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Dismissal with Or Without Prejudice Under the Speedy Trial Act: a Proposed Interpretation Marc I

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Dismissal with Or Without Prejudice Under the Speedy Trial Act: a Proposed Interpretation Marc I Journal of Criminal Law and Criminology Volume 68 Article 1 Issue 1 March Spring 1977 Dismissal with or without Prejudice under the Speedy Trial Act: A Proposed Interpretation Marc I. Steinberg Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Marc I. Steinberg, Dismissal with or without Prejudice under the Speedy Trial Act: A Proposed Interpretation, 68 J. Crim. L. & Criminology 1 (1977) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. I Copyright @ 1977 by Northwestern University School of Law Printed in U.S.A. CRIMINAL LAW DISMISSAL WITH OR WITHOUT PREJUDICE UNDER THE SPEEDY TRIAL ACT: A PROPOSED INTERPRETATION MARC I. STEINBERG* I. INTRODUCTION requires that an accused be brought to trial Since the Federal Speedy Trial Act' became within definite time periods: filing of the indict- effective on July 1, 1975, there has been much ment or information must occur within thirty commentary days after arrest,' arraignment must be held criticizing the Act by both law re- 7 view writers2 and the courts.3 While many of within ten days thereafter, and, upon a plea of these criticisms have great merit, their value is not guilty, trial must be held within the follow- merely academic, and the important inquiry ing sixty days.' Hence, from the date of arrest, confronting the courts is how certain provisions the accused must be tried within 100 days.' To of the Act should be construed. This article enable the courts to adhere to this schedule, the shall propose a suggested interpretation of sec- above time limits will not become effective until tion 3162(a)(1)(2), which has been acknowl- July 1, 1979.10 Until that time, three sets of time edged by commentators to be the most contro- periods, imposed in yearly succession (the first 4 began on July 1, 1976), will implement the versial section of the Act. This provision pro- l vides the court with discretionary authority to Act. ' dismiss a case either with or without prejudice Second, the Act provides for a number of when the Act's time periods are violated.' justifiable delay periods which are to be ex- In order better to comprehend this provision cluded in computing the statutory time limits. within the framework of the Act, one must be aware of the relevant sections. First, the Act 61d. § 3161(b). The thirty day time period also commences when the defendant is "served with a summons in connection with such charges." Id. * A.B., University of Michigan; J.D., University of 71d. § 3161(c). California, Los Angeles; Graduate Fellow LL.M. 1Id. Candidate, Yale University; Member, California Bar. 9 Some states have as well enacted statutes which 1 18 U.S.C. §§ 3161-74 (1970). require that an accused be brought to trial within 2See, e.g., Hansen & Reed, The Speedy Trial Act of definite time periods. See, e.g., CAL. PEN. CODE § 1382 1974 in Constitutional Perspective, 47 Miss. L.J. 365, (West 1970); ILL. REV. STAT. ch. 38, §§ 103-05(a) 415-17 (1976) [hereinafter cited as Hansen & Reed]; (1973); IOwA CODE ANN. §§ 795.1, 795.2 (Supp. 1976); Kozinski, That Can of Worms: The Speedy Trial Act, 62 MAss. ANN. LAWS ch. 277, § 72 (Supp. 1976); PA. A.B.AJ. 862, 862-64 (1976) [hereinafter cited as Ko- STAT. ANN. tit. 19, § 781 (Supp. 1976); WASH. REV. zinski]; Russ & Mandelkern, The Speedy Trial Act of CODE §§ 10.37.020, 10.46.010 (Supp. 1976). 1974: A Trap for the Unwary Practitioner, 2 J. CRIM. 10See 18 U.S.C. § 3161(0(g). DEF. 1, 27-29 (1976) [hereinafter cited as Russ & 11Id. During the first year, the time period be- Mandelkern]; Steinberg, Right to Speedy Trial: The tween arrest and indictment was sixty days, between ConstitutionalRight and its Applicability to the Speedy Trial indictment and arraignment ten days, and between Act of 1974, 66 J. CRIM. L. & C. 229, 235-39 (1975) arraignment and trial 180 days. For the second year, [hereinafter cited as Steinberg]. this time limit is forty-five days between arrest and ' See, e.g., United States v. Tirasso, 532 F.2d 1298 indictment, ten days between indictment and ar- (9th Cir. 1976), where the court stated: "It is discour- raignment, and 120 days between arraignment and aging that our highly refined and complex system of trial. During the third year, there is allotted thirty- criminal justice is suddenly faced with implementing five days between arrest and indictment, ten days a statute that is so inartfully drawn as this one." Id. at between indictment and arraignment, and eighty 1301. For commentary on the Tirasso case, see 44 days between arraignment and trial. These transi- U.S.L.W. 1161 (April 20, 1976); Kozinski, supra note tional time limits carry no sanctions for noncompli- 2, at 864. ance. Presumably, though, courts still retain their ' See Hansen & Reed, supra note 2, at 415; Russ & authority to dismiss for unnecessary delay under Rule Mandelkern, supra note 2, at 24. 