| 90 Wash. L. Rev. Online 31
This is a response to The Not So Speedy Trial Act by Shon Hopwood, 89 WASH L. REV. 709.
In The Not So Speedy Trial Act,1 Shon Hopwood invokes the famous maxim, “justice delayed is justice denied,”2 to critique how the Speedy Trial Act of 1974 (“Act”) has been applied in federal courts.3 The Act, as Hopwood observes, was adopted to minimize long and largely unregulated delays in bringing criminal defendants to trial.4 Hopwood argues that, by demanding that trials take place within seventy days of a defendant’s indictment or initial appearance, the Act aims to protect the procedural justice interests of both defendants and the public.5
In light of the “enormous public interest involved in speedy trials,” Hopwood surmises “that federal trial and appellate courts would follow the strict strictures of the Act.”6 But in reality, Hopwood posits, the Act does not accomplish the goal of uniformly speedy federal trials because defense lawyers, prosecutors, trial judges, and appellate courts collude to dodge the Act’s requirements by utilizing various doctrinal side steps.7 This collusion, Hopwood continues, results from the convergence of institutional interests to de-prioritize uniformly speedy trials,8 and the fact that “there is no real incentive for anyone to follow the Act.”9 To minimize the doctrinal discordance between the Act and real-world practice, Hopwood prescribes how lawyers, academics, and federal courts can better fulfill the Act’s requirements.10
Hopwood has written a valuable paper, and I cannot question his thorough research into the Act’s history and design, his diagnosis of how lawyers and judges may avoid the Act’s requirements, and his prescription for ensuring fuller doctrinal compliance with the Act. Instead, I wish to enlarge the criminal justice inquiry that I believe Hopwood’s paper invites. The interest in speedy trials highlighted by Hopwood is not restricted to federal courts.11 On the contrary, the vast majority of criminal cases are heard in state courts,12 which are controlled by state speedy trial statutes.13 I do not assume that Hopwood means to speak solely to federal courts operating under the Act when he emphasizes that justice delayed is justice denied. Rather, the premise underlying Hopwood’s call for stricter doctrinal compliance with the Act appears to be that more uniformly speedy trials will ensure greater justice for everyone—that efficient justice is a stand-alone priority for our criminal justice system in whatever court those delays may occur.
If we apply Hopwood’s underlying premise about speedy trials to the criminal justice system beyond federal court, what picture will we see? I believe we will see that Hopwood’s concern over trial delays remains quite valid regardless of venue. The states also suffer from chronic institutional delays—some delays even more startling than the federal court examples that Hopwood chronicles.14 But this fuller picture may reveal that the problem with delayed trials is only one side of a larger and pressing criminal justice dynamic. Some cases are tried too slowly, as Hopwood persuasively demonstrates. Many other cases, however, are tried too speedily, in ways that equally undermine any sound conception of criminal justice.
This two-sided speedy trial dynamic results from the reality of modern criminal justice. Theoretically, our criminal courts offer a trial-based system of justice. But in reality, the criminal justice system trudges toward adversarial trials far less often than it hurtles to barely adversarial plea-bargained dispositions. Consequently, in thousands of misdemeanor and even felony matters each year, the speedy trial problem includes the mirror image of justice delayed: a system of rushed, unconsidered justice with very few trials, or even specters of trials.
In this response, I will suggest that the principal phenomenon driving Hopwood’s premise may not be a lack of doctrinal compliance with the Act or any other speedy trial law, but instead the lack of adequate criminal justice resources. More robust resources should minimize many of the incentives identified by Hopwood for lawyers and judges to drag their feet in proceeding to trial. At the same time, more resources should slow the process for some of the thousands of cases that swiftly and routinely are plea-bargained, and maybe even place a few more of those cases on track for an actual trial. Thus, if we improve criminal justice resources to adequate levels, we will realize more fully the benefits of the valuable doctrinal reforms advocated by Hopwood.
Hopwood documents numerous instances of lengthy pre-trial delay that appear unrelated to the administration of justice.15 Trial courts countenance these delays under the Act, Hopwood maintains, by improperly accepting speedy trial waivers or by granting ends-of-justice continuances without an adequate basis.16 Further, trial courts are not incentivized to act differently because appellate courts rarely reverse these decisions and do not hold defense counsel accountable for failing to press for a speedy trial.17
These institutionalized trial delays are a criminal justice problem that extends well beyond federal courts. The New York Times, for instance, profiled the County of Bronx, New York, as offering perhaps some of the worst examples of institutionalized trial delay.18 As the Times’ series of articles reported, “a plague of delays in the Bronx criminal courts is undermining one of the central ideals of the justice system, the promise of a speedy trial.”19 This report noted that in 2011, New York City had 141 defendants who had waited more than three years in jail for a trial, with eighty-five of these cases in the Bronx.20 These excessive delays extended to misdemeanor cases,21 and responsibility was laid at the feet of the court, prosecutors, and defense lawyers.22 These delays have proliferated notwithstanding New York’s own speedy trial statute, and for reasons that may track Hopwood’s diagnosis of the Act’s own failings.23
Delays of this magnitude are inexcusable, and they inflict more than theoretical harms. A recent article in The New Yorker powerfully illustrated these harms in the case of Kalief Browder.24 Browder was charged with robbery at the age of sixteen, and was held in jail at Riker’s Island pending trial.25 Browder refused to plead guilty and demanded a trial.26 But that trial never happened.27 And by the time the prosecution moved to dismiss the case, Browder, who had entered jail at sixteen, “had missed his junior year of high school, his senior year, graduation, the prom. He was no longer a teen-ager; four days earlier, he had turned twenty.”28 The tragic circumstances of these delays make Hopwood’s proposals to invigorate the Act, or any other speedy trial law, easy to embrace.
