Author: uclawblog409560925

“We the People”by StevenANichols is licensed under CC BY-NC-SA 2.0

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

Among other things, the Fourteenth Amendment of the Constitution proclaims, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” For decades, legal scholars have debated the true intention and meaning of the Privileges or Immunities clause.^[1] While a number of scholars argue that the clause was established to incorporate the Bill of Rights against the states, others contend that the clause was intended to protect unenumerated fundamental rights, such as those laid about by Justice Washington in Corfield v. Coryell.^[2] Regardless of the numerous interpretations asserted by scholars, the Supreme Court definitively ruled on the issue with the infamous Slaughter-House Cases.^[3] Writing for the majority, Justice Miller held that the Privileges or Immunities clause only protected rights relating to federal citizenship from infringement, and that other privileges and immunities were “left to the State governments for security and protection . . .”^[4] The dissent noted that the majority’s interpretation only protected rights which had already been secured by the Constitution, essentially ridding the Privileges or Immunities clause of all meaning.^[5] Since the Slaughter-House Cases, the Court has seldom mentioned or implicated the Privileges or Immunities clause in its opinions. However, on a handful of occasions, the Justices have shown a renewed interest in the provision. Part II of this post discusses the recent background of the Privileges or Immunities clause in the Court’s decisions. Part III focuses on the concurrences of Justices Thomas and Gorsuch in Timbs v. Indiana,^[6] and Part IV analyzes whether these concurrences signal a revival of the Privileges or Immunities clause in American jurisprudence.    

II. Background

In Saenz v. Roe,^[7] the Court held that the Privileges or Immunities clause protects an individual’s right to travel from one state to another. ^[8] Interestingly, this interpretation does not conflict with the majority or dissenting opinions of the Slaughter-House Cases, as each opinion acknowledged that the Privileges or Immunities clause protects a citizen’s right to travel.^[9] In his dissenting opinion in Saenz, Justice Thomas contended that the majority placed a meaning on the Privileges or Immunities clause that was unintended by the framers.^[10] Moreover, Justice Thomas acknowledged that he would “be open to reevaluating” the interpretation of the Privileges or Immunities clause in a future case, but only with a proper evaluation of the framers’ intent.^[11] Eleven years later, Justice Thomas’s willingness to look back into the Privileges or Immunities clause rang true with his concurring opinion in McDonald v. City of Chicago.^[12]

In McDonald, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment’s right to bear arms against the states.^[13] Notably, the plurality in McDonald explicitly declined to overrule the Slaughter-House Cases, and thus refused to use the Privileges or Immunities clause as a vehicle for incorporation.^[14] On the other hand, Justice Thomas, concurring in the judgment, argued that the Privileges or Immunities clause was indeed the correct mechanism for incorporating the Second Amendment.^[15] Justice Thomas rejected the Court’s interpretation of the Privileges or Immunities clause in the Slaughter-House Cases, and contended that the clause should be interpreted by “what ‘ordinary citizens’ at the time of ratification would have understood the Privileges or Immunities Clause to mean.”^[16]

III. Timbs v. Indiana 

Prior to the 2018-2019 term, Justice Thomas appeared to be alone in his Privileges or Immunities jurisprudence. However, in Timbs, Thomas found an ally in Justice Gorsuch. Timbs revolved around the issue of whether the Excessive Fines clause of the Eighth Amendment may be incorporated against the states. The appellant in Timbs was arrested for dealing a controlled substance, and the State of Indiana attempted to seize the appellant’s $42,000 SUV because it was used to transport heroin.^[17] In a majority opinion drafted by Justice Ginsburg, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Excessive Fines clause against the states.^[18] In his opinion concurring in the judgment, Justice Thomas again analyzed the issue under the Privileges or Immunities clause, criticizing the majority for its use of the Substantive Due Process doctrine.^[19] Under his analysis, Justice Thomas acknowledged that the ratifying public would have understood the Privileges or Immunities clause to protect against excessive fines imposed by the states.^[20] While Justice Thomas’s reliance on the Privileges or Immunities clause was not particularly notable given his opinion in McDonald, this time he managed to receive support from a colleague. Writing separately, Justice Gorsuch agreed with the majority opinion in using the Due Process clause to incorporate the Excessive Fines clause.^[21] However, Gorsuch also acknowledged that if the case had turned on the issue, “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause . . .”^[22] With this nod of approval, Justice Gorsuch opened the door for a potential revival of the Privileges or Immunities clause. 

IV. Discussion

For nearly 150 years, the Privileges or Immunities clause has played virtually no role in American jurisprudence; rather, the Supreme Court has relied heavily on the Due Process clause to protect fundamental rights.^[23] The issue with this reliance, however, is that it has drawn the ire of scholars insistent on an originalist construction of the Constitution. Numerous scholars, most notably Justice Thomas, view the Due Process clause to refer to procedure as opposed to substance. With this originalist interpretation in mind, the Privileges or Immunities clause appears to be an alternative mechanism for the protection of fundamental rights. 

