I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing. Browder is arrested for theft. He does not receive bail. He is imprisoned for three years on Rikers Island without trial. Then the prosecutor dismisses the case (because the alleged victim moved to another country). How this could go on without a successful Sixth Amendment claim is beyond me. (Browder is now suing for damages). The New York criminal justice system (at least in the City) should be deeply ashamed.
This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.” Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868. Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery. Consider that this is a right that protects defendants. If the state cannot get its case together in a timely way, then the charges must be dismissed. Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed. At least that could be how the Sixth Amendment is applied. My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated. (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.) An originalist could have a field day with this subject.
This brings me to my last thought. People often complain about the use of plea bargaining and its abuses. Imagine for a moment that there was a plea bargaining strike. Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free. Why? Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous. That suggests the existence of a significant right/remedy gap.