Court Backlogs & Speedy Trial

As courts shuttered their doors at the onset of COVID-19, the number of civil and criminal cases pending quickly piled up. Over a year into the pandemic, courts now face significant backlogs, presenting both logistical dilemmas for administrators and speedy trial concerns for individuals facing trial.


The right to a speedy trial is carefully balanced against all other Sixth Amendment rights. That is, a trial must happen promptly, but also publicly, include a jury made up of a cross-section of the community, allow for the confrontation and cross-examination of witnesses, and guarantee adequate representation for the defendant. While only around 2% of criminal cases actually make it to court (see Vanishing Trials), having a set trial date often aids in moving cases along, resulting in faster plea agreements and case dismissals.

As with many of the rights enshrined in the Sixth Amendment, COVID-19 put a strain on courts’ ability to conduct promptly jury trials. Now, with many courts having limited jury proceedings or shutting them down altogether, states are confronting over a year of backlogs that continue to threaten their ability to guarantee individuals accused of crimes their constitutional right to a speedy trial. With the pandemic raging in jails and prisons, postponing jury trials has only increased the number of innocent individuals at risk for contracting and falling ill from COVID-19 in immensely overcrowded facilities.

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As a review, there is no universal bright-line limit to the length of time that constitutes a speedy trial violation. Instead, Barker v. Wingo, 407 U.S. 514 (1972) established four factors for evaluating if an accused individual’s constitutional right to a speedy trial has been violated, each of which must be considered on a case-by-case basis:

  1. The length of the delay;
  2. The reasons for the delay;
  3. The individual’s assertions of the speedy trial right; and
  4. The prejudice stemming from the delay, specifically 1) whether the individual’s pretrial incarceration was oppressive, 2) the individual’s anxiety and concern, and 3) the possibility that the delay hampered the individual’s ability to prepare a defense.

At a federal level, the Speedy Trial Act also guarantees a statutory right to a speedy trial of 70 days from the filing date or the first hearing of charges. Most states have enacted similar statutes of their own regarding the maximum delays that are permitted before the charges brought against an individual must be dismissed with or without prejudice. In both cases, interpretation and enforcement are largely left up to a judge’s discretion.

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Given the unprecedented nature of the global health crisis, courts did not have established guidelines in place for how to proceed with trials and other proceedings without infringing upon accused individuals’ Sixth Amendment Rights. Thus, at the onset of the pandemic, state and federal courts across the country adopted varying approaches to mitigating the inevitable COVID-19 trial delays.

Perhaps most important in understanding the constitutionality of courts’ actions is the second factor in Barker, that is, the reason the government provides to justify the delay. As Barker outlines, “deliberate attempts to delay trial are heavily weighted against the government, while neutral causes, including negligence and overcrowded courts, should be weighed less heavily against the government.” Court backlogs resulting from the ongoing global pandemic have surely fallen under causes considered to be “neutral.”

Federal courts have predominantly relied on three sections from Title 18 of the U.S. Criminal Code to justify the suspension of speedy trial rights:

1) 18 U.S.C. § 3161(h)(7)(A): “End of Justice.” Using this section, courts have asserted that the “ends of justice” served by suspending the current time restraints outweighs those of an accused individual’s right to a speedy trial. Certain factors must be weighed to justify using Section 3161 including, but not limited to 1) whether failing to suspend the time limits would likely inhibit the proceedings, or result in a miscarriage of justice; 2) whether the case is so unusual or complex that it is unreasonable to expect adequate preparation within the time limits; or 3) whether the failure to suspend the time limits would deny the defendant reasonable time to obtain counsel and effectively prepare for trial proceedings (language paraphrased from § 3161(h)(7)(A)). Typically, this balancing test is applied on a case-by-case basis, however, within the context of the COVID-19 pandemic, courts have taken the liberty to invoke it more broadly.

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               Example: U.S. District Court for the Central District of Illinois (April 30th, 2020)

2) 18 U.S.C. § 3161(b): “The Availability of a Grand Jury.” Section 3161(b) provides courts with a 30-day extension on speedy trial provisions, making it only a temporary solution to increasing backlogs. Without constitutional guidelines regarding how many times this provision may be used, only a select number of states, including Maine and Utah, have opted to repeatedly invoke the 30-day extension.

               Example: U.S. District Court for the District of Maine (April 29th, 2020)

3) 18 U.S.C. § 3174: “Judicial emergency and implementation.” Under the often-overlooked “Judicial emergency and implementation” provision, a chief judge may request up to a one-year suspension of the Speedy Trial Act because of a court’s inability to comply with the act as a result of “the status of its court calendars.” The statute further specifies that the judicial council must find that “no remedy for such congestion is reasonably available” to justify such a suspension of time limits.

               Example: U.S. District Court for the Eastern District of California (March 17th, 2020)

Among state courts, many judges have relied on a version of a “judicial emergency” order to suspend, toll, or otherwise grant relief from statutory speedy trial rights. Although declaring a judicial emergency carries a different meaning across each state, these emergency declarations have similarly been employed by judges as a tactic to pause standard court proceedings. Among other logistics, these emergency orders typically address suspending jury trials and extending the typically accepted time periods to bring a case to trial.

In Georgia, the Chief Justice of the Supreme Court first declared a judicial emergency on March 14th, in conjunction with the Governor’s declaration of a Public Health State of Emergency. This initial judicial emergency was set to expire on April 15th, 2021, and since then has been extended upwards of thirteen times in accordance with the ongoing pandemic and state of emergency. Similarly, Virginia’s courts have extended their judicial emergency at least twenty-one times since March 16th, 2021, in 21-day increments. Virginia’s initial order was enacted at the request of Governor Northam following his declaration of a State of Emergency and a statewide ban on all events over 100 people. Other state courts, such as those in Florida, have taken yet another approach, grounding their justification for delays in past court rulings on speedy trial violations during emergencies.

With state and federal courts’ blanket approach to tolling speedy trial rights, some individuals have attempted to assert their constitutional rights on a case-by-case basis. However, these efforts have been met with little success as courts continue to find that