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Packer explicitly admitted that his models are produced through reflections on American institutional reality. He told us:
Ours is not a system of legislative supremacy. The distinctively American institution of judicial review exercises a limiting and, ultimately, a shaping influence on the criminal process. Because the Crime Control Model is basically an affirmative model, emphasizing at every turn the existence and exercise of official power, its validating authority is ultimately legislative (although proximately administrative). Because the Due Process Model is basically a negative model, asserting limits on the nature of official power and on the modes of its exercise, its validating authority is judicial and requires an appeal to supra-legislative law, to the law of the Constitution.
Embedded in this context, Packer’s models are characterized by the following presuppositions:
(1). An adversarial relationship between judiciary and legislature (with the administrative branch of government as its agent). While the legislature and the administration serve the public order as an important condition of human freedom by controlling crimes, the judiciary serves the integrity of law and human rights as the final guarantee of human dignity by reviewing and thus interfering the regulatory efforts. Packer compares this kind of confrontation to the relationship between an assembly line and an obstacle course.
(2). However, this confrontation is not ceaseless and without a result, because “in our system the appeal to the Constitution provides the last and the overriding word,” and the Court has been nominated as guardian of this supra-legislative law.
As a modelization of American criminal process, Packer’s theory remains feasible in contemporary context. People who seek to promote victims’ rights in the United States have to play their games by following the American rules. Their options are not unlimited. Therefore, there is no surprise that the best way they can imagine is to enact victims’ bill of rights or to propose a constitutional amendment addressing victims’ rights. Although the Burger and Rehnquist Courts have put a lot of limits on the application of such “due process” rules as “exclusionary rule” and “Miranda Warning”, they do this for ideological commitment, not for victims’ rights. As Kent has correctly pointed out, in the United States, “the main means to correct judicial mistakes are the extraordinarily difficult process of constitutional amendment or Court Packing.”
Parker’s model is also helpful for us to understand the judicial activism/judicial restraint debate in the domain of criminal justice. When the Court defers to the regulatory projects of crime control, it is commended as following the principle of self-discipline, namely, judicial restraint; while the Court actively plays its constitutional role to enforce the due process clauses, it is blamed as performing judicial activism. As many legal scholars have pointed out, judicial activism is not a good phrase to facilitate constructive academic and political debate. It has been incurring, rather than clarifying, a lot of confusions. In modern English, a word ending with an “ism” usually means a definite set of ideas shared by a group of people, such as Marxism; or a whole set of institutions based on some coherent moral, political or economic models, such as Capitalism. However, there is not such a group of people who shared the idea of an active judiciary, nor is there a set of institutions or mechanics base on the ideal of judicial self-expanding. Therefore, we cannot define “Judicial Activism” in terms of the inner quality of judiciary, but can only understanding this conception through the relationship between Judiciary and other branches of government. In this way, we find that judicial activism is only another perspective on the structure of a democracy, and is also an unnecessary one.
Kent helps us to break away from this impoverished controversy with his new models. By bringing the missing prince (victims) back to the play of Hamlet (criminal process), Kent sets up his models to enable a more fruitful debate between different groups of people in our diversified society. Under the criminal control-due process models, criminal process is just an affair between courts and other branches of government. Victims and the general public have no role to play in this process, which has significant impact on their life.
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