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

Revolutions of Choice

The invitation to contribute to this volume of the Oz journal reminds me that even though I am now Berlin-based, I was born in Kansas City (albeit on the Missouri side) and that I spent much time in my youth in Atchison, Kansas from where my parents come. During one of those hot humid summers, I worked as a carpenter with a local construction crew on a number of jobs up and down the river

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

Angebot und Nachfrage : welchen Teil des Nahrungsangebotes nutzen Goldregenpfeifer (Pluvialis apricaria) in ihrem niedersächsischen Brutgebiet?

Im Jahr 2003 wurden in der Esterweger Dose (Landkreis Emsland, Niedersachsen) nahrungsökologische Untersuchungen an einer Küken führenden Goldregenpfeiferfamilie durchgeführt. Dabei wurden insgesamt 10 Kotproben und ein Speiballen aufgesammelt und auf ihre Nahrungsrückstände analysiert. Parallel dazu wurden während der Aufzuchtzeit Barberfallen ausgebracht, um das Angebot an epigäisch lebenden Invertebraten zu ermitteln. Die Fallen standen auf Wiedervernässungsflächen unterschiedlichen Alters und auf Abtorfungsflächen mit ihren Ober- und Unterfeldern. Zusätzlich wurden die Bereiche beprobt, die von den Goldregenpfeifern genutzt wurden. Das Angebot an potentiellen Nahrungstieren wurde von Dipteren dominiert, die einen Individuenanteil von ca. 65 % ausmachten. Spinnentiere traten mit einem Individuenanteil von etwa 20 % auf. Käfer und ihre Entwicklungsstadien waren mit lediglich 10 % vertreten. Die Zusammensetzung der Fallenfänge unterschied sich zwischen den untersuchten Biotopen nicht. Im Speiballen und in den Kotproben dominierten dagegen Käfer und ihre Larven mit Individuenanteilen von z. T. über 70 %. Die Küken suchten besonders an den mit spärlicher Vegetation bestandenen Gräben der Unterfelder nach Nahrung. Hier traten die von ihnen präferierten Beutetiere (vor allem Laufkäfer) in höheren Individuenanteilen auf als in den übrigen beprobten Lebensräumen.In 2003 we investigated prey availability and prey selection of a family of Golden Plovers (Pluvialis apricaria) in Esterweger Dose (Landkreis Emsland, Lower Saxony), the last breeding habitat of this bird species in Central Europe. In particular, diets of chicks and adult birds were studied by faecal analysis (n = 10 droppings). Additionally, we analysed prey availability by using pitfall traps in different biotopes ranging from heavily drained industrial pied cutting fields to rewetted areas of different ages. In the fauna samples obtained by the pitfall traps Diptera species occurred most often. 65 % of all individuals belonged to this group. Araneida were also frequently present in all samples (ca. 20 % of all individuals), while beetles made up only 10 % of all catches. The composition of the fauna samples did hardly differ between the biotopes. Faecal analysis revealed that chicks and adult plovers predominantly feed on carabid beetles and their larvae. In particular, beetles and their larvae made up more than 70 % of food items found in faeces of the birds. Plover chicks were found to forage predominantly along the ditches of the pied cutting fields which are sparsely covered with vegetation. The pied cutting fields themselves carried no vegetation at all. Along the ditches beetles as the predominant prey items of Golden Plovers occurred more often than in other biotopes of the study site