The Sixth Amendment provides various rights for “all criminal prosecutions.” Among those listed is “the right to a speedy and public trial.” This week, in Betterman v. Montana, the U.S. Supreme Court considered whether the “speedy” part of the right applies to a criminal defendant’s sentencing that happened about fourteen months after he was convicted by guilty plea, reported the SCOTUS Blog.
The arguments on the constitutional question are also relatively simple. Both Montana and the federal government argue from plain textual language: “trial” in the Sixth Amendment does not include sentencing, and the speedy trial is complete when the jury announces (or, as here, a court accepts on guilty plea) a conviction. While the Sixth Amendment does apply to “all criminal prosecutions,” so that its other listed rights (like counsel) apply even at sentencing, the Framers expressly used a different word, “trial,” to distinguish the limit of the “speedy” right.
But Betterman too has some “plain language”: the Sixth Amendment says “speedy and public trial,” and Betterman says that the Court has ruled previously that the right to a “public” trial includes sentencing (In Re Oliver, 1948). Surely that is the dominant view today. But the state and federal government argue that this is an over-reading of Oliver; and that in any case the functions of the two concepts (public versus speedy) are different and should be construed differently for constitutional purposes, just as the jury trial right in the Sixth Amendment has been construed differently for trials versus sentencings.
Betterman argues that many of the purposes served by the speedy trial right apply to sentencings as well, and he argues that “the criminal system known to the Framers” involved “fixed penalties” for conviction, so that sentencings were always speedy. (On this last point, however, I invoke the author’s privilege: as I have previously written, the penalties that the Framers actually wrote for federal crimes they enacted in 1790 while the Sixth Amendment was pending were, in fact, not fixed but rather indeterminate, requiring further judicial consideration.) The state counters that some purposes served by a speedy trial are very different than those served by sentencing. And both the state and the federal government provide detailed historical arguments counterposed to Betterman’s.
Montana and the federal government further argue that, because past cases have said that the remedy for a speedy trial violation is dismissal of the charges, the speedy trial guarantee cannot apply to sentencing, since by that time the charges have been proved and dismissal would be a nonsensical remedy. Betterman argues persuasively, however, that different and lesser remedies (such as sentence reductions or credit for time served) could easily be formulated when a sentencing is unreasonably un-speedy.
Still, on balance the prosecutors appear to have the better of the basic constitutional argument, even though the Court will have to weave its way through various precedents with language pointing on different directions. But then what, if anything, remains to attract the Court’s attention? For that, we need to examine the details of the “as applied” subsidiary questions.
Subsidiary constitutional questions turn on more detailed facts.
Whichever way the basic constitutional question is decided, further “as applied” questions will remain. If the Speedy Trial Clause applies, then the question “was it violated here?” must be answered. If the Speedy Trial Clause does not apply, constitutional doctrine under the Due Process Clause still requires some analysis, and perhaps remedy, for an inordinately long delay in sentencing.
The Montana Supreme Court ruled that the Speedy Trial Clause applies only to trial, not the subsequent sentencing phase of a criminal case. Then that court also ruled that the facts here did not make out a due process violation. The Supreme Court will have to rule on that second question, one imagines, if it decides that the speedy trial right does not apply. And even if the Court decides that the speedy trial right does apply, the facts here seem simple and undisputed enough that the Court could also rule on whether it was violated here. Of course the Court can always remand, once a basic constitutional issue is settled. But because both parties present arguments on the subsidiary questions, and the facts (as opposed to “spin”) seem largely undisputed, I think the Court will go on to rule on them as well.
“Clean” constitutional cases like this one are relatively rare, and they can provide a relaxing intellectual “break” from the complex statutory and doctrinal cases the Justices spend much of their time on these days. So it may not be surprising to see some Justices actively engaged and having “fun” at argument on this one. But I am betting that while they may possibly be divided, they will not find it difficult or bitter to decide.
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