Delay in process, denial of justice: the jurisprudence and empirics of speedy trials in comparative perspective.

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TABLE OF CONTENTS INTRODUCTION I. THE ACADEMIC LITERATURE ON SPEEDY TRIALS: A BRIEF OVERVIEW II. THE INDIAN SPEEDY TRIAL LANDSCAPE A. The Jurisprudence B. The Empirics III. WHAT HAS BEEN DONE? PROPOSALS AND REFORM INITIATIVES IV. WHAT CAN AND SHOULD BE DONE? PRELIMINARY OBSERVATIONS V. CONCLUSION APPENDIX 1 INTRODUCTION

In the United States, perhaps no modern legal scholar has made as significant an impact on the Sixth Amendment's speedy trial clause than Professor Akhil Amar of Yale Law School. (1) In his work, Amar uses detailed, historical legal analysis to make a provocative argument concerning the rights of defendants who failed to receive a speedy trial. Amar contends that in such cases the remedy of "dismissal with prejudice" (2)--the standard set-forth by the Supreme Court as early as 1972 (3)--can perversely serve as a "windfall" (4) for defendants and place society in danger, especially when there is overwhelming evidence that the pre-trial detainee is guilty. (5) Instead, for Amar, the proper remedy in these instances involves releasing the defendant, allowing the prosecution to re-file charges at a later date, but also providing the defendant with some form of compensatory or punitive damages. (6)

Amar's framework has received a great deal of attention, but also harsh criticism from those who accuse him of rolling back the advances made on behalf of defendants who often lack sufficient resources or sophistication to have proper representation. (7) In addition, there is the charge that his work is too ethereal and constitutionally focused (and thus ivory tower in nature); (8) when, in fact, in practice there is little speedy trial litigation in the first place. After all, across the country there are state statutes that address this subject, with which prosecutors usually comply. (9) If litigation does occur, it is often based on technical grounds rather than on classic Sixth Amendment principles. (10)

Nevertheless, the Amarian notion of not dismissing charges, carte blanche, against a defendant whose speedy trial right has been violated raises interesting issues especially when comparing it to other legal systems. Indeed, his framework is informative and useful for considering how India, a democracy with a common law legal system that draws on the United States, has been struggling with a serious backlog in criminal cases that have failed to reach the courts.

In India there are thousands of defendants who have been languishing in jails, (11) awaiting trial--many for longer than a formal sentence would have brought. The term of art used to describe all non-convicted defendants within the Indian criminal justice process is "undertrial" in that these individuals are deemed to be under the umbrella of the trial process. (12) Undertrial-prisoners are thought to comprise a staggering seventy percent of India's incarcerated population. (13) Moreover, this issue is one that many within the country have recognized as reaching a breaking point; consider that diverse observers such as high-ranking government officials, civil society activists, lawyers, and judges have in unison called for massive reforms in the country's penal process. (14)

This crisis is occurring against a paradoxical Indian landscape. (15) On the one hand, India is a dominant power on the world stage today. With a potent nuclear arsenal, high economic growth, a vibrant and young labor force, and ever-increasing levels of foreign investment, (16) India is a country that most acute international observers see as being a lead actor in the twenty-first century. (17) Further, the beauty of the Indian experiment is that despite the odds, it succeeds as a pluralist parliamentary democracy.

At the same, however, India suffers from a host of major problems. Corruption, intense poverty, illiteracy for large swaths of the population, a lack of adequate educational institutions, and poor infrastructure are just some of the daunting challenges that confront the Indian state. (18) Furthermore, empirical research conducted on the civil justice side of the Indian legal system highlights a routine failure, on the part of the courts, to provide remedies to aggrieved parties in a timely manner. (19) With these hardships present, it is difficult to envision how the state can also cope with such an underperforming criminal justice system. Yet that is the place India currently finds itself; namely, in a situation where because of how glacially slow the adjudication process is for criminal matters, this system and many of its administrators are seen as all but ineffectual. For a country that aspires to be a leading democratic power during the millennium, it thus seems untenable that this goal can be achieved when speedy trials for defendants, and an efficient criminal justice system overall--all vital lynchpins in a consolidated democracy--are so unrealized in everyday practice.

