Packer in Context: Formalism and Fairness in the Due Process Model


Packer in Context: Formalism and
Fairness in the Due Process Model

Hadar Aviram

PACKER, HERBERT L. 1968. The Limits of the Criminal Sanction. Stanford, CA:
Stanford University Press. Pp. viii + 388. $37.95 paper.

Herbert Packer’s The Limits of the Criminal Sanction (1968) has
spawned decades of commentary. This essay argues that Packer’s two-model
conceptualization of the criminal process is best understood within his profes-
sional milieu of doctrinal legal scholarship and the political context of the
Warren Court revolution. Within this context, the essay suggests a distinction
between two due process visions: formalism and fairness. This distinction is
useful for illuminating debates and decisions on criminal procedure matters in
the Supreme Court such as Terry v. Ohio (1968) and Apprendi v. New
Jersey (2000). I conclude by encouraging sensitivity to legal and historical
context in future commentary on Packer’s framework.

INTRODUCTIONlsi_1230 237..262

The academic fascination with Herbert Packer’s two models of the
criminal process has yielded an amazing thread of scholarship involving a
variety of academic disciplines, linking various topics, offering interesting
insights on many criminal justice institutions and phenomena, and spanning
more than four decades. This fruitful scholarly avenue began with the pub-
lication of Packer’s classic article “Two Models of the Criminal Process”
(1964a), and continued, more intensely and fiercely, after its reappearance as
part 2 of The Limits of the Criminal Sanction (1968). That this enthusiasm and

Hadar Aviram is associate professor at the University of California, Hastings College of
the Law. I am thankful to Keith Findley, Sam Gross, David Johnson, Richard Leo, Jerry
Skolnick, and the audience at the anniversary panel for Packer’s book at the 2009 American
Society of Criminology Annual Meeting for their useful comments on an earlier version of this
essay. I am also grateful to Jeremy Seymour for his outstanding research assistance and to Chuck
Marcus for his excellent library support.

Law & Social Inquiry
Volume 36, Issue 1, 237–261, Winter 2011

Law & 
Social Inquiry

Journal of 
the American 
Bar Foundation

© 2011 American Bar Foundation. 237



engagement persist to this day is proof that criminal justice scholarship
indeed stands on the shoulders of giants.

In joining this commentary shortly after the fortieth anniversary of the
book’s publication, I wish to add two arguments to the discussion. The first
half of my essay aims to explicate Packer’s scholarship within his professional
world—that of doctrinal scholars of criminal law—and the dramatic
constitutional reality—the Warren Court revolution—that shaped his under-
standing of the criminal process. It is in this context that Packer’s conceptu-
alization of the criminal process as a continuum between crime control and
due process is best appreciated and admired. Packer was not only an apt
interpreter of the constitutional revolution—providing an astute observation
of the transition to due process beyond a mere proliferation of pro-defendant
decisions—but also a grim prophet who accurately predicted the backlash of
the Burger and Rehnquist courts. The models, which were criticized by
sociologists and political scientists at the time (and more so since), are, I
argue, better assessed in light of their contribution to a more sophisticated
doctrinal-legal understanding of the criminal process.

The second half of the essay argues that, even within the narrow frame-
work of Supreme Court decisions, Packer failed to fully identify the “enemy”
of due process. The Warren Court’s due process paradigm was subverted by
subsequent courts not just because of crime control–related considerations of
efficiency and reliance on the police, but also because of a narrow, formalistic
understanding of the meaning of due process. The roots of this adverse
interpretation lie in the incorporation debates dating back to the nineteenth
century, but these roots can explain much of the pro-government backlash of
the post-Warren Courts, and particularly the work of Justice Scalia. In this
respect, due process, with which Packer was disillusioned on his deathbed in
1972, seems to have been its own enemy.

CRITIQUES OF PACKER’S MODELS

Reactions to the models started to appear after the publication of the
1964 article and continued after The Limits of the Criminal Sanction’s publi-
cation, in multiple book reviews (Blumberg 1969; Katz 1969; Schwartz 1969;
Charles 1970; Golding 1971). While the initial response was mostly favor-
able, as time passed, critique of Packer’s framework increased. The type of
critique depended greatly upon the discipline and research interests of the
critic and, as can be seen from the following discussion, said more about the
critics and their professional interests than about Packer. This was com-
pounded by the fact that each of the book’s three parts generated interest.
Philosophers were drawn to the first part, which provided a diatribe against
positivism and a sort of proto-economic argument about utilitarianism
(Golding 1971). The enthusiasm about part 3, which argued against using

LAW & SOCIAL INQUIRY238



criminal sanctions in victimless crimes, was very timely, coinciding with huge
changes in our approach toward, say, drug use (Schur 1965), but fell out of
favor in the era of attention to victims’ rights (Roach 1999). What received
the greatest amount of attention over the long term, therefore, was part 2,
which contained the two models of the criminal process: crime control and
due process (Macdonald 2008). These drew much attention from social
scientists and were later used to advance a variety of disciplinary and topical
agendas that could not have been foreseen at the time of the book’s
publication.

Packer suggested that we can understand a given criminal process by
locating it on a continuum between two extreme characterizations: the crime
control model and the due process model. The models focused on different
values and, as a consequence, required different preferences and processes.
Neither model was supposed to depict an actual criminal justice system, but
the balance between them would serve as a useful tool for assessing the values
underlying a given system in the real world.

The crime control model, argued Packer, is shaped around the notion of
procedural efficiency. Crime control means processing as many cases as pos-
sible in the fastest, most cost-effective way. This process is likened to a
mass-production assembly line (with efficient convictions as the product). As
a corollary, problematic cases that raise serious substantive or procedural
issues need to be screened out as soon as possible. Packer inventively con-
ceptualized the idea behind this screening process as the “presumption of
guilt”—a descriptive probabilistic statement according to which a defendant
whose case has passed police and prosecutorial muster is highly likely to be
guilty. This presumption has several important implications. First, the crime
control model places great emphasis on the early stages of the criminal
process—police investigation and prosecutorial discretion in charging—as
“gatekeepers” of the courts. Because of the importance of efficiency in these
early steps, crime control places importance on providing the investigative
mechanism with the power, freedom, and authority necessary to find out the
truth. Second, the trial, a complicated and expensive stage fraught with
technicalities and hurdles, is a less preferred mode for processing cases;
instead, prescreened cases should be processed on the “fast track,” through
guilty pleas and plea bargains. Third, the model values finality and therefore
discourages appellate review of court decisions.

