De Facto Imprisonment and the Right to a Speedy Trial
by Brian Howe
There is not much available in the way of a comprehensive drafting history for the US Bill of Rights. It is sometimes difficult or impossible to divine the specific intent of the framers when it comes to any particular clause. You have to think, though, that when the right to speedy trial was inserted in the Sixth Amendment, Kalief Browder’s case was the kind of case the framers had in mind.
Browder was a high school junior when he was arrested on robbery charges for allegedly punching a random passerby and stealing his backpack. He proclaimed his innocence and pleaded not guilty, but could not afford bond. Because of repeated delays, he would sit in jail for the next three years without a trial. Much of that time was spent in solitary confinement, and Browder tried to commit suicide several times. Twice he was offered a quick or immediate release if he would plead guilty. Browder refused both times, steadfastly maintained his innocence, and continued to insist on a trial. He would never get one. Over 900 days after he was arrested, on his thirty first pretrial court date, prosecutors simply dismissed the charges and Browder was released. He had just turned 20 years old.
The US Supreme Court has left some ambiguity as to the specifics of the Constitution’s guarantee for a speedy trial. And states can and should have flexibility necessary to set their own procedures within some broad boundaries. But New York’s system is broken. According to a recent New Yorker article about Browder’s case:
“The Bronx courts are so clogged that when a lawyer asks for a one-week adjournment the next court date usually doesn’t happen for six weeks or more. As long as a prosecutor has filed a Notice of Readiness, however, delays caused by court congestion don’t count toward the number of days that are officially held to have elapsed. Every time a prosecutor stood before a judge in Browder’s case, requested a one-week adjournment, and got six weeks instead, this counted as only one week against the six-month deadline. Meanwhile, Browder remained on Rikers, where six weeks still felt like six weeks—and often much longer.”
There is no reasonable explanation for why a prosecutor would request a one week delay to prepare, receive a two month extension, and then still be unprepared– much less for this to continue for over two dozen hearings. Browder’s attorney in his pending civil suit suggests the delay here was intentional, that prosecutors knew they couldn’t produce their witness and were trying to leverage a guilty plea. Intentional or not, what happened to Browder appears to be extreme but indicative of a larger trend in NY’s system, where a large majority of felonies sit for longer than 6 months before trial.
These lengthy pretrial detentions are not limited to New York. Last month, the ACLU filed a class action suit on behalf of inmates held in Scott County jail in Mississippi, for up to a year without even being appointed an attorney.
In Mississippi, the delay appears to be caused by the fact that only three grand juries are empaneled per year, and the state courts do not start their clock on speedy trial, or even appoint an attorney, until a formal indictment is issued. So suspects are arrested, and given a bail hearing without a lawyer, and then wait up to 3-5 months for a grand jury. If the case isn’t brought to the grand jury at that time, then the arrestee just waits another 3-5 months for the next grand jury. At no point prior to an actual indictment are indigent suspects appointed an attorney who could challenge improper bail, investigate their case, or begin negotiating with prosecutors. As a result, one plaintiff spent over three of the past five years detained in Scott County jail, awaiting trial on three separate charges. According to the complaint, “he has only been indicted once, he has been to trial once, and he has never been convicted.”
It is hard to imagine a more serious human rights issue than de facto imprisonment without trial. And it is hard to imagine the Supreme Court would find either of these cases constitutional. But without strict and vigilant enforcement, the pressures on state systems will always be for greater pretrial delay and less access to appointed counsel. Even absent any malicious intent from prosecutors, many state legal systems are chronically underfunded, and there is pressure to make the current case load work with as minimal staffing as possible. Some of these systems could not function without lengthy delays, and these realities almost certainly influence states’ own perception of their Sixth Amendment obligations. The only effective remedy is repeated and strict enforcement from federal courts, which may be soon forthcoming in New York and Mississippi.