Separation of Powers Versus Checks and Balances in the Criminal Justice System: A Response to Professor Epps
Separating powers between the three different branches of government serves an important role in the criminal justice system: It helps to protect individual liberty. Separation of powers provides that protection because it requires multiple and diverse actors to agree that a person should be punished before that person can be convicted of a crime. First, the legislature has to decide to criminalize particular conduct.1 Second, the executive must decide to prosecute a particular individual. Third, the judge must decide whether the defendant’s conduct falls within the scope of the criminal statute and the jury must decide factual guilt. Finally, the executive has the power of clemency— the power to wipe out convictions with a pardon or reduce punishment with commutation.
Carissa Byrne Hessick