Yet, for every Kalief Browder, numerous individuals receive too speedy of a trial, because our criminal justice system is no longer principally a trial system. Rather, as the U.S. Supreme Court recently acknowledged, “ours ‘is for the most part a system of pleas, not a system of trials.’”29 This plea system prioritizes and rewards early guilty pleas, which relieve an overburdened system of the resources and uncertainty that extended pre-trial litigation and trial would require.30 And nowhere is the speedy guilty plea more prevalent than with misdemeanor cases, because “the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.”31
As a result, “[i]n many jurisdictions, cases are resolved at the first court hearing, with minimal or no preparation by the defense. . . . This process is known as meet-and-plead or plea at arraignment/first appearance.”32 Indeed, “it is common for defense counsel in our large urban courts to offer a guilty plea on behalf of their clients within minutes of having first met the defendant.”33 Misdemeanor convictions nevertheless can impact individuals’ lives tremendously, not only due to the loss of liberty that can result, but also from the myriad “collateral consequences” that can follow convictions for even seemingly minor criminal offenses.34
The recent federal court decision in Wilbur v. City of Mount Vernon35 illustrates this premium on speedy dispositions, free of the inefficiencies of robust adversarial tests like a trial. In Wilbur, two Washington State cities (“Cities”) contracted with a law office to provide public defense in misdemeanor matters.36 Plaintiffs sued the Cities, claiming that through these contracts, the Cities systemically supplied constitutionally inadequate public defense services.37 After holding a trial, the District Court found:
The period of time during which [counsel] provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that [counsel] conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their job correctly and negotiated a plea bargain based on that assumption. . . . Adversarial testing of the government’s case was so infrequent that it was virtually a non-factor in the functioning of the Cities’ criminal justice system. . . . [I]n light of the sheer number of cases [counsel] handled, the services they offered to their indigent clients amounted to little more than a “meet and plead” system.38
I cannot imagine that the practices challenged in Wilbur would seem terribly anomalous to most experienced public defenders and prosecutors. Anecdotally, I have seen lawyers plead dozens of clients guilty during a single first appearance court session. These lawyers were typically doing the best they could under the circumstances to help their clients by seizing on a quick disposition opportunity to avoid a more damaging possible case outcome, or by avoiding pre-trial incarceration because the client could not afford bail.39 But no one seriously would argue that criminal convictions obtained by guilty plea on the first or second court appearance are generally the product of meaningful adversarial testing of the prosecution’s accusation.40 Even more, no one would suggest that these cases suffer from justice delayed.
This speedy-disposition emphasis can occur in more serious cases too, and even in federal court. For example, under “Operation Streamline,” federal defendants in unlawful reentry immigration cases41 commonly plead guilty after meeting with a lawyer for only thirty minutes about the case and any possible defenses.42 These defendants may go from charge to conviction in one day, pleading guilty as part of a group hearing, where the judge takes a plea from multiple defendants at once.43 Unlawful reentry cases, however, are serious matters authorizing up to two years of imprisonment.44 Unlawful reentry cases with aggravated circumstances can authorize up to twenty years.45 Even in return for foregoing numerous protections that the Constitution guarantees, many fast-track defendants still receive jail terms of thirty to 180 days.46 These fast-track guilty plea proceedings are wondrously efficient, and no one would worry that these cases are defying the Act. Yet, some commentators have argued that the efficiency of these fast-track programs is “endangering our very justice system.”47
My point is not to argue that we do not have the speedy trial problem elucidated by Hopwood. We certainly do. But in my view, this problem is not an independent, free-standing phenomenon. Rather, this problem is one side of a two-sided speedy trial dynamic, with both too much and too little efficiency bookending a more optimal efficiency and efficacy range of criminal justice.
