Separation of Powers and the Criminal Law

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even more permissive of blending of powers in the criminal context than it has in cases involving non-penal laws. This Article shows why the existing functional approach to separation of powers in criminal matters cannot be squared with constitutional theory or sound institutional design. It explains that there are crucial differences between administrative and criminal matters when it comes to the separation of powers. Maintaining the separation of powers in criminal matters has strong roots in the Constitution’s text and structure. Moreover, unlike the administrative law context, where agencies must adhere to the structural and procedural protections of the Administrative Procedure Act and their decisions are subject to judicial review and political oversight, the government faces almost no institutional checks when it proceeds criminally. The only safeguards come from the individual rights provisions of the Constitution, but those act as poor safeguards against structural abuses and inequities. The current arrangement therefore takes the worst possible approach to separation of powers in the criminal context. The protection provided by the separation of powers is weakened, but nothing takes its place. As a result, the potential for government abuse is, perversely, greater in criminal proceedings than in regulatory matters. This Article therefore advocates more stringent enforcement of the separation of powers in criminal cases, where it is most needed. This approach would lead to different outcomes in the Court’s major separation of powers cases in criminal law and to a rethinking of its acceptance of plea bargaining

Can Prosecutors End Mass Incarceration?

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon

Federalism and Criminal Law: What the Feds Can Learn from the States

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. States have the option of vesting authority in a state-level actor-typically, the attorney general-or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law enforcement responsibility in the statesincluding a review of state codes and caselaw and interviews with state prosecutors-reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the relatively small number of categories they identify for centralized authority in a state-level actor and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. The state experience thus provides an alternative model of central-local cooperation to the one used at the federal level. The Article explains that a main source of the difference in approach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government\u27s decision to get involved with questions of local crime

Federalism and Criminal Law: What the Feds Can Learn from the States

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. States have the option of vesting authority in a state-level actor-typically, the attorney general-or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law enforcement responsibility in the statesincluding a review of state codes and caselaw and interviews with state prosecutors-reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the relatively small number of categories they identify for centralized authority in a state-level actor and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. The state experience thus provides an alternative model of central-local cooperation to the one used at the federal level. The Article explains that a main source of the difference in approach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government\u27s decision to get involved with questions of local crime

The Wholesale Problem with Congress: The Dangerous Decline of Expertise in the Legislative Process

It is no surprise to anyone that Congress has become a hyperpartisan battleground where little effort is expended to promote policies that work for Americans. While Congress has always viewed policy issues through the lens of party politics, the role of nonpartisan expertise in the legislative process is at an all-time low. The disrespect for experts is growing across society, but the decline in their use is particularly troubling in Congress because it exacerbates deficiencies that are inherent to the legislative process. Congress passes laws of general applicability and does not sit in judgment of specific applications of the law. Whether Congress does a good job setting those general policies depends on the process it uses for doing so. Sometimes, though increasingly rarely, Congress gathers the relevant facts and arguments about different aspects of a problem before acting. More often, legislators have specific outlier problems or prototypes in mind when they draft legislation, and if there is not an expert fact-finding process in place to study a proposal, cognitive biases may go unchecked. This Article sets out to document the declining respect for expertise in Congress, the implications for policymaking given the wholesale nature of the legislative process, and some possible ways to account for the decline of expertise in the legislative process. Part I details the role nonpartisan experts have played in the legislative process over time and documents the various ways that experts have fallen out of favor in Congress. Part II explains why this decline of expert involvement in legislation is particularly troubling given the way Congress operates as a body making wholesale policy with little individualized feedback on how its policies are applying to real-world scenarios. Part III then turns to the question of what, if anything, could or should be done about it. While Congress could, in theory, shift course, that seems unlikely. Throughout its history, Congress has cared about nonpartisan expertise when it worried about presidential overreach. But with parties dominating the political landscape, there is little likelihood that Congress will care enough about its institutional position relative to the executive. In the absence of legislative reform, Part III therefore considers two additional implications of the decline of expertise in the legislative process. First, the decline of internal expertise in the legislative body places greater weight on the use of administrative agencies to provide that guidance. Ironically, the U.S. Supreme Court may be toying with a revitalization of the nondelegation doctrine at the precise moment that delegation is most urgently needed. Second, courts and other bodies that interpret statutes could consider the relationship between statutory meaning and Congress’s consultation with nonpartisan experts to help address statutory ambiguities