February 27th, 2021


When a 'speedy trial' includes a 14-month delay

Noah Feldman

By Noah Feldman Bloomberg View

Published May 23, 2016

 When a 'speedy trial' includes a 14-month delay

The Supreme Court has unanimously held that your right to a speedy trial doesn't cover a 14-month delay after conviction and before sentencing -- because after conviction, the trial is over. To reach this formalistic conclusion, the court had to invent a new legal category -- the "criminal justice process" -- and break it into three separate parts. But although the holding seems wrong to me, there's still a ray of hope for defendants who sit around waiting for sentencing: The justices left open the possibility that a different part of the Constitution might afford relief in a future case.

Given the issue in the case, there's some irony in the fact that the court turned around the decision in the case, Betterman v. Montana, at lightning speed. The justices heard oral argument in the case on March 28 -- a turnaround of less than two months.

But the speed did petitioner Brandon Betterman no favors. Justice Ruth Bader Ginsburg wrote for a unanimous court that the Sixth Amendment's guarantee didn't apply to anything that happens after conviction.

Her rationale was based on the central argument that the right to a speedy "trial" doesn't include the whole process of arrest, conviction and sentencing -- just the time between the first two. To make this claim, she began with the assertion that "criminal proceedings generally unfold in three discrete phases." The first is investigation until a criminal charge. The second runs from arrest until conviction, during which the defendant is presumed innocent. The third, according to Ginsburg, begins after conviction -- during which "the court imposes sentence."

The first division makes some sense. Before a charge is filed, there's no "trial" to speak of. But the distinction between trial and sentence is more or less made up for the occasion. Functionally, if I'm in jail, there isn't a big difference between awaiting trial and awaiting sentencing. Either way the detention is based on the danger I pose to society and my risk of flight. Indeed, I could be sentenced to time served and released at the moment of sentencing -- suggesting that my post-conviction detention was part of my trial process.

History isn't a source of the distinction between the trial period and the post-trial, pre-sentencing period, either. When the Bill of Rights was enacted, sentencing typically followed trial immediately.

Today, there are pre-sentence reports to be written and a complex bureaucratic process to be followed that will largely determine the length of the sentence. All that, however, is new.

Ginsburg's opinion purported to rely on history anyway. She quoted the statement of Sir Edward Coke explaining that, presumed innocent, a person shouldn't be detained long before trial. And she emphasized that the term "accused" has long been used in contradistinction to "convicted."

This history is correct -- but not that relevant, considering that ordinarily there was no delay between conviction and sentencing.

In an era of plea bargaining, the pre-sentence report and the hearing are the heart of the criminal justice process -- and should therefore be considered part of the trial. Ginsburg herself acknowledged that today, "many -- if not most -- disputes [about sentencing] are resolved though the pre-sentence report process."

A hint of the court's thinking emerged in Ginsburg's observation that under the court's speedy-trial jurisprudence, the only remedy for a violation is that the charges are dropped. The get-out-of-jail-free card would be a "windfall" for already-convicted defendants.

I'm not sure that's such a problem, since the free pass is also a windfall for those whose trials have been too long delayed. But even if it is a problem, the court could fix it by inventing a new remedy that falls short of a dismissal of charges.

The court didn't do that.

But the majority opinion did point out that Betterman had only brought a claim under the speedy trial clause, not under the due process of clause of the 14th Amendment. That means another defendant could claim that post-conviction delay can count as a due process violation.

Justice Sonia Sotomayor concurred separately to say she would welcome the chance to consider that related question -- and she recommended a legal framework for analysis. That due process framework comes from the same Supreme Court case that laid out the speedy trial analysis -- a further reminder that the court here was being highly formalistic.

There's no guarantee how a due process case would come out. Justice Clarence Thomas, joined by Justice Samuel Alito, also concurred to say that he might not apply the same standard. It might be enough, he wrote, for states to allow defendants to ask some other court to order the sentencing to happen.

But that dispute will have to wait for another case -- and maybe for a court with an odd number of justices.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."