RIGHT TO A SPEEDY TRIAL FOR ALL, UNLESS YOU'RE INCARCERATED: HOW SIXTH AMENDMENT JURISPRUDENCE ALLOWS FOR PROLONGED ISOLATION - UNITED STATES V. BAILEY-SNYDER, 923 F.3D 289, 291 (3RD CIR. 2019).

• Author: Carvello, Madison

"The authorities believed that isolation was the cure for our defiance and rebelliousness... Ifound solitary confinement the most forbidding aspect of prison life. There was no end and no beginning; there is only one's own mind, which can begin to play tricks. Was that a dream or did it really happen? One begins to question everything." (1)

1. INTRODUCTION

   The Sixth Amendment to the United States Constitution guarantees certain rights to the criminally accused when facing prosecution. (2) Included among these rights is the right to a speedy trial, which is "as fundamental as any of the rights secured by the Sixth Amendment." (3) Courts have adopted a narrow interpretation of the term "speedy trial" and have only applied the right if the accused has been "arrested." (4) Often, the criminal justice system deprives the accused of their right to a speedy trial, and their case faces the possibility of being neglected by the criminal courts. (5)

   The United States has approximately 2.3 million people incarcerated in its jails and prisons as of March 2020. (6) Solitary confinement holds approximately 80,000 of those 2.3 million people at any given time. (7) A common form of solitary confinement is administrative segregation, wherein corrections officers remove prisoners who pose a significant threat to safety or security from the general prison population and place them in complete isolation away from other inmates. (8) Frequently, corrections officers place an inmate in administrative segregation when the inmate is undergoing investigation for new criminal charges obtained while incarcerated. (9)

   Courts have consistently denied the application of the right to speedy trial to inmates who are placed in administrative segregation for a new criminal charge. (10) The United States Court of Appeals for the Third Circuit in United States v. Bailey-Snyder (11) joined this trend. (12) Although the federal courts of appeals are in unanimous agreement on this principle, unanimity does not signify accuracy, and therefore the Bailey-Snyder holding--denying speedy trial rights to an inmate placed in administrative segregation pending a criminal investigation--deserves a close examination. (13) Judge Kelly of the Eighth Circuit agreed with this notion in her concurring opinion in United States v. Wearing, written three years prior to the Bailey-Snyder case, when she expressed that she only concurred with the majority opinion's result, but "would leave for another day... the question of whether being placed in administrative segregation may under any circumstances qualify for an arrest for purposes of an accused's right to a speedy trial pursuant to the Sixth Amendment." (14)

   This Note aims to offer support to, and expand upon, Judge Kelly's concurring opinion by comparing an arrest to administrative segregation for a new criminal charge while incarcerated and arguing that the Supreme Court of the United States should consider administrative segregation, in this context, as an arrest within the meaning of the Sixth Amendment right to a speedy trial. (15) Further, this Note will argue that if the Court does not make such a determination, there is potential for future issues regarding a defendant's competency to stand trial, as well as their ability to adequately prepare a strong defense. (16) Lastly, this Note will argue that, generally, the courts should take a more hands-on approach to this area of carceral punishment. (17)

2. HISTORY

   1. History of the Right to a Speedy Trial

      The Sixth Amendment right to a speedy trial has "roots at the very foundation of the [United States'] English law heritage." (18) The Assize of Clarendon, issued in 1166, established judicial procedures regarding crime and recognized the right to "speedy justice." (19) In 1215, barons of England wrote the Magna Carta in rebellion against a tyrannical king, which enshrined the right to speedy trial, and it remains one of the most fundamental bases of English liberty. (20) The barons sought to protect their rights by formulating one of the first articulations of the right to a speedy trial, writing, "[t]o no one will we sell, to no one deny or delay right or justice." (21)

      Motivated by the belief that they were entitled to the rights guaranteed by the Magna Carta, the American Founders ensured the presence of those rights in the U.S. Constitution with the Bill of Rights. (22) In 1776, founding father George Mason wrote in the Virginia Declaration of Rights that "in all capital or criminal prosecutions a man has a right to... a speedy trial...." (23) This right was adopted by several of the states' constitutions and is now guaranteed in each of the fifty states. (24) "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." (25)

      In 1972, the Supreme Court in Barker v. Wingo (26) promulgated a balancing test, which courts still utilize today, to determine whether a defendant has been deprived of their right to a speedy trial. (27) The factors analyzed in making such a determination include the "[l]ength of the delay, the reason[s] for the delay, the defendant's assertion of his right, and prejudice to the defendant." (28) "Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." (29) "This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to minimize the possibility that the defense will be impaired." (30) The most serious interest is the possibility that the defense will be impaired because "the inability of a defendant adequately to prepare his case skews the fairness of the entire system." (31) Those accused have an interest in a speedy trial because it provides them with a "fair, accurate, and timely resolution" of their case. (32) The accused's interest in having a speedy trial is specifically affirmed in the Constitution, and therefore the Barker balancing test should reflect the importance of these interests. (33)

      Around the same time as the Barker decision, courts began to notice an alarming rise in the backlogs of federal and state court calendars, and oftentimes the result of frequent delays in bringing criminal cases to trial increasingly contributed to these backlogs. (34) Although courts used the Barker test to determine the timeline of a defendant's speedy trial rights, this practice only exacerbated the delays due to the ad hoc nature of the assessment. (35) These loose guidelines led to the conclusion that in order to protect the public's interests and to reduce court congestion, there needed to be a system imposed with specific guidelines for "prompt disposition of criminal cases." (36) The Speedy Trial Act of 1974 followed, and many states adopted similar speedy-trial legislation before the late 1970s. (37) The Act's purpose was to protect the public's interest in bringing the criminally accused to justice promptly and "[t]o assist in reducing crime and the danger of recidivism[.]" (38) The Act requires filing the information or indictment within thirty days from the date of arrest or service of the summons, and the trial must commence within seventy days from the date of filing the information or indictment. (39)

   2. History of Solitary Confinement in the United States

      The practice of isolating prisoners in the United States began during America's colonization when prison administrators separated prisoners for a myriad of organizational reasons such as gender and type (e.g., convicted criminal or unfree citizen). (40) It was not until the 1790s that the United States began specifically utilizing solitary confinement to separate prisoners. (41) Much like how it is used today, solitary confinement served as a threatening message to prisoners to follow the prison's rules or they could face an indeterminate period in an environment designed to wreak psychological pain. (42)

      Beginning in the early nineteenth century, penal institutions began experimenting with many forms of solitary confinement to "achieve their goals better." (43) Overcrowding and lack of space in prisons contributed to the inmates' poor physical and mental health, and many prison reformers believed the practice of solitary confinement was cruel, inhumane, and extremely costly. (44) Solitary confinement continued only as a "minor practice" throughout the United States, and in 1890 the Supreme Court, albeit in non-binding dicta, "dismissed solitary confinement as a barbaric and destructive practice no longer used in most of the United States." (45)

      As the twentieth century wore on, prisons lost their experimental sheen and became an integral part of U.S. democracy. Solitary confinement, on the other hand, continued to inspire criticism, and critics from the Supreme Court to the Saturday Evening Post continued to presume that the practice of solitary confinement, unlike incarceration, was far from integral to American democracy. (46) Solitary confinement became more commonly used in American prisons during the initial period of mass incarceration. (47) In the 1970s and 1980s, litigation challenging the practice increased, arguing that "even short-term uses of solitary confinement... 'serve[] no rehabilitative purpose.'" (48) Super-maximum ("supermax") prisons emerged in the 1980s and 1990s and are described as "the model of incarcerating large numbers of prisoners in near total isolation." (49) The supermax model's origin can be traced to the slave plantation and convict labor systems, which both fed off the complete control of African-Americans. (50) The increased use of solitary confinement was also racially discriminatory; the same racial disparities that characterize the general prison population are replicated in the population of those held in solitary confinement. (51)

      The...