By Shana-Tara O’Toole | Due Process Institute | President
Despite the well-documented disappearance of the American criminal trial, I continue to believe that every person deserves his or her day in court in order to address the charges leveled against them. Without that right being enforced, our system has eroded into a series of shortcuts that has eviscerated fairness and due process. In recognition of Bill of Rights Day, I honor the fact that our country’s founding generation insisted on the right of a presumptively innocent person to have their criminal charges adjudicated in a reasonable amount of time—an essential element of fairness. To ensure this fundamental right, the framers of the Bill of Rights explicitly included a speedy trial provision in the Sixth Amendment. Unfortunately, like so many other explicit protections in the Constitution, the right to a speedy trial has been eroded to the point of virtual non-existence, despite Congressional action to bolster the right. For that reason, Due Process Institute—along with our friends at the Cato Institute—filed an amicus brief in United States v. Jakes-Johnson urging the U.S. Court of Appeals for the Second Circuit to resuscitate the right.
The Speedy Trial Act
Many constitutional rights require reasonable interpretation, even when the constitution cites those rights explicitly. Legitimate conflicts can arise in a criminal trial that need to be resolved—such as what exceptions should be made to preserve the protection when crucial witnesses go missing or if a defendant gets hospitalized and is temporarily unable to aid in her own defense. In part to address these issues, and in part to force the system to begin enforcing our constitutional rights, Congress passed the Speedy Trial Act in 1974.
The Speedy Trial Act set the basic timing standards for federal criminal trials, including an indictment within 30 days of arrest or summons and a trial to start within 70 days of that indictment (or the defendant’s “not guilty” plea to those charges). Certain exceptions allow for excusable delays such as the missing witness and incapacitation situations cites above, as well as a reasonable period necessary for judicial consideration of pretrial motions brought by the defense, extra time for particularly complicated cases involving multiple defendants, and waiting until the defendant is no longer on trial in another jurisdiction, among others. These and other legitimate reasons can understandably extend the time between arrest and adjudication of criminal charges.
But in the immediate case, Mr. Jakes-Johnson waited three years between his arrest and his trial, despite the fact that almost all the evidence in the case was gathered by the government before the indictment and despite the fact that the case lacked any extraordinary elements that justified such delay. Instead, the delays in this case—as is the case with many modern criminal cases—were mostly due to a series of perfunctory continuances granted under the “ends of justice” exception [1] listed in the Speedy Trial Act.
Legislation cannot provide for every eventuality that will arise in a judicial proceeding, so Congress sometimes inserts catch-all provisions like this one to give courts flexibility to act in good faith in accordance with the law. Thus, if “the ends of justice” are compelling enough, the legislators thought best to give courts some flexibility to temporarily override the right to a speedy trial. However, as is too often the case, such exceptions end up “swallowing the rule” and become default settings that are used by prosecutors and judges to undermine the rights of the accused.
Indeed, the Supreme Court has previously contemplated this problem in United States v. Zedner, 547 U.S. 489, 508-509 (2006). Writing for a unanimous Court, Justice Alito wrote: “[I]t is . . . clear that Congress, knowing that the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act’s detailed scheme.” Despite the Supreme Court’s admonitions in Zedner, however, generic “ends-of-justice” speedy trial waivers that are repeatedly and perfunctorily filed and blessed by courts have gotten way out of hand. And we can’t expect defendants to be the one to enforce their rights to a speedy trial. Because our criminal legal system places defendants at the mercy of prosecutors (who exercise complete control over charging decisions and significant control over sentencing ranges), there is every incentive for the defense to accede to prosecution requests for more time.
As our brief explains: “Given the likelihood of an extreme sentence should an accused pursue the trial right and not succeed, virtually no one wants to risk losing the possibility of mercy or leniency by opposing a prosecution continuance request. Indeed, even incarcerated defendants will often agree to additional continuances in the hope of future mercy in the form of a reduced charge or sentence. The reality, then, is that the party with the most incentive to speed plea bargaining along—an incarcerated defendant—has no leverage with which to do so and a countervailing (but understandable) reluctance to take steps that might interfere with the prosecutor’s willingness (or apparent willingness) to provide mercy. And the prosecutor, who has all the leverage, has little incentive to proceed with dispatch, as the longer the defendant remains incarcerated, the more desperate he or she becomes to take a plea deal.”
More Legislation is Not the Answer
Because Congress has already acted to define the scope and breadth of this constitutional right in the Speedy Trial Act, the remedy is not more legislation. Instead, the remedy must come from the courts themselves—specifically the appellate courts—to reanimate the protections that the Constitution and statute so clearly meant to protect by simply enforcing the Act’s dismissal remedy in cases that come before it.
As further explained in the brief, at the time of the Speedy Trial Act’s enactment, the bill’s dismissal remedy was deemed an essential feature—even by the Department of Justice. At the time, then-Assistant Attorney General Rehnquist testified before Congress stating the following:
“It may well be, Mr. Chairman, that the whole system of federal criminal justice needs to be shaken by the scruff of its neck, and brought up short with a relatively peremptory instruction to prosecutors, defense counsel, and judges alike that criminal cases must be tried within a particular period of time. That is certainly the import of the mandatory dismissal provisions of your bill.” [2]
It’s clear to us that our criminal legal system is still in need of being “shaken by the scruff of its neck” nearly 50 years after passage of the Speedy Trial Act and THAT is why we filed an amicus brief in this case.
We thank Cato Institute for joining us on this brief to protect this vital right. We also thank Timothy O’Toole of Miller & Chevalier for providing pro bono representation in this case.
[1] The relevant portion of the statute excludes: “Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial….” 18 U.S. Code § 3161(h)(7)(a).
[2] Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, Fed. Jud. Ctr. at 17 (Aug. 1980), https://www.fjc.gov/sites/default/files/2012/LHistSTA.pdf (quoting Prepared Statement of Assistant Attorney General William H. Rehnquist, 1971 Senate Hearings 107).