Is a Three Year Delay in Sentencing Too Long?

According to this interesting article, a federal judge has recently set the sentencing date for four plant managers convicted of environmental and safety crimes on April 26, 2006. The sentencings are now set for April 24, 2009 — nearly three years later.

It is not clear what has caused the delay. Federal prosecutors filed a motion in December to speed things up. They argued that the sentencing delay affected public perception of justice. They also cited the Crime Victims' Rights Act, which promises crime victims that they have a right to a trial "free from unreasonable delay." The case involves a forklift accident at a foundry that killed a plant worker.

It's hard for me to imagine what could reasonably cause a three-year delay in sentencing.

Update: Here is a copy of the Government's "Motion to Set a Sentencing Date Pursuant to the Crime Victims' Rights Act." The Government's claim:

More than two and one-half years have now elapsed since the jury in this case convicted these Defendants of multiple, serious crimes. Several of those offenses related to Defendants’ systematic deception and obstruction of OSHA after Atlantic States employees were killed or maimed at the facility. Among the many concerns the Government has regarding delay of sentencing – including loss of trial participants, public perception, and absence of witnesses in the event of retrial – is the right of crime victims to proceedings free from unreasonable delay as mandated by the Crime Victims’Rights Act. See 18 U.S.C. § 3771(a)(7). It is clear from the Act that its terms apply during the sentencing phase of the court proceedings. See, e.g., 18 U.S.C. § 3771(a)(4). Pursuant to 18 U.S.C. § 3771(d)(1), the Government may assert the rights set forth under 18 U.S.C. § 3771(a), including the right to proceedings free from unreasonable delay. The district court shall take up and decide such motion forthwith. 18 U.S.C. § 3771(d)(3).

Based on the delay, the Government asked for a sentencing date to be set "promptly."

martinned (mail) (www):
Ho, wait, time out. This is supposed to be a violation of the victims' rights? How about the accused? (Guilty party? What do you call that person during sentencing?) Don't they have rights?
2.4.2009 10:01am
Another Guest:
Was there a civil matter arising out of the same conduct? The article didn't mention anything, but perhaps that's why the judge was waiting?
2.4.2009 10:01am
Paul Cassell (mail):
Typically criminal cases take precedence over civil cases -- not the other way around, which is one thing that makes the delay so puzzling.
2.4.2009 10:05am
Another Guest:
I was thinking more along the lines of relevant conduct or some other sentencing enhancement that might come out of testimony in a civil matter. But even with a parallel civil matter, three years would likely cover it from start to end.
2.4.2009 10:15am
PatHMV (mail) (www):
I seem to recall that in the Netherlands, the backlog to get into prison is so long, convicted felons are often living at home in their community for a year or two (sometimes even more) before being ordered to report to prison for their sentence. That's always seemed particularly bad to me, both for society as a whole and for the convicts themselves. They often have overcome many of their problems before they are ordered to leave their job, their spouse, and report to prison, then when they get out, they have to start all that over again.
2.4.2009 10:17am
martinned (mail) (www):
@PatHMV: There's been a backlog in the past, but even then that was usually fixed in a more "prisoner-friendly" way, i.e. by sentencing them to non-custodial sentences whenever possible. At the moment, I don't think there's any real problem.

(Although I recently attended a lecture where the speaker mentioned a problem with the new European prisoner exchange program they were negotiating: since there are about 1500 more Dutch people in prison in the rest of Europe than there are non-Dutch EU citizens in Dutch prisons, there was a problem of prison capacity if the deal were to go through.)
2.4.2009 10:21am
M (mail):
Do Constitutional issues arise for the convicted if there is a 3 year delay in sentencing and the penalty for the crime is 2 - 10 years in prison?

If the convicted have been sitting in prison for 3 years prior to sentencing, and the guidelines might have allowed a sentence less than the amount of time delay in sentencing, either the judge will ignore the 2 year sentence possibility (to avoid looking "unjudicial" or to defeat the convicted person's civil rights claim) or the convicted will have a civil rights claim for illegal incarceration beyond the sentence actually imposed (assuming the sentence ended up being less than 3 years).

This case warrants more scrutiny to find out what is going on. However, if some constitutional travesty was occurring you would hope the defense attorneys involved would have been holding press conferences for the last 2 years and 8 months.
2.4.2009 11:05am
Siskiyou (mail):
Perhaps this event is only another manifestation of a culture of delay in trial courts. Many (I hate to say how many) years ago, in the jurisdiction with which I was familiar prosecuting attorneys were reluctant to waive time in for trial settings. I even remember the defense and prosecution stipulating to a delay in trial. The response from the bench was "denied". Now, from what I read it seems that outrageous pretrial delays and post-conviction dickering are routine. Sure, the prisons are full and, at the the other end of the process attorneys are overworked (some of them) and tirals have become /ital/ so \un-ital\ complex, but too many people in the process have forgotten that the "justice delayed ...." maxim cuts both ways.
2.4.2009 11:25am
martinned (mail) (www):
According to Westlaw, there was a (130 page) ruling on a stack of motions in August 2007, so that accounts for one year's delay. (2007 WL 2282514)
But I can't find anything more recent than that.
2.4.2009 11:26am
Siskiyou (mail):
Oops--sorry I am a poor typist: should read "waive time for trial settings" and "tirals have become".
2.4.2009 11:30am
Under other circumstances, lengthy delays in sentencing aren't totally unheard of. It's common in quite a few Districts for the Court to grant government motions deferring sentencing for cooperating defendants until their cooperation is complete, and defendants typically don't object (in part because they're looking for a 5K1.1 downward departure motion from the United States, which reduces the ultimate sentence based on the nature and extent of their cooperation).