With the addition of Gorsuch to the bench in April 2017, conservatives anticipated a highly-originalist jurisprudence from the Justice.^[24] After all, Gorsuch was replacing the Court’s premier advocate for originalism, Antonin Scalia. It should be noted, however, that Justice Scalia never elected to utilize the Privileges or Immunities clause in his decision-making. In fact, in McDonald, Justice Scalia chose to join the majority opinion rather than Justice Thomas’s concurrence, although he expressly acknowledged that he was troubled by the majority’s use of the Due Process clause.^[25] Thus, even with an originalist approach to rival that of Scalia, Justice Gorsuch’s acknowledgment of the Privileges or Immunities clause was not necessarily expected. 

For what it’s worth, Timbs holds no real precedential weight. Because the opinions of Justices Thomas and Gorsuch were merely concurrences, the Court has no obligation to follow their interpretations in future cases. However, Timbs does provide an interesting look into the potential future of constitutional law. As of right now, the Court has two Justices who acknowledge a possible revival of the Privileges or Immunities clause. In 2018, the Court added another conservative member in Brett Kavanaugh. While Kavanaugh did not join Justices Thomas or Gorsuch in Timbs, he is nonetheless expected to have a textualist jurisprudence during his tenure on the Court. As such, it is conceivable that Justice Kavanaugh’s approach could develop over time to match that of Justices Thomas and Gorsuch. If one-third of the Court were to use the Privileges or Immunities clause as a vehicle to protect rights, the remainder of the Court would at least have to acknowledge the possibility of breathing new life into the provision. 

Furthermore, Justice Ginsburg and Justice Breyer are anticipated to end their tenure on the Supreme Court within the next decade or so. If conservatives maintain control of the White House during the times of these nominations, the new Justices will almost certainly maintain an originalist jurisprudence. If, at that time, Justices Thomas, Gorsuch, and Kavanaugh are willing to utilize the Privileges or Immunities clause, the new Justices would likely also consider adhering to this methodology.  The Court would then have a majority of its members implicating the Privileges or Immunities clause to protect fundamental rights, therefore creating precedent for the Court. While this revival is far from certain, its potential is nonetheless significant. 

V. Conclusion

The Slaughter-House Cases essentially stripped the Privileges or Immunities clause of all meaning. Within the past ten years, Justice Thomas has asserted that the clause should be implicated in lieu of the Due Process clause to protect fundamental rights; however, until Timbs, Thomas was alone in his analysis. With Justice Gorsuch’s concurrence in Timbs, Justice Thomas has been somewhat vindicated in his methodology. As Justice Kavanaugh’s jurisprudence evolves, and as new Justices are welcomed to the bench, the Court faces the real possibility of a revival of the Privileges or Immunities clause. 

^[1]Douglas G. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 San Diego L. Rev. 809, 812. 

^[2]6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (asserting that the privileges or immunities of citizenship would fall under several “general heads,” including governmental protection, enjoying life and liberty, owning property, and pursuing happiness). 

^[3]83 U.S. 36 (1873). 

^[4]Id. at 78. 

^[5]See id. at 96 (Field, J., dissenting). 

^[6]139 S. Ct. 682.

^[7]526 U.S. 489 (1999). 

^[8]Id. at 503-04. 

^[9]Id. (citing Slaughter-House Cases, 83 U.S. at 80, 112). 

^[10]Id. at 521 (Thomas, J., dissenting). 

^[11]Id. at 528. 

^[12]561 U.S. 742 (2010). 

^[13]Id. at 791.

^[14]Id. at 758. 

^[15]Id. at 806 (Thomas, J., concurring in part and concurring in judgment). 

^[16]Id. at 813, 852.

^[17]Timbs, 139 S. Ct.at 686. 

^[18]Id. at 687. 

^[19]Id. at 691-92. 

^[20]Id. at 693.

^[21]Id. at 692. 

^[22]Id. 

^[23]See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923). 

^[24]See Lauren Russell & Nina Totenberg, Trump’s Supreme Court Pick is a Disciple of Scalia’s ‘Originalist’ Crusade, NPR (Feb. 2, 2017, 6:00 AM), https://www.npr.org/2017/02/02/512891485/trumps-supreme-court-pick-is-a-disciple-of-scalias-originalist-crusade [https://perma.cc/9ZY5-DNXR].

^[25]McDonald, 561 U.S. at 791 (Scalia, J., concurring).

Kevin Cox, Associate Member, University of Cincinnati Law Review

The call for President Trump’s impeachment has been unrelenting since he took office in 2017, and even more so since the Democrats took control of the House of Representatives. Whether that call has merit is not the topic of this discussion.  No, this discussion is about the history and procedures of the impeachment process. 

