Alexandra Soisson, Associate Member, University of Cincinnati Law Review
From the moment a suspect is arrested, the clock starts. The police, attorneys, and investigators have thirty days to make their case.[1]They have thirty days to gather enough evidence to officially indict the suspect, and if they cannot build their case within the permitted thirty days, the preliminary charges against the individual must be dismissed.[2] Seems simple enough. However, as with most “simple” laws or regulations, there are a number of exceptions that can extend the thirty-day limit and leave individuals in jail for far longer than the “maximum.”[3] These exceptions allow the courts to tack on days, weeks, and months to the original thirty days for any number of reasons, both alluded to and prescribed within the statute.[4] Time extensions to negotiate plea deals is one area where courts have stretched the thirty-day requirement.[5] However, not all courts are applying the exception for plea discussions in the same way.
In four circuit courts, the plea negotiation exclusion allows the thirty-day period to be automatically extended while the defendant engages in plea discussions with the government. In contrast, the same number of circuit courts ruled that there must be an additional showing before the clock will be stopped for plea discussions. This split revolves around whether plea discussions should be automatically excluded as “resulting from other proceedings concerning the defendant” or should require an additional showing that the discussion “serves the ends of justice” in order to be excluded.[6] Eight circuit courts have all weighed-in on the issue creating an even split between the circuits on whether plea negations should per se be considered an excludable delay.[7] The split will hopefully be resolved by the Supreme Court in the upcoming year.[8] Given the importance of genuine plea discussions to the efficiency and capacity of the justice system and the benefits derived from promoting such discussions, the Court should hold that plea negotiations are an excludable delay under the Time Limits and Exclusions provisions of Title 18 of the U.S. Code.[9] However, that exclusion should only be permitted when the delay is found to be productive for the court, the defendant, and the people.[10]
The Origins of the Right To A Speedy Trial
Fundamental to our rights as citizens of the United States, the constitutional authors saw it necessary to include the right to a speedy trial as one of the basic rights guaranteed in the Bill of Rights.[11] Since the right to a speedy trial was ratified over 200 years ago, it has been modified and clarified through various legislation and litigation including the Speedy Trial Act of 1974.[12] In Barker v. Wingo, the Supreme Court held that a delay of nearly five years was not a violation of the right to a speedy trial because the defendant had not affirmatively invoked his right to a speedy trial. Since then, Congress enacted legislation that would more clearly define the parameters of the right to a speedy trial.[13] In Barker, the Court reasoned that the right to a speedy trial was more vague than other constitutional guarantees and thus it cannot be quantified into a specified number of days.[14] Instead, the Supreme Court outlined a balancing test that should be applied case-by-case to determine whether a defendant’s right to a speedy trial had been violated.[15]
Rather than rely on the case-by-case balancing test set forth by the Supreme Court, Congress passed the Speedy Trial Act in 1974, which outlined specific time limits for what is considered “speedy” under the Sixth Amendment.[16] Congress disagreed with the Court’s assertion that the right to a speedy trial could not be quantified into a specified time limit and explicitly stated, among other provisions, that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”[17] This specificity was designed to resolve the existing injustice in a case-by-case analysis by creating identical and equal standard for federal prosecutions.[18] But there are always exceptions.
Applying The Exceptions
Following the provision of the Speedy Trial Act that prescribes the thirty-day requirement is the section that outlines the exceptions. §18 U.S. §§ 3161(h)(1) lists eight events or “delays” which can be excluded from the thirty day requirement.[19] This section of the Act notes that the listed exceptions “shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence.”[20] This means that if one of the listed events, or delays, occurs, the thirty-day clock is stopped until the conclusion of the event and then the clock resumes. The problem is that courts are not stopping the clock with the same regularity. Though the authors of the Act listed specific delays when the clock is allowed to stop, courts have found ambiguity about whether these events are automatically excluded from the time requirements or if they should be applied only when there is a productive purpose that can be clearly articulated to the court.[21]
This difference in interpretation means that some delays are being counted against the required thirty days, whereas the same delays are pausing the clock in other jurisdictions.[22] One area where there has been a significant split in application is plea negotiations. Delays resulting from “consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government” is listed as an exception to the thirty-day requirement.[23] The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations may only be excluded where the judge has found that the delay “serves the ends of justice.” or, in other words, is seemingly productive for the court.[24] Conversely, the Fourth, Sixth, Seventh, and Eighth Circuits have held that delays resulting from plea negotiations are automatically excluded as events “resulting from other proceedings concerning the defendant,” a specified exclusion under 18 U.S. § 3161(h)(1).[25]
“Serves the end of Justice”
