysis is essentially restricted in its application to phenomena which may be studied empirically and is thus not applicable to many concepts and ideas pertaining to punishment, it has now a more widespread usage, connoting “a cluster of concepts such as assumptions, values, practices and methodologies shared by a community of researchers in a given discipline” (New World Encyclopedia, online). There may, however, be competing paradigms at any given time, where the evidence is equivocal and/or the scientific community divided in their views and interpretations.

In this context it should be noted that while paradigms relate to “scientific findings” and are thus closely linked to positivist conceptions, each paradigm is rather a social construct, describing the collective understandings of a given community as perceived by an observer (or participant). In the social sciences where “evidence” tends to be less hard than in the natural sciences (and the role of values more salient), it is probable that there will be less consensuality, thereby increasing the possibility of “competing paradigms.”

The term “model” has similarly acquired a wider usage than its original meaning of a (usually small-scale) replication of a product for the purposes of demonstrating or testing its operation, or “providing insight into the consequences of a decision” (Chaiken et al. 1975: v). It is simply used to describe the main features and mode of operation of a system – whether existing or proposed. Both the expressions “paradigm” and “model” implicitly refer to a system or framework which comprises a number of components operating as a cohesive whole – and, where relevant, sharing the same values and ideology. Only the paradigm, however, has a connotation of exclusivity – although also that such exclusivity may be ephemeral.

Other related terms used in the penological context include penal strategies (Garland 1985) and styles of social control (Black 1976). Young (1981) not only used both the terms “models” and “paradigms” but also Weber’s concept of ideal types, which suggests an idealized account of the institution in question which is unlikely to be found in that form in real life. Recent analyses of Packer’s models have considered their relationship with Weber’s ideal types (see below).

It should also be noted that the first two paradigms to be discussed here, the “classical” and the “positivist” paradigms, have generally been described in the literature as schools. Finally, certain distinct perspectives on criminological issues today may be referred to as criminologies, such as “feminist criminology” and “green (environmentalist) criminology.” The relative significance and usefulness of these terms has yet to be fully explored.

Historic Paradigms

The three historical paradigms to be considered here are set in somewhat different theoretical frameworks. While the classical school, at least as reflected by its most notable representative, Cesare Beccaria, focuses almost exclusively on the formal institutions of the criminal justice system (in this respect resembling the contemporary models to be considered later in this research paper), the positivist school is much wider in its concerns, being equally – or indeed primarily – concerned with the etiology of crime. By contrast, the third of our historical paradigms, just deserts, has the narrowest focus, being concerned exclusively with the purposes and procedures of sentencing.

The Classical Paradigm

This paradigm is identified with the European enlightenment movement and the emergence of the ideas which were to become identified with liberal theory and English constitutionalism (Young 1981) as an antidote to the monarchical despotism prevailing in much of continental Europe. Building on Montesquieu’s doctrine of the separation of powers and Rousseau’s social contract theory, Beccaria (1764/1995) in his seminal essay advocated a strict separation of powers and equality before the law in order to counter the arbitrary practices prevalent in certain contemporary European regimes which occurred as a result of executive intervention in trials and sentencing. Beccaria advocated uniform penalties, proportional to the seriousness of the offence, which would strengthen their deterrent power: rational persons would refrain from committing crimes attracting high penalties, especially if law enforcement was systematic, certain, and immediate. The attribution of free will and rationality to potential offenders and correspondingly the importance of deterrence as the primary aim of punishment are thus perceived as identifying characteristics of the classical paradigm.

This paradigm may also be seen to be linked to the development of the modern prison. While Beccaria was advocating the prison as a more effective deterrent than the death penalty, his contemporary John Howard was documenting the practices of the then local prisons, which led the way to the enactment in 1779 of the Penitentiary Houses Act in order to establish a new and rationalized form of prison – the penitentiary. As is well known, this system, based upon uniform treatment in identical cells which it was assumed would lead to penitence and reform, was ultimately pioneered in the United States a few decades later. Another key figure identified with this paradigm was Jeremy Bentham, also famous for developing his own “rational” model of prison development – the Panopticon (Semple 1993).