By contrast, the due process model emphasizes the presumption of inno-
cence and the need to ensure “quality control” in the outcome of criminal
trials through a mechanism of fair process. This model has a much more
suspicious view of the investigatory stage, regarding it as fraught with biases
and potential for abuse. The trial, particularly its adversarial format, is hailed
as a balanced mechanism that equips defendants with the necessary tools for
effectively challenging law enforcement. These tools include the burden of
proof, a series of constitutional trial rights, and effective representation by

Packer in Context 239



defense counsel. The due process model is willing to sacrifice efficiency in
order to avoid the possibility of an unjust outcome and is particularly con-
cerned with preserving the rights of indigent and minority defendants, who
are most vulnerable to abuse from the law enforcement apparatus. A due
process system provides defendants not only with rights and safeguards during
trial, but also with broader opportunities to review convictions.

A first family of critiques of the two models emerged from law and
society circles, particularly from the community involved in the then-nascent
field of criminal courtroom ethnographies. Upon the publication of the book,
a review by Blumberg (1969) argued that the models hid a reality that was
closer to the crime control model: a system guided mostly by efficiency and
plea-bargaining. This was a sociological comment on the detachment of legal
scholars from the everyday realities of courtroom dynamics, particularly in
lower courts. The point was presented more forcefully by Malcolm Feeley
(1979a, 1979b), who argued that the two models were not made from the
same fabric. Due process, Feeley argued, was a normative, idealized concept
generated by the court, masking the empirical reality, which was actually
much closer to crime control. Doreen McBarnet (1981) pushed this angle
further by arguing that, in fact, the veneer of due process existed for the
purpose of securing convictions under the guise of legitimacy, and therefore
“due process [was] for crime control” (156).

Another family of critiques addressed the insufficiency of the two models
to describe the universe of the criminal process. The first commentary in this
vein came from John Griffiths, at the time an unconventional young scholar
interested in law and society at Yale Law School. Griffiths addressed the
Packer book in two consecutive pieces: a lengthy book review in which he
called The Limits “a very disappointing book. . . . very, very bad indeed”
(1970b, 1388), and a subsequent piece in which he argued that the models
were narrow in their application and in fact presented two sides of the same
model: the “battle” between the “police perspective” and the “ACLU per-
spective” (1970a, 367). To Griffiths, the choice between the two models
consisted merely in the question of which of the two biases was to be built
into the system. As an alternative to this framework of battle, Griffiths
proposed a “family model.” Under this new paradigm, the state was to
approach offenders as it would children, punishing them so that they learn a
lesson and helping their reintegration into society. In many ways, Griffiths’s
paradigm was a forerunner of three lines of inquiry: the “republican” models
presented by Braithwaite and Pettit (1992), the problem-solving courts’ phi-
losophy (McCoy 2003), and studies examining whether legal systems outside
the United States could be mapped onto the two-model construct (Foote
1992). At the time, however, his intense critique cost him tenure at Yale.
Kalman (2005) argues that Griffiths’s tenure vote had a broader context: his
attack on Packer was seen as a broader attack on Langdellian law school
teaching and as support for the nascent law and society paradigm at the

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expense of the “old school” doctrinal models, arguably as part of a broader
political “purge” of leftist faculty members in the late 1960s.

Suggestions for additional models followed. In a broad-ranging piece
Michael King (1981) offered an array of alternatives that included the
medical model (corresponding to the positivist school in criminology), the
bureaucratic model (which could be seen as a variation on the crime
control model), the status passage model (focusing on stigma and labeling),
and the power model (invoking critical criminology, particularly Marxism).
These models were grounded in a variety of broader perspectives (for an
excellent discussion of their criminological roots, see Sebba 2006). One
additional model that has received much attention in the literature is
related to victim perspectives. Douglas Beloof (1999) argued that the
victim brings into the process a set of separate interests that did not com-
pletely align with either the crime control or due process models and were
generated by the secondary harm caused by the process. The victim’s inter-
ests could align with those of the state or with those of the defendant with
regard to the decision to charge, and they could be diametrically opposed to
the state and defendant’s preference for plea bargaining. Kent Roach
(1999) elaborated the victim perspective by introducing two victim models:
a punitive and nonpunitive one. The punitive model is a variation on
King’s status passage model, with an emphasis on victims; a version of this
model, which refers not to actual victims but to their invocation by the
state, appears later in Simon’s (2007) Governing through Crime. Roach’s
second model is an amalgam of restorative justice and Griffiths’s family
model. Others such as John Stickels (2008) further refined victim models to
address victim satisfaction. A recent contribution to the “additional model/
new paradigm” family is a piece by Keith Findley (2009), which argues that
the innocence movement transcends the differences between crime control
and due process by strengthening the connection between a rights-based
process and reliability.

A recent critique by Stuart Macdonald (2008) returns to the basics of
“modeling” criminal justice. Macdonald argues, in opposition to Damaska
(1973), that Packer’s intent may not have been to provide practical descrip-
tions of the process, but rather to present two Weberian ideal types without
attaching a value judgment to them. His choice of ideal types, however, was
problematic: “Packer’s dialogue between the two models . . . reveals two
voices speaking at cross-purposes: a crime control model that fails to articu-
late its model clearly, and a due process voice that has failed to understand the
model of its opponent” (Macdonald 2008, 276). Building on Nils Jareborg
(1995) and others, Macdonald suggests a more consistent approach to mod-
eling, offering a typology of models based on a spectrum of the feasibility of
their implementation. Some of these models are more useful for evaluation,
while others are better suited as a framework for empirical work. As an
example of the former, he suggests a set of four pure “ideal types” of the

Packer in Context 241



criminal process, exaggerated to the point of impossibility, as the Weberian
ideal would require.

It is important to point out which of these critiques were leveled directly
against Packer and which ones merely used his framework as a structure for
pointing out new ideas and institutions as they emerged. The early ethno-
graphic critics had reasonable grounds to argue that Packer ignored empirical
findings from the field, pointing to the fact that his crime control model was
far less of a “model,” and much more of a reality, than his framework would
suggest. Similarly, Griffiths’s ideological critique addressed the narrowness of
Packer’s conceptual framework. On the other hand, the victim-model critics,
especially Roach, are careful to point out that neither sensitivity to victim-
related concerns nor skepticism of the concept of victimless crime could be
expected from Packer at the time he was writing. This distinction points to an
important lesson for today’s readers of Packer’s work: Packer’s models and
their limitations should be understood not only in the political context of his
time, but also in light of his academic milieu.