Recently, the Eleventh Circuit, in following three other circuit courts, held that plea negations do not automatically pause the thirty-day time period.[26] The Court specifically noted that its holding did not mean plea negotiations can never stop the “speedy-indictment clock,” but rather its ruling only explicitly prevented the automatic exclusion of time spent in plea negotiations under the Speedy Trial Act.[27] Referencing a subsection of the Speedy Trial Act which asserts that a judge may grant continuance beyond the thirty-day limit if he finds that “the ends of justice is served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,” the court reasoned that Congress did not intend for the clock to automatically pause if the delay did not further the interest of the parties and the people.[28] Rather, the court found, Congress intended to leave open the possibility that one or both parties may need more than thirty days before an indictment could be filed and that the thirty days should be provided but only if the “ends of justice” were served by providing that extension.[29] The court applied this “serves the end of justice” standard to plea discussions.[30] In short, the court held the judge should determine if the extension is a productive use of time for the defendant, government, and people; if not, the extension should not be granted.[31] The Eleventh Circuit noted that if the plea negotiation exclusion automatically applied, the government could simply state that they were negotiating a plea agreement and then delay the process as along as they wish while attempting to build their case.[32] The court’s concern over this potentially indefinite delay aims to protect both the defendant and the people’s interest in swift administration of justice.[33] Referencing the Supreme Court’s recent holding that the purpose of the Speedy Trial Act is not only to protect defendants but also to “vindicate the public interest in the swift administration of justice,” the Eleventh Circuit attempted to protect those interests in the rulings regarding plea agreements. [34] With that in mind, the Eleventh Circuit, in joining three other circuit courts, held that time spent in plea negotiations is not automatically excluded from the thirty day timeline.
“Other Proceedings Concerning the Defendant”
In 2017, the Sixth Circuit interpreted the language of the Speedy Trial Act to automatically exclude time spent in plea negotiations from the thirty days.[35] Joining the Fourth, Seventh, and Eighth Circuits, the court found that plea negotiations should be automatically excluded because they constitute another proceeding concerning the defendant. Preceding the list of excludable delays, the text of the Act reads that “any period of delay resulting from other proceedings concerning the defendant” shall be excluded from the thirty days.[36] The Sixth Circuit found that plea negotiations fit firmly into this category and interpreted the text to mean that proceedings found to fit into this category are automatically excluded from the thirty days.[37]
The Exclusion Must Serve the End of Justice
The reasoning by the Eleventh Circuit—and its followers— more appropriately supports the goals of the Speedy Trial Act and the justice system as a whole. The primary goal of the speedy trial guarantee under the Sixth Amendment was to ensure that defendants did not have their liberty restrained unnecessarily or unreasonably if the government was unable to build a workable case against them. Similarly, the goal of the Speedy Trial Act was to protect the defendant. However, in addition the Speedy Trial Act also set out to protect the interest of the public by not wasting unlimited amounts of resources trying to build cases against defendants that have little chance of securing a conviction. The plea negotiation exclusion has caused more concern than the other seven delays in the Act because of the lack of set time schedules for plea discussions. The remaining seven delays are more generally controlled by the court, so the court can impose a timeline that will keep the delay within reasonable limits and the process occurs on a more regulated schedule. On the contrary, plea discussions are more informal and court-controlled timelines are less common, so it creates potential for time and resources to be wasted while the defendant’s right to a speedy trial is essentially put on hold. The Eleventh Circuit’s holding that there must be a concrete end of justice being served, or in other words, a clear goal or purpose of the plea discussions, attempts to combat that informality of plea discussions and connect it to a tangible result. This creates a more controlled timeline for the extension and makes it less likely that the clock will be stopped arbitrarily.
A requirement that the plea discussion serve the “ends of justice” attempts to ensure that the spirit of the thirty-day requirement is honored and only extended if it serves the interests of both parties and people. Notably, the Eleventh Circuit is not attempting to completely remove plea discussions from the list of excludable delays and in fact notes that the “ends-of-justice continuance” is the most open-ended under the act. This open-ended standard means that as long as the parties can make a showing that justice is being served by excluding the time spent in plea negotiations, that exclusion will generally be granted. In other words, it is not a tough barrier for defendants or the government to meet as long as they have a genuine reason to engage in the discussions. This means that the importance of genuine plea negotiations will still be honored and it will not be difficult to exclude time spent in those negotiations if parties are serving the true purpose of the agreements. Therefore, by rejecting the automatic exclusion of plea negotiations, the court will simply be able to prevent parties from needlessly wasting the time and resources of the court, the parties, and the public.[38]
In January of 2018, the Supreme Court granted certiorari to decide whether the time spent in a plea negotiation is automatically excludable as “other proceedings concerning the defendant” or whether the time is only excludable if the court makes an “ends of justice” finding.[39] The Supreme Court should follow the precedent of the Eleventh Circuit and the three other circuit courts which found that plea agreements should only be excluded when the serve an actual purpose, not when they are being used as a tool to get around the requirements of the Speed Trial Act.
