Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation

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I. INTRODUCTION

When one surveys the growing body of criminal procedure cases in which the decision is grounded in a state constitutional provision, a rather startling trend becomes manifest.(1) It is increasingly evident that at some time during the early years of the next century virtually every significant federal constitutional criminal procedure right will have been duplicated or expanded as a matter of state law by the appellate courts of most of the states. That is, the same rights that defendants now enjoy as a result of United States Supreme Court cases construing the federal Bill of Rights, or an even broader state-law-based version of those rights, will be established in most of the states by cases construing state bills of rights.(2) Little if any thought has been given to the implications of this development for constitutional law in the United States, or on the relations between state courts and the United States Supreme Court.(3)

For openers, consider this question: if defendants' rights are protected by state law, why is there a need for redundant federal law?(4) Why provide federal protections where state rights exist, especially in light of the fact that the state rights are as broad or broader? This is in part, of course, a question about the Supreme Court's incorporation policy by which federal rights have been applied to the states through the Fourteenth Amendment Due Process Clause.(5) The stock answer is that together, the federal rights established through incorporation and the rights established through interpretation of state constitutions afford a double-barreled protection for individual rights in America, and we all benefit from such dual assurances.(6) Upon close examination, however, rights-redundancy has distinct disadvantages.

There can be little question that incorporation forced the states to adopt uniform procedures without regard to local needs. In the decades since the 1960s, when the Supreme Court "selectively" incorporated nearly all of the criminal procedure rights in the Bill of Rights,(7) the state courts have had little choice but to give force to these federal procedures (absent broader state rights). No matter how costly, no matter how inefficient, no matter how difficult to implement, no matter how much injustice they might cause, and no matter how inappropriate to local circumstances they might be, the state courts have had to give effect to these federal procedural rights.(8) These disadvantages of incorporation were acknowledged even in the 1960s, but they were believed to be outweighed by one important value: equality. Whatever the disadvantages in stifling state uniqueness, independence, and freedom to experiment, the advantage of uniform treatment of defendants throughout the United States, at least with respect to the fundamental rights of the Bill of Rights, seemed to justify incorporation.

But let us be candid. Incorporation was also predicated upon an assumption--a very negative assumption--about the states, and especially about state courts. The assumption was that some state courts were chronically, and virtually all state courts were occasionally, backward. Without the Supreme Court to stand over them, ready to review and reverse, the state courts would fail to provide the minimal rights that all defendants were entitled to at all times. In short, incorporation was motivated by the Mississippi Problem: the assumption that the state bench was, at its worst racist and incompetent, and merely competent most of the time.

This essay contends that the Mississippi Problem is history, that the state courts are no longer rights-antediluvians, and that therefore an entire set of assumptions underlying incorporation has eroded. The proof of the change in the state courts lies in their eagerness to protect federal constitutional rights, but even more, in the development of state constitutional law. State constitutionalism has not only created rights-redundancy, it has undermined the very reasons for that redundancy. …