PACKER IN CONTEXT

Macdonald builds his presentation of ideal models on Packer’s explicit
intention to create two extreme ends of a continuum, rather than a realistic
depiction of the American (or any other) legal system. However, despite
Packer’s declarations, the models seem to be more linked to the existing
American criminal process. Rather than seeing this as a theoretical limita-
tion, as Macdonald does, I see it as evidence of the extent to which Packer’s
thinking was influenced by the constitutional revolution he was witnessing,
as the Warren Court gradually incorporated the provisions of the Bill of
Rights against the states. Within this particular context, Packer’s modeling
can be seen as an astute and broad-minded attempt to conceptualize a change
that went far beyond merely ruling more often for the defendant in criminal
procedure cases: rather than merely being a “pro-defendant” court, the
Warren Court was busy creating—through a mechanism of constitutional
incorporation and by delivering a substantial blow to federalism—a frame-
work of review for criminal procedure that relied on the conceptualization of
the adversarial process as the solution for the ills and biases of the investiga-
tory prosecutorial approach.

It is important to keep in mind that, as exemplified by the Griffiths
incident, law schools were far more doctrinal, and much more removed from
social sciences, than they are today. Interdisciplinary work was less common,
and law and society types such as Griffiths were seen as outliers rather than
heralds of an exciting trend. Pathbreaking ethnographies were conducted by
political scientists and sociologists including Sudnow (1965) and Foote
(1956) and later Feeley (1979a), Heumann (1981), Eisenstein and Jacob

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(1977), and Nardulli (1978). While these scholars were drawn to courtroom
dynamics (Nardulli 1978), plea bargaining (Feeley 1979b; Heumann 1981),
and policing (Goldstein 1960; Skolnick 1966), legal scholars had only begun
to formulate criminal procedure as a doctrinal field, and as they did, they
focused mostly on Supreme Court decisions. Criminal procedure was under-
stood to be a subfield of constitutional law, and would remain so, for many
scholars and in many schools, for many years to come.

It is in this professional context that Packer’s contribution can best be
appreciated. Within the context of legal scholarship, Packer may have
created the crime control model primarily as an analytic device, a sort of
“what are we fighting” straw man, to highlight the dramatic effect of the due
process revolution. The concept of a crime control model was new to his
doctrinal readers and demonstrates his ability not only to transcend the
doctrinal discourse, but also to find interest in the invisible parts of the
process: police stations and lower courts. The audacity of using the phrase
“presumption of guilt” to describe the system’s perception of the probabilistic
realities of the courtroom workday must have seemed revolutionary. Part of
this openness may be due to Packer’s broader horizons. In his impressive but
short career, Packer served as vice provost of Stanford and must have been
exposed to interdisciplinary work more than his colleagues (Ehrlich et al.,
1972). His earlier work on ex-Communists (Packer 1958) engaged directly
with political topics, as did his analysis of the Warren Commission’s report on
the Kennedy assassination (Packer 1964b) and his critique of doctrinal
review of police discretion (Packer 1966). Packer was broad minded enough,
and enough of a public figure, to be able to transcend the doctrinal discourse
and offer a broader way to understand the Warren Court revolution. It is
insightful to compare his work to Abraham Goldstein’s; Goldstein (1973)
astutely demonstrated how the criminal game was “rigged” on behalf of the
state and against the defendant but did not broaden this perspective, as
Packer did, to examine the process as a whole beyond who “wins.”

When one is considering Packer’s work within the disciplinary realm he
occupied, it is clear why the book was such a major success with legal scholars,
who considered it novel and refreshing (Katz 1969; Schwartz 1969). By
contrast, reviews by social scientists criticized Packer for not engaging more
with the nascent world of empirical inquiry of lower courts. In any case, the
primary audience for the models was probably the prominent legal scholars at
elite law schools, whose gaze was fixed upon the Supreme Court and the
Constitution.

What did Packer add to the legal dichotomy between progovernment
and prodefendant decisions? Some of this, as Goldstein (1973) later pointed
out, could be explained as a transition from an adversarial to an inquisitorial
process. However, there were some broader issues at stake. Crime control was
characterized not merely by sympathy for the government’s position but by a
respect for efficiency as a primary goal of the process. This emphasis drives a

Packer in Context 243



preference for the less transparent, and more unencumbered, investigatory
phase of the process over the hurdles of trial. Due process, while sympathetic
to defendants by generating rights, was more than that; it stood for the belief
that bright-line rules and hurdles were the best way to guarantee accurate
outcomes in the process.

The wisdom of Packer’s broader framework made even more sense after
his death, when criminal procedure scholars turned their attention to the
reversal of the Warren Court trends. That the Warren era was revolutionary
in many respects, bringing the Constitution to bear upon issues of defendants’
rights and police regulation, could hardly be disputed. However, few scholars
pointed to its demise when analyzing Burger Court decisions. Peter Arenella
(1983–1984) recounts the proceedings of a conference featuring prominent
scholars such as Yale Kamisar and Jerold Israel, who argued that the Burger
Court era could hardly be regarded as a “counterrevolution” and did not
produce significantly more pro-government decisions. Arenella provides an
excellent critique of these approaches as shallow and one dimensional. Using
the broader Packer framework, he demonstrates the dramatic paradigm
change by showing how the post-Warren decisions are characterized by a shift
away from bright-line procedural rules as a cure for system malfunctions and
toward an overarching goal of convicting the factually guilty. The 1970s, and
even more so the 1980s, show an increasing pro-government reliance on
“totality of the circumstances” tests, which incorporate issues of factual guilt
and allow the police broad powers and discretion in determining case dispo-
sition prior to trial. Later decisions narrow the broad constitutional protec-
tions provided by Warren Court decisions, such as the Miranda warnings and
the Gideon right to counsel. In this decision, deference to state mechanisms
was an important factor. Finally, the post–Warren Court decisions placed
great value upon finality, leading to a significant narrowing of postconviction
remedies.1

Packer’s models are therefore both narrower and broader in scope than
the comments and critiques would suggest. They are narrower in the sense
that they function best, and are best understood, as an explanation of US
Supreme Court decisions at a unique moment in time and as a prophecy of a
countertrend that occurred after that special moment had passed. However,
they are broader in the sense that they offer an understanding of the signifi-
cance of Warren Court decisions, and of the subsequent backlash that goes
beyond mere shifts between the government’s side and the defendant’s side.
The transitions speak volumes about the different Courts’ understandings of
the relative importance of different stages of the process, the extent of their
willingness to rely on rights discourse as a mechanism for accurate decision
making, and their perceptions about objectivity and bias in the process.

