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Checks and Balances in the Criminal Law

Posted by on Tuesday, January 26, 2021 in Articles, Volume 74, Volume 74, Number 1.

Daniel Epps | 74 Vand. L. Rev. 1 (2021) |

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and the “separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values like preserving liberty, preventing tyranny, and safeguarding the rule of law. Not only is adhering to the traditional Madisonian approach to separation of powers insufficient to promote these values, it is likely unnecessary to protect them as well.

Instead of the separation of powers, the organizing principle for the structure of the criminal justice system should be the distinct idea of “checks and balances.” A checks-and-balances approach would emphasize the diffusion of decisionmaking power among different social and political interests in society; functional duplication and overlapping jurisdiction between different decisionmakers; insulation of decisionmaking power by individual actors within single institutions, along with more formal checking roles for non-state actors; and careful design to optimize electoral accountability.

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Daniel Epps