Dismissal as the Remedy

Dismissal as the Remedy

The weighing described above ends in a ruling that the Sixth Amendment was either violated or not, and when the ruling goes the defendant's way the law supplies exactly one remedy: dismissal of the prosecution with prejudice.¹ In Strunk v. United States the Court stated that dismissal is the only possible remedy for a speedy-trial violation, so a trial court may not craft a gentler one, such as a reduction of the defendant's sentence.² Dismissal with prejudice means the state can never bring the charge again. A pretrial finding of violation therefore ends the case, and a defendant whose conviction is reversed on speedy-trial grounds cannot be retried.³

The reason for a single remedy lies in the kind of harm the delay does. The injury is spread across lost liberty, anxiety, and a defense that may have weakened as witnesses faded, and its impact is too diffuse for a court to match it with any adjustment of its own design.⁴ A sentence reduction shows the difficulty. It presupposes that a judge can convert the harm into months of punishment, yet no exchange rate exists between a witness who died and a number of months. A shorter sentence also leaves the conviction itself standing, even though it may rest on a trial the delay made less reliable. Only ending the prosecution answers the denial in full.

Two rulings on the same finding mark the line. A court that finds a violation before trial and dismisses the indictment has used the only remedy available, and the state cannot try the defendant again on that charge. A court that finds a violation but proposes to leave the conviction in place and shorten the sentence to compensate has chosen a remedy the Constitution does not allow, because Strunk rejects tailoring the remedy to the hardship in the individual case.⁵ The finding of violation is the same in both rulings; only the remedy differs, and only dismissal is lawful. The usual exam error is to propose a lesser remedy, such as a shorter sentence, once a violation has been found.⁶

The finality of the remedy reaches back into the test for deciding whether a violation occurred. The flexible Barker balancing described earlier decides that question,⁷ and because a yes answer frees a defendant who may be guilty, courts have been hesitant to find a violation except in the most egregious cases.⁸ The chain of reasoning is short. A judge who could answer a moderate violation with a moderate remedy would have little reason to hold back, but a judge who knows that any violation ends the prosecution has every reason to demand a strong showing on the factors before declaring one. The extremeness of the remedy undoubtedly results in fewer constitutional violations being found.⁹ That caution shows in the leading cases. A delay of more than five years failed in Barker v. Wingo, where the defendant was free on bail for most of it and awaited his accomplice's prosecution,¹⁰ and a violation was found in Doggett v. United States only because a six-year delay was long enough to presume prejudice when the government made no showing to the contrary.¹¹

The constitutional remedy should be kept apart from the statutory route, which offers a less drastic option. Federal speedy-trial legislation, 18 U.S.C. § 3161 and the sections following it, and docket-control rules such as Federal Rule of Criminal Procedure 48(b) may be enforced by a dismissal without prejudice, which leaves the government free to charge again.¹² Under the Speedy Trial Act the judge chooses between the two kinds of dismissal after considering the seriousness of the offense, the facts and circumstances that led to the dismissal, and the impact of reprosecution on the administration of the Act and of justice.¹³ The Act also protects the public's interest in prompt trials, which is why Zedner v. United States held that a defendant cannot waive it in advance.¹⁴ A writ of mandamus compelling a trial court to set a trial date is a further tool outside the constitutional claim.¹⁵

The label on the claim therefore controls the remedy. A constitutional claim that succeeds ends in dismissal with prejudice, while a statutory or rule-based claim leaves the court a choice about whether the government may try again.