Last week, the Supreme Court unanimously ruled that the Constitution’s Sixth Amendment right to a speedy trial does not extend post-conviction to protect defendants from lengthy sentencing delays. The case, Betterman v. Montana, 578 U.S. __ (2016), involved a defendant who pleaded guilty to jumping bail in 2012 and languished in a Montana jail for 14 months until sentencing; in the summer of 2013 he received a seven year sentence with four years suspended. Appearing before the judge, Betterman complained that the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by uncertainty.” Justice Ruth Bader Ginsburg, writing for the Court, rejected this argument, holding that “[a]s a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction” and that “the sole remedy for a violation of the speedy trial right” is dismissal of all charges, “which would be an unjustified windfall … to remedy sentencing delay by vacating validly obtained convictions.”
Speedy Trial Act Only Protects the Accused — Not the Investigated or Convicted
In explaining its decision, the Court divided criminal proceedings into three phases: pre-arrest or indictment, post-indictment and post-conviction. Prior to indictment, statutes of limitations “provide the primary protection against delay, with the Due Process Clause as a safeguard” against prosecutorial misconduct. The Speedy Trial Clause – covering arrest through conviction – clearly protects a presumptively innocent person, an “accused” as noted in the Constitution, from “languish[ing] under an unresolved charge ….” Following conviction, the Court noted, defendants do not lack any protection against undue delay such as statutes, including Fed.R.Crim.Proc. 32 (b)(1), which directs the court to “impose sentence without unnecessary delay.” Many States have laws to the same effect.
Due Process Violation and Not Speedy Trial Act Violation For a Delayed Sentencing?
Justice Ginsburg made clear that it was possible, however, that Betterman could have attacked the delay as a violation of due process. As the Court stated, “a defendant’s due process right to liberty [after conviction], while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair.” Since petitioner Betterman did not make a Due Process claim – instead appealing solely on Speedy Trial grounds – this issue was not considered by the Court. Betterman’s suggested that an appropriate remedy for the 14 month delay between conviction and sentencing would be a reduction of his sentence by 14 months. The Court rejected this, noting that the Speedy Trial Clause does not “call for a flexible or tailored remedy. Instead, we have held that violation of the right [to a speedy trial] demands termination of the prosecution.”
Justice Sotomayor, in her concurring opinion, suggested a possible set of factors for deciding whether a sentencing delay violates due process. “The Due Process Clause is ‘flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481 (1972).” Her suggested factors include: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant – the very test used by the Court in determining whether a delay in instituting judicial proceedings following a civil forfeiture violated the Due Process Clause.
One Way to Exploit a Delayed Sentencing
Any of the top New York federal criminal lawyers I know, however, would use a massive delay before sentencing at least as a mitigating factor, including suggesting that sentencing witnesses had been lost or rendered unavailable due to the delay. In one such case, I represented an organized crime defendant convicted of possession with intent to distribute heroin in the Eastern District of New York. United States v. Russo, 00 CR 1289 (E.D.N.Y. 2004). Previously convicted of conspiracy to murder and facing a guidelines sentence of 78-97 months in prison, the Court nevertheless downwardly departed to a non-custodial sentence of supervised release due to extraordinary family circumstances as well as the fact that the defendant had been on house arrest for four full years after his arrest and two and one-half years had elapsed between his guilty plea and sentencing – through no fault of the defendant. Clearly, the Court recognized such a delay an onerous penalty in its own right. Call the federal criminal defense lawyers at the Law Offices of Jeffrey Lichtman to discuss your federal case – or sentencing – today.