48(b) of the Federal Rules of Criminal Procedure. See 18 U.S.C. § 3162(a)(1)(2). Hansen & Reed, supra note 2, at 416. MARC I. STEINBERG [Vol. 68 Examples are delays attributable to the unavail- is dismissed on the defendant's motion, the ability of the defendant or of an essential wit- Act's time periods commence anew and thus ness, 12 delays caused by other proceedings in- fail to provide the prosecution with any incen- volving the accused,13 and delays resulting from tive to increase efficiency and attention to de- the granting of a continuance when "the ends layed cases.22 In addition, dismissal without ofjustice served by the granting of such contin- prejudice may inflict greater harm upon the uance outweigh the best interests of the public accused than a trial delay, since reindictment 4 and the defendant in a speedy trial.' could necessitate the hiring of new counsel and Third, section 3162(a)(1)(2) establishes sanc- the duplication of legal and investigative proce- tions for noncompliance with the statutory time dures, all at severe monetary and psychological limits. This provision, which will not become harm to the accused.2 3 One commentator has effective until July 1, 1979,15 provides that if the concluded that "by merely imposing uniform applicable time limits (excluding periods al- time limits for the disposition of criminal cases lowed for justifiable delays) are not adhered to, without providing an effective sanction, [Con- the charges against the defendant must be dis- gress] has made an empty shell out of the 24 missed either with or without prejudice. Where Speedy Trial Act. there is excessive delay between arrest and in- However meritorious these criticisms may be, dictment, the charges are to be dropped auto- Congress nevertheless has spoken, and the cru- 6 matically.' If the delay occurs between arraign- cial issue is what questions should be considered ment and trial, however, the defendant is ex- by the courts in determining whether a dis- pressly required to move for dismissal.1 7 Failure missal should be with or without prejudice. to so move prior to trial or entry of a plea of This article shall attempt to confront this issue guilty or nolo contendere constitutes a waiver by raising and proposing solutions to the fol- of the right to dismissal." In determining lowing inquiries: (1)Is the district court's deter- whether to dismiss a case either with or without mination to dismiss with or without prejudice a prejudice, the section requires that the court question of fact or law? (2)May the court dis- shall consider, among others, the following fac- miss with prejudice even though there has been tors: "the seriousness of the offense; the facts no speedy trial constitutional violation? (3)Are and circumstances of the case which led to the the factors which the Act requires the court to dismissal; and the impact of a reprosecution on consider in determining whether to dismiss the administration of this chapter and on the with or without prejudice the sole relevant fac- administration of justice."' 9 tors? Law review commentators have severely criti- Before turning to these questions, itis appro- cized section 3162(a)(1)(2) for failing to require priate to examine the purposes underlying the dismissal with prejudice, 20 observing that if the Speedy Trial Act. As stated in the legislative charges are dismissed without prejudice, the history, the Act was designed "to assist in re- accused is subject to immediate rearrest and ducing crime and the danger of recidivism in reindictment. 2' Further, if a formal accusation requiring speedy trials and by strengthening 12 18 U.S.C. § 3161(h)(3)(A). the supervision over persons released pending 13Id. § 3161(h)(1). trial, and for other purposes .... 23 Congress's 14 Id. § 3161(h)(8)(A). approach reflects the view that the swift dispo- '56 18 U.S.C. § 3163(c). sition of criminal charges plays an important Id. § 3162(a)(1). 2 6 7Id. § 3162(a)(2). role in deterrence and rehabilitation. Some 18Id. commentators question the validity of this ap- " Id. § 3162(a)(1)(2). In addition, the Act grants 22 18 U.S.C. § 3161(d); Russ & Mandelkern, supra the court discretionary authority to impose fines and note 2, at 12, 27.
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