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113 U. Pa. L. Rev. 1 (1964-1965)
Two Models of the Criminal Process

handle is hein.journals/pnlr113 and id is 21 raw text is: University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 113 NOVEMBER 1964 No. 1 TWO MODELS OF THE CRIMINAL PROCESS * HEBERT L. PAcKE t There are two more or less separable complexes of issues which need to be investigated as one approaches the central question of the limits of criminal law. One complex of issues concerns what may be called the ideology of the criminal law, such as questions about the nature and purposes of criminal punishment. This is generally recog- nized as relevant to what I have termed the central question.' There does not seem to be an equivalent recognition of the relevance of the other complex of issues, which concerns what may be called the processes of the criminal law.2 The major premise of this Article is that the shape of the criminal process has an important bearing on * This Article is a sketch for a portion of a work in progress concerning the criteria that a rational lawmaker should consider in determining what kinds of conduct to treat as criminal. Legal thought has not had much to say on this question: little enough if by legal thought!' we mean thought about law; less still if by it we mean thought by lawyers. The present Article is intended as a prolegomenon directing attention to a group of problems necessarily affecting the behavior content of the criminal law. Its appear- ance in this forum, given its nontechnical nature, can be explained only by giving a broad construction to the we in Holmes's aphorism that what we need at this time is education in the obvious more than investigation of the obscure. It would be both premature and presumptuous to identify all those who have aided in the enterprise whose first fruits are presented here. The burden of my gratitude cannot, however, be evaded by the Dean and Faculty of the University of Pennsylvania Law School, whose generous hospitality during a sabbatical year pro- vided the ideal environment for pursuing the subject of these reflections. t Professor of Law, Stanford University. B.A. 1944, LL.B. 1949, Yale University. Member, New York Bar. I See, e.g., DavmiN, THE ENFORCEMENT OF MORALS (1959) ; HART, LAWv, LIBERTY, AND MORAIrrY (1963). 2 There has been a tendency among students of the criminal process to treat procedural issues as if their resolution had nothing to do with judgments about the substantive uses of the criminal law, which apparently are thought to be immutable. See, e.g., Barrett, Police Practices and the Law-From Arrest to Release or Charge, 50 CALIF. L. REv. 11, 20 (1960).