Checks and Balances in the Criminal Law
84 Pages Posted: 9 Oct 2020 Last revised: 27 Jan 2021
Date Written: January 27, 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 those 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 decision-making power among different social and political interests in society; functional duplication and overlapping jurisdiction between different decision makers; insulation of decision-making 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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