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Publication Date

May 1977

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The 1960's marked a watershed for the criminal justice system. In such areas as search and seizure, right to counsel and the privilege against self-incrimination, the federal courts first defined substantive constitutional rights and then imposed them upon disinclined functionaries at the state level. At first, these innovations raised thorny questions of constitutional interpretation about the rights involved, but, as is especially visible in the search and seizure area, the debate more recently has focused on the remedy chosen by the Supreme Court for enforcing these rights against the states.' This pattern of escalating federal involvement in the criminal justice system was not limited to criminal investigatory procedures and protection of the rights of the accused at trial. Breaking with prior law and practice, federal courts also started reviewing individual prisoner petitions alleging violation of constitutional rights, and, by the end of the decade, they began intervening in the policies and affairs of state correctional facilities. In this area of criminal procedure as well as in those surrounding the investigatory and trial stages, the more controversial innovations have begun to shift from definition of the right to moredetailed explication of the remedy required once a violation of the right has been found.