Speedy Trial - Bibliography, Cases
The right to a speedy trial finds expression in the U.S. Constitution, state constitutions, state and federal statutory law, and state and federal case law. The Sixth Amendment to the U.S. Constitution, and the case law surrounding this amendment, provide the best place to start analysis of the basic questions of primary concern: What interests does the right protect? When and why are these interests triggered? And how should these interests be protected, both to prevent their violation whenever possible and to remedy the effects of violations when violations nonetheless occur?
The words of the Sixth Amendment guarantee, among other things, that "In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." Although this right, like everything else in the Bill of Rights, originally applied only against the federal government (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), it has since been "incorporated" via the Fourteenth Amendment to apply to the states as well (Klopfer v. North Carolina, 386 U.S. 213 (1967)). In a nutshell, the Framers designed the right to protect a person from prolonged de facto punishment—extended accusations that limit his liberty and besmirch his good name—before he has had a full and fair chance to defend himself. If government accuses someone, it must give him the right, speedily, to clear himself at trial and regain his good name and full liberty. And if government holds the accused in extended pretrial detention, courts must ensure that the accuracy of the trial itself will not thereby be undermined—as might occur if a defendant's prolonged detention itself causes the loss of key exculpatory evidence.
A series of cases decided by the Supreme Court during the second half of the twentieth century laid down seven general propositions concerning the constitutional right to a speedy trial. (1) The Court has repeatedly identified three major and distinct interests protected by the Sixth Amendment speedy trial clause: an interest in avoiding prolonged pretrial detention, an interest in minimizing the anxiety and loss of reputation accompanying formal public accusation, and an interest in assuring the ultimate fairness of a delayed trial. (2) The Court has made clear that the major evils of pretrial restraints on liberty and loss of reputation occasioned by accusation exist quite apart from the third major evil of possible prejudice to an accused's defense at trial. (3) The Court has held that the clause simply does not apply to the time between the commission of the crime and the time that the defendant is in some way "accused" (usually by arrest or indictment) by the government. In other words, the clause applies only to the formal "accusation period"–the period between governmental accusation and trial. (4) Relatedly, the Court has held that the clause does not apply to any period during which the government drops its initial charges while retaining the right to reindict later—the defendant is not "accused" during this time, and so the speedy trial clock stops ticking against the government during this period. (5) The Court has held that if preaccusation delay compromises the defendant's ability to defend herself, the main safeguard against injustice comes from the applicable statute of limitations. In cases of substantial prejudice to a fair trial caused by a prosecutor's purely strategic delay in bringing the initial accusation, defendants may also seek relief by appealing to general due process principles. (6) The Court has said that the judicial remedy for speedy trial violations of dismissing the case with prejudice—that is, dismissing with no possibility of refiling charges later—is unsatisfactorily severe because it means that a defendant who may be guilty of a serious crime will go free, without ever having been tried. Such a remedy, the Court has noted, is more severe than the Fourth Amendment exclusionary rule, which limits the introduction of certain evidence, but typically does not altogether bar a trial. (7) Nonetheless, the Court has repeatedly held that dismissal with prejudice is the only possible remedy for speedy trial clause violations. Given the first six propositions, the analytic soundness of proposition seven seems questionable to some scholars, although the law appears quite clear on this point.
It may be seen that the first of the principles set out above suggests that each of the three interests protected by the clause may have a different time limit. Imagine, for simplicity, a case in which the liberty interest would be violated by anything more than a month of pretrial detention: by hypothesis, any detention longer than this would be an unacceptable deprivation of liberty for a man who has yet to receive all the safeguards of a full-blown trial—a man who has not yet been, and may never be, convicted of anything. Now imagine a second defendant, charged with the identical crime but released on her own recognizance pending trial. In this second case, no pretrial detention interest exists, and her distinct anxiety and reputation interest would not necessarily be violated by a similar one-month gap between indictment and trial. For example, a full year might elapse before this distinct constitutional interest—which demands that at some point an accused person must be allowed to answer the government's accusation and thereby clear her good name—would be violated. The fair trial interest may have a different time period still, depending on the particular ways in which the government's accusation threatens to impede a defendant's ability to fully defend himself at trial. For example, some pretrial detentions might severely obstruct the defendant's ability to assemble evidence and witnesses for his trial defense; other detentions might not, depending on the particular conditions of confinement and state of the evidence; and still other indictments will not involve any pretrial detention.
