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74 Vand. L. Rev. 1 (2021)
Checks and Balances in the Criminal Law

handle is hein.journals/vanlr74 and id is 9 raw text is: VANDERBILT LAW REVIEW VOLUME 74 JANUARY 2021 NUMBER 1 ARTICLES Checks and Balances in the Criminal Law Daniel Epps* 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- * Associate Professor of Law, Washington University in St. Louis. For helpful conversations and comments at various stages, I'm grateful to Susan Appleton, Rachel Barkow, Will Baude, Jeff Bellin, Mitch Berman, Maggie Blackhawk, Sam Bray, Kevin Collins, Dan Deacon, Danielle D'Onfro, Rick Garnett, Adam Gershowitz, Jack Goldsmith, Daniel Hemel, Carissa Hessick, Joseph Hoffman, Aziz Huq, John Inazu, Andrea Katz, Randy Kozel, Genevieve Lakier, Robert Leider, Daryl Levinson, Richard McAdams, Merritt McAlister, Will Ortman, Jeff Pojanowski, John Rappaport, Ganesh Sitaraman, David Sklansky, David Strauss, Brian Tamanaha, and Ron Wright; participants in workshops at the University of Chicago Law School, Washington University School of Law, William & Mary School of Law, Indiana University Maurer School of Law, Notre Dame Law School, University of Florida Levin College of Law, University of Pennsylvania School of Law, CrimFest at the Cardozo School of Law, and the Southeastern Junior- Senior Workshop at University of Georgia School of Law; and the editors of the Vanderbilt Law Review. Rhys Johnson and Samantha Kobor provided excellent research assistance. 1