Separation of powers and the criminal law.

• Author: Barkow, Rachel E.

INTRODUCTION I. THE CURRENT APPROACH TO SEPARATION OF POWERS A. The Separation of Powers in Criminal Cases 1. The independent counsel 2. The Sentencing Commission 3. Enemy combatants B. Criminal and Administrative Law Cases Compared II. CRIME IS DIFFERENT A. Constitutional Foundations B. Functional Differences 1. Lack of structural and procedural safeguards 2. Lack of political safeguards C. Individual Rights Protections Are Insufficient III. ENFORCING SEPARATION OF POWERS IN CRIMINAL MATTERS A. The Case for Greater Enforcement B. The Independent Counsel C. Sentencing D. Prosecutorial Discretion and Plea Bargaining E. Formalism and Federalism CONCLUSION INTRODUCTION

It is a familiar premise that the Constitution separates legislative, executive, and judicial power to prevent tyranny and protect liberty. (1) By preventing any one branch from accumulating too much authority, the separation of powers aims "not to promote efficiency but to preclude the exercise of arbitrary power." (2) The price of separation is that it makes it more difficult for the federal government to act--whether for good or bad purposes. (3)

The rise of the administrative state put a spotlight on this cost of the separation of powers. New Dealers in favor of a more efficient and active federal government argued for a relaxation of the division of powers to allow agencies to combine government functions in order to address social and economic ills. (4) Instead of relying on separated powers as the primary means of protection against government abuse, they proposed other checks on state power. For example, the Administrative Procedure Act (APA) requirements of notice and comment, (5) of separation between law enforcers and adjudicators, (6) and of judicial review (7) were designed to perform the same functions as the Constitution's separation of powers safeguards, but without hamstringing the government's ability to respond rapidly to the nation's problems.

The Supreme Court has accepted this compromise for administrative agencies. While the Court has rejected some institutional arrangements that strayed too far from the constitutional separation of powers, (8) it has allowed considerable blending of executive, judicial, and legislative power in regulatory agencies. (9) At the same time, the Court has taken an expansive reading of the APA to check government abuse. (10)

Scholars have filled volumes analyzing the relationship between the separation of powers and the administrative state. (11) Some have argued that the Court's allowance of blending promotes good government and accords with the Constitution. (12) Others have claimed that the existing administrative state flouts the basic structure of the Constitution and that the Court has been too permissive of government schemes that combine powers. (13)

What has been completely overlooked in both the scholarly literature and the Supreme Court's decisions is what the separation of powers requires when the government proceeds in a criminal action. Criminal cases could be viewed in one of three ways. One approach would be to treat separation of powers questions in criminal cases no differently than they are treated in administrative law cases. Just as in the administrative law context, some blending of powers would be permitted to allow the federal government to respond more readily to criminal matters. At the same time, and again following the administrative law model, other checks should take the place of the constitutional separation of powers to ensure that the government does not abuse its power.

A second alternative would be to distinguish criminal matters from administrative ones. Because state power is at its apex in the criminal context and the consequences of abuse are so high--an individual could lose his or her liberty or even life--this view would require strict adherence to separation of powers to make sure that the state acts appropriately against an individual. Under this approach, then, the need for government flexibility and expediency may justify blending when the government proceeds civilly but not when it proceeds in a criminal action.

Current law follows a third way. Criminal cases are not distinguished from administrative law cases, so the separation of powers is often relaxed to allow a blending of powers when the government claims it is necessary in the name of expediency. (14) Indeed, the Court has been even more permissive in the criminal context than it has in cases involving nonpenal laws. (15) But unlike the administrative law context, where agencies must adhere to the structural and process protections of the APA and their decisions are subject to judicial review, the government faces almost no institutional checks when it proceeds in criminal matters. The only safeguards come from the individual rights provisions of the Constitution, but those checks 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 law. The protection provided by the separation of powers is relaxed, but nothing takes its place. As a result, the potential for government abuse is, ironically, higher in the criminal context than in other regulatory spheres.

This perverse state of affairs has been overlooked in the literature because scholars have failed to treat criminal law as a separate category for analysis. Instead, questions involving the oversight of the administrative and regulatory state have tended to dominate the discussion of separation of powers. (16) So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, too. And because most scholars have supported a flexible or functional approach that allows the concentration of different powers in one actor in the regulatory sphere, they have failed to see a problem with that same approach when it is applied to criminal matters. (17)

This Article breaks from that tradition and argues that the existing approach to separation of powers in criminal matters cannot be squared with constitutional theory or sound institutional design. Although the administrative state has structural and process protections that can justify some flexibility in the separation of powers, those checks are absent in the criminal context. And in their absence, it is critically important to maintain a strict division of powers.

The Article proceeds in three parts. Part I explores the Supreme Court's treatment of separation of powers claims, with particular emphasis on the criminal cases. As Part I explains, the Court does not employ a stricter test of separation of powers for criminal law cases than it does for administrative law cases. Just the opposite, the Court has allowed a greater relaxation of the separation of powers in its criminal cases.

Part II critiques the existing approach to separation of powers. As Part II explains, there are two key arguments for being more vigilant in protecting the separation of powers when the state proceeds in a criminal action. First, as a matter of traditional constitutional interpretation, a strict separation of powers in criminal law matters has a stronger textual and historical pedigree than in other contexts. The Constitution explicitly confronts the dangers of an abusive state in the context of criminal proceedings in several textual provisions that reflect a strict division of authority among the three branches and that give each branch, a strong check on the others in criminal proceedings. (18) Indeed, convictions require all three branches of government to agree, as well as the approval of a jury. In contrast, most other questions of separation of powers arise in administrative law contexts that the Constitution does not explicitly address. (19) Similarly, while the Framers did not confront the question of how to divide and balance government functions in light of the rapid expansion during the Industrial Revolution and the rise of the administrative state--the foundational premise for most functional theories of separation of powers that allow a blending of functions to create a more efficient government--they did have experience with the state's use and abuse of the criminal laws. Indeed, questions of state criminal power occupy a great deal of the Constitution's structure precisely because concentrated power in criminal matters was a danger of which the Framers were well aware. They feared the tyranny of majorities that would seek to oppress opponents through the use of criminal laws. They therefore established a constitutional structure that separates power among the branches and gives the judiciary (judges and juries) a particularly strong role in enforcing that separation. The individual rights protection provided by the separation of powers (20) has no greater purchase than in cases involving criminal defendants, for those were precisely the instances of abuse at the forefront of the minds of the Framing generation. So while there are strong arguments for accommodating the Constitution to changing circumstances in the case of unanticipated administrative law questions, those arguments are not as strong when it comes to matters of criminal law.

The second reason for maintaining a strict separation of powers when the federal government uses its criminal power, as Part II explains, rests on functional concerns. The state poses no greater threat to individual liberty than when it proceeds in a criminal action. Those proceedings, after all, are the means by which the state assumes the power to remove liberty and even life. Yet there are currently almost no institutional checks on federal criminal power. First, federal prosecutors face no restrictions on their powers that are comparable to the complex code of conduct and organizational design established by the APA. The federal agency responsible for setting federal sentences...