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[Vol. 61:657 legislatures, the rules mandate that a defendant be tried within a specific period of time.52 The Supreme Court has clearly indicated that such fixed time limits do not delineate the boundaries of the constitutional right to a speedy trial.53 Further, the rules do not appear to be predicated on the assumption that prejudice is inherent in long delays. Rather, the rules reflect an estimation of the amount of time in which a criminal case ought to be tried. Instead of establishing the time after which the fact-finding process will be considered unreliable, the rules limit the amount of delay that will be tolerated on policy grounds. Moreover, as opposed to focusing on any particular defendant, the rules regulate the criminal justice system as a whole. Thus, in marked contrast to the traditional constitutional approach, which has failed to encourage speedier trials, the rules mandate the expeditious disposition of all criminal cases. The rules accomplish this by substituting clearly defined guidelines for ill-defined, post hoc determinations.

Imposing specific deadlines may appear to be a rather mechanical approach to the problem of delay. Unfortunately, flexible constitutional standards have been ineffective in attempting to solve the problem. A further criticism of the rules is that they ignore one of the primary causes of court backlog-inadequate funding. Requiring understaffed courts to meet strict time limits, it is argued, would be un

54

51 Only nine states have no statutory provision defining the right to a speedy trial: Alabama, Connecticut, Kentucky, Maryland, Mississippi, New Hampshire, South Dakota, Texas, and Vermont. See Note, Convicts' Right to a Speedy Trial, 18 RUTGERS L. REV. 828, 869-74 (1964).

52 The New York legislation provides detailed time limits-six months where the defendant is charged with at least one felony, 90 days where the defendant is charged with one or more offenses at least one of which is a misdemeanor punishable by more than three months and none of which is a felony, 60 days where the defendant is charged with one or more offenses at least one of which is a misdemeanor and none of which is punishable by more than three months, 30 days where the defendant is charged with one or more offenses at least one of which is a violation and none of which is a felony. Act of Apr. 28, 1972 § 1, N.Y. CRIM. Pro. Law § 30.30(1) (McKinney 1972); S. 895, 92d Cong., 2d Sess. § 101 (1972) (60 days from arrest, summons, information, or indictment); 2D CIR. R. 4 (six months from date of arrest, service of summons, detention, or filing of a complaint, or other formal charge); ABA STANDARDS § 2.2 (time should commence from date the charge is filed).

53 "We find no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise." Barker v. Wingo, 407 U.S. 514, 523 (1972). Federal courts subject to the rules must therefore apply the constitutional balancing test when dealing with specific time limits.

54 See Letter from Chief Judge Edward M. Curran to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 7, 1970, in 1971 Hearings 166; Letter from Judge Edwin A. Robson to Senator Sam Ervin, Chairman, Subcomm, on Constitutional Rights, Oct. 20, 1970, in id. at 194.

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reasonable and unwise. This contention, although not without merit, can be countered in at least two respects. First, the rules provide the impetus for larger appropriations which are desperately needed. When faced with the possibility of numerous dismissals of criminal cases, legislatures may be motivated to provide the funds necessary for an adequate court system.57 Second, because money will not completely eliminate court congestion, the rules provide the necessary impetus for the institution of more efficient court procedures. At least one federal district court has substantially reduced delay in criminal trials without increased funding by overcoming inefficient scheduling and processing of cases.58

The ABA Standards provide that "[a] defendant's right to a speedy trial should be expressed by rule or statute in terms of days or months running from a specified event."50 Under the Second Circuit Rules, the Government "[i]n all cases must be ready for trial within six months from the date of arrest, service of summons, detention, or filing of a complaint . . . whichever is earliest." 60 S. 895 permits only 60 days between arrest or indictment and trial, whereas the New York

61

55 Letter from Judge Edwin A. Robson to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 20, 1970, in id. at 193, 194.

56 Court expenditures have a very low national priority. Chief Justice Burger noted that the $128 million appropriated to the federal judicial system looks rather small when compared to the $200 million spent developing the C-5A transport. Address by Chief Justice Burger, State of the Federal Judiciary, ABA Annual Meeting, Aug. 10, 1970, in id. at 731.

57 Congress will be made aware of the necessity for a larger appropriation by the requirement in S. 895 that each district court submit to Congress a plan for the prompt disposition of criminal cases. The plans must include explicit proposals for increased appropriations where needed, as well as any legislative proposals the district courts find advisable. S. 895, 92d Cong., 2d Sess. § 101 (1972).

58 The United States District Court for the Central District of California had the fourth heaviest criminal caseload in 1970, yet the average amount of time between indictment and conviction or guilty plea was approximately two months. 1971 Hearings 75, 76 (testimony of Chief Judge Albert L. Stephens).

59 ABA STANDARDS 2.1. Several states measure speedy trial limitations by terms of court. This method is disapproved by the ABA because it "often results in lack of uniformity throughout a jurisdiction and is difficult for defendants and counsel to understand." Id. Commentary at 14.