1. As Roach (1999) reports, Packer himself felt this transition keenly, and at the end of his
life reported disappointment in the failure of the due process model.

LAW & SOCIAL INQUIRY244



My own critique of Packer’s models, therefore, resides within this disci-
plinary context. Focusing primarily on the transitions in Supreme Court
decisions, the question is whether Packer’s one-dimensional spectrum is
inclusive enough to explain the Warren Court revolution and the backlash
that followed it.

TWO DUE PROCESS MODELS, OR WHY THE CRIME
CONTROL-DUE PROCESS SPECTRUM UNDEREXPLAINS
SUPREME COURT DECISIONS

In a scholarly world that recognizes Packer’s models as classic, much of
what occurred in the Supreme Court from the 1970s onward is explained,
even in law school textbooks, as a shift from due process to crime control
(Dressler and Thomas 2006; Whitebread and Slobogin 2006). Much in the
vein of Arenella’s analysis, the common wisdom in the field is that the
post–Warren Court decisions reflect greater trust in the police (through
relaxing the probable cause requirements, allowing for good-faith exceptions
to the exclusionary rule, and creating more exceptions to the warrant require-
ment); more emphasis on factual guilt than on the normative presumption of
innocence (by generating a difference between violations of the voluntary
confession requirement, which might compromise actual accuracy, and
Miranda violations, which are seen as technical); less intervention in state
rules (especially when those might require budgetary expenditure, as in pro-
viding counsel for indigent defendants); and more emphasis on finality (by
limiting access to appeals, and especially to federal habeas corpus proceed-
ings). Law and society scholarship has regarded these doctrinal changes as a
symptom of broader political trends prompted by the Nixon era’s “tough on
crime” politics (Beckett 1997; Garland 2001; Simon 2007; Lynch 2009).
And, indeed, the Supreme Court was not insulated from these broad pro-
cesses; Nixon’s appointees—Justices Burger, Blackmun, Powell, and
Rehnquist—constituted a significant change in the Court’s composition,
leading the Court toward more conservative decisions, though attitudinal
research suggests that these changes should be viewed more subtly (Epstein
et al. 1998). However, some trends remain more difficult to explain. One such
mystery is Terry v. Ohio (1968), a decision authored by Warren himself, which
is largely credited for giving police much leeway in conducting stops and frisks
and for enabling pretextual stops and racial profiling (Aviram and Portman
2009). Is Terry a crime control decision? And how do we read some of Justice
Scalia’s decisions, such as his insistence upon the right to jury in deciding
sentencing enhancements in Apprendi v. New Jersey (2000)?

The answer to such mysteries, I argue, lies in a more refined understand-
ing of Packer’s due process model. In considering crime control as the antith-
esis of due process, Packer failed to identify another “enemy” of the Warren

Packer in Context 245



Court revolution: the darker side of due process itself. A careful analysis of the
constitutional stances of Supreme Court justices leads to the conclusion that
there is not one due process model, but two. The first model emphasizes
formalism, whereas the second one emphasizes fairness. Table 1 summarizes
the main differences between the two concepts of due process.

Advocates of formalism regard due process as adherence to the set of
rights provided by the Bill of Rights, to the letter of the law, and in some cases
in accordance with their interpretation of the intent of the Framers of the
Constitution. Fairness advocates, on the other hand, have a more flexible
definition of due process, ascribing more importance to an overall sense of
fairness. In contrast to formalists, who provide defendants with all rights in
the Bill of Rights and none beyond the official “constitutional package,”
fairness advocates might offer some rights beyond those in the Bill of Rights
and might also dispense with some of the constitutional guarantees when
those are not conducive to a sense that one’s case was considered holistically
and fairly, with the defendant’s best interests in mind.

In Packer’s original dichotomy, crime control emphasized the investiga-
tory stage, while due process emphasized the trial stage. Within the trial
phase, formalist due process focuses on the adjudication of guilt as the “main
show” of the criminal trial and therefore guarantees rights that are directly
related to this phase; the most important of these rights is the presumption of

TABLE 1.
Formalism and Fairness

Formalism Fairness

Meaning of due
process

A guarantee of formal
procedural rights

Attention to an overall
experience of a fair hearing

The “constitutional
package”

Defendants benefit from all
rights in the Bill of
Rights, and not beyond
them

Defendants benefit from a
general perception of fairness,
which may extend beyond
the Bill of Rights or exclude
rights when they are
detrimental to fairness

The stage Emphasis on the guilt phase
as the “main show” of the
criminal process

Emphasis on other stages of the
process, such as sentencing

Presumption of
innocence

Essential for due process Secondary to other fairness
considerations

The actors Emphasis on traditional
actors: defense attorney
and juries

Emphasis on pragmatic helpers:
judges and therapeutic
professionals

Notion of equality Constitutional rights are
blind to demographics.

Model is aware of class, race,
and gender differences

LAW & SOCIAL INQUIRY246



innocence. Fairness-centered due process, by contrast, focuses more on the
pre- and posttrial stages of the criminal process. The possibility of informally
dismissing cases based on flimsy evidence or governmental misconduct
becomes an important, albeit less visible, arena for fairness (Findley 2009).
The sentencing phase in particular becomes more important, and has more
consequences, in a realm of plea bargains and a tiny percentage of trials; the
focus here is on careful consideration of the individual defendant’s circum-
stances, to frame a forward-looking sentence. Consequently, formalist due
process places much emphasis on actors pertaining to the guilt-adjudication
phase, such as the defense attorney and, even more so, the jury, while fairness-
centered due process might dispense with juries when they are perceived to be
biased or overly punitive and may place more emphasis on actors who have
more discretionary power in the pre- and posttrial stages, such as judges,
probation officers, and other therapeutic personnel.

Finally, the two conceptions of due process share a concern for equality,
but they understand the concept in different ways. Formalist due process
perceives equality as the need to provide constitutional rights on a universal
basis, blind to the defendant’s demographics. Fairness-based due process,
however, brings to the table awareness of defendants’ individual characteris-
tics and might differentiate among defendants on the basis of class, race, and
gender when these factors contribute to biases or inattentiveness to the
defendant’s particular circumstances.

As the following discussion will show, the roots of the two due process
models lie in the debate over whether the Fourteenth Amendment “incor-
porated” the Bill of Rights and therefore applied them to the states. More
importantly, the distinction between the two due process models explains
some of the previously unexplained transition in Supreme Court decisions,
especially when one is considering Justice Warren’s decision in Terry as
an example of fairness-based due process, and Justice Scalia’s decision in
Apprendi as an example of formalism-based due process.

