TOWARD THE DECENTRALIZATION OF CRIMINAL PROCEDURE: STATECONSTITUTIONAL LAW AND SELECTIVE DISINCORPORATION.

CONSTITUTIONAL law; CONSTITUTIONAL amendments; UNITED States. Supreme Court; STATE courts; JUDGES; CRIMINAL procedure

The article focuses on the U.S. Supreme Court's incorporation policy by which federal rights have been applied to the states through the Fourteenth Amendment Due Process Clause. The incorporation process was based upon an assumption that the states, including the state courts, were insufficiently protective of individual rights. The state constitutional renaissance, in which the state courts established either the same or broader than-federal rights, demolishes any lingering ideas that the state bench is insensitive to rights. In the post-incorporation era, Supreme Court simply assumed that its many Bill of Rights rulings were applicable to the states through the Fourteenth Amendment. Unlike federal constitutional law, 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, 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.