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Monday’s case, Betterman v. Montana, is not strictly about the evils of plea bargaining. Rather, it poses a seemingly simple question: Once a defendant has accepted a plea deal, can the government detain him for 14 months before giving him a sentencing hearing?
You might respond to this question by reciting the Sixth Amendment, which states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Even by the measure of our perpetually clogged-up court system, 14 months is not “speedy,” and so Brandon Thomas Betterman—the defendant here who spent all that time waiting for a hearing—should win. But Montana disagrees, insisting that Betterman’s right to a speedy trial was never violated. That’s because, in Montana’s telling, a sentencing hearing isn’t a trial at all, and so isn’t subject to the Sixth Amendment’s speedy-trial guarantee.
There are two problems with that argument, not including the fact that it would upend 50 years of precedent. The first was highlighted repeatedly throughout the morning by Justice Elena Kagan, whose vim is invigorating on an otherwise torpid court. (I counted at least four catnaps by three justices over the course of the hour.) A delay in court proceedings, Kagan noted, may “impair the defense”: Evidence disappears; witnesses scamper off; memories fade. This problem is present in both conventional trials and sentencing hearings.
“You know,” Kagan tells Montana Solicitor General Dale Schowengerdt, “in most cases these days, most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage, given that we don’t have very many trials anymore.”