Before beginning this discussion, it is noteworthy that only two U.S. presidents have been impeached: Andrew Johnson in 1868, and Bill Clinton in 1998.  Richard Nixon, probably the most notable president subjected to the impeachment process, was never impeached.  He resigned shortly before the full House had the opportunity to vote on his impeachment.[1]  Further, both Johnson and Clinton were acquitted by the Senate and never removed from office.[2] More than sixty impeachment proceedings have been raised by the House, but less than a third have led to full impeachments and removal from office.[3]

The impeachment process is not a concept original to the United States.  Indeed, the process has roots dating back to fourteenth-century England, where it was used to hold the king’s advisers accountable.[4]  The framers drafted the Constitution’s impeachment provisions to guarantee that the process would serve as a check on the powers of both the judicial and executive branch.[5]  In old England as well as early American colonial governments, impeachment trials took place in the upper legislative body based on charges brought by the lower house.[6]  Despite this longstanding precedent, the delegates at the Constitutional Convention debated whether the Senate should carry the impeachment power, or whether it should be left to the U.S. Supreme Court.[7]  Alexander Hamilton, in discussing the rationale for granting Congress the impeachment power, referred to the process as a “national inquest” and argued that members of Congress, as representatives of the people, would serve as the best judges during a national inquiry.[8]  To Hamilton, the Supreme Court would be too small and susceptible to corruption, whereas the Senate, a political body representative of the people, would be the best place to preserve impartiality and prevent corruption.[9] 

The Constitution has several provisions regarding the impeachment process. Article I of the U. S. Constitution grants the House of Representatives the sole “Power of Impeachment,” and provides the Senate the sole power to try all impeachments.[10]  Procedurally, there are different voting requirements for each body; a simple majority requirement in the House, and a super-majority requirement in the Senate.[11]  When sitting for the purpose of presidential impeachment, the Senate “shall be on Oath or Affirmation,” and the Chief Justice of the United States shall preside.[12]  “Judgment in Cases of impeachment shall not extend further than to removal from Office, … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”[13]

In simple terms, the Constitution states that when a President or other federal officer is suspected of committing an impeachable offense, an individual House representative may introduce a bill to initiate the proceedings, and the House can vote to pass the articles of impeachment on to the Senate.  Since the House initiates the impeachment procedures, it also selects representatives to act as impeachment managers who conduct the cases against the officers or president in the Senate proceeding.[14]  In action, the House acts as a grand jury that votes whether to indict a federal officer or president, and the Senate acts as the judge and jury.

Once the House has passed the articles of impeachment by a simple majority vote, the Senate will then hold a trial.  The Senate Chamber serves as the courtroom, and the Senate becomes the jury and judge, except in cases of presidential impeachment, when the Chief Justice of the U.S. Supreme Court presides over the process.[15]  There will be evidence presented and testimony given, either in favor or in opposition of affirming the impeachment.  If the Senate votes to uphold the impeachment, the president or officer will be removed from office.  

Having explained the impeachment process, it is necessary to discuss the topic of impeachable offenses.  Article II of the Constitution defines impeachable offenses as “Treason, Bribery, or other high crimes and Misdemeanors.”[16]  However, while the offenses of treason and bribery are well established, the exact meaning of “high crimes and misdemeanors” has been long debated.  Since the language is imprecise, susceptible to both narrow and broad interpretations, the meaning has yet to be firmly established.[17] 

Narrow constructionists interpret the language to mean only offenses that are indictable.[18]  Broad constructionist, who view impeachment as a political weapon, interpret the text to include any conduct, even those not based on indictable offenses, that the majority considers impeachable.[19]  Since the House and Senate are political bodies,  elected to represent the people, the meaning of “high crimes and misdemeanors” is bound to evolve as their political makeups changes. Only time will tell.

[1] Impeachment Inquiries into President Richard Nixon,History.House.Gov, https://history.house.gov/HistoricalHighlight/Detail/15032448776?ret=True (last visited Feb. 2, 2019).

[2] List of Individuals Impeached by the House of Representatives, History.House.Gov, https://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Feb. 2, 2019).

[3] Impeachment,History.House.Gov, https://history.house.gov/Institution/Origins-Development/Impeachment/ (last visited Feb. 2, 2019).

[4] Impeachment, Senate.Gov,https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (last visited Feb. 2, 2019).

[5] Jennifer L. Blum, Comment, How Much Process Is Due: The Senate Impeachment Trial Process After Nixon v. United States, 44 Cath. U.L. Rev. 243, 247 (1994). 

[6] Impeachment, supra note 4.

[7] Id.

[8] See Blum, supra note 5; see also The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[9] The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[10] U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6.

[11] See id. art. I, § 3, cl. 6 (requiring concurrence of two-thirds present in Senate).

[12] See id.

[13] Id. art. I, § 3, cl. 7.

[14] Impeachment Inquiries into President Richard Nixon, supra note 1.

[15] See Impeachment, supra note 4.

[16] U.S. Const. art. II, § 4.

[17] See Impeachment, supra note 4.

[18] Id.

[19] Id.

Photo Credit: Wikipedia https://hu.wikipedia.org/wiki/Atlanti_tarpon

Adam Ares, Associate Member, University of Cincinnati Law Review

            On December 31, 2018 the Modernizing Recreational Fisheries Management Act of 2018, also known as the Modern Fish Act (the Act), was signed into law by President Trump.^[1] The Act has been hailed as a bipartisan achievement, bringing together recreational fishers, commercial fishers, and environmental groups.^[2] The new legislation will focus on better recreational fisheries management and data collection to help improve the state of the nation’s recreational fisheries.^[3] This article will focus on (1) the creation of the Act; (2) provide a summary of the new law; and (3) highlight the reactions across the fishing and environmental communities.

