Beyond Pollard: applying the Sixth Amendment's speedy trial right to sentencing.

• Author: Saetveit, Kristin
• Position: NOTE

Table of Contents Introduction I. The Historical Development of the Speedy Trial Right II. Lower Court Conflict on Applying the Speedy Trial Right to Sentencing A. Courts Rejecting a Speedy Sentencing Right B. Courts Applying the Speedy Trial Right to Sentencing C. Other Judicial Approaches to Sentencing Delays III. Application of the Speedy Trial Right at Sentencing A. The Speedy Trial Right Should Apply at Sentencing 1. The Supreme Court's jurisprudence on Sixth Amendment rights at sentencing 2. A historical view of sentencing proceedings 3. The speedy trial right's underlying rationales B. Courts Should Remedy Speedy Sentencing Violations by Imposing the Minimum Possible Sentence Conclusion Introduction

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...."

--Sixth Amendment to the U.S. Constitution

With roots predating the Magna Carta, the Sixth Amendment's speedy trial right enshrines an essential safeguard at the heart of the American criminal justice system. (1) The Supreme Court has lauded the speedy trial right as "one of the most basic rights preserved by our Constitution," (2) a right "as fundamental as any of the rights secured by the Sixth Amendment." (3) As important as the right is, however, the Court has also recognized it as "vague," "relative," "amorphous," and "slippery." (4) The speedy trial right does not prohibit all delays, nor does it provide a bright-line rule for how long a delay must be to violate its mandate. (5) Whether the speedy trial right has been compromised, the Supreme Court has said, depends upon a fact-specific, case-by-case approach that weighs a variety of factors, including the conduct of both the defendant and prosecution. (6)

In contrast to this flexible analysis for determining violations of the right, once a violation has been found, the remedy for a trial delay is clear: dismissal of the charges. (7) The Court has acknowledged dismissal as an "unsatisfactorily severe remedy" that means, in practice, that "a defendant who may be guilty of a serious crime will go free." (8) But the nature and importance of the speedy trial right permit no other solution. (9) In this respect, the speedy trial right is distinct from the other foundational guarantees secured by the Sixth Amendment: while courts remedy violations of the right to a public trial, the right to an impartial jury, and the right to notice of the charges (to name just a few) with new trials, (10) speedy trial violations demand more. Unlike these other rights, a speedy trial violation is not simply a defect in the trial itself that can be corrected with a do-over; awarding the accused another trial after an unjust delay does not at all address the harm done.

Despite the speedy trial right's fundamental importance, the full scope of the right's application remains uncertain, as lower courts have split on whether the right applies to sentencing proceedings. In Pollard v. United States, the Supreme Court assumed--without deciding--that the right to a speedy trial applies to sentencing proceedings. (11) Since Pollard, federal and state courts have answered this critical question in several different ways. While the Second Circuit and a number of state courts have squarely held that the speedy trial right does not continue through sentencing, (12) the Third, Fifth, Sixth, Tenth, and Eleventh Circuits have come to the opposite conclusion. (13) The remainder of circuit courts have taken the Pollard Court's shortsighted approach, assuming in each case that the right does apply before denying the speedy sentencing claim on the merits. (14) This circuit conflict has resulted in decades-long confusion and inconsistencies among jurisdictions on whether prolonged delays in sentencing violate a defendant's constitutional speedy trial right. (15)

Compared to other constitutional criminal procedure rights, the right to a speedy trial has received relatively little attention from scholars, (16) and the application of the speedy trial right to sentencing has received almost none. (17) This Note fills that gap with a comprehensive analysis of the circuit split, the arguments offered by both sides, and a reasoned solution to the issue. Part I provides a brief overview of the historical origins of the speedy trial right and the Supreme Court's development of the right in recent decades. Part II examines the circuit split and describes the reasoning underlying each side's conclusions. Finally, Part III argues for the application of the speedy trial right to sentencing based on the right's historical context and core purposes, as well as the Supreme Court's pattern of preserving only certain Sixth Amendment rights at sentencing. Because trial and sentencing were, in effect, a unitary proceeding in early America and at common law; because the interests motivating the speedy trial right apply with force to prolonged delays in sentencing; and because the Supreme Court has consistently preserved rights at sentencing that promote accuracy and truth, the speedy trial right should apply to sentencing. However, the remedy of dismissal should be adapted logically for the sentencing context, resulting in dismissal of all but the minimum sentence to which the defendant is exposed--the functional equivalent of dismissal of the charges for a trial delay.