In this article, we assess systematically the undertrial predicament in India. Because so little rigorous jurisprudential and empirical work has been done on the subject, we approach our task through a set of deliberate steps. In Section I, we contextualize our India-project within the broader academic literature on speedy trials. To be sure, American scholarship on this topic is relevant, particularly because Indian courts have often looked to U.S. law in adjudicating these matters; but scholars from other jurisdictions have also contributed.

In Section II, we focus on the Indian constitutional approach to speedy trials. During the framing of the Indian constitution in the late 1940s, assembly-members, when drafting Article 21, discussed due process, the right to life, and other issues; (20) but the notion of a speedy trial was not explicitly included within the constitutional text. It was only in 1979 that the Supreme Court of India held that a speedy trial was a fundamental constitutional right (under Article 21) for criminal defendants. (21) As we will show in the first part of this section, the Indian courts have proceeded to reiterate this principle in subsequent cases.

Unfortunately the empirical reality for defendants in India awaiting trial has failed to conform with these repeated judicial pronouncements. Drawing on a series of statistical data, we highlight, in the second part of Section II, how since that late 1970s Supreme Court case the number of undertrial-prisoners has significantly increased to the point where the vast majority of incarcerated are not those who have been convicted but instead are simply those waiting for their day in court.

In Section III, we evaluate the various governmental reports that over the years have attempted to address this undertrial quandary. Included in our evaluation is the current government's plan to release a large percentage of the undertrial population. (22) Our thesis is that while on paper many of these past and present proposals have good intentions and offer some relief, greater structural and fundamental reform is needed throughout various points in the criminal justice process before the undertrial problem is resolved.

In Section IV we offer our preliminary set of recommendations. We

base these recommendations on fieldwork and interview data collected during the summer of 2010 from a range of experts, many of whom have experience working in the criminal justice system, but currently serve as vigorous non-governmental activists. We provide a set of proposals we believe could help alter the undertrial pathology inhering within the Indian penal process. Ultimately, our belief is that to further strengthen India's democratic state there must be an end to the undertrial debacle. Ensuring that the criminally accused are provided with the right to a speedy trial would go a long way in having this important objective realized.

I. THE ACADEMIC LITERATURE ON SPEEDY TRIALS: A BRIEF OVERVIEW

As several writers note, references to a speedy trial date back to the twelfth century and the Assize of Clarendon, followed by its presence in the Magna Carta of 1215, as well as in the famous tomes of Sir Edward Coke. (23) And because this sacred "entitlement... had been present in English law for over half a millennium," (24) it should not be surprising that revolutionaries in colonial America valued this right. (25)

The speedy trial case law in the United States did not begin to develop until the twentieth century, with the Supreme Court's 1905 decision in Beavers v. Haubert. (26) In what was a rather unhelpful ruling for future cases, the Court in Beavers held that the speedy trial clause would be violated "depend[ing] upon the circumstances" (27) of the particular facts at hand. For the next several decades the Court incrementally enhanced the speedy trial rights of defendants in a series of judgments. (28) It was not until 1972, in Barker v. Wingo, that the Court enunciated a four-part balancing test meant to clarify when this provision of the Sixth Amendment would be violated. (29)

In Barker, a unanimous opinion, Justice Lewis Powell stated that courts needed to weigh factors such as "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" (30) when deciding if prosecutors were complying with the speedy trial guarantee of the Constitution. Almost immediately after the decision, though, the Supreme Court's rationale came under great scrutiny by prominent scholars. For example, Columbia University law professor Richard Uviller famously charged that the Barker test was "less than gratifying ... [with] [t] he result ... [being] a right debilitated, its components askew." (31) In his assessment of Barker and its immediate progeny, Strunk v. United States (1973), Professor Anthony Amsterdam, pre-dating part of Akhil Amar's critique, delivered a stinging rebuke of both holdings. (32) Amsterdam noted that the Court's approach-particularly in the latter case where it held that the outcome for...

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