            The main proponents of the Modern Fish Act were the salt-water recreational fishing and boating communities.^[4] Historically, recreational and commercial fisheries have been subject to the same regulations and have functionally been treated as the same.[5] However, The National Marine Manufacturers Association stated in a letter to Congress that “[r]ecreational and commercial fishing are fundamentally different endeavors and should be managed differently. Yet, antiquated, one-size-fits-all federal policies are unnecessarily limiting the public’s access to our nation’s abundant natural resources.”^[6] They proposed the Modern Fish Act as a way to improve management efforts for recreational fisheries.^[7] The Act is intended to reauthorize the Magnuson-Stevens Act, which is a very successful law that has effectively halted overfishing and helped with the replenishment of depleted fish stocks.^[8] However, the Magnuson-Stevens Act has not done much to improve the opportunities for recreational fisheries, largely due to a lack of recreational fishery data.^[9] The Modern Fish Act is aimed at “provid[ing] fisheries managers with the tools needed to manage recreational fishing in a way that better aligns with what anglers are experiencing on the water, while also bringing angler harvest data into the 21st century.”^[10] However, not everyone was initially on board for the Act. The Natural Resources Defense Council called it “a step backwards” in the conservation of the nation’s fisheries.^[11]

            Despite the initial disagreements, Congress was able to put together a bill that passed with bipartisan support. The Act includes: allocation for review of South Atlantic and Gulf of Mexico mixed-use fisheries[12]; a study of limited access privilege programs for mixed-use fisheries; and comprehensive data collection amongst all of the Regional Fishery Management Councils to be used for a biannual report on recreational marine fisheries.^[13] Essentially, the new Act will allow for new data and management collection to “better meet the requirements of the Magnuson-Stevens Act” and therefore allow for healthier recreational fisheries.^[14]

            The response to the passage of the Modern Fish Act has been overwhelmingly positive. The American Sportfishing Association said that the Act “means more and better fishing for your customers – and that’s good news for everybody.”^[15] Matt Tinning, Associate Vice President of the Oceans Program for the Environmental Defense Fund, provided in a statement, “We can all be proud to have reached agreement on a bill that responds to the demands of recreational fishing advocates without jeopardizing either sustainability or Americans’ access to local seafood.”^[16] It is rare for a piece of legislation to have such universal support from both industry and environmental groups, and it is a testament to the hard work and effort that went into the Modern Fish Act.

^[1] Meg Walburn Viviano, Modern Fish Act Signed into Law, Boosting Saltwater Fishing Access, Chesapeake Bay Magazine (Jan. 3, 2019), https://www.chesapeakebaymagazine.com/baybulletin/2019/1/3/federal-modern-fish-act-signed-into-law.

^[2] Id.

^[3] Id.

^[4] The National Marine Manufacturers Association, Boating Coalition Urges Congress to Pass Modern Fish Act, Boating Industry (Nov. 20, 2018), https://boatingindustry.com/news/2018/11/20/boating-coalition-urges-congress-to-pass-modern-fish-act/.

[5] Michael Leonard, Modern Fishing Act Offers Hope, Sport Fishing Magazine (July 23, 2018), https://www.sportfishingmag.com/modern-fish-act-offers-hope.

^[6] The National Marine Manufacturers Association, supra, note 4.

^[7] Id.

^[8] Leonard, supra, note 5.

^[9] Id.

^[10] Id.

^[11] Molly Masterton, Everyone Who Fishes Should be Accountable, Natural Resources Defense Council, (Mar. 7, 2018), https://www.nrdc.org/experts/molly-masterton/accountability-should-be-everyone-who-fishes.

[12] A mixed-use fishery is defined in the Act as “a Federal fishery in which 2 or more of the following occur: (A) Recreational fishing. (B) Charter fishing. (C) Commercial fishing.” Modernizing Recreational Fisheries Management Act of 2018, Sec. 3 (4) (Dec. 31, 2018).

^[13] Modernizing Recreational Fisheries Management Act of 2018.

^[14] Leonard, supra, note 7.

^[15] Modern Fish Act, American Sportfishing Association, https://asafishing.org/advocacy_and_policy/advocacy/modern-fish-act/.

^[16] U.S. Senate Advances “Modern Fish Act,” Environmental Defense Fund (Dec. 17, 2018), https://www.edf.org/media/us-senate-advances-modern-fish-act.

