Toward the decentralization of criminal procedure: state constitutional law and selective disincorporation.

• Author: Latzer, Barry

1. 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. It gives the lie to the assumption that the state bench is rights-backward. Unlike federal constitutional law, which is imposed upon the state courts, state constitutional law is a matter of choice. Whereas state courts must enforce federal procedural rights incorporated into due process, they need not provide equivalent state constitutional rights. State constitutional rights need not be as protective as comparable federal rights,(9) and they certainly do not have to be more protective, as they so often are. State constitutional law epitomizes the change in the attitude and orientation of state judges. It shows that state courts are now every bit as rights-sensitive as the United States Supreme Court, if not more so.(l0)

   The thesis of this essay is that some of the federal-state rights redundancy is no longer justified. But contrary to those who mistrust the state courts and oppose the development of state constitutional law, this essay calls for an increased reliance upon state constitutionalism.(11) The sounder course for American constitutional development-startling as it may first seem--is that certain federal criminal procedures should no longer be imposed upon the state courts.

   This conclusion, however, is not based solely upon the existence of the same rights in state law. In the first place, some state courts have not adopted a great many federal rights as a matter of state law. For their own reasons--perhaps ideological--some state courts have discouraged the development of state constitutionalism.(12) Moreover, it appears that no federal right has been adopted by every single state on state law grounds. Therefore, there is not, at least at the present time, complete state-federal rights redundancy. Absent incorporation, some procedures might not be imposed in some states at all.

   The fact that a right is generally provided on state grounds should not, however, be the only consideration in determining whether that same right should also be provided by federal law. Whether or not federal rights ought to be imposed upon the states, and whether they ought to continue to be imposed, is a question of the meaning of Fourteenth Amendment Due Process and the authority of the Supreme Court over the states. The meaning of due process is not determined by the ubiquitousness of a procedure in state law, although that is a consideration; it is determined by the nature of the federal rights that are imposed.

   Since the 1960s, the Supreme Court has selectively incorporated into due process most of the rights in the Bill of Rights.(13) Theoretically, it did so because it found that these rights were "fundamental in the context of the criminal processes maintained by the American States."(14) In what may be called the post-incorporation era, the Court applied to the states various subsidiary procedural requirements derived from these fundamental rights--the so-called bag-and-baggage. Most of these procedural requirements cannot be defended as fundamental rights in and of themselves, nor are they necessarily essential to the administration of fundamental rights. Unfortunately, the Supreme Court has simply assumed that such procedures are properly a part of due process, without demonstrating that they are so. It will be argued in this article that only those procedures that are both fundamental and required by the Bill of Rights, or are at least demonstrably essential to the implementation of a fundamental right in the Bill of Rights, may be imposed upon the states. Where a procedure is none of the above it is not a proper part of due process and the Supreme Court has no authority to compel the state courts to adopt it. Where a previously incorporated procedure is challenged and it cannot be proven essential to a fundamental right it should be disincorporated, by which I mean that the incorporation decision should be reversed and the procedure should no longer be required by the Fourteenth Amendment Due Process Clause.

   As I hope to show, at least two criminal procedural rights merit disincorporation: the Fourth Amendment exclusionary rule, and the Miranda(15) doctrine. Both procedures have been downgraded to prophylactic status. They offer one method of enforcing the Fourth and Fifth Amendments, respectively, but are not themselves essential to the safeguarding of these provisions. They are not fundamental to the American scheme of justice, nor are they essential to the enforcement of fundamental rights. Mapp(16) and Miranda should be reversed.

   Startling as this proposal might seem at first, neither the values underlying stare decisis nor the rights of defendants would be affected as much as might be thought. Reversing Mapp and Miranda will do less than conservatives hope and liberals fear. It is not true that reversals will suddenly eliminate these exclusionary rules in state courts.(17) What is apt to be forgotten, if it were known, is that both the exclusionary rule and the Miranda doctrine are broadly established as matters of state law. To the extent that a procedure is provided in state law, its abandonment as a federal matter is less likely to undermine settled expectations. Of course, such reversals will undoubtedly touch off a great re-examination of the issues as the state courts and legislatures come to realize that they are no longer bound by Mapp and Miranda. But to the extent that stare decisis seeks to assure that settled expectations about the law are not disregarded, the widespread enforcement of Mapp and Miranda doctrines as matters of state law should quiet fears of too sudden an upheaval.(18)

   In reality, for both liberals and conservatives there is uncertainty in disincorporation. No one can be sure what the state courts will do. They may continue these procedures on state grounds; they may develop alternatives. But there is one great benefit that a failure to disincorporate denies: the flexibility to tailor criminal procedure...