JUDICIAL FEDERALISM AND PROSECUTORIAL VINDICTIVENESS: STATE RESPONSES TOBORDENKIRCHERANDGOODWIN

In this paper the application of “judicial federalism” to state criminal law is examined. In particular, the author examines how state courts have reacted to the United States Supreme Court's interpretation of “prosecutorial vindictiveness” in state cases. Results show that state courts have not utilized “independent state grounds” as a means of protecting individual rights in this aspect of criminal procedure. State supreme courts are neglected elements in the American political system. While their activities have often been over-looked by both scholars and the public, their work is important. State supreme courts decide over ten thousand cases each year. In the vast majority of these cases, their rulings are determinative: most litigants do not seek to appeal the decisions, and should they wish to do so, often the United States Supreme Court either lacks jurisdiction or declines to hear the appeals (Tarr and Porter, 1988:1). Indeed, because of their importance, state supreme courts have been referred to as “policy-makers in the federal system” (Porter and Tarr, 1982). One of the mechanisms through which state supreme courts can have an effect on policy-making is through the use of “judicial federalism,” or the “new federalism.”