Doctrinal Origins of the Formalism-Fairness Dichotomy

The rival understandings of due process precede the Warren Court and
can be traced back to the Black-Harlan debate on incorporation. To provide
a short background to the debate, court rulings in the nineteenth century,
prior to the ratification of the Fourteenth Amendment, shied away from
interpreting the Bill of Rights as applicable to state cases (Barron v. Baltimore
1833). Even after the Fourteenth Amendment provided a doctrinal vehicle
for imposing federal constitutional rulings on the states, courts were initially
hesitant to do so (as in the case of grand juries; see Hurtado v. California
1884). Gradually, however, two approaches toward incorporation began
to emerge.

Packer in Context 247



The first approach, advocated by Justice Black, was a formalist under-
standing of incorporation. Under this approach, the Fourteenth Amendment
incorporated the Bill of Rights and had no independent meaning beyond
that. Any attempt to read a broader meaning into “due process,” beyond
merely being the technical sum of rights in the other amendments, was
considered to be “itself a violation of our Constitution, in that it subtly
conveys to courts, at the expense of legislatures, ultimate power over public
policies in fields where no specific provision of the Constitution limits legis-
lative power” (Adamson v. California 1947, 74–75). While this is by no means
a crime control approach, it conveys serious concerns about “the conse-
quences of the Court’s practice of substituting its own concepts of decency
and fundamental justice for the language of the Bill of Rights as its point of
departure in interpreting and enforcing that Bill of Rights” (89).

The second approach, whose most prominent advocate was Justice
Harlan, did not aim at incorporating all federal constitutional rights against
the states as a whole; instead, incorporation would depend on the context of
the right. Following the reasoning in Powell v. Alabama (1932), advocates
of this approach examined the practical effects of trials on certain types of
defendants, particularly minorities and the indigent. Constitutional rights
would be provided to state defendants on a case-by-case basis, and the judg-
ment would be made based on their contribution to the overall fairness of the
hearing (Cord 1975–1976; Amar 1998).

These two approaches are the ends of a second continuum, one that
differs from Packer’s crime control–due process continuum in that it is hard to
say which of the two approaches—due process formalism or due process
fairness—is better for criminal defendants, and which favors the government.
On the one hand, a flexible interpretation of the Fourteenth Amendment
could mean reading into the term “due process” additional protections
beyond those provided by the Constitution, such as a right to a fair hearing
during sentencing, or a right to rehabilitation. On the other hand, the
flexibility could (and, to Harlan, did) mean that some Bill of Rights provi-
sions would not necessarily be applied to the states.

It is also important to keep in mind that the “overall fairness” approach
had the potential of being more sensitive to the local contexts of different
jurisdictions, based on their different population demographics, cultural back-
grounds, and law enforcement techniques. Harlan was explicitly concerned
about the ultimate result of a wholesale formalist approach, which would be
“compelled uniformity, which is inconsistent with the purpose of our federal
system and which is achieved either by encroachment on the States’ sover-
eign powers or by dilution in federal law enforcement of the specific protec-
tions found in the Bill of Rights” (Malloy v. Hogan 1964, 15–16). For Harlan,
attentiveness to local context meant more restraint toward certain state
practices, but the flexibility could also be interpreted as guaranteeing more
protections in some local contexts, such as, for example, defending minorities

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in places in which their rights were more vulnerable, as in Powell v. Alabama
(1932).2

The Terry Decision as an Example of Fairness-Centered Due Process

As mentioned earlier, the conventional wisdom in criminal procedure
scholarship is to see the Warren Court as embracing due process at the
expense of crime control, with subsequent Courts reversing the emphasis.
The strong reaction to the due process revolution as it was happening, and
the subsequent judicial and political backlash against it during the Nixon
administration, may have been aimed at the civil rights movement in general
(Beckett 1997), but the rhetoric fueling it was directed against the Warren
Court decisions as symbolic manifestations of that revolution (Baker and
Blumenthal 1983). This rhetoric targeted several decisions in particular:
Mapp v. Ohio (1961), which established the exclusionary rule; Gideon v.
Wainwright (1963), which incorporated the right to counsel against the states
and at the states’ expense; and especially Miranda v. Arizona (1966), which
established the quintessential Miranda warnings. While much subsequent
sociolegal evidence showed that the warnings were rendered meaningless by
police interrogatory techniques (Leo 1996, 2008), at the time they were both
hailed and maligned as symbols of due process. The reasoning in Miranda,
written by Warren himself, is a classic Packeresque due process problemati-
zation of a biased and dangerous police force, including examples from police
manuals to demonstrate the amount of trickery that criminal defendants are
subjected to.

Given this background and its symbolic importance, many doctrinal
scholars are puzzled by the Warren Court’s decision in Terry v. Ohio (1968),
which appears to go against the due process grain (Maclin 1998; Katz 2004–
2005; Schwartz 1995–1996). The decision itself dealt with the realm of
“lesser” searches and seizures, short of an arrest or a full search, which one
might assume were occurring on a regular basis on lesser grounds than prob-
able cause and a warrant. Officer McFadden, the officer who conducted the
Terry search, spent thirty-five years walking a Cleveland beat but will be
forever remembered for the brief detention detailed in the facts. Observing
two men standing in the corner who “didn’t look right [to him] at the time,”
he deduced that they were casing stores for a robbery, briefly detained them,
patted down the outside of Terry’s clothing, and found a pistol. Given these
facts, the Court could have adhered to the probable cause requirement for
searches, thus rendering Terry’s stop and pat down unconstitutional. Instead,
Warren opted for a lower standard, requiring a lesser degree of suspicion—
reasonable suspicion—for conducting a mere stop or a frisk.