Although the purpose of the Act was to move away from a case-by-case determination of whether a person’s Sixth Amendment right to a speedy trial had been violated, it seems that some version of that analysis is still necessary.[40] The thirty-day benchmark is an important starting place for assessing violation of Sixth Amendment rights and so departures should only be made in cases where there is a legitimate reason to extend the timeline. The Supreme Court has held, and reason stands to agree, that the best interest of the defendant, the government, and the public is served when trials are approached with efficiency and only in the circumstances where there is a tangible “ends of justice” should that efficiency be overlooked.
[1] 18 U.S. § 3161(b) explicitly states that “Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”
[2] 18 U.S. § 3162(a)(1) requires that “If…no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.
[3] 18 U.S. § 3161(h) outlines a number of delays that are excluded in computing the time within which an indictment must be filed.
[4] Id.
[5] Shon Hopwood, Comment, The Not So Speedy Trial Act, 89 Wash L. Rev. 709, 713 (2012).
[6] United States v. White, 679 Fed. Appx. 426, 429 (6th Cir. 2017).
[7] The Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits have all ruled on the issue.
[8] White v. United States, Scotus Blog (Jan. 08, 2018), http://www.scotusblog.com/case-files/cases/white-v-united-states/
[9] 18 U.S. § 3161.
[10] 18 U.S. § 3161(h).
[11] U.S. Const. amend. XI.; “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…”
[12] Speedy Trial Act of 1974, 18 U.S. § 3161, 93rd Cong. (1974).
[13] Barker v. Wingo, 407 U.S. 514, 547 (1972).
[14] Id. at 521.
[15] Id.; the Court found that courts should consider the following factors when considering if a defendant was denied his right to a speedy trial: length of the delay, reason for the delay, the defendant’s assertion or nonassertion of his right, and prejudice to the defendant resulting from the delay.
[16] Speedy Trial Act of 1974, 18 U.S. § 3161, 93rd Cong. (1974).
[17] 18 U.S. § 3161(b).
[18] Though the Sixth Amendment was incorporated to the states through the Due Process Clause, the specific protections provided by the Speedy Trial Act only applied to federal cases, not state cases. The act merely serves as a guideline in state cases.
[19] (A)delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant; (B)delay resulting from trial with respect to other charges against the defendant; (C)delay resulting from any interlocutory appeal; (D)delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion; (E)delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure; (F)delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable; (G)delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government; and (H)delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
[20] 18 U.S. § 3161(h).
[21] 18 U.S. § 3161(h)(1), emphasis added.
[22] Michelle Nussbaum, Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can be Excluded Under the Speedy Trial Act, Sunday Splits (Oct. 23, 2017), http://sundaysplits.com/2017/10/23/negotiate-and-chill-how-and-whether-the-time-for-plea-negotiations-can-be-excluded-under-the-speedy-trial-act/.
[23] 18 U.S. § 3161(h)(1)(G), emphasis Added.
[24] United States v. Mathurin, 690 F.3d 1236, 1243 (11th Cir. 2012).
[25] White, 679 Fed. Appx. at 429, emphasis added.
[26] Mathurin, 690 F.3d at 1241, emphasis added.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Mathurin, 690 F.3d at 1241; 18 U.S.C. § 3161(h)(7)(A).
[32] Mathurin, 690 F.3d at 1242.
[33] Id.
[34] Id. citing Bloate v. United States, 130 S. Ct. 1345, 1356 (2010).
[35] White, 679 Fed. Appx. at 434.
[36] 18 U.S.C. § 3161(h)(1).
[37] White, 679 Fed. Appx. at 431.
[38] Of course, there is the potential that this potential that this requirement will lead to fewer defendants engaging in plea discussions and choosing to wait to trial, which could use more public resources. However, the idea behind the provision is not to cut down on the number of plea discussions, but rather to make those discussions more efficient.
[39] http://www.scotusblog.com/case-files/cases/white-v-united-states/; the petition was granted. However, judgment was vacated and the case was remanded for further consideration in light of the confession of error by the Solicitor General in his brief for the United States filed on November 30, 2017.
[40] Case-by-case determinations can be used to ensure that the “ends of justice” are actually being served in plea discussions on an individual basis.