Moreover, it is clear that the clause is violated by overlong detention regardless of what happens later on: an impermissibly lengthy detention violates the clause whether it ends in a trial or in the charges being dropped. So far as the pretrial liberty interest is concerned, it is the detention, and not the trial, that violates the speedy trial clause. This is suggested by the second proposition: the pretrial liberty and reputation interests are independent of the conditions of the trial, as the Court made clear in the 1971 case of United States v. Marion , 404 U.S. 307. Marion also illustrated the third proposition in upholding, against a Sixth Amendment challenge, an indictment handed down three years after prosecutors supposedly knew about the crime and defendants' involvement in it; the defendants, said the Court, were simply not "accused" during those three years. In accordance with the fifth proposition, the Court ruled that the statute of limitations was the defendants' primary safeguard, and further noted that if defendants could show substantial prejudice to their defense created by a bad-faith prosecutor seeking delay simply to gain tactical advantage, a due process challenge would be appropriate.
Thus, the speedy trial clause is accusation-based: it applies only to harms caused when and because one is "accused." (The 1992 case of Doggett v. United States, 505 U.S. 647, decided by a 5–4 vote, might be thought inconsistent with this general statement, but on careful analysis it is not. In Doggett, which involved an indictment that was allowed to linger for eight years, the accusation itself did indeed cause harm to the defendant, because the indictment tolled the relevant five-year statute of limitations. Perhaps the best way of explaining Doggett's result—if not all its language—is to say that the case involved the interaction of the Sixth Amendment and the statute of limitations; the proper rule to be derived from the case is that if an accusation period is unconstitutionally long under the Sixth Amendment, the indictment should automatically lapse, and thus cease to toll the statute of limitations, whose clock begins to tick again.)
This accusation-based interpretive scheme makes functional and textual sense. If the three major evils of speedy trial clause violations are loss of liberty, loss of reputation, and harm to the defendant's ability to defend herself at trial, then it seems clear that the speedy trial clause is applicable only during the time that a person is in custody or under indictment. After all, it is accusation itself that triggers the threat to the liberty, reputation, and fair trial interests. A person who has not been arrested suffers no loss of liberty; a person not under arrest or indictment suffers no formal government-created loss of reputation; nor does such a person face an upcoming trial. All of the harms, however, become imminent upon arrest or indictment—upon accusation. The accusation-based language of the clause strongly reinforces this analysis; its words come into effect only when a person becomes "the accused"–typically, by arrest or indictment. Elsewhere, the Sixth Amendment speaks of the district in which "the crime shall have been committed." If the speedy trial clock were meant to begin ticking before arrest or indictment, it would have made more sense to speak of the "time at which the crime shall have been committed" in the speedy trial clause. Instead, the use of the word "accused" indicates that it takes effect only after arrest or indictment. Of course, this is not to say that a prosecutor may properly wait as long as he likes to file charges (perhaps in the hopes that key defense evidence will fade away or defense witnesses disappear). As proposition (5) reminds us, statutes of limitations provide the primary defense against this kind of prosecutorial abuse, and due process principles are applicable as well.
Although the Constitution speaks of a speedy trial as the right of the "accused," the Court has recognized that society at large also has its own legitimate interests in the prompt resolution of criminal accusations. Many defendants—especially guilty defendants—might prefer to delay their trials, perhaps in the hopes that prosecutorial evidence will become stale, making it more difficult for the government to carry its ultimate burden of proof beyond reasonable doubt. But the Constitution does not give a defendant a general right to an "unspeedy" trial—unlike, for example, the Sixth Amendment right of counsel, which is accompanied by a general right not to have counsel (see Farretta v. California, 422 U.S. 806 (1975)). Nevertheless, at some extreme point, an accusation period could be so short as to violate general due process principles: a defendant must be given sufficient time to arrange his defense, as the Supreme Court recognized in its famous ruling in the so-called Scottsboro case (Powell v. Alabama, 287 U.S. 45 (1932)).