2. For more on the racial aspect of the decision, see Goodman (1995).

Packer in Context 249



One typical interpretation endorsed by critics sees this decision as sup-
portive of a crime control model sensitive to the realities of everyday policing
(Amar 1998) and therefore empowering police officers to exercise discretion,
which can be said to endorse decision making based on criteria such as
race (Schwartz 1995–1996; Maclin 1998; Sundby 1998). Warren’s intimate
acquaintance with policing, which came from his experience being a pros-
ecutor as well as having been victimized by crime (Cray 2008), could provide
an explanation for a practical approach based on acknowldedging the realities
and challenges of law enforcement. It is evocative of sociolegal discussions of
police discretion (Goldstein 1960; Muir 1977). The Court was also not
unaware of the political climate surrounding its rights revolution in general
and the law of search and seizure in particular. Prior to the incorporation of
the exclusionary rule in 1961, most police searches and seizures went unregu-
lated. At that time, half of the states had no exclusionary rule for their police
(Katz 2004–2005). The criminological attention to the police in the 1960s
and 1970s revealed an organizational ethos of “us versus them,” which was
not conducive to the need to develop procedures to deal with the new rigid
probable cause requirement. The Court came under increasing fire for deci-
sions on criminal procedure rights, and police officers faced potentially
violent confrontations in the streets. Legislatures authorized increased polic-
ing including “stop and frisk” statutes (Dudley 1998). Terry was decided in
June 1968, during the presidential campaign in which Nixon and Agnew
directed much criticism against the Warren Court. And, indeed, the decision
explicitly mentions sympathy to police officers and their dilemmas in the
field.

This classic interpretation of the case builds not only on Warren’s
background and the context of Terry’s outcome at the time, but also on Terry’s
progeny: a series of cases expanding police authority for “frisks” beyond the
Terry scenario to cars and homes (Michigan v. Long 1983; Maryland v. Buie
1990), minimizing the suspicion required for searches (Adams v. Williams
1972; Alabama v. White 1990), and authorizing racial profiling (Whren et al.
v. United States 1996).

However, the eventual eight-to-one majority decision, which authorized
an entire category of lesser searches and seizures based on less than probable
cause, cannot be wholly explained by a crime control paradigm. Warren’s
language is clearly sensitive to the plight of defendants, particularly minori-
ties, if not predictive of Terry’s potential to generate pretextual stops and
racial profiling:

The wholesale harassment by certain elements of the police community,
of which minority groups, particularly Negroes, frequently complain,
will not be stopped by the exclusion of any evidence from any criminal
trial. Yet a rigid and unthinking application of the exclusionary
rule . . . may exact a high toll in human injury and frustration of efforts

LAW & SOCIAL INQUIRY250



to prevent crime. No judicial opinion can comprehend the protean
variety of the street encounter, and we can only judge the facts of the
case before us. [However,] [u]nder our decision, courts still retain their
traditional responsibility to guard against police conduct which is over-
bearing or harassing . . . [and] [w]hen such conduct is identified, it must
be condemned by the judiciary and its fruits must be excluded from
evidence in criminal trials. (Terry 1968, 14–15)

While crime control explains the expansion police power in Terry, it does
little to explain the Court’s extreme reticence and its desire to narrow its
holding. Even the more police-friendly concurrence by Justice Harlan
required some level of suspicion before a suspect could be detained and patted
down.

A better, albeit counterintuitive, understanding of the decision in Terry,
therefore, is as a paragon of fairness-centered due process. Its legacy is the
Warren Court’s decision to wade into an area of police conduct that it had
previously left completely unregulated for state agents and subject to a rigid
probable cause analysis for federal agents. In Terry, the justices recognized
that it would provide “initial guidelines for law enforcement authorities and
courts throughout the land as this important new field of law develops” (31).
However, they did not simply rubber stamp police arguments, nor did they
rule as widely as they could have on the facts. Rather, the Court crafted a
nuanced opinion identifying a narrow standard, and highlighting the impact
of excessive police practices on particular communities, while also recogniz-
ing the danger to police officers of easy access to firearms and a charged
atmosphere in the streets.

This nuance was communicated in Warren’s opinion in a variety of
ways. First, he explicitly rejected the usage of the terms “frisk” and “stop,”
which might have suggested that police authority in Terry was “outside the
purview of the Fourth Amendment because neither action rises to the level of
a ‘search’ or ‘seizure’ within the meaning of the constitution” (17). Second,
he took special care delineating the amount of suspicion necessary, basing it
on actual facts, rather than a hunch. Third, he carefully delineated the scope
of permissible search to patting the external surface of clothing to detect
arms.

In short, as the clerk who drafted the decision explained years later, Terry
was a first, cautious step along an uncharted path, and I think it fair to say that
the opinion’s restraint set an important example for the Supreme Court and
lower courts in later cases in their approach to the myriad issues that grow out
of what Chief Justice Warren called “the protean variety of the street encoun-
ter.” (Dudley 1998, 898).

While the eventual ramifications of Terry were very much in the crime
control vein, Terry’s initial intent was to make police activity more visible
and controllable. Such an interpretation allows us to understand Terry in the

Packer in Context 251



context of the overall project of the Warren Court, rather than as an unex-
plainable outlier.

The Apprendi and Blakely Decisions as a Site of Struggle between
Formalism-Centered and Fairness-Centered Due Process

As mentioned earlier, conventional wisdom sees the post-Warren Courts
as crime control oriented. This analysis holds true with regard to a variety of
issues and is easy to overgeneralize because of the pro-government direction
of the Burger, Rehnquist, and Roberts Courts. Doing so, however, runs the
risk of misunderstanding the source of some of the important and far-reaching
pro-government decisions of the post-Warren Courts, specifically those
authored by Justice Scalia.

Scalia, whom no one would suspect of natural pro-defendant biases,
authored an influential concurring opinion and was the decisive swing vote in
Apprendi v. New Jersey (2000), which held that any fact (save for the exist-
ence of prior convictions) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proved beyond a
reasonable doubt. This decision, as well as a series of dissents by Scalia, would
later prompt the Court’s decision in Blakely v. Washington (2004), which
extended the Apprendi rule to any fact that must be found in order to increase
the sentence, even if it is within a statutorily allowable range of the then-
mandatory sentencing guidelines.

Long before Apprendi, Scalia sought an end to the extensive use
of sentencing enhancements and focused almost exclusively on a due
process rationale. Soon after he arrived on the Court, he expressed unease
with the Federal Sentencing Commission. He argued that the commission
is an unconstitutional delegation of power and cited to the political
philosopher John Locke, among other sources, regarding fundamental
principles of governance (Mistretta v. United States 1986). By the end of
the 1990s, he had refined his focus to the jury trial right (Almendarez-
Torres v. United States 1998; Monge v. California 1998; Jones v. United States
1999), upon which he later based his influential concurring opinion in
Apprendi.

