Betterman v. Montana: The More the Legal Process Changes the More the Constitution Stays the Same
May 24, 2016 (Mimesis Law) – Brandon Betterman is not just a defendant with an ironic name; he’s a defendant in a hurry to go to prison. Betterman was in such a hurry that he argued before the Supreme Court that the sentencing court violated his speedy trial rights regarding his sentencing.
After he was charged, Betterman soon pleaded guilty to avoid being found to be a persistent felony offender (PFO) and to get on with serving his sentence because he was guilty. Then he spent 14 months after his plea waiting in the local jail to be sentenced. And when he was sentenced, Betterman received a prison sentence of seven years, with four years suspended.
While it’s not completely clear from the briefs, the possible PFO designation suggests that Betterman has been imprisoned before. If this was the case, then he probably knew whether the local jail or the state prison was the better place to do his time. Some jails have decent food, recreation programs, educational opportunities, and comparably decent inmates. Others do not, especially if you’re not there serving local time.
On the other hand, some prisons are overcrowded, have bad food, and contain lifers who can sometimes make unfriendly bunk mates. And some prisons might be better than the local jail, particularly if the Sheriff views jail as punitive and not rehabilitative. Besides, maybe at the prison the commissary is better or the guards let in contraband. In addition to trying to avoid the PFO designation, perhaps Betterman was trying to pick the best place to do his time. Or, as discussed below, perhaps he (or rather his lawyer) was trying to find a way to beat prison time altogether.
To a non-lawyer, the text of the Speedy Trial Clause probably appears dispositive: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….” Trial is that thing most people see on the television that usually ends with the good guy exonerated or the bad guy found guilty. The law too has adopted something like this distinction; trial determines guilt and sentencing determines punishment.
In a stunning move, here the law decides to track common sense, so that should be the end of it. Well, just because a word has a common meaning does not mean the lawyer’s job is done; a lawyer’s job is often to “shovel smoke.”
If you’re a legal realist or a Posner-pragmatist, then you’re more interested in the purpose of the rule than the actual meaning of the words. Because the purpose of the rule will define its scope. Just because we understand what the word “trial” means in the Sixth Amendment, the real job of the judge is to dig deeper—or so this argument goes. To that end, the NACDL argued that the three-judicially established purposes of the Speedy Trial
Clause controlled here:
In addition to the historical bases for applying speedy trial rights to sentencing, the practical considerations that animate that right require comparable protection at sentencing. Barker v. Wingo specifies three “interests of defendants which the speedy trial right was designed to protect”: preventing oppressive pretrial incarceration, minimizing the anxiety and concern of the accused, and limiting the possibility that delay will impair preparation of the defense. 407 U.S. at 532. Each of these interests warrants the same protection against inordinate sentencing delay, especially for the 95% of those defendants who have pleaded guilty, and for whom sentencing is their crucial—and only—“day in court.”
The reason for making this argument is two-fold. First, if the defendant prevails, then the defendant is discharged, regardless of guilt or innocence. That’s a big win, particularly if you’re guilty. Second, the Speedy Trial argument has the benefit of avoiding the need to show prejudice, which Betterman probably could not have done. So, maybe it was not the prison commissary that was at stake after all.
Just in case that the legal realism or pragmatic philosophy was not enough to persuade the Court, Bettterman’s counsel threw in the historical arguments:
The Court has consistently applied the Clause to delays in the course of pretrial proceedings, not just in the narrow confines of the petit jury trial. If a defendant is convicted, the criminal proceedings continue and reach fruition only when the court imposes sentence and judgment. Because a “prosecution terminates only when sentence is imposed,” Bradley v. United States, 410 U.S. 605, 609 (1973), speedy trial protections should apply equally to undue delays between conviction and sentencing. Indeed, this Court has already held that the textually interwoven right to a “public trial” applies at sentencing and other non-trial proceedings. See, e.g., In re Oliver, 333 U.S. 257, 266–73 (1948). * * *
At the time the Framers embodied the common law right to swift justice in the Sixth Amendment’s guarantee of a “speedy and public trial,” criminal proceedings were unitary, and there was an “intimate connection” between the jury’s verdict and the sentence imposed. Alleyne v. United States, 133 S. Ct. 2151, 2159 (2013). Fixed penalties meant that the jury’s verdict determined the punishment for most felonies, id. at 2158–59, and the sentence was announced immediately or soon thereafter, see, e.g., 4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND.
Unsurprisingly, the word “trial” often connoted a criminal proceeding as a whole, running from arraignment through sentence. By casting the common law right to swift justice as a right to “speedy … trial,” the Framers adopted protections encompassing not just the petit jury stage, but also the sentence and judgment that followed.
Unfortunately for Betterman, the Court did not see this as a difficult call to make:
Reflecting the concern that a presumptively innocent person should not languish under an unresolved charge, the Speedy Trial Clause guarantees “the accused” “the right to a speedy . . . trial.” U. S. Const., Amdt. 6 (emphasis added). At the founding, “accused” described a status preceding “convicted.”
See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 322 (1769) (commenting on process in which “persons accused of felony . . . were tried . . . and convicted” (emphasis added)). And “trial” meant a discrete episode after which judgment (i.e., sentencing) would follow. See, e.g., id., at 368 (“We are now to consider the next stage of criminal prosecution, after trial and conviction are past . . . : which is that of judgment.”).
This understanding of the Sixth Amendment language—“accused” as distinct from “convicted,” and “trial” as separate from “sentencing”—endures today… This Court’s precedent aligns with the text and history of the Speedy Trial Clause.
So, Betterman lost on both the legal realism and legal history arguments. Bummer. Though in a hat tip to legal realism, the Court did peek over and evaluate whether applying the Speedy Trial remedy would be just (citations omitted):
The sole remedy for a violation of the speedy trial right—dismissal of the charges fits the preconviction focus of the Clause. It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. Betterman concedes that a dismissal remedy ordinarily would not be in order once a defendant has been convicted.
What the Court did not address was the fact that a strict Originalist interpretation arguably would not permit the “three discrete stages” that the Court found to be well-established. As detailed in Betterman’s merits brief, at common law the sentence was largely a function of the conviction. There was a pretty straight line between the offense and the pre-determined punishment. So, sentencing quickly followed a guilty determination.
Nowadays, judges have to consider sentencing factors, defendants get to make post-plea and sometimes post-trial motions, a sentencing report needs to be performed, and both sides might file sentencing memos. Things today are different from when a murder conviction resulted in a swift hanging a few days later. Indefinite sentences presumably allow for more fairness in the sentence, at the expense to quicker finality. But that’s not the Founding Era common law.
If trial, two hundred years ago, was understood to encompass the guilt and punishment determination, then applying that history to the present day two-part conviction process should not be accomplished so neatly. Yet, the Court did so in conclusory fashion:
The sentencing hearing has largely replaced the trial as the forum for dispute resolution, Betterman urges. Therefore, he maintains, the concerns supporting the right to a speedy trial now recommend a speedy sentencing hearing. The modern reality, however, does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.
And factual disputes, if any there be, at sentencing, do not go to the question of guilt; they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and maximums.
Moreover, a central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report.
This aspect of the system requires some amount of wholly reasonable presentencing delay. Indeed, many—if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process. As we have explained, at the third phase of the criminal-justice process, i.e., between conviction and sentencing, the Constitution’s presumption-of-innocence protective speedy trial right is not engaged.
So, the moral of the story is the Rule of 5 is still the most important aspect of constitutional adjudication.