John Simon, Associate Member, University of Cincinnati Law Review

Introduction

In 1970, the Supreme Court of the United States upheld the constitutionality of plea bargaining by finding it to be “inherent in the criminal law and its administration.”[1] Plea bargaining constitutes the negotiation between the prosecutor and the accused whereby the parties attempt to finalize an agreement culminating in the accused’s guilty plea in exchange for a lesser charge or sentence.[2] If the plea-bargaining process fails to yield such a result then the case proceeds through the criminal process to trial. Plea bargaining has increased in popularity for several reasons: (1) the unpredictable risks associated with proceeding to trial; (2) the lack of necessary resources to take all cases to trial; and (3) greater case load.[3] In 2017, approximately ninety-seven percent of federal cases ended with a guilty plea prior to trial.[4]

With the increased role of plea bargaining, procedural issues have surfaced in cases involving the parties’ failure to reach a deal. A split has developed among several circuit courts regarding the application of the Speedy Trial Act in the plea-bargaining context. Specifically, the disagreement concerns whether the time spent negotiating a failed plea constitutes a period that tolls the statutorily established speedy trial clock. The Eleventh Circuit maintains that plea bargaining may qualify as an excludable period, but the decision is discretionary, not automatic.[5] Alternatively, the Fourth, Sixth, Seventh, and Eighth Circuits hold that plea bargaining automatically qualifies, under the Speedy Trial Act, as an excludable period.[6] Based upon the legislative intent of the Speedy Trial Act, courts should follow the lead of the Ninth Circuit when applying the Speedy Trial Act to plea bargaining.

History of the Speedy Trial Act

The Constitution enshrines an accused’s speedy trial right in the Sixth Amendment: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”^[7] Historically, the speedy trial right finds its origins in English law.[8] In the Institutes, which translated and explained Magna Carta, Sir Edward Coke wrote:

And therefore, every subject of this realme, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.[9]

Essentially, no person will be denied justice, and justice includes the right to a speedy trial. The Founding Fathers found inspiration in both Coke’s writing as well as the ideas expressed in the Magna Carta. Several colonies, in their respective constitutions, incorporated the speedy trial right. Thus, unsurprisingly the drafters of the United States Constitution saw the speedy trial as fundamental to the nation.[10]

While the speedy trial right has its constitutional foundation, the Sixth Amendment’s language provides minimal guidance to the legal community. By the time federal legislators introduced the Speedy Trial Act in the late 1960s, all fifty states already maintained speedy trial legislation motivated primarily by a desire to clarify the rights of the accused.^[11] In the late 1960s, with national concern growing regarding the rise in crime rates, the motivation for speedy trial legislation took on a new meaning: protecting societal interests by bringing criminals to prompt justice.[12]

In 1967, the ABA’s Advisory Committee on the Criminal Trial, which oversaw the Project on the Minimum Standards of Criminal Justice, developed the Standards Relating to Speedy Trial.[13] In its tentative draft, the Committee recommended the following standards which were included in the Speedy Trial Act of 1974: (1) time limits that start to run from a specified event; (2) the exclusion of periods of necessary delay; (3) a requirement that any continuances be granted upon a showing of good cause; and (4) the sanction of dismissal with prejudice for any violation of an accused’s speedy trial rights.[14]

In 1970, the first draft of the Speedy Trial Act was introduced to the Senate Judiciary Committee’s Subcommittee on Constitutional Rights.[15] The following year, with minimal revisions, the bill was presented to the entire Senate. At that point, the bill incorporated both the broad protections afforded to society through the efficient administration of justice, as well as the constitutional protections given to defendants.[16] In 1974, the bill finally passed the Senate and moved to the House. While the House added amendments, the bill ultimately passed and re-passed the Senate.[17] Responding to the bill’s passage, Senator Sam Ervin, the primary force behind the passage of the bill, stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining. The solution is to create initiative within the system to utilize modern management techniques and to provide additional resources to the courts where careful planning so indicates.”[18]

The Speedy Trial Act, in its current form, holds 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.”[19] The Act further notes that “[a]ny period of delay resulting from other proceedings concerning the defendant” shall be considered excludable from the speedy trial clock’s thirty-day mandate.[20] A non-exhaustive list of eight delays are provided. However, the Act further clarifies that a continuance may be excludable only if the judge “sets forth, in the record of the case, either orally or in writing, [his or her] reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”[21]

The Eleventh Circuit

The Eleventh Circuit holds that any delays caused by the plea-bargaining process require the court to grant a continuance and make the necessary findings, on the record, that the continuance serves the ends of justice.

In the case of United States v. Mathurin, the Eleventh Circuit aligned its reading of the Speedy Trial Act in the context of plea bargaining with the Second, Fifth, and Ninth Circuits. In that case, Mathurin was taken into federal custody for a string of robberies and taken before a magistrate for an initial appearance in the late spring of 2009.[22] By the summer of that same year, formal plea negotiations had commenced.[23] The parties stipulated that during this period of time, certain events delayed the speedy trial clock—including court orders permitting Mathurin to be prosecuted as an adult and permitting Mathurin to be housed with adult inmates.[24]

According to Mathurin, bilateral negotiations continued until November 2009 when Mathurin told the prosecutor to “go ahead and indict him.”[25] The government, however, contended that negotiations continued until December because Mathurin’s attorney requested that he be given the opportunity to discuss the plea offer with Mathurin.[26] The following spring, Mathurin moved to dismiss all charges pending against him based upon a speedy trial violation.[27] His motion was denied; Mathurin was found guilty of the charges against him.[28]

