Speedy Trial, Slow Sentencing. That's Not Justice.

There's a hole in the Sixth Amendment. The Supreme Court should fill it.


Photographer: David McNew/Getty Images

The Constitution grants people accused of crimes the right to a speedy and public trial. Does that include a right to speedy sentencing after conviction? The Supreme Court takes up that question on Monday in Betterman v. Montana, the case of a defendant who had to wait 14 months in a county jail to be sentenced after pleading guilty. Then the court refused to include that period as time served.

What’s most remarkable about the case is that not only Montana but also the federal government maintain that the speedy-trial right doesn’t include sentencing at all. The court has never said so before – although to be fair, it also hasn’t said that sentencing is part of the trial either.

Start with the basic rationale for the right. The origins of the phrase contained in the Sixth Amendment 1 go back to the 17th-century common-law judge and scholar Sir Edward Coke, who wrote in his monumental treatise, "Institutes of the Lawes of England," that the common law courts “have not suffered the prisoner to be long detained, but ... have given the prisoner full and speedy justice.”

Coke’s idea was that detention without trial is a mark of basic injustice, one that violates the idea of due process of law. The prisoner could only be detained before trial “to this end, that he be forthcoming to be duly tried, according to the law and custom of the realm,” Coke wrote.

In a 1972 case, Barker v. Wingo, the Supreme Court said that the purposes of the clause were to prevent a long pretrial detention that could disrupt lives, cause anxiety and impair the capacity of the accused to offer a defense.

Based on the logic of Barker, the state of Montana and the U.S. solicitor general (appearing as a friend of the court in this state case) argue that the speedy-trial right shouldn’t include a right to rapid sentencing. Their argument is that once you’ve been convicted, your detention is legitimate. At that point, the logic goes, you no longer have to defend yourself, and any anxiety you might feel about your sentence is only to be expected.

The briefs on both sides of the case spend some time considering whether the framers of the Constitution would consider sentencing to be a part of trial. But this form of originalist analysis doesn’t make much sense.

In the 18th century, sentencing was either immediately adjacent to conviction or else followed it by a short time. There were no formal pre-sentence reports of the kind now often required by state and federal law. More important, courts weren’t overwhelmed, as they often are now, with more business than they could possibly handle. The simple truth is that if you asked the framers’ generation whether they thought sentencing was part of the trial, they would almost certainly say they never thought about it.

The right approach of the case is therefore to start with the function of a sentencing hearing in the contemporary world. Today, in the era of plea bargains and pre-sentencing reports, the sentencing phase is often the most important part of a defendant’s case. Conviction ordinarily tells you that you’re going to be deprived of your liberty to some degree. But in many cases, it doesn’t tell you the most important thing from the perspective of the convicted criminal: how long you’re going to serve in prison.

A sentencing hearing isn’t just an announcement by the judge of a decision that’s already been made. Parties argue their case and sometimes introduce witnesses. The pre-sentence report, which is highly influential in the decision, can be discussed and challenged. If the case emerges from a guilty plea, as Betterman’s did, the sentencing phase is the only moment at which the defendant will actually be heard in court.

In other words, sentencing is a crucial element of the process of contemporary conviction and incarceration – and the sentencing hearing is a necessary part of that process. The integral role of sentencing in the contemporary criminal justice process is a strong reason to subject the sentencing to the same speedy-trial requirement as the trial itself.

If the court were to focus on the 17th-century rationale for speed, namely the avoidance of detention without trial, the question would be closer, since conviction authorizes detention. But even that wouldn’t decide the case definitively. A speedy trial that takes place in public assures that the criminal justice process is subjected to public scrutiny before anyone goes to prison. Sentencing today is a part of the same process and deserves the same scrutiny. A sentence delayed may be justice denied.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
  1. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

To contact the author of this story:
Noah Feldman at

To contact the editor responsible for this story:
Jonathan Landman at

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