New York Times

Justices Greet a Speedy Trial Argument With Skepticism

March 29, 2016

by Adam Liptak

WASHINGTON — Brandon T. Betterman pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his punishment would be.

He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.

On Monday, Mr. Betterman’s lawyer tried to convince a skeptical Supreme Court that the delay had violated the Sixth Amendment’s guarantee of the right to a speedy trial.

The Supreme Court has never said whether that right applies to the sentencing proceedings that follow convictions. The answer matters, Justice Elena Kagan said on Monday, because the vast majority of criminal prosecutions end with guilty pleas.

“In most cases these days,” she said, “most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage, given that we don’t have very many trials anymore.”

But Justice Ruth Bader Ginsburg said there would be problems in extending the right from trials, which adjudicate guilt, to sentencings, which determine punishment.

“All of our speedy trial decisions say there’s only one remedy, and that is ‘case over,’” Justice Ginsburg said. “Dismissal is the only appropriate remedy.”

Mr. Betterman’s lawyer, Fred A. Rowley Jr., said he was not asking for an outright dismissal of the charges against his client.

“There’s two possible outcomes at the guilt stage: guilt or innocence,” he said. “At sentencing, the situation is quite different. There’s greater opportunity for tailoring.”

An appropriate remedy for the 14-month delay in sentencing, Mr. Rowley said, “would be to reduce Mr. Betterman’s sentence by the period of delay.”

Justice Samuel A. Alito Jr. did not see the logic. “I don’t know why reducing the sentence by the length of the unconstitutional delay, the supposedly unconstitutional delay, undoes the damage that’s been done by the delay,” he said.

Justice Alito also quoted the pertinent constitutional text, which guarantees “the right to a speedy and public trial, by an impartial jury.” The reference to a jury, he suggested, meant that the right applies only to the adjudication of guilt by a jury, rather than the sentence imposed by a judge.

The Montana solicitor general, Dale Schowengerdt, said there was good reason to treat trials differently from sentencings.

“The Speedy Trial Clause,” he said, “does not include sentencing delay because its purpose is to protect a presumptively innocent defendant from the harms associated with a criminal charge.”

After conviction, he said, the calculus changes. “For example, there can be no anxiety over public accusation because the accusation has been confirmed,” Mr. Schowengerdt said. “At the moment of conviction, a defendant’s liberty is justly deprived.”

Ginger D. Anders, a lawyer for the federal government, argued in support of Montana. But she said that a different approach might be required in death-penalty cases, where, she said, “there are some respects in which you treat the penalty phase as an extension of the trial.”

Several justices said it was possible that sentencing delays may violate a different constitutional right, that of due process guaranteed by the Fifth Amendment.

But Justice Kagan was skeptical. “It seems a very odd place to park this right and this remedy,” she said of the Due Process Clause. “It seems much more natural that you would do it under the Speedy Trial Clause on the view that the trial has to do with both the adjudication of guilt and the determination of the proper sentence.”

Mr. Betterman had pressed only a speedy trial claim in the case, Betterman v. Montana, No. 14-1457.

In a second development on Monday, the Supreme Court declined to hear an appeal from Rod R. Blagojevich, the former governor of Illinois who was convicted of corruption for trying to sell the Senate seat that had been held by President Obama. Mr. Blagojevich is serving a 14-year sentence.

As is their custom, the justices gave no reasons for turning down the appeal, Blagojevich v. United States, No. 15-664.