While Mathurin appealed several issues, the Eleventh Circuit only considered the claim under the Speedy Trial Act. The court noted, first, that § 3161(h)(1)(G) of the Speedy Trial Act automatically excludes only delays resulting from a court’s consideration of a plea agreement presented by the defendant’s attorney and the government’s attorney.[29] In Mathurin’s case, because the parties had only negotiated a plea agreement, but never presented an agreement to the District Court.[30] Plea negotiations may toll the speedy trial clock, though, only if the presiding court makes the necessary findings that “‘the ends of justice served by taking such [a delay] outweigh the best interest of the public and the defendant in a speedy trial.’”[31]

Looking at the Speedy Trial Act’s structure and purpose, it would be improper for the government and defense attorney to toll the speedy trial clock indefinitely for plea negotiations without the approval of the court.[32] Notably, the excludable periods all occur at the direction of the presiding court. Further, the Supreme Court held that the Speedy Trial Act’s purpose is “‘not only to protect defendants, but also to vindicate the public interest in the swift administration of justice.’”[33] Thus, any reading that would consider plea negotiations to be automatically excludable does not comport with the structure and purpose of the Speedy Trial Act.

The Sixth Circuit

The Sixth Circuit held that any delays stemming from plea negotiations are automatically excluded from the speedy trial clock. Plea negotiations, according to these circuits, fall under the “resulting from other proceedings concerning the defendant” exclusion under the Speedy Trial Act.

In 2017, the Sixth Circuit addressed the procedural issue in the case United States v. White. In that case, the Michigan DEA executed a warrant on May 14, 2010 at White’s residence and discovered ecstasy, other drugs, as well as firearms.[34] White was taken into custody but not immediately charged because of his promise to cooperate with the DEA.[35] Finally, in April 2013, the Michigan government officially filed a complaint against White charging him with drug distribution and firearm crimes.[36] In May, the government and White entered into plea negotiations and filed a stipulation with the district court which would exclude a two-week period of time for the plea negotiations.[37] Plea negotiations failed and a grand jury indicted White in June.[38] White’s motion for dismissal based upon speedy trial violations was denied and a jury found him guilty following a three-day trial.[39]

The Sixth Circuit upheld the District Court’s ruling based upon the notion that “plea negotiations are ‘period[s] of delay resulting from other proceedings concerning the defendant’ automatically excludable under § 3161(h)(1).”[40] While the plea-bargaining process does not appear explicitly in the eight enumerated categories of excludable periods, the listed periods constitute examples of excludable periods, and the list is not exhaustive.[41] White’s contention that the magistrate failed to make the necessary findings for an ends-of-justice continuance is invalid because plea bargaining falls into the automatically excludable section of the Speedy Trial Act.[42] Therefore, the stipulated plea bargaining between the government and White did not count toward the speedy trial clock and no speedy trial violation occurred.

White appealed to the United States Supreme Court, which granted certiorari.[43] However, upon learning that the Attorney General made errors in his brief to the Court, the case was remanded to the Sixth Circuit for additional proceedings.[44] The Sixth Circuit has yet to issue a new ruling in the case.

Recommendation

Based upon the legislative intent of the Speedy Trial Act, courts in the future should follow the direction of the Eleventh Circuit when applying the Speedy Trial Act to plea bargaining, which holds that plea bargaining does not automatically toll the speedy trial clock.

First, the legislative history shows that the Speedy Trial Act’s was intended to place time restrictions on the criminal process so that the process could not be drawn out. As Senator Ervin stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18^th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining.”[45] Thus, proponents of the Act intended to provide benefits both to society, by preventing significant delays in the criminal process, as well as the defendant, by reducing the reliance on plea bargaining.

The Senate Judiciary Committee provided further reasoning behind the Act’s specific provisions. Regarding the list of excludable periods, the Committee noted: “This provision, when considered with all the enumerated exclusions from the time limits contained in 3161(h), assures that the time limits do not fall too harshly upon either the defendant or the Government.”[46] Clearly, the intention was to strike a just balance between the prosecutor and defendant so that neither would be unfairly impacted by trial delays. Considering that plea bargaining remains unnamed within the enumerated excludable periods, the Committee addressed its viewpoint on the matter:

If Federal prosecutorial policies are changing in emphasis to reserve for trial more serious offenders, it is obviously not in the public interest to permit those who have engaged in less serious, but nonetheless proscribed, criminal conduct to “take under advisement” a negotiated plea agreement and then move for dismissal once the time to trial has expired. To the same degree public confidence in equal justice would be eroded from the incarceration of an innocent person forced to plead guilty, due to an inability to prepare his or her defense on time. Either would surely constitute a “miscarriage of justice,” and, as the Second Circuit makes plain, no such result was intended. As a general matter the committee is reluctant to automatically exclude plea bargaining per se because the difficulty of measuring the beginning on a bonafide bargaining [sic] but prefers the case-by-case approach of second circuit under existing language.[47]

The Committee adopted the viewpoint of the Second Circuit—the same that has also been adopted by the Eleventh Circuit and others—noting that the Second Circuit’s case-by-case approach prevents miscarriages of justice through improper conduct from either the defendant or the prosecutor.

