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More on No. 04-806, Arkansas v. Jolly

Yesterday we filed our brief in opposition to cert. in No. 04-806, Arkansas v. Jolly, the second of four briefs that we did with our students in the Harvard Winter Term class. In its cert. petition, the State of Arkansas asks the Supreme Court to review the Arkansas Supreme Court’s holding that the nearly six-year gap between Jolly’s guilty plea and sentencing violates his Sixth Amendment right to a speedy trial.

Here are the details. In 1997, Jolly pleaded guilty to statutory rape – a charge that arose from what the state concedes was a consensual relationship with a twelve-year-old girl. He remained free on bond pending a pre-sentence report and sentencing. And then (in the words of my daughter’s favorite philosopher, Elmo) he waited. And he waited. And he waited . . . until February 2003, when a new prosecuting attorney realized that Jolly had never been sentenced.

Jolly responded to the state’s efforts to have him sentenced with a motion to dismiss, contending that the delay in sentencing violated his Sixth Amendment right to a speedy trial. The court denied the motion to dismiss and sentenced him to twenty-four years in prison, with twelve of those years suspended.

On appeal, the Arkansas Supreme Court reversed and vacated Jolly’s sentence. Relying on Pollard v. United States – a 1957 case in which the Supreme Court assumed that sentencing is part of the trial for Sixth Amendment purposes – the court agreed with the massive weight of authority in the other lower courts that the Sixth Amendment confers a right to a speedy sentencing. Applying the four-factor balancing test outlined by the Supreme Court in Barker v. Wingo, it concluded that Jolly’s right to a speedy trial had been violated by the nearly six-year delay. Two justices dissented. They agreed with the majority that the delay in sentencing had violated Jolly’s constitutional rights, but they would have located the right in the Due Process Clause rather than the Sixth Amendment and would have reduced – rather than vacated entirely – Jolly’s sentence to account for the delay.

In its cert. petition, the state acknowledges that virtually every federal court that has addressed the issue has either expressly held or assumed that the Sixth Amendment’s right to a speedy trial encompasses sentencing. It contends, however, that the state courts are divided on the issue. Moreover, it asserts, the Arkansas Supreme Court’s holding is wrong on the merits, because none of the concerns underlying the right to a speedy determination of guilt or innocence are present in the context of a defendant who has already pleaded guilty and is awaiting punishment. Instead, the petition argues, constitutional concerns arising from delays in sentencing should be addressed under the Due Process Clause.

We contend that certiorari is not warranted for several reasons. First, even if certiorari were warranted in the abstract, this case is a bad vehicle for Supreme Court review because the choice between review under the Sixth Amendment Speedy Trial Clause and review under the Due Process Clause is not outcome determinative here: the dissenting justices in the Arkansas Supreme Court specifically acknowledged that the delay in sentencing violated Jolly’s rights under the Due Process Clause. Second, the choice between the Speedy Trial Clause and the Due Process Clause is inconsequential, as even the few courts that review sentencing delays under the Due Process Clause rely on essentially the same standard used to review claims under the Speedy Trial Clause. Third and finally, the courts are substantially less divided than petitioner portrays them. The lower courts – including all federal courts – overwhelmingly agree with the Arkansas Supreme Court’s holding that delays in sentencing are encompassed within the Sixth Amendment; indeed, no state supreme court has held to the contrary in over twenty years.

We expect that the Court will consider the case at its March 18 conference; the ruling on the case could be announced as early as March 21.