Application and Scope.
“The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.” So finding, the Supreme Court held in the 1967 case of Klopfer v. North Carolina that the right to a speedy trial is one of those “fundamental” liberties that the Due Process Clause of the Fourteenth Amendment makes applicable to the states.18 But beyond its widespread applicability in state and federal prosecutions are questions of when the right attaches and detaches, when it is violated, and how violations may be remedied.
The timeline between the commission of a crime and its trial may include an extended period for gathering evidence and deciding to commence a prosecution. Prejudice that may result from delays between discovering a crime and completing its investigation, or between discovering sufficient evidence to proceed against a suspect and instituting proceedings, is guarded against primarily by statutes of limitation, which represent a legislative judgment with regard to permissible periods of delay.19 The protection afforded by the speedy trial guarantee of the Sixth Amendment “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.”20 Nevertheless, invocation of the right need not always await indictment, information, or other formal charge but can begin with the actual restraints imposed by arrest if those restraints precede the formal preferring of charges.21 In two cases involving both detention and formal charges, the Court held that the speedy trial guarantee had been violated by states that brought criminal charges against persons who were already incarcerated in prisons of other jurisdictions when the states that brought the criminal charges had ignored the defendants’ requests to be given prompt trials and had made no effort through requests to the prison authorities of the other jurisdictions to obtain custody of the prisoners for purposes of trial.22 But an individual’s speedy trial rights can be at issue even when he is not subject to detention and it is uncertain whether the government will ever pursue further prosecution. Thus, a state practice permitting a prosecutor to take nolle prosequi with leave, which discharged an indicted defendant from custody but left him subject at any time thereafter to prosecution at the discretion of the prosecutor, was condemned as violating the guarantee of a speedy trial.23
The Court has, however, distinguished the concluding phase of a criminal prosecution—or the period between conviction and sentencing—from earlier phases involving (1) the investigation to determine whether to arrest a suspect and bring charges and (2) the period between when charges are brought and when the defendant is convicted upon trial or a guilty plea.24 In Betterman v. Montana, the Court held that the constitutional guarantee of a speedy trial “detaches” once the defendant is convicted and, thus, does not protect against delays in sentencing.25 The Court reached this conclusion, in part, by analogizing the speedy trial right to other protections that cease to apply upon conviction.26 The Betterman Court’s conclusion was also based on originalist reasoning, noting that when the Sixth Amendment was adopted, the term “accused” implied a status preceding conviction, while the term “trial” connoted a discrete event that would be followed by sentencing.27 Practical considerations also informed the Court’s conclusion. In particular, the Betterman Court raised concerns about the potential “windfall” that defendants would enjoy if the standard remedy for speedy trial violations—namely, dismissal of the charges—were to be applied after conviction.28 Finally, the Court, relying on the federal government’s and states’ practices in implementing the speedy trial guarantee, observed that the federal Speedy Trial Act and “numerous state analogs” impose precise time limits for charging and trial, but are silent with respect to sentencing, suggesting that historical practice was consistent with the Court’s interpretation of the scope of the Speedy Trial Clause.29 At the same time, the Court did not view the reliance on plea agreements, instead of trials, in the contemporary criminal justice system as requiring a different outcome, noting that there are other protections against excessive delays in sentencing available to defendants, including the Due Process Clause and Federal Rule of Criminal Procure 32(b)(1).30
- Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).
- United States v. Marion, 404 U.S. 307, 322–23 (1971). Cf. United States v. Toussie, 397 U.S. 112, 114–15 (1970). In some circumstances, pre-accusation delay could constitute a due process violation but not a speedy trial problem. If prejudice results to a defendant because of the government’s delay, a court should balance the degree of prejudice against the reasons for delay given by the prosecution. Marion, 404 U.S. at 324; United States v. Lovasco, 431 U.S. 783 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982).
- United States v. Marion, 404 U.S. 307, 313 (1971). Justices Douglas, Brennan, and Marshall disagreed, arguing that the “right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pretrial indictment delays as it is to post-indictment delays,” but concurring because they did not think the guarantee violated under the facts of the case. Id. at 328. In United States v. MacDonald, 456 U.S. 1 (1982), the Court held the clause was not implicated by the action of the United States when, in May of 1970, it proceeded with a charge of murder against defendant under military law but dismissed the charge in October of that year, and he was discharged in December. In June of 1972, the investigation was reopened, but a grand jury was not convened until August of 1974, and MacDonald was not indicted until January of 1975. The period between dismissal of the first charge and the later indictment had none of the characteristics which called for application of the speedy trial clause. Only the period between arrest and indictment must be considered in evaluating a speedy trial claim. Marion and MacDonald were applied in United States v. Loud Hawk, 474 U.S. 302 (1986), holding the speedy trial guarantee inapplicable to the period during which the government appealed dismissal of an indictment, since during that time the suspect had not been subject to bail or otherwise restrained.
- United States v. Marion, 404 U.S. 307, 320, 321 (1971).
- Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 U.S. 30 (1970).
- Klopfer v. North Carolina, 386 U.S. 213 (1967) (the statute of limitations had been tolled by the indictment). In Pollard v. United States, 352 U.S. 354 (1957), the majority assumed and the dissent asserted that sentence is part of the trial and that too lengthy or unjustified a delay in imposing sentence could run afoul of this guarantee.
- Betterman v. Montana, 578 U.S. ___, No. 14–1457, slip op. at 3 (2016).
- Id. at 1, 3.
- Id. at 4 (noting, for example, that proof beyond a reasonable doubt is required for conviction, but sentencing factors need only be proved by a preponderance of the evidence).
- Id. at 4–5.
- Id. at 6–7.
- Id. at 7–8.
- Id. at 8–10 (noting, among other things that the Due Process Clause serves as a “backstop against exorbitant delay”). The majority in Betterman did not address how a due process claim for an allegedly excessive delay in sentencing should be analyzed.