Rather than force a proceeding into one of the enumerated excludable periods, the Senate Judiciary Committee noted the significance and flexibility of the “ends of justice” provision of the Speedy Trial Act. According to the Committee, analysis showed judicial hostility toward the “ends of justice” provision of the Speedy Trial Act.[48] A study conducted by the Government Administrative Office showed that approximately sixteen percent of incidents of delay were the result of “ends of justice” continuances.[49] The Committee noted: “Neither hostility toward the Act nor fear of the consequences is a justifiable basis for interpretation which is so strict as to deny the spirit of it as well as its letter in application.”[50]

Conclusion

Congress, in 1974, passed the Speedy Trial Act with the intent of clarifying the accused’s constitutional rights and protecting society through prompt justice. While the Act provides guidelines for members of the legal community to follow, gaps exist in the Act. One such gap involves the application of the Act’s provisions to plea bargaining with some circuits maintaining that plea bargaining does not automatically toll the speedy trial clock and others holding the reverse.

To ensure that the intentions for passing the Speedy Trial Act are protected, courts should follow the lead of the Eleventh Circuit which holds that plea bargaining does not automatically toll the speedy trial clock.

[1] Brady v. U.S., 397 U.S. 742, 751 (1970).

[2] Lindsey Devers, Plea and Charge Bargaining, Bureau of Justice Assistance (Jan. 24, 2011), https://www.bja.gov/publications/pleabargainingresearchsummary.pdf

[3] Id.

[4] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/

[5] The Second and Ninth Circuits share a similar standard. See, e.g. U.S. v. Lucky, 569 F.3d 101 (2d Cir. 2009) (holding that “plea negotiations do not fit comfortably into the ‘other proceedings’ language of section 3161(h)(1)”); U.S. v. Alvarez-Perez, 629 F.3d 1053 (9th Cir. 2010) (holding that, generally, time spent plea negotiating is not automatically excludable).

[6] The Fourth and Seventh Circuits share a similar standard. See e.g., U.S. v. Leftenant, 341 F.3d 338, 345 (4th Cir. 2003) (holding that plea negotiations entered into for other charges constituted “other proceedings” that qualified for automatic exclusion); U.S. v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987) (noting that the plea bargaining process can qualify as “other proceedings” that qualify for automatic exclusion)

[7] U.S. Const. amend. VI

[8] Klopfer v. State of N.C., 386 U.S. 213, 223 (U.S. 1967).

[9] Id. at 224 (citing Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797)).

[10] Id. at 225.

[11] Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, Federal Judicial Center (Aug. 1980), https://www.fjc.gov/sites/default/files/2012/LHistSTA.pdf (pg. 11)

[12] Id.

[13] Id.

[14] Id. at 11-12.

[15] Id. at 13.

[16] Id. at 14.

[17] Id. at 15-16.

[18] Id. at 16.

[19] Speedy Trial Act of 1974, 18 U.S. Code § 3161

[20] Id.

[21] Id.

[22] U.S. v. Mathurin, 690 F.3d 1236, 1237-38 (11th Cir. 2012)

[23] Id. at 1238.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 1238-1239.

[28] Id. at 1239.

[29] Id. at 1241.

[30] Id.

[31] Id. at 1241-1242.

[32] Id. at 1242.

[33] Id. (citing Bloate v. U.S., 559 U.S. 196, 211 (2010)).

[34] U.S. v. White, 679 Fed. Appx. 426, 428 (6th Cir. 2017)(unpublished), cert. granted, judgment vacated, 138 S. Ct. 641 (2018).

[35] Id. at 429.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 430.

[40] Id. at 431 (citing to United States v. Dunbar, 357 F.3d 582, 593 (6th Cir. 2004)).

[41] Id. (citing United States v. Bowers, 834 F.2d 607, 609–10 (6th Cir. 1987) (per curiam)).

[42] Id.

[43] Supreme Court Avoids Resolving Circuit Split on Speedy Trial Act By Issuing GVR Following Government Confession of Error, fd.org (Jan. 10, 2018), https://www.fd.org/news/supreme-court-avoids-resolving-circuit-split-speedy-trial-act-issuing-gvr-following-government

[44] Id.

[45] Partridge, supra note, 8.

[46] Id. at 104

[47] Id. at 112

[48] Id. at 179.

[49] Id. at 178.

[50] Id. at 179.