Like Scalia in his concurrence, the Apprendi majority justified the right
it announced as firmly rooted in due process. In Apprendi, the relevant
criminal statute imposed a ten-year maximum for possession of a gun, but a
separate hate-crime statute allowed an increase to twenty years for crimes
motivated by racism or intimidation against certain protected categories. The
hate-crime statute provided that applicability would be decided by a judge,
based on the preponderance of the evidence. The Court held that the finding
that a certain offense was a “hate crime” constituted an element of the offense
and therefore required a jury decision.

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The opinion relied on a classic case invoking due process rights, In re
Winship (1970), to explain the right. Winship, authored by Justice Brennan,
held that proof beyond a reasonable doubt of every element is one of the
“essentials of due process and fair treatment” (359) that must be afforded even
to juveniles. The reasoning draws heavily on due process model ideas. In a
relatively minor juvenile case regarding money stolen from a locker, Brennan
discussed extensively the purpose of the criminal justice system itself. He
explained that fact finding is inherently subjective and the burden affects the
margin of error. Justice Harlan’s concurrence explained further that

[I] view the requirement of proof beyond a reasonable doubt in a crimi-
nal case as bottomed on a fundamental value determination of our
society that it is far worse to convict an innocent man than to let a guilty
man go free. It is only because of the nearly complete and long-standing
acceptance of the reasonable doubt standard by the States in criminal
trials that the Court has not, before today, had to hold explicitly that due
process, as an expression of fundamental procedural fairness, requires a
more stringent standard for criminal trials than for ordinary civil litiga-
tion. (372)

Contrasting Scalia’s concurring opinion with Justice Breyer’s dissent in
Apprendi, and subsequently in Blakely, is a fascinating exercise in distinguish-
ing between formalism-centered and fairness-centered due process. In his
Apprendi dissent, Breyer expressed concern that extending the jury trial could
potentially harm a defendant by placing him in the “awkward (and conceiv-
ably unfair) position of having to deny he committed the crime yet offer proof
about how he committed it” (Apprendi 2000, 557). In Blakely, which
addressed the question of whether the Apprendi right to a jury extends to facts
found in the sentencing guidelines, Breyer’s dissent focused particularly on
the concern that introducing more formalism into trials would merely
strengthen the prosecutor’s position in a system characterized by plea bar-
gains. His explanation of these concerns is a classic fairness-centered,
outcome-oriented argument:

The fairness and effectiveness of a sentencing system, and the related
fairness and effectiveness of the criminal justice system itself, depends
upon the legislature’s possessing the constitutional authority (within due
process limits) to make that labeling decision. To restrict radically the
legislature’s power in this respect, as the majority interprets the Sixth
Amendment to do, prevents the legislature from seeking sentencing
systems that are consistent with, and indeed may help to advance, the
Constitution’s greater fairness goals. (Blakely 2004, 345)

The argument favors administrative and legislative regulation of sentencing,
but to benefit defendants. Breyer’s pragmatist due process is evident

Packer in Context 253



throughout the opinion: As he argued, “whatever the faults of guidelines
systems—and there are many—they are more likely to find their cure in
legislation emerging from the experience of, and discussion among, all ele-
ments of the criminal justice community, than in a virtually unchangeable
constitutional decision of this Court” (345–46).

Scalia’s responses to Breyer’s concerns are a classic example of
formalism-centered due process. Scalia directly accuses Breyer of supporting a
system that is “an admirably fair and efficient scheme of criminal justice
designed for a society that is prepared to leave criminal justice to the State”
(498). Breyer, according to Scalia, imagines a “bureaucratic realm of perfect
equity” where

the facts that determine the length of sentence to which the defendant
is exposed will be determined to exist (on a more-likely-than-not basis)
by a single employee of the State. It is certainly arguable ( Justice Breyer
argues it) that this sacrifice of prior protections is worth it. But it is not
arguable that, just because one thinks it is a better system, it must be, or
is even more likely to be, the system envisioned by a Constitution that
guarantees trial by jury. (498).

In an explicit expression of preference for the law-in-the-books set of trial
rights over the realities of plea bargaining, Scalia argues that Breyer’s prefer-
ence for nonadversarial fact finding is “an assault on jury trial generally”
(313). He explains,

Ultimately, our decision cannot turn on whether or to what degree trial
by jury impairs the efficiency or fairness of criminal justice. One can
certainly argue that both these values would be better served by leaving
justice entirely in the hands of professionals; many nations of the world,
particularly those following civil-law traditions, take just that course.
There is not one shred of doubt, however, about the Framers’ paradigm
for criminal justice: not the civil-law ideal of administrative perfection,
but the common-law ideal of limited state power accomplished by strict
division of authority between judge and jury. As Apprendi held, every
defendant has the right to insist that the prosecutor prove to a jury all
facts legally essential to the punishment. Under the dissenters’ alterna-
tive, he has no such right. That should be the end of the matter. (313)

What is the meaning of this debate in the context of Packer’s work? As argued
by Stephanos Bibas (2001a, 2001b, 2001c) in a series of articles written
following the Apprendi decision, it represents a preference for formalism over
effective defendants’ rights. In these pieces, later cited by Breyer in Blakely,
Bibas explained his opposition to Apprendi as a fairness-centered due process
concern stemming from the need to maintain fairness within the constraints
of plea-bargaining and mass convictions. Bibas (2001b) suggested that

LAW & SOCIAL INQUIRY254



Apprendi is a trade-off of a meaningful sentencing hearing right for a mean-
ingless jury trial right for the vast majority of defendants because of plea
pressure.

For our purposes, Bibas’s argument implies that the Apprendi majority
made a choice between two due process model options, by focusing on a
formalist, and impractical, insistence on rights at the guilt phase at the
expense of a richer, more meaningful hearing at the sentencing phase. Bibas
(2001b) states, “the right to trial by jury . . . is the one [right] that undermines
defendants’ right to hearings in the world of guilty pleas” (335).

Does due process extend to the sentencing phase and require a “more
meaningful hearing”? Arguably, if imposing a higher sentence requires
proving certain conduct by a certain evidentiary standard, the sentencing
hearing merits consideration from the due process perspective. However,
other aspects of the hearing constitute an administrative procedure. The
hearing must fit the appropriate punishment to the crime. Outcomes form a
significant basis for the discussion. The hearing is less formal than the jury
trial and many evidentiary rules are relaxed. Court officers, such as probation
officers, charged with offender supervision may play as significant a role as the
prosecutors in explaining the appropriate punishment. The presumption of
innocence or “legal guilt” no longer applies, except to the extent that a
rational basis remains after Apprendi. Therefore, the sentencing phase may be
more flexible, more open, and more conducive to substantive fairness than
the guilt phase, even when guilt is determined through the paragon of
formalist due process, the jury trial.