But in this case it appears that extensive post-conviction motions practice, challenges to the Presentence Report, etc., basically caused the sentencing to fall off the calendar. That suggests poor basic docket control hygene by the Judge's courtroom Deputy Clerk. IMHO, minimally competent docket management should have prevented this problem.
2.4.2009 12:18pm
pete (mail) (www):
So has anyone heard when Tom DeLay will get a trial?

He was indicted in September 2005 so we are going on almost 3 1/2 years now.
2.4.2009 12:57pm
Ak Mike (mail):
Haven't done much federal criminal work in quite a few years, but there are a few possible reasons for such delay, some mentioned above. In Alaska, there is a political corruption investigation that has resulted in some guilty pleas and a few trials, with some of the trials still to come. The cooperating defendants have pled guilty but their sentencing has been deferred, at this point a few years, so that they can testify at the trials and have the threat/promise of sentencing recommendations depending on their performance as witnesses.

Also, defendants being sued have a motivation to put off sentencing so they retain their privilege against self-incrimination (which I believe is lost at sentencing - is that right?) to avoid being deposed in the civil case.
2.4.2009 1:12pm
The Oversimplifier:
2.4.2009 1:18pm
one of many:
So how then does the government justify deferring sentencing awaiting cooperation in light of the obligation under the CVRA (per this brief) to victims that there be no unreasonable delay in hearings?
2.4.2009 2:12pm
The most obvious reason why the Crime Victims' Rights Act might not apply is that there were no victims - nope, not even the dead guy. The defendants were convicted of false statements, obstruction of justice, and violations of the Clean Water Act and Clean Air Act. The folks who were injured or killed simply aren't "victims" of any of those crimes - or so the argument would go, anyway.

But since the government takes the position that the CVRA does, in fact, apply, it's kind of weird for them to show up several years after the fact, suddenly arguing that the CVRA requires a speedy sentencing. You'd think they would have been screaming bloody murder all along.
2.4.2009 2:28pm
PCachu (mail) (www):
...the Government asked for a sentencing date to be set "promptly."
Would that be real-world-promptly, or government-promptly?

(This is not unlike the question I ask my wife whenever she notes some starlet as being "fat": "Is that real-people-fat or Hollywood-fat?")
2.4.2009 2:29pm

So how then does the government justify deferring sentencing awaiting cooperation in light of the obligation under the CVRA (per this brief) to victims that there be no unreasonable delay in hearings?

Because it's quite reasonable to delay the sentencing so that the witness can testify in another case. In fact, that sounds like the paradigmatic example of a reasonable delay (leaving aside for the moment the lack of individual victims in a CWA/CAA case).

This passes any sort of balancing test I can possibly imagine.
2.4.2009 3:35pm
What can you do about anything a federal judge refuses to act on?
2.4.2009 5:25pm
If a federal judge refuses to act on a case, one can bring a mandamus petition. The law on whether this is vested in the Circuit Court of Appeals or SCOTUS is a bit arcane, but such petitions aren't unprecedented.

I've blogged a couple of similar cases in the past, one in a New England state court, and the other in a federal district court. The defendant in the New England court (after quite a bit more than three years of delay), on appeal, dismissed the charges. The defendant in the federal case ultimately had charges proceed.

Incidentally, both of those cases involved intertwined immigration issues. One not uncommon reason for prosecutors and the courts to lose track of a case is an understanding (sometimes incorrect) that deportation is pending and that exile would meet the victim's needs just as well as incarceration at great state expense.
2.4.2009 7:24pm
Judge Cassell,
Not directly on point, still apropos:

17 states directly recognize or assume that the right to a speedy trial encompasses a right to a speedy sentencing. Jolly v. Arkansas is the most recent case surveying the law in this area. 189 SW 3d 40, 43 (Ark. 2004). Some federal courts have recognized the right as well. U.S. v. Campisi583 F2d 692, 694 (3d Cir 1978).
2.4.2009 11:00pm
Public_Defender (mail):
I once had a federal magistrate sit on a habeas petition for about two years before granting it (this time runs from the last substantive pleading to the magistrate's report and recommendation). I suspect he was waiting to resolve a related 1983 claim, which he decided at about the same time. Long delays happen from time to time.

I've had another appeal on hold for more than a year at my request. That's because another proceeding winding its way through the courts will likely resolve the stayed appeal. My guess is that the appeal will be on hold for two to three years total.

As to more aggressive ways to get a judge to rule, you can file motions or a writ (as another comment notes), but thoughtful lawyers avoid that. Pushing a judge (any judge) to move quickly is the best way to get a fast "no."

When my habeas case was sitting for two years, I called the magistrate's chambers ever few months just to make sure the case was on someone's desk. I didn't want to tick off the magistrate by doing more. It worked. A writ granted after two years was far better for my client than a writ denied after a few months.
2.5.2009 6:14am

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