Emily Westerfield, Associate Member, University of Cincinnati Law Review

The courts are currently split with regard to their stances on the issue of whether a federal court may consider a criminal defendant’s need to receive rehabilitation for drug addiction when determining the duration of the defendant’s prison sentence during a hearing for the revocation of the defendant’s supervised release. In United States v. Schonewolf, this issue arose when a criminal defendant, a woman who was addicted to heroin, violated the terms of her supervised release when she pled guilty to several drug charges after relapsing.^[1] While the sentencing guidelines indicated that the defendant ought to be sentenced to an additional twenty-four to thirty months in prison for the violation of her supervised release, the district court ultimately agreed with the prosecution’s argument, ruling in favor of an upward variance of forty months in prison.^[2] The decision to impose an upward variance was based in part on the judge’s reasoning that the defendant’s last hope of recovering from her heroin addiction would be to “limit [her] contact with the outside world for a significant period of time.”^[3] The defendant appealed her sentence on the basis that the district court violated the Sentencing Reform Act by imposing an upward variance on the sentencing guidelines as a means of furthering its goal of drug rehabilitation for the defendant.^[4] Nonetheless, the Third Circuit upheld the district court’s sentence.^[5]

The Sentencing Reform Act requires the courts to consider several factors when determining the duration of a criminal defendant’s prison sentence, accompanied by the recognition that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”^[6] In Tapia v. United States, the Supreme Court held that this part of the Sentencing Reform Act effectively prohibits federal courts from determining a criminal defendant’s sentence “in order to promote the defendant’s rehabilitation.”^[7] According to the Supreme Court, this interpretation aligns with the Congressional basis for the relevant portion of the Sentencing Reform Act.^[8] Courts have no control over whether or not defendants engage in rehabilitative programs once they are in prison, and certainly not over whether those rehabilitative programs are successfully implemented.^[9] Moreover, the Third Circuit determined in Schonewolf that the Supreme Court’s holding in Tapia applies to prison sentences determined in revocation hearings.^[10] Thus, the defendant’s sentence in that case would still have to abide by the Sentencing Reform Act.

The question, then, is whether a court violates Tapia, and consequently the Sentencing Reform Act, only when the defendant’s need for rehabilitation for drug addiction is the ultimate decision-making factor in the court’s determination of the nature and length of a defendant’s prison sentence, or if a court violates the Act when it gives the defendant’s need for rehabilitation any weight at all in determining the defendant’s sentence.^[11] This is precisely where the circuit courts diverge into two separate positions.^[12]

The Seventh, Ninth, Tenth, and Eleventh Circuits have previously held that a court violates Tapia and the Sentencing Reform Act when it bases a sentence to any degree on a defendant’s need for rehabilitation.^[13] Thus, a court in those circuits could contravene the rule set forth by the Supreme Court in Tapia even if the length of the sentence it imposes on a criminal defendant is not specifically aligned with a particular course of rehabilitation.^[14] The Tenth Circuit justifies this approach to Tapia by alluding to the Supreme Court’s statement in Tapia that a prison sentence may not be lengthened so as to ensure a defendant would have the opportunity to complete a rehabilitation program “or otherwise to promote rehabilitation.”^[15] According to the Tenth Circuit, the quoted portion encompasses situations in which a court may be influenced by a rehabilitative motivation in imposing a sentence, but does not explicitly base the length of the prison sentence on that purpose.^[16]

Meanwhile, the First, Second, Fourth, Sixth, and Eighth Circuits have held that courts may consider a criminal defendant’s need for drug rehabilitation when determining the nature and length of the defendant’s sentence, so long as the defendant’s need for rehabilitation is not the decisive factor in determining the sentence.^[17] The Third Circuit joined this position in Schonewolf on the basis that the Supreme Court’s holding in Tapia impliedly preserved the ability of lower federal courts to contemplate a defendant’s opportunity to receive rehabilitative services in prison and the benefits such services may have on the defendant, and consequently on society, when deciding the length of the defendant’s prison sentence.^[18] Since the Supreme Court in Tapia merely reversed the district court’s imposition of a prison sentence because the duration of the sentence was based specifically on the idea that it would allow the defendant to complete a particular rehabilitative program while serving the prison sentence, the Third Circuit concluded that the Supreme Court conserved a court’s ability to evaluate the rehabilitative effects, among other factors, of a possible sentence duration when determining whether to impose a sentence of that length.^[19]

The Third Circuit definitively sided with the First, Second, Fourth, Sixth, and Eighth Circuits by upholding the district court’s sentence and, thus, utilizing the more lenient standard for a court’s ability to weigh a defendant’s need for rehabilitation when making a sentencing determination.^[20] However, the Third Circuit failed to resolve a consequential issue, namely, when the possibility of rehabilitation in prison becomes a determinative, and therefore impermissible, factor in a court’s sentencing determination.

^[1] United States v. Schonewolf, 905 F.3d 683, 685 (3rd Cir. 2018).

^[2] Id. at 686.

^[3] Id.

^[4] Id. at 687.

^[5] Id. at 692-93.

^[6] 18 U.S.C. § 3582(a).

^[7] Tapia v. United States, 564 U.S. 319, 327 (2011).

^[8] Schonewolf, 905 F.3d at 689-90.

^[9] Id.

^[10] Id.

^[11]  Id. at 690-91.

^[12] Id.

^[13] Schonewolf, 905 F.3d at 691.

^[14] United States v. Thornton, 846 F.3d 1110, 1116 (10th Cir. 2017).

^[15] Id. (quoting Tapia, 546 U.S. at 335).

^[16] Thornton, 846 F.3d at 1116.

^[17] Schonewolf, 905 F.3d at 691.

^[18] Id. at 692.

^[19] Id.

^[20] Id. at 692-93.