In light of this analysis of the nature and the timing of speedy trial clause rights, it remains to ponder how these rights should be legally protected and remedied. Although the Court has said that dismissal with prejudice is the only possible remedy, there are reasons to doubt the analytical soundness of this assertion. Consider the first interest protected by the clause, the bodily liberty interest offended by overlong pretrial detention. Judges can simply refuse to allow this violation to happen by issuing writs of habeas corpus directing the release of prisoners who have served as much pretrial time in jail as the clause will tolerate. Historically, the history of the speedy trial right in England tightly intertwined with the famous English Habeas Corpus Act of 1679. However, habeas is less a remedy than a means of prevention. What should the remedy be when the judge fails to issue a writ? One controversial possibility would be to allow for compensatory and punitive damages directly against the government. Extending its landmark ruling in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which held that government officials who conducted unreasonable searches could be sued directly under the Fourth Amendment, the Court could find a direct cause of action against the government itself under the Sixth Amendment's speedy trial clause. Indeed, unconstitutionally long detentions would seem to be a subset of unreasonable seizures of persons, and so the Fourth Amendment might seem directly applicable as well. The prospects for such a doctrinal development, however, seem bleak. The most natural damage remedy would lie against the government itself. (Judges who ordered the detention would enjoy judicial immunity; prosecutors who allowed the defendant to languish in jail pretrial would likewise claim that a court had authorized the detention; and the jailer would insist that he was acting in good faith reliance upon a judicial order of confinement.) But principles of sovereign immunity would likely make it difficult to prevail in a damage suit brought directly against the government, even though its executive and judicial agents combined to deprive a defendant of his constitutional rights to bodily liberty.
Similarly, for the second speedy trial interest—reputation—the judge can prevent violations by simply quashing indictments that linger too long, with permission to reindict whenever the prosecutor is ready to proceed immediately to trial. Again, if the judge fails to prevent a violation, civil damages would be a remedial possibility, just as they are in other cases of damaged reputation (e.g., slander and libel): the accused has been charged by the government of having committed an infamous act, but has been denied his right to speedily clear his name in a fair trial. Here, too, however, the problem of sovereign immunity has blocked the development of this analytically attractive remedy.
One of the main virtues of damage remedies is that they seek to vindicate the rights of innocent men and women wrongly detained and accused; dismissal with prejudice is not a true, or tailored, remedy for someone who is clearly innocent, and would have obviously prevailed at trial. (Dismissal with prejudice can also be an unfortunate windfall to the guilty in some cases, as shall become more clear below.) In other words, although dismissal with prejudice might well vindicate whatever fair trial interest might exist—if it exists—it does nothing to redress the analytically distinct wrongs of pretrial loss of bodily liberty and reputation that can occur when a defendant is held too long in pretrial detention, or accused too long without a chance to speedily clear his name at trial. The framers of the Constitution cared a great deal about innocent persons, and designed many provisions of the Fourth, Fifth, and Sixth Amendments to protect these innocent persons from erroneous punishments and impositions. The speedy trial clause is clearly, at its core, designed to give an innocent man wrongly accused a right to a speedy trial so that he can clear his good name and end whatever pretrial deprivations of liberty he may be suffering. These two major interests—in reputation and liberty—are ill served by the current absence of good remedies to make innocent men and women whole when these interests have been violated by government.
Consider finally the fair trial interest, designed to ensure that an overlong accusation itself (which of course may trigger pretrial detention and which may cause an immediate loss of reputation that worsens with every day the indictment lingers) does not compromise the ability of a defendant to put on a full and unimpaired defense at trial. Here, too, the Amendment is centrally designed to protect an innocent defendant from being erroneously imposed upon. A judge could again prevent violations of this interest by ordering the pretrial release of the defendant or ordering the conditions of confinement softened so that the confinement does not cause the loss of key exculpatory evidence. If this fails, however, there are several possible judicial remedies. One is dismissal with prejudice. The idea here is simple: if, because of the government's unconstitutionally long accusation period, a fair trial is simply no longer possible, then the trial itself should be permanently aborted, and the defendant set free. This is a precisely tailored remedy—but only for that subset of cases in which the fair trial interest has been incurably compromised. Another possible option, in cases where it is less than clear that a trial would itself be unfair, is to rely on the due process rule of In re Winship, 397 U.S. 358 (1970), requiring the government prove guilt beyond a reasonable doubt in criminal cases. A defense argument to the jury that an unreasonable delay by the prosecutor's office caused key evidence to be lost could certainly be grounds for reasonable doubt.
