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Betterman v. Montana, USSC No. 14-1457, cert. granted 12/4/15

Question presented:

Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.

Lower court opinion: State v. Betterman, 342 P. 3d 971 (Mont. 2015)


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In Pollard v. United States, 352 U.S. 354, 361 (1957), the Supreme Court “assume[d] arguendo” that the Sixth Amendment speedy-trial right applied to sentencing as well as trial. Since then, the federal and state courts have split on the question. Some courts simply followed Pollard and assumed, without deciding, that there’s a right to speedy sentencing; the Seventh Circuit is one of them. United States v. Rothrock, 20 F.3d 709, 711 (7th Cir. 1994). Other jurisdictions have explicitly decided that there is a right to speedy sentencing. Wisconsin is one of them. State v. Allen, 179 Wis. 2d 67 (Ct. App. 1993). The court explained its reasoning this way:

The right to a speedy sentence is part of the sixth amendment right to a speedy trial because, while somewhat diminished, many of the policy considerations do apply. Sentencing delays may cause undue and oppressive incarceration. Furthermore, delays potentially can create extreme anxiety for a convicted person waiting to learn how long he or she will be imprisoned. And while prolonged incarceration pending sentencing may be compensable by credit against time served, that remedy does little good to someone whose conviction is overturned on appeal. Witnesses necessary for retrial or in support of a defendant’s plea for a lesser sentence may become unavailable. Also, .., “the public retains an interest in prompt and certain punishment for criminal offenses, both to minimize the possibility of criminal activity by the accused while released on bail pending sentence, and to aid the deterrent effect of penal sanctions.” ….

Id. at 73-74 (citation omitted). In addition, as this case illustrates, a defendant sitting in jail awaiting sentencing may be deprived of access to prison sentencing and early release opportunities, among other deleterious consequences. 342 P.3d 971, ¶9.

Other jurisdictions, however, have held that the right to speedy trial is just that—a right to have a trial at which a jury determines guilt or innocence, an event distinct from determination of punishment at sentencing. The state court decision in this case is emblematic of this approach. Based on passages from Apprendi v. New Jersey, 530 U.S. 466, 477-78 (2000), the Montana court concluded that “[s]entencing … follow[s] the verdict” and so is not part of a “trial” for Sixth Amendment speedy trial purposes. 342 P.3d 971, ¶18.

The Supreme Court will now resolve the issue. If it affirms Montana’s approach, that will of course undo Rothrock and Allen (though we could still argue the Wisconsin constitution requires speedy sentencing).

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