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In their reply to my commentary on The Case for the Prosecution, McConville, Sanders, and Leng (henceforth MSL) offer a highly restricted choice between `Descriptive' and `Critical' sociology.(1) The main purpose of this note is to suggest that the important choice does not lie between those two alternatives. Instead, we have to decide between seeking to explain the social world as part of an effort to transform it, and making expressive critical gestures, which are neither intended nor expected to change anything.
In the first section I explain why any criminal justice system must incorporate crime control values, especially at the front end, and why attempts to transform the system must start from recognizing this. In the second section, I consider how crime control practices (including policing and criminal justice) can be changed, and I argue that MSL's position on the influence of the law on these practices is self-contradictory. In the third section, I illustrate these points by returning to the example of stops.
Towards the end of their reply, MSL argue that my analysis amounts to an endorsement of malpractice, injustice, and unequal treatment within the present criminal justice system. Against that, I wish to illustrate the importance of understanding the social world, in order to change it. That is the tradition of social science, associated with social reform, that has been continued in my work, such as `Police and People in London' (Smith and Gray 1985), `Racial Disadvantage in Britain' (Smith 1977), and Inequality in Northern Ireland' (Smith and Chambers 1991). This reformist tradition is the one that is genuinely engaged in the process of change.
Goals and Values of Criminal Justice
As Duff (1998) has explained, Packer (1968) saw crime control as the goal of the system as a whole, but saw due process and crime control as competing sets of values within the system. It is important that MSL now `accept, along with others, that the fundamental goal of criminal justice is crime control' and state that, `While it is obvious that the purpose of having a criminal justice system is to control crime, the issue is about finding acceptable means of identifying and convicting those who have committed crime (1997: 355-6).(2) Statements like these appear nowhere in CFP, so it is good that the debate has established common ground. They go on to claim that their first task was to show factually that `the system is not, on the whole, due process-based, despite much rhetoric and many rules to the contrary' (1997: 356) and that their `main concern was not to advocate a due process-based system'. Yet the phrase `despite much rhetoric and many rules to the contrary' reveals the true intention of the argument, which is to imply that the appropriate yardstick for the whole of the criminal justice system is the values of Packer's due process model; that these values are apparently inherent in both the rhetoric and rules of the present system; and that the system fails to the extent that it does not express these values fully, unequivocally, and to the exclusion of others.
The objection to this form of analysis is precisely that the values of due process are not unequivocally incorporated into the detailed provisions of the law and official guidelines (e.g. on cautioning) that relate to policing and criminal justice process. In other words, the very conclusion of the analysis destroys its own foundation. If due process values are not the only foundation of criminal justice principles, then due process alone may not be the appropriate yardstick. In Packer's terms, the rules and guidelines of the criminal justice system, and the practices that relate …