Under the foregoing remedial analysis, the different speedy trial clause interests—protecting bodily liberty, reputation, and fair trials—call for different and precisely tailored remedies. Dismissal with prejudice is not, contra the Court's pronouncements in Barker v. Wingo, 407 U.S. 514 (1972), and Strunk v. United States, 412 U.S. 434 (1973), "the only possible remedy" for speedy trial clause violations. It is indeed a precisely apt remedy where a trial itself would be incurably unfair, because of the government's own conduct during the accusation period. But it is inapt in many other cases in which rather different if speedy trial clause interests may have been violated. Thus, dismissal with prejudice, without more, underprotects the innocent defendant who would have won acquittal in any event, but who is not compensated for the loss of his distinct interests in bodily liberty and reputation. Here, dismissal alone is too little. In other cases, it is too much: it overprotects guilty defendants in cases where there is no threat to a fair trial but where there has been a violation of distinct speedy trial interests—for example, an overlong detention that offended the bodily liberty interest, or an overlong accusation that implicated the reputation interest. If dismissal with prejudice is indeed the only possible remedy, the guilty defendant gets a windfall, while the innocent one receives nothing for months or years of detention and/or a ruined reputation. It is submitted here that a more sensible enforcement scheme—one consistent with propositions (1)–(6)–would call for timely judicial orders to either prosecute immediately or drop the charges or release the prisoner (depending on which time period has tolled). Dropping the charges would still permit the prosecutor to reindict later, and proceed immediately to trial. Such an enforcement scheme would also call for compensatory and (in egregious cases) punitive damages against the government for defendants who have either been subjected to unconstitutionally long periods of imprisonment or prolonged attacks on their good names. Note that those defendants ultimately found guilty in fair trials would likely have no case for claiming that the overlong accusation besmirched their good names: had the trial occurred sooner, they would have been found guilty even sooner, with even more (and deserved) discredit heaped on their reputation. As for overlong detentions, to avoid any possible double punishment, the guilty could receive sentencing offsets for time served, as is currently provided for in federal cases by 18 USC section 3585 (b). It is still possible that a guilty defendant would have a case for damages: perhaps his pretrial detention was so long as to be greater than the length of his eventual sentence upon conviction. Here, again, it would seem that he has been unconstitutionally seized in a way that a Bivens-type suit should appropriately remedy. But in general, those defendants who won acquittals at trial—innocent defendants—would tend to recover more than those defendants later found guilty at trial. This is as it should be if indeed the speedy trial right is centrally concerned with protecting innocent persons from erroneous governmental deprivations of liberty and reputation.
Because dismissal with prejudice has been held by the Supreme Court to be the only appropriate remedy for speedy trial clause violations, it is possible that judges have gone out of their way to avoid finding violations, in order not to create a severe windfall for guilty defendants. Indeed, the Court has opted for a rather loose, multi-factor test to assess speed. In this test, judges must weigh the length of the pretrial delay; the reason for the delay; whether and when the defendant asserted his speedy trial right; and whether the delay in fact prejudiced the defendant's trial. There are few fixed guidelines or strict deadlines under this approach.
In 1974, Congress responded to this loose judicial regime with the Speedy Trial Act, 18 USC sections 3161–3174, providing a tighter, fixed schedule regulating the accusation period. For example, the act requires persons arrested to be charged within thirty days and arraigned within ten days of indictment or information; the trial must then commence within sixty days of arraignment. If, after this time, a trial has not commenced, a defendant can move for dismissal of the charges, either with or without prejudice—with the decision turning on factors including the seriousness of the offense, the facts and circumstances leading to dismissal, the impact on the administration of justice, the prejudice to the defendant, the length of the delay, and the defendant's own role in contributing to the delay. The act also provides a rather intricate framework for determining various periods of delay during which the statutory clock stops ticking.
The states have also enacted legislation to ensure the right to a speedy trial. The Interstate Agreement on Detainers is a 1970 compact between forty-eight states, the District of Columbia, and the federal government. Under the terms of this agreement, if a person is serving prison time in one state and charges are pending against him in another state, he has the right to be brought to trial within 180 days of requesting final settlement of the pending charges. The agreement also provides for extradition between states for the purposes of standing trial, and requires that an extradited prisoner be tried within 120 days of his arrival in the receiving state. Finally, if any of these terms are violated, or if officials of the receiving state refuse to accept custody of a prisoner against whom they have an indictment, the indictment will be dismissed with prejudice.
The foregoing discussion has been somewhat abstract and analytical; the contemporary legal reality is more messy, and rather depressing to contemplate. A great many suspects in today's world are subject to considerable pretrial detention, notwithstanding the letter and spirit of the Sixth Amendment and the Eighth Amendment bail clause. Dejected and demoralized, many poor defendants may end up pleading guilty, even to crimes that they may not have committed, so that they can be released on the basis of time already served. (With no damage remedy awaiting them upon acquittal for their overlong pretrial detention, many have little incentive indeed to put the prosecution to its ultimate proof at trial.) The result is a system that in reality falls short of vindicating the noble principles of the Constitution.
AKHIL REED AMAR
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