1. The Historical Development of the Speedy Trial Right

   The speedy trial right enjoys a rich historical heritage in Anglo-American society, dating back to at least early twelfth-century England. (18) In 1166, King Henry II promulgated the Assize of Clarendon, a landmark set of procedural rules that began to transition England's law from the traditional trial-by-ordeal system to an evidentiary model based on investigation and sworn testimony. (19) In addition to establishing a rudimentary right to a jury, the Assize required that each county's traveling judges be promptly notified of the location of accused individuals to ensure the courts could "make their law" without delay. (20) Fifty years later, the drafters of the Magna Carta included an even plainer statement of the right: "[T]o no one will we refuse or delay, right or justice." (21)

   In his Institutes, the well-known Elizabethan jurist Edward Coke described this provision of the Magna Carta as establishing a fundamental tenet of the "law and custome of England," (22) enshrining a guarantee that judges "have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, ... without detaining him long in prison." (23) Coke's Institutes were extremely influential among the Framers of the Constitution: John Rutledge, the second Chief Justice of the U.S. Supreme Court, described them as "almost the foundation of our law," (24) and for Thomas Jefferson, the first part of Institutes constituted the "universal elementary book of law students." (25) Unsurprisingly, the speedy trial right was incorporated into many of the constitutions of the newly formed states, (26) and James Madison proposed the right without controversy as part of the set of fundamental safeguards against tyranny that culminated in the Bill of Rights. (27)

   Despite heralding the speedy trial right as central to our criminal justice system, the Supreme Court has heard relatively few cases on the right. (28) When the Court held that the right to a speedy trial applied to the states in 1967, (29) it still had not established a formal test to determine violations of the right and had provided "very little guidance" overall for lower courts deciding speedy trial right claims. (30) Justice Brennan remarked in 1970 that the Court had given "scant attention" to "questions essential to the definition of the speedy-trial guarantee": "[Although we said in Klopfer that the right to a speedy trial is 'one of the most basic rights preserved by our Constitution,' ... we have yet even to trace its contours." (31)

   Clarification of the right's contours came in 1972 with the Court's seminal decision in Barker v. Wingo. (32) In Barker, five years had elapsed between the defendant's arrest for murder and his trial, due in large part to the sixteen continuances the state requested while it attempted to convict the defendant's alleged accomplice. (33) The state had strategized that, once the accomplice was convicted, he would be more willing to testify against Barker without fear of self-incrimination. (34) The state viewed this potential testimony as crucial in its case against Barker, but due to hung juries and procedural mishaps, it had to try the accomplice six times before securing a conviction. (35)

   Barker's case was a "close" one, with equities on both sides. (36) The Court created a functional balancing test to address speedy trial right claims on a case-by-case basis, identifying four basic (but nonexclusive) factors for courts to consider: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (37) The length of delay represents a "triggering mechanism": until the defendant experiences some "presumptively prejudicial" delay, courts need not inquire into the other factors. (38) In Barker's case, the five-year delay was "extraordinary," with much of the delay caused by the state's own failure to prosecute the accomplice within the bounds of due process. (39) But two other factors outweighed these considerations. Because Barker suffered only minimal prejudice (40) and did not assert his objection to the delay until four years after the initial continuance, the Court concluded that he "did not want a speedy trial" and was instead taking advantage of the delay to obtain a dismissal. (41)

   Since Barker, the Court has further clarified the contours of the speedy trial right, including when it attaches (at the time of arrest or formal indictment, (42)) what the remedy must be (dismissal of the charges, (43)) whether delays...