60 2D CIR. R. 4. The Second Circuit Rules do not require that a defendant be tried within this period of time, but only that the Government "be ready" for trial within six months. Id.

61 S. 895, 92d Cong., 2d Sess. § 101 (1972). The 60-day time limit would not become effective until three years after the date of enactment. Id. During the interim, persons in custody solely because they are awaiting trial or persons on bail who are designated by the United States Attorney as being high security risks must be tried within 90 days. Id.; 18 U.S.C. § 3148 (1970). If trial does not commence within 90 days, the bill provides for automatic court review of the conditions of release. S. 895, 92d Cong., 2d Sess. § 101 (1972). If a defendant on bail, designated as a high risk, has

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[Vol. 61:657. legislation establishes a schedule of time limitations based on the nature of the offense with which the accused is charged.62 In evaluating the length of time permitted by the rules, it is important to remember that several significant periods, such as hearings on pretrial motions, are not included in the computation of speedy trial time.63

Effect of Specific Time Periods. The inherent tension between speed and fairness necessitates careful consideration of the amount of time to be permitted. Disposition of criminal cases which is too swift can be just as damaging to the ideals of justice as that which is too slow. Courts should not be so hardpressed that the defendant is denied the individual attention he deserves; mass produced justice may promote disrespect for the law and impede the implementation of procedural safeguards.65 Another potential weakness with a very short time limit is that judges may be inclined to interpret the "escape clauses" broadly, thus robbing the proposals of their substance. A very short time limit "intentionally delayed" his trial beyond 90 days, he "shall be subject to an order of the court modifying his nonfinancial conditions of release under this title to insure that he shall appear at trial as required." Id.

62 Act of Apr. 28, 1972 § 1, N.Y. CRIM. PRO. LAW 30.30(1) (McKinney 1972); see note 52 supra. Three of the speedy trial proposals have time limitation sections which deal with the situation where an accused is incarcerated pending trial or serving time for a previous conviction. See Act of Apr. 28, 1972 § 2, N.Y. CRIM. Pro. Law § 30.30(a) (McKinney 1972); 2d Cir. R. 3; ABA STANDARDS §§ 3.1, 3.2.

63 See notes 128-185 infra and accompanying text. Two periods of delay in the criminal process fall beyond the scope of the proposals: (1) the time between verdict and sentencing, and (2) appellate proceedings. The purposes of the speedy trial provision are not thwarted by delay during the first period, since the trial has already been held. However, the Federal Rules of Criminal Procedure require that sentence be imposed without unreasonable delay. FED. R. Crim. P. 32(a) (1).

64 See, e.g., DeMeerleer v. Michigan, 329 U.S. 663 (1947) (arraigned, tried, convicted and sentenced for first degree murder in one day); United States v. Knight, 443 F.2d 174 (6th Cir. 1971) (due process and right to counsel violation resulting from inadequate time to prepare for trial-30 minutes); Townsend v, Bomar, 351 F.2d 499 (5th Cir. 1965) (2 days between indictment and trial-ineffective assistance of counsel); Toland v. Strohl, 147 Colo. 577, 364 P.2d 588 (1961) (guilty plea 2.5 hours after arrest on charge of drunken driving not valid). But see People v. Shrum, 12 Ill. 2d 261, 146 N.E.2d 12 (1957) (on the same day defendant was indicted by a special grand jury, arraigned, pleaded guilty to murder, and was sentenced to 199 years-no denial of due process).

65

5 Cf. Mills, supra note 3, at 56. See generally L. DowNIE, JUSTICE DENIED: THE CASE FOR REFORM OF THE COURTS (1971); Barrett, Criminal Justice: The Problem of Mass Production in the American Assembly, in THE COURTS, THE PUBLIC AND THE LAW EXPLOSION (H. Jones ed. 1965).

66 See 1971 Hearings 67 (testimony of Senator Charles H. Percy); Letter from Allen E. Barrow to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 14, 1970, in id. at 160.

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which proved to be unworkable would also jeopardize further experimentation with fixed time limitations.67

69

The most significant practical consideration, although the most difficult to predict, is the impact of speedy trial rules on the rate of guilty pleas. In 1971, 85 percent of federal criminal convictions resulted from plea rather than trial.68 Even a very small decrease in the number of guilty pleas would strain present court resources to the breaking point." The Justice Department suggested that fixed time limits might lower the number of guilty pleas. The experience under the Second Circuit Rules, however, has been the opposite. During the first full quarter after the rules became effective the rate of disposition increased 20 percent, all due to increased guilty pleas. Moreover, the conviction rate in cases disposed of on the merits increased from 90 percent to 95 percent.

72

The amount of time permitted by state statutes ranges from 75 days78 to three years." The six-month time limit provided by the Second Circuit appears to be realistic, as is evidenced by the fact that most state courts, which handle the bulk of criminal offenses, now operate within

67 See id. at 248 (statement of Senator Strom Thurmond).

68 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, 1971 ANNUAL REPORT Table D4, at 340 (1972). It is interesting to note that only 15 percent of the criminal cases filed in 1971 were terminated by trial. Id.