Has the adherence to formalist due process in Apprendi really worked to
the defendants’ detriment? This question has been the subject of extensive
debate (Bibas 2001a, 2001b; King and Klein 2001). Bibas’s argument depends
to a large extent on the manner in which judges and prosecutors exercise their
discretion. However, debate and later case law did show that for certain types
of defendants, Apprendi is a curse rather than a blessing.

One such example is proving drug quantity for sentencing purposes in
narcotics cases. As early as 2001, speculation emerged that, in light of
Apprendi, any drug quantity would be explicitly stated in the indictment and
sent to the jury for all drug-trafficking cases (Hrvatin 2001). This possibility
created a serious incentive for defendants to plead guilty: proving drug quan-
tity before the jury would lead the prosecution to expose the jury to a
mountain of narcotics, a sight that might be severely prejudicial in the
sentencing phase. This issue is significant because of the large percentage of
drug trials, which constitute one-third of the federal courts’ caseload (Bureau
of Justice Statistics 2007). In addition, there is Bibas’s practical concern that
“in the real world of guilty pleas . . . where fewer than 4% of defendants ever
get to juries . . . rhetorical invocation of juries is almost pointless” (Bibas
2001a, 317). Under the new post-Apprendi regime, prosecutors can now force
a defendant to concede to a certain quantity of drugs as part of receiving a

Packer in Context 255



plea agreement, where previously the defendant could have challenged it at
the sentencing. Bibas suggests that the prosecutor can force an all-or-nothing
plea deal at an earlier phase of the trial, without having to purchase the
waiver of the right to contest enhancements at the sentencing hearing with
additional concessions.

Ironically, the Apprendi and Blakely decisions eventually served as the
doctrinal foundation for subsequent decisions that stripped the sentencing
guidelines of their mandatory power (United States v. Booker 2005; Cunning-
ham v. California 2007). This outcome, restoring some judicial discretion and
potentially weakening the overarching prosecutorial discretion, resonated
with the scholarly and judicial critiques of the sentencing guidelines (Com-
munity Release Board v. Superior Court 1979; Griset 1991; People v. Begnald
1991; Stith and Cabranes 1998). It was not, however, a natural continuation
of the formalist due process reasoning behind Apprendi and Blakely, both of
which advocated more, rather than less, structure in decision making. Scalia,
who dissented in the Booker decision and in subsequent fairness-centered
decisions on the matter, would see them as a sneaky move on the part of
fairness-centered due process advocates and would mention in later decisions
that he “lamented” the unclear implications of the “different majority” in
Booker (Rita v. United States 2007); Justice Thomas’s views are similar
(Kimbrough v. United States 2007).

CONCLUSION: THE LIMITS OF THE LIMITS OF THE
CRIMINAL SANCTION

What do the Terry and Apprendi/Blakely stories teach us about the
application of Packer’s models to the Supreme Court’s rulings? While the
crime control–due process continuum is a helpful tool for understanding
Supreme Court decisions on criminal procedure, it is not inclusive enough to
explain some of the pragmatisms of the Warren Court, or some of Justice
Scalia’s influential decisions, which relied on formal adherence to the con-
stitutional language rather than on the need to assist law enforcement
officials in their battle against crime or to protect defendants. These
rationalizations were not mere rhetorical devices on the part of Warren and
Scalia; they present strongly held convictions about the meaning, adminis-
tration, and priorities of procedural justice. While no justice can be said to
subscribe exclusively to a certain “model of criminal process,” these examples
demonstrate how beliefs about the importance of exact phrasing of constitu-
tional rights, or the relative significance of stages in the process, shape
Supreme Court decisions, which, as argued earlier, were the natural playing
field for Packer’s models.

It is important to point out that crime control perspectives matter even
within a framework that acknowledges different conceptualizations of due

LAW & SOCIAL INQUIRY256



process. Indeed, the formalism-fairness divide is deeply informed by the
Supreme Court’s awareness of the realities of crime control. Echoing the
social science critiques of Packer from the 1960s and 1970s, both Chief
Justice Warren in Terry and Justice Breyer in Apprendi and Blakely aimed at
expanding the constitutional set of rights precisely because of what they
correctly perceived to be the empirical realities of criminal justice: a powerful
and largely unsupervised police force reacting to law enforcement needs in
the street and a massive apparatus of plea bargaining that marginalizes much
of the constitutional set of trial rights. In some ways, in contrast to McBar-
net’s (1981) assertion that “due process is for crime control” (156), it could be
said that awareness of crime control has shaped and strengthened the fairness
aspect of due process, whereas formalist due process has largely reflected
a judicial perception that ignores the realities of lower courts and the need
for efficiency. The Warren Court’s enterprise emerges from this analysis as
a complex amalgam of the naive belief that rules can overcome deeply
engrained realities in the law enforcement field and the realistic assertion that
constitutional supervision—when liberally and creatively interpreted—is
better than no supervision at all.

Some of the newer decisions of the Rehnquist and Roberts Courts, such
as the Booker and Cunningham decisions, which undermined the mandatory
power of the rigid sentencing structure, might have encouraged Packer, who
became disillusioned with the potential of due process to change the criminal
apparatus. His exposure to the Warren Court revolution, and to the begin-
ning of its downfall after the Nixon election, would lead him to believe that
formalism was not the answer to the ailments of the criminal process.
However, he might have been excited by the potential to expand the concept
of due process beyond the formal language in the Bill of Rights so as to
encompass broader notions of fairness and sentencing-oriented concerns. The
original incorporation debate, which took place many decades before the
publication of The Limits, could have suggested this direction, but its more
modern incarnations may have been beyond even Packer’s predictive talents.

Finally, examining Packer’s contribution to courtroom research scholar-
ship in its disciplinary and political context does not imply fault or poverty in
the model—quite the opposite. Indeed, it is a testament of the models’
usefulness, rather than their flaws, that they inspired so much subsequent
scholarship, which suggested models and patterns beyond those that Packer
could have foreseen in 1964 or 1968. New work should be careful not to
unfairly present Packer’s arguments as straw-man arguments or to present new
frontiers that were, at the time, beyond most criminal justice scholars’ imagi-
nation as direct attacks on his framework. Our use of Packer’s two-model
continuum as a proverbial coat hanger for new frameworks and paradigms
is a natural and welcome device of critique and analysis. We must not forget
the debt of gratitude we owe the useful basic paradigm we have built so
much upon.

Packer in Context 257



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Packer in Context 261