How did we get to this two-sided speedy trial dynamic, with too much efficiency on one side and too little efficiency on the other side? The dynamic did not arise from the will of any one institutional actor. As Hopwood asserts, judges, prosecutors, and defense lawyers collude from mutual, institutional interests to delay criminal trials48 — a phenomenon not restricted to federal court.49 And, a similar “we’re in this together” mentality can operate at the other end of the speedy trial dynamic, where the system pushes defendants to plead guilty, and to plead guilty quickly.50
To de-calcify this institutional congruence at the delay end of the speedy trial spectrum, Hopwood proposes several doctrinal solutions to improve implementation of the Act.51 These thoughtful solutions would help if taken seriously. Similarly, the system would benefit from further doctrinal clarity at the other end of the speedy trial spectrum regarding how lawyers and courts should process guilty pleas at high volumes.52
The conclusion is difficult to resist, however, that disobedience of doctrine is more of a symptom, and not the source of, the problem.53 Lawyers and judges do not typically delay trials because they are lazy or do not care about the administration of justice. More often, in my experience, defense lawyers delay trials because of high caseloads that require more time to investigate, consult with clients, obtain and review complex discovery, and complete other work necessary for competent and diligent trial preparation.54 Judges, in turn, delay trials because they have packed dockets and do not have the staff or courtrooms to resolve pre-trial issues efficiently across all these cases and also conduct jury trials.55 Prosecutors also are not ready for trial due to their own resource constraints.56 The same phenomenon controls at the other end of the spectrum where defense lawyers, judges, and prosecutors take too many guilty pleas with too little adversarial testing of criminal charges: the demands of an over-burdened criminal justice system force this hand on everyone.57
Doctrinal solutions targeting these institutional actors and their individual decisions thus, at least to some degree, ask these actors to fix a structural problem by doing more work with the same—or even fewer—resources.58 Criminal justice actors must be more efficient in trial matters with the same caseloads, the same staff, the same resources, the same remuneration. Yet, to make the room necessary for this efficiency, these solutions expect these actors to dispose of hundreds or thousands of cases carefully and competently, still with the same caseloads, the same staff, the same resources, the same remuneration. Thus, as one scholar observed, “while lawyer [or court] ignorance, indifference, and malevolence are part of the problem, a focus on individual lawyering practices [or court decisions] obfuscates the larger, structural issue—indigent defense systems with otherwise competent attorneys [and courts] who are under-resourced, overwhelmed, and overburdened with cases.”59
The two-sided speedy trial dynamic accordingly should be treated as a structural, systemic problem, and not solely as the product of poor individual legal judgments.60 Indeed, a contrary message of do-more-with-less can breed deep institutional skepticism, which I have witnessed, in whether society truly cares about the values that the doctrine is telling lawyers and judges to prioritize in individual decision-making—like a speedy trial. If society really wants speedier trials, the law meaningfully would address some of structural barriers to speedy trials for lawyers and judges who take their roles seriously. If society wants well-advised guilty pleas that follow meaningful adversarial testing of the government’s case, society should address some of the structural barriers to eliminating meet-and-plead systems of justice.
Some jurisdictions are taking these barriers to both efficient and effective criminal justice more seriously. For example, the Washington State Supreme Court has adopted indigent defense standards, including detailed caseload standards, to help to ensure that lawyers have the competence, resources, and time to work deliberately on all criminal matters, but also to work efficiently in cases heading to trial.61 The Wilbur decision holding local municipalities constitutionally accountable for passing the burden of competency and efficiency to lawyers and judges also should incentivize important structural changes.62 Perhaps following Wilbur’s lead, New York State settled an important lawsuit challenging its public defense systems, agreeing to significant resource and training reforms.63
These kinds of structural changes should help to bring the two sides of the speedy trial coin closer together and into equilibrium. Well-trained and -resourced lawyers and courts will move cases more efficiently to trial.64 And, better-trained and -resourced lawyers and courts less likely will steamroll defendants into overly efficient dispositions. Rather, when the two sides of the speedy trial coin converge, more of the cases typically plea-bargained too speedily instead may enjoy a speedy trial, as Hopwood envisions.65
Hopwood’s paper champions the maxim, “justice delayed is justice denied.”66 Looking at the fuller picture of criminal justice, I might prefer the version of this maxim I recall from Martin Luther King, Jr.’s Letter from Birmingham Jail: “justice too long delayed is justice denied.”67 Not because delays contrary to justice should be tolerated for any time. Rather, because the flip side of justice delayed can be an equal danger: a rushed, unconsidered justice. We must calibrate our criminal justice system to provide both speedy and deliberate trials across the full run of cases.
This kind of calibration in our complex and vast modern criminal justice system will necessitate deep structural changes. These structural changes, combined with important doctrinal reforms of the sort proposed by Hopwood, should present the best antidote to both sides of the speedy trial dynamic ably uncovered by Hopwood in The Not So Speedy Trial Act. The result, I hope, will be a criminal justice system that is not too fast, and not too slow, but just right.68
Brooks Holland is Associate Professor of Law, Gonzaga University School of Law. The author currently serves as Chair of the Washington State Bar Association Council on Public Defense, and is a member of the Society of American Law Teachers Board of Governors.
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