69 See Address by Chief Justice Burger, State of the Federal Judiciary, ABA Annual Meeting, Aug. 10, 1970, in 1971 Hearings 736.

70 The Justice Department, commenting on S. 895, pointed out that the imposition of inflexible and extremely short time limits may deter some defendants from pleading guilt in the hope that they will benefit from the mandatory dismissal provided in the bill. Id. at 193 (statement of Assistant Attorney General Rehnquist); see S. 895, 92d Cong., 2d Sess. § 101 (1972).

71 See 118 CONG. REC. S14,748 (daily ed. Sep. 13, 1972) (statement of Whitney North Seymour, Jr., United States Attorney for the Southern District of New York). Mr. Seymour suggested two reasons for the higher rate of disposition: (1) United States Attorneys are motivated by the time limits to prepare cases thoroughly at an earlier date and (2) defendants who know they will go to trial soon "are more inclined to enter guilty pleas than they were when they could count on a certain amount of attrition as cases languished in file cabinets." Id.

72 ld.

78 See CAL. PENAL CODE § 1382 (West 1970) (15 days from arrest to indictment, 60 days from indictment to trial).

74 See LA. CODE CRIM. PRO. ANN. art. 578(1) (West 1967) (capital cases). Several states do not specify a particular period of time within which the defendant must be tried. See, e.g., ORE. REV. STAT. § 134.120 (1959) (unreasonable period of time); ALASKA R. CRIM. P. 43(b) (unnecessary delay); DEL. SUPER. CT. (CRIM.) R. 48(b) (unnecessary delay). Others measure the time period by terms of court. See, e.g., GA. CODE ANN. § 27-1901 (1935); Va. CodE ANN. §§ 19.1-190 to -191 (1960); W. Va. CODE ANN. 62-3-21 (1966).

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a six-month limit.” In 1971, more than 30 percent of all criminal cases pending in federal courts were over one year old. However, more than 15 percent were delayed because of fugitive defendants."

The 60-day period in S. 895 was criticized as too short by a number of judges from whom Senator Ervin solicited comments,7% since some federal courts are presently unable to return an indictment in that amount of time." Although the goal of the bill is admirable, it is unrealistic to hope that even after three years these courts will be able to compact the entire trial process into two months.80 The time limit should be extended to 90 or 120 days. This would enhance the bill's prospects of enactment as well as allow the courts a more reasonable amount of time within which to adjust to specific time limits for crim

75 But see GA. CODE ANN. § 27-1901 (1935); La. CODE CRIM. PRO. ANN. art 578(1) (West 1967); VA. CODE ANN. §§ 19.1-190 to -191 (1960); W. VA. CODE ANN. § 62-3-21 (1966).

76 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, 1971 ANNUAL REPORT Table 32, at 150 (1972).

77 Id. The Administrative Office records time accrued subsequent to the filing of an indictment or information. Thus, these figures do not include the period between arrest and indictment. S. 895, the ABA Standards, and Second Circuit Rules count this period of time toward a violation of the speedy trial time limitations. See note 94 infra and accompanying text.

78 Letter from Chief Judge Bailey Brown to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Sep. 24, 1970, in 1971 Hearings 163; Letter from Judge George L. Hart, Jr. to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, June 22, 1970, in id. at 170; Letter from Chief Judge Wallace Kent to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 16, 1970, in id. at 179; Letter from Chief Judge Harry Phillips to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Jan. 19, 1971, in id. at 190.

The selection of a 60-day period was based on the results of a National Bureau of Standards study of crimes committed during the pretrial release period in the District of Columbia. The Bureau report found that a man released 120 days was twice as likely to be rearrested as one released for 60 days. U.S. DEP'T OF COMMERCE, supra note 7, at 189.

79 See Letter from Edward L. Barrett, Jr. to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, in 1971 Hearings 159 (Wyoming grand jury meets only once a year).

A study of criminal cases in twelve metropolitan federal district courts, conducted by the Federal Judicial Center, reported that the average length of time between arrest and indictment ranged from 43 to 135 days. 1971 Hearings 551, 555.

80 The United States Attorney's Office in the Southern District of New York requires its staff to be prepared within 60 days of arrest in cases which can be tried in three court days. 118 CONG. REC. S14,747 (daily ed. Sep. 13, 1972) (statement of Whitney North Seymour, Jr., United States Attorney for the Southern District of New York). Most criminal trials take three days or less. Administrative OFFICE OF THE UNITED STATES COURTS, 1971 ANNUAL REPORT Table C8, at 313 (1972). However, a 60-day time limit is too short for complex cases. See Letter from United States Attorney Whitney North Seymour, Jr. to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 6, 1972, in 118 CONG. REC. S18,143-44 (daily ed. Oct. 13, 1972).