The Positivist Paradigm

Concepts of equality and uniformity in penal policy were challenged during the second half of the nineteenth century by the rise of the social sciences and the claim of Auguste Comte that in the course of human development “metaphysical” or abstract thinking was to be replaced by the “positivist” stage – and the application of purportedly scientific methodology and empiricism. One outcome of this was Lombroso’s theory of delinquent man. The focus on human differences resulted in a penchant among positivist criminologists and their disciples in the field for the classification of offenders for treatment purposes. Such techniques derived encouragement from the mid-century experiments with the “progressive stage system” (pioneered in Ireland) whereby prisoners advanced through the prison system and into the community in the light of their conduct.

Under the influence of positivism, the reformation of the offender became the declared purpose of punishment rather than deterrence, and the ideal of standardized penalties proportional to the seriousness of the offence as posited by Beccaria came to be replaced by the individualization of punishment, as expounded in the treatise bearing this name written by Raymond Saleilles (1911). The new approach to sentencing was epitomized by the principle of the indeterminate sentence widely adopted in the USA whereby terms of imprisonment imposed by the courts were open-ended, the actual duration of the sentence to be determined by a parole board in the light of the prisoner’s progress.

This “individual treatment model” of sentencing, as it developed towards the end of the nineteenth century and throughout much of the twentieth century, was characterized by the creation of specialized penal and judicial institutions ostensibly adapted to the needs of the offenders in question, such as reformatories and juvenile courts for younger offenders and institutions for dangerous psychopaths, the involvement of behavioral experts such as psychiatrists and probation officers in decision-making, and the increasing recognition of the helping professions as agents of offender rehabilitation in both closed institutions and in the community. Moreover, while the determinist conceptualization of human behavior and the focus on the individual led to the application of more flexible criteria of criminal responsibility, some versions of the Social Defense ideology (a branch of the positivist movement which focused on penological issues) proposed also to dispense with the legal requirement of a “guilty mind” (cf. Ancel 1965). The threshold requirement for treatment would be the personality of the alleged offender – the main criterion being his or her dangerousness.

The Just Deserts Paradigm

The positivist ideology with its emphasis on rehabilitation meshed well with the welfarist ethos that was widely supported during the period following the Second World War. However, if the individualized treatment paradigm was most widely accepted (at least in the prevailing rhetoric) in the USA, it was there too that it was the most forcefully rejected during the 1970s. Critiques of this model focused on the inequality and arbitrariness of the system, in particular in the context of parole decision-making (American Friends Service Committee 1971). Critics included not only radicals and liberals but also conservatives (cf. Blomberg and Lucken 2000). Adding fuel to the fire was the critique of sentencing disparities deriving from the wide discretionary powers held by the judges (Frankel 1973), and – perhaps most influential of all – the empirical claim that the effectiveness of the treatment methods on which the system was based was unproven (Martinson 1974).

The structure which was to take account of these critiques, as formulated most articulately in Doing Justice, the report published by Andrew von Hirsch (1976), was a return to fixed and proportional sentencing. While outwardly this bore some resemblance to the system advocated by the Classical School (see above), its underlying philosophy was not deterrence, or indeed any other consequentialist purpose – as none had been shown to be effective by the empirical evaluations, but desert, a contemporary version of the historic aim of retribution. According to this doctrine, the penalty would match the seriousness of the offence as measured by the harm inflicted and the culpability of the offender – and thus become standardized. The mechanism whereby this was to be achieved was the establishment of a sentencing commission which would issue detailed guidelines to the sentencing judges, whose discretion would be severely curtailed. Since sentences were to be for fixed terms, the discretionary power of the parole boards would be abolished.

Support for such reforms in the USA was such that they were adopted in principle by the federal system and around half of the states – as well as some overseas countries, as documented in other entries. The concept of “structured sentencing,” whether by guidelines or otherwise, attracted even wider support. The “individual treatment model” as the foundation of the penal system had in general been rejected.

Historical Paradigms: A Critique

The preceding overview suggests that in the context of this research paper, the term “paradigm” is most appropriately (or least inappropriately) used in the context of the positivist school, since the policies advocated in accordance with this approach were the most rooted in the empirical understanding on the part of its adherents of the world about them. It was indeed this characteristic that ultimately contributed to the demise of this paradigm when research findings suggested that the ability of decision-makers to make accurate prognoses and identify successful treatments was very limited.

There are, however, other problems with what Young has described as the typical textbook presentation of a linear development of a succession of paradigms. Young is correct in pointing out that despite the enormous impact of positivist thinking on the twentieth century penological discourse, criminal justice structures – particularly in European countries – remained throughout the twentieth century strongly influenced by the tenets of eighteenth century classicism. The nature and seriousness of the offence remained the primary consideration in determining the sentence, with the characteristics of the offender (other than past convictions) playing a secondary role. Contemporaries therefore referred to the model adhered to in Europe during the course of the twentieth century Europe as “neoclassical.”

Today too it is hard to identify a dominant paradigm. As noted above, the parameters of the third of the paradigms referred to, the desert paradigm, were somewhat narrowly drawn (being confined to sentencing practices), and in any case, most contemporary western systems have been strongly influenced by consequentialist ideologies – incapacitation, deterrence and even rehabilitation. It should also be recalled that the concept of the paradigm refers in principle not directly to the practices of the actors in the field (in this case the criminal justice agencies) but to the perception of these practices – or perhaps of the ideologies which are thought to motivate them – on the part of the relevant disciplinary group. Thus, radical criminologists such as Young, who perceive the criminal justice system primarily in terms of control, if not exploitation, of the powerless by the powerful, have since the 1960s been offering alternative paradigms to explain its operation.

It may always have been the case that it was more problematic to identify monolithic trends (such as are implicit in the concept of the paradigm) in one’s own era, when different views or nuances will be more apparent than when looking back in history. However, this problem has surely been aggravated by the dichotomization of social scientists into positivists and social constructivists, further compounded by the fragmentation caused by postmodern developments – leading Garland and Sparks (2000) to opine that further paradigms in the (consensual) Kuhnian sense can no longer be anticipated. These authors point to the salience of crime in the contemporary politics of neoliberal societies. This has had the effect of reducing the relevance of the prevailing views of academia and the professions, which have perhaps themselves become more fragmented and politicized.

Criminal Justice Models

The Legacy Of Herbert Packer

Unlike the paradigm, the concept of a model does not imply consensus and exclusivity but rather variation and experimentation. While criminologists have sometimes used them in the context of empirically oriented work (e.g., Feeley 1973; Chaiken et al. 1975), much of the modern discourse on criminal justice models has been devoted to normative and/or ideological issues, having been inspired, as noted above, by Herbert Packer’s seminal article “Two Models of the Criminal Process” (Packer 1964 – subsequently expanded into a book – Packer 1968). The article followed a period of activism in the area of civil rights and criminal justice on the part of the US Supreme Court headed by Chief Justice Warren, but Packer was doubtless concerned by the minority dissenting views which were to become the majority in the era of Chief Justice Burger. It seemed to Packer that the Court and indeed other criminal justice agencies were being required to choose (or at least prioritize) between two alternative types of process which he identified as due process and crime control, respectively, representing alternative sets of values and priorities.

A system based upon due process he perceived as being analogous to an obstacle course, in that it sought to ensure protection of the rights of the innocent (and to risk the acquittal of the guilty) by imposing restraints on the prosecution. Under the crime control model, on the other hand, the system was comparable to an assembly line in a factory – designed to maximize the numbers who would be processed through the system to conviction and punishment in minimum time. This was to be achieved by focusing on the investigation stage and offering plea bargains to the “factually guilty.” Although Packer did not perceive these models as mutually exclusive, his dichotomization has penetrated deeply into (at least) the academic criminal justice culture.

Critiques Of Packer’s Models

Packer’s Models have been the brunt of a number of critiques, some trenchant, with Griffiths (1970) being a notable early example, and most recently and comprehensively by Macdonald (2008). These critiques have focused on three main aspects of Packer’s work: (a) his conceptualization of the model, (b) the validity of the due process and the crime control models and the relationship between them, and (c) the need for additional models having (in the view of their proponents) greater validity or irrelevance.

(a) Conceptualization

The lack of precision in the concept of the model in the contemporary literature of the social sciences – on one view its “indiscriminate use” (Macdonald 2008) – has already been referred to. Zedner (2004: 116) has observed that “It is often difficult to determine whether models are intended as analytical devices or as normative statements of ideals to which the process should aspire” – an ambivalence conveyed by Packer too. In the wake of Damaska’s discussion as to whether Packer’s models are consistent with Weber’s ideal types, Macdonald notes that Weber distinguished between ideal types and ideals, the former constituting an analytical construct based upon accentuated tendencies which was in his view how Packer conceptualized his models, without fully developing them. (Whether in fact the models were quite unconnected with value judgments, as Weber described his ideal types, is another question).

Macdonald sought, as the title of his article indicates, to “learn from Packer’s mistakes” and to “succeed… where Packer failed” (Macdonald 2008: 269), for which purpose he found necessary to differentiate between the investigative and the trial stages of the process, while arguing the need for a multidimensional model. On similar grounds Ashworth and Redmayne (2005: 38ff.) reject the “models” approach as an unsatisfactory basis for the evaluation of the criminal process. These writers find models based on simple dichotomies to be too crude – tending “to reduce the world to black and white” (Zedner 2004: 119–120).

Additional conceptual issues arise in the context of the evaluation of the two models as outlined by Packer, and the relationship between them.

(b) The Two Models and the Relationship Between Them

A number of criticisms have been directed at the specific models described by Packer, as well as suggesting that the dichotomy may be a false one (see, e.g., Macdonald 2008: 264ff.). Both Damaska (1973) and Smith (1997) find fault with due process as an objective (in Damaska’s words “obstacles without a course”), rather than a principle imposing restraints on the pursuit of other objectives. In this context Macdonald (2008: 289) refers to the work of the Swedish jurist Jareborg who differentiated between a “defensive model” and an “offensive approach” to criminal policy. Zedner (2004: 118) has pointed out that speed and efficiency – characteristics attributed by Packer to the crime control model – are also important for due process and protection of the defendant’s liberty. McBarnet (1981), echoing the literature of radical criminology, has argued that rather than constituting an alternative approach, due process serves to legitimize the goals of (repressive) crime control, thus giving rise to “due process… for crime control.”

With Packer’s dichotomy as a “given,” other writers have proffered additional (often designated “third”) models. Griffiths’ “family model” (which clearly falls into Zedner’s normative category) was a proposal for a more therapeutic procedure. This, too, has been the direction of at least some of the recent writings seeking to accommodate a role in the system for the victim. Thus, while Beloof (1999) has proposed a Victim Participation Model within a due process framework, Roach (1999) has portrayed the alternatives of a punitive and a non-punitive model of victims’ rights, and it is the latter – designated a “Circle Model” and based upon restorative justice – which he seeks to promote.

A unique attempt to incorporate a broader model approach into an empirical analysis of the criminal justice system was undertaken some years ago by King (1981). King identified six alternative models of the system for which accounts could be found – whether by name or implicit – in the criminological or criminal justice literature. To Packer’s duo (due process and crime control), King added: the medical (or treatment) model, and three further models deriving from criminological research or sociological critiques – the bureaucratic model, the status passage model, and the power model. He then identified the “features of the court” which one would expect to find under each model. The validity of these models could then be tested (in the instant case, in his study of English magistrates’ courts) by observing to what extent these features were actually found in the courts. “As in the physical and social sciences, the term model is used here to denote a hypothetical but coherent scheme for testing the evidence” (p. 12).

There is no doubt that the integration of a multi-model approach into a field study served to enrich this discourse. However, there is a measure of disjuncture here in the construction of the models in that the first three, which King calls “participant” models, reflect the idealized expectations of a certain category of participant (thus, again, falling into the category of normative models), while the other three which he refers to as “social” models are based on academic critiques of the existing system. On the other hand, the attribution to each model of a “social function” bestows upon the models a unifying ideology or rationale such as generally characterized the paradigms discussed in the first part of this research paper.

It should be noted that the “penal process” to which the literature reviewed in this section relates is that of common law jurisdictions (primarily the USA). Models relating to other systems will be very different, but some “Packer scholars” have dwelt on the relationship between the common law and developments in continental Europe’s “inquisitorial system”: see, e.g., Damaska (1973).

Special Categories Of Offender

Variations in the manner in which criminal justice systems operate tend to be augmented when dealing with offenders with distinctive traits or pathologies – or whose offences are perceived as particularly threatening or distinctive in some other way. Examples would be sex offenders, offenders against state security laws (“terrorists”), offences related to drug use, minors, or the mentally unstable. In such cases different paradigms or models may be identified. Thus, the modification of human rights protections when dealing with security offences (including punishment without trials) may be such that the “war” model is arguably the most appropriate metaphor to attach in this case.

By contrast, purportedly softer alternatives to the prevailing model(s) may be adopted when dealing with minors. Identifying the optimal policy for his purpose, however, has been the subject of intense debate over the past century. It was in relation to juvenile offenders that the treatment model of the positivist school assumed its most comprehensive application, in particular via the vehicle of the juvenile court, first established (in Chicago) in 1899. The treatment of juvenile offenders became virtually indistinguishable from “welfare” cases such as children in need of care and supervision. They were thus deprived of the guarantees provided under the US Constitution’s Bill of Rights. Juvenile courts in other common law jurisdictions, however, retained somewhat more of a rights framework – while the US Supreme Court case Re Gault in 1967 (387 U.S. 1) reversed the welfarist trend in the American system. If for some decades the juvenile justice system has seen these two approaches – the “welfare” model and the “justice” or “legal” model – in combat (or fusion), recent decades have seen strong claims, particularly in the antipodes, for their replacement by a system of restorative justice. Three distinct approaches to juvenile justice have thus emerged. As observed by Borowski and O’Connor (1997: 229): “Unlike other aspects of the criminal justice system, it is possible to identify coherent theoretical positions reflected in legislation, policy and practice.”

O’Connor’s review of these models considers how each model responds to such underlying questions as follows: What is the cause of crime? How should it be viewed? How should it be defined in law? How should the state respond? What is the relationship between the individual and the state? What is the purpose of the sanction? O’Connor’s models arguably present both an analytical and a normative framework for the comparison of these three ideologies, while his approach bears a resemblance to Young’s analysis of criminological paradigms referred to in the Introduction.

Conclusions

This research paper has analyzed the use made of two concepts – the paradigm and the model – in the course of the history of the criminal justice system. It seems to the present writer that the paradigm has been used primarily to describe changes in the main orientation of the system at different periods, while the model has been more extensively used in contemporary settings. Both terms have had a usage somewhat different from their original meaning (in the case of the model, a multiplicity of usages), and partly for this reason, the discourses in which they have been incorporated have been challenged.

The departure point for this research paper was the concept of the paradigm – perhaps the more interesting concept because of the connotations conveyed by this term in a penological context of (a) being unequivocally linked to an ideology, (b) indicating an interpretation uniquely accepted by the relevant disciplinary group, and (c) having played a key role in the history of penology and the penal system. Yet while the brief historical overview presented at the beginning of this research paper may have been sufficient to indicate the dramatic contrast between the main historic paradigms (in particular classicism and positivism), Young is almost certainly correct in denying the occurrence of a “paradigm shift” as a momentary historical event, the reality having been considerably more complex. Further, the idea that the “community of [criminology] scholars” will identify with a common vision of penal policy has become increasingly unlikely from generation to generation. Even less likely is the prospect of shared perceptions between the “criminology community” and policy-makers, such as Garland suggests may have occurred in the era of “penal welfarism” and “government criminology.” As observed by Garland and Sparks (2000), in an era of ideological fragmentation and politicization, paradigms – like cultures – are likely to be multiple.

The relatively fluid concept of the model is free from such connotations, but its conceptual ambiguities have given rise to much confusion. This confusion came to the fore in the aftermath of the publication of Herbert Packer’s famous two models of the criminal process – the crime control model and the due process model, and the numerous critiques thereof. Nevertheless, Packer’s models have become an inseparable part of the discourse of criminal justice. Indeed, the two concepts considered in this research paper are likely to survive and enhance both critical analyses and normative debates on the many facets of penality – while methodological inquiries as to their validity and applicability may serve to clarify underlying epistemological issues.

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