Justices Hear Debate Over Right to Speedy Sentencing

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Lance J. Rogers

March 28— A man who pleaded guilty and then languished in jail for more than a year before he was sentenced asked the U.S. Supreme Court at oral argument March 28 to hold that the Sixth Amendment right to a speedy trial includes a right to be sentenced without undue delay.

But the justices seemed to show little interest in clarifying the division in the lower federal and state courts over whether the Sixth Amendment right to a “speedy trial” extends through the sentencing process.

Instead, they pressed the lawyers to describe how a defendant would have to go about proving a due process violation, asking a flurry of questions about what yardstick courts should use to gauge prejudice and what remedies would be appropriate.

Different Tests

Deciding which test applies in this situation could prove critical because prejudice can be presumed under the four-part test for speedy trial violations laid out in Barker v. Wingo, 407 U.S. 514 (1972).

On the other hand, the test for due process violations, set out in United States v. Lovasco, 431 U.S. 783 (1977), looks only at the reasons for the delay and whether the defendant has proved prejudice.

The Montana Supreme Court ruled that Brandon Thomas Betterman had no legitimate Sixth Amendment speedy trial claim because the right to speedy trial doesn't prohibit undue delays in sentencing .

It further held that Betterman's due process claim failed because the reason for the delay was mostly institutional. It also said his prejudice claims were too speculative to be viewed as substantial because they dealt with anticipated benefits or participation in certain programs.

Betterman spent nearly 14 months in jail before he was sentenced after pleading guilty to felony bail-jumping.

Right to Speedy Justice

Fred A. Rowley Jr., a partner at Munger, Tolles & Olson LLP in Los Angeles, argued that Betterman's right to speedy justice under the Sixth Amendment didn't end with his guilty plea and wasn't diminished just because he was no longer “presumptively innocent.” The right extends throughout the process, he said.

Justice Samuel A. Alito Jr. wondered, however, whether the Sixth Amendment could be read that broadly.

“What do you make of the fact that the Sixth Amendment says that ‘the accused shall enjoy the right to a speedy and public trial by an impartial jury'? ” he asked

The impartial-jury clause doesn't restrict the scope of the amendment, Rowley said. This court has often recognized that the public trial right applies at times when the jury isn't convening, like suppression hearings, he noted.

Due Process Box

Justices Sonia Sotomayor and Elena Kagan quickly switched the focus of the discussion to a possible due process claim.

Suppose that the delayed sentencing scenario “falls within the due process box rather than the Sixth Amendment box”; is Lovasco necessarily the only approach? Kagan asked.

According to Kagan, in United States v. Eight Thousand Eight Hundred & Fifty Dollars in United States Currency, 461 U.S. 555 (1983), “we just said we're going to apply the four factors of Barker.”

Later in the argument, Justice Stephen G. Breyer picked up on this point and asked Montana Solicitor General Dale Schowengerdt, Helena, Mont., how he felt about a due process test that applied the four Barker factors instead of the simpler two-factor Lovasco test.

After all, after re-reading Barker, Breyer said he didn't see anything where it says prejudice is supposed to be presumed.

Prejudice would need to be at the forefront in that analysis, Schowengerdt said warily.

Probability of Different Result

Much of the discussion swirled around the appropriate test for prejudice.

Ginger D. Anders, of the Solicitor General's Office, Washington, appearing as amicus for the federal government, told the court that the test for prejudice ought to be the same one used for ineffective assistance and Brady violations. The defendant should have to show “that there is a reasonable probability that the result would have been different, the outcome would have been different.”

Rowley responded by arguing that this stance illustrated why the due process model was ill-suited to the delayed-sentence scenario.

Betterman suffered anxiety, was denied access to programs which could have proved instrumental in his parole eligibility and there is evidence that long incarceration can affect rehabilitation.

Couldn't the government argue that being housed in a local jail instead of prison presented certain advantages, asked Ruth Bader Ginsburg. He was certainly closer to his family and closer to his lawyer, she said.

Lost Witnesses

When asked by Ginsburg to give examples of the types of prejudice that would amount to a due process violation, Schowengerdt suggested that a delay that resulted in a defendant losing mitigating evidence—like a witness—might qualify.

He also suggested that a delay that exceeded the actual sentence would be sufficiently prejudicial.

Sotomayor raised the possibility that a delayed sentence might have a prejudicial affect on the judge's ultimate sentence because the judge might be more inclined to sentence the defendant to time served, regardless of the length of the delay.

“Don't you think that there's a lot of pressure on the judge if the defendant's hearing is delayed for eight years to, say, ‘time served'?”

In a standard speedy trial claim, the remedy is dismissal, but what's the remedy for delayed sentencing, Ginsburg asked.

Courts need to “tailor” the remedy, Rowley said. For example, in this case Betterman's sentence could have been reduced by the amount of time he was denied access to rehabilitation programs and suffered anxiety.

Amicus Support

The court has never squarely addressed the question of whether a speedy sentencing must be evaluated under the due process clause or the Sixth Amendment. In Pollard v. United States, 352 U.S. 354 (1957), it assumed, without holding, that sentencing should be viewed as part of the trial for purposes of a Sixth Amendment analysis.

Montana is backed by 17 states, which joined an amicus brief filed by Indiana. The National Association of Criminal Defense Lawyers filed an amicus brief supporting Betterman.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text of oral argument transcript at http://src.bna.com/dEU.