Opinion analysis: “Speedy trial” guarantee does not apply to sentencing
on May 19, 2016 at 8:30 pm
The price of unanimity on an ideologically divided Court is, as we are learning in Justice Antonin Scalia’s absence, narrow opinions that reserve difficult issues for future consideration. Today in Betterman v. Montana, the Court “confine[d]” its decision to the Sixth Amendment only, ruling that its Speedy Trial Clause “does not apply” to “delayed sentencing” after a defendant has been found guilty by trial or plea.
After this short and simple ruling, Justice Ruth Bader Ginsburg’s opinion for the eight-Justice court was littered with limiting footnotes, expressly leaving open a number of related questions that, while not unimportant, are “inside baseball” to the average SCOTUS fan. On the largest unresolved question — how and when courts should apply the Due Process Clauses to “inordinate” or “exorbitant” sentencing delays — Justice Clarence Thomas and Justice Sonia Sotomayor each offered two-page concurring opinions expressing different preliminary thoughts.
As you may recall from my prior posts, it took the Butte County District Court fourteen months to sentence Brandon Betterman for bail jumping (after he failed to show up on prior domestic violence charges). After nine months, Betterman asked for a “speedy” sentencing, and claimed that he was suffering various adverse consequences from the delay and his consequent presentencing detention in the county jail, as opposed to the state prison where he would go once sentenced. (In a footnote, the Court is perhaps a bit too dismissive of this concern as “of no constitutional moment,” saying that “a convicted defendant has no right to serve his sentence in the penal institution he prefers.”). Betterman finally received a sentence of seven years, four of which were suspended.
On appeal, the Montana Supreme Court joined a fifteen-court (state and federal) split, ruling that the Sixth Amendment speedy-trial right does not apply to sentencing. That court also ruled the delay in Betterman’s sentencing did not violate any due process norms.
The Court’s Sixth Amendment ruling
Because Betterman “did not preserve a due process challenge” in his certiorari petition, the “sole question” before the U.S. Supreme Court (despite the Montana court’s additional due process ruling) was the Sixth Amendment issue. The Court concluded that all signs pointed toward not applying the speedy-trial guarantee to sentencing, largely because the “presumption of innocence protection,” which is “at the heart of the Speedy Trial Clause,” is extinguished once a defendant is convicted. (The Court quickly noted that “we do not mean to convey” that other provisions of the Sixth Amendment that protect other interests don’t apply to sentencing, for example, “the right to defense counsel” in “some postconviction proceedings.”)
Thus Justice Ginsburg’s eleven-page opinion found that “precedent aligns with the text and history.” The Sixth Amendment’s language protects “the accused” and its speedy guarantee is for “trial.” Once convicted, a defendant is no longer merely accused, and authorities contemporaneous with the Framing of the Constitution show that “trial” similarly ends upon conviction. Again, the Court quickly noted two limits to its ruling. First, its analysis might not control in “bifurcated proceedings” like capital cases in which facts established “at the sentencing stage” can increase the sentencing range (that’s Apprendi-land, folks). And second, “we do not decide whether the right reattaches upon renewed prosecution” following a defendant’s appeal, “when he again enjoys the presumption of innocence.” (Why the Court felt it necessary to reserve this second question, whose affirmative answer seems self-evident to me, is unexplained.)
Similarly, the Court explained that its ruling “comports with the historical understanding” and “the Framer’s comprehension of the right as it existed at the founding.” (Anyone who says that Justice Scalia did not forever alter the methodology of constitutional analysis, to cement this type of consideration, is just not paying attention.) Meanwhile, modern precedents such as the Court’s 1971 decision in United States v. Marion demonstrate that the fact that delayed sentencing may raise concerns similar to those that underlie the speedy-trial guarantee (such as impaired memories and lost witnesses) is simply “not … sufficient reason to wrench the Sixth Amendment from its proper [arrest or charge triggered] context” (the brackets are the Court’s today).
The Court also stressed that “the sole remedy” for a constitutional speedy-trial violation is “dismissal of the charges,” which would be an “unjustified windfall” for an already-convicted defendant. (Here the Court silently elides the point that some believe the remedy can be dismissal of charges “without prejudice” to re-filing them.) Moreover, most federal and state legislatures that have statutorily addressed speedy-trial delays have “sa[id] nothing” about delays in sentencing. Meanwhile, “contemporary sentencing” regimes have come to increasingly rely on detailed, and thereby time-consuming, presentencing reports, to aid the parties and courts in arriving at the appropriate sentencing result. Thus, for example, in 2014 “the median time between conviction and sentencing” in federal courts was ninety-nine days. Whether or not sentencing used to “speedily” follow conviction in bygone days, “speedy sentencing” is today viewed by many as an unhealthy concept – “wholly reasonable presentencing delay” is, the Court notes, the norm.
So, what should courts faced with long sentencing delays do?
This non-Sixth Amendment question is explicitly not answered by the Court. Justice Ginsburg’s opinion notes that “due process serves as a backstop” to statutory protections, but that “we express no opinion on how [a defendant] might fare under that more pliable standard.” In a short concurrence, Justice Sotomayor writes that “the Barker [v. Wingo (1972)] factors capture many of the concerns” and that “the majority of the Circuits in fact use” Barker. But this short statement stimulated Justice Thomas (joined by Justice Samuel Alito) to respond that “I would not prejudge that matter” and “Barker may not necessarily translate to the delayed sentencing context.” It is no surprise that these two writing Justices disagree about the theory and applications of due process.
A Court-watcher’s “inside baseball” tidbit
Perhaps Justice Sotomayor should have silently left well enough alone. Or perhaps not. Because, significantly, we will never know if the final substantive sentence, and footnote, of Justice Ginsburg’s opinion for the Court was added before, or after, the skirmishing concurrences were circulated. In that sentence, Justice Ginsburg pointedly cited to a 1983 opinion (U.S. v. $8,850) that Justice Elena Kagan had championed at oral argument, which applied the Barker factors to another delay context, in civil asset forfeiture proceedings. And then Justice Ginsburg simply foot-noted that “relevant considerations may include” the same four factors that Barker applies. Without citing Barker. That gentle suggestion in the Court’s unanimous opinion softly places a thumb on the Barker side of the scales. One imagines that Justice Scalia might not have let that go by without comment.
In sum, the Court rules today that after a criminal conviction, “the Constitution’s presumption-of-innocence-protective speedy trial right is not engaged.” What ungainly adjectival phrasing that is. But the ruling is clear, and unanimous. Remaining questions will await resolution by a future, and hopefully full, Court.