Carlos Chévere Lugo (St. Mary’s University – School of Law) has posted State Constitutions as Engines of Criminal Procedure Innovation on SSRN. Here is the abstract:
The dominant paradigm in American criminal procedure scholarship treats federal constitutional doctrine as both the foundational baseline and the ultimate boundary for rights protection. This Article seeks to interrogate and unsettle that premise. It contends that although the incorporation doctrine establishes mandatory federal minima, it does not vest the Supreme Court with exclusive interpretive authority over the scope of constitutional guarantees. To regard federal doctrine as presumptuously dispositive is to misconstrue the architecture of American federalism and obscure the states’ independent constitutional agency.
This article argues that state constitutions function not merely as supplementary extensions of federal law but as autonomous frameworks for criminal procedure, grounded in distinctive textual commitments, historical contexts, and institutional structures. By examining explicit privacy provisions, specialized search-and-seizure clauses, and provisions rooted in localized histories of abuse, state constitutional texts often necessitate- and sometimes compel- principled departures from federal standards. The article methodically explores the interpretive methodologies employed by state courts to support independent analysis, including the primacy approach, the Gunwall criteria, and the Edmunds factors, and illustrates how these frameworks facilitate the constitutionally grounded expansion of rights protections.
This article offers a comprehensive structural analysis of criminal procedure, spanning investigation through sentencing, and highlights how state courts have imposed significant limits on police discretion, prosecutorial authority, and punitive excesses-restrictions that federal doctrine increasingly either tolerates or fails to regulate. The developments in state constitutional law-encompassing areas such as searches of garbage, automobile exceptions, interrogation protections, grand jury rights, proportionality review, and juvenile sentencing-should be understood not as isolated incidents but as cohesive expressions of distinct constitutional traditions.
Far from advocating judicial activism, this analysis underscores fidelity to constitutional interpretation: a commitment to understanding state constitutional texts in their linguistic, historical, and structural contexts. This article reconceptualizes state constitutional criminal procedure as a crucial domain for articulating constitutional meaning, an arena vital to safeguarding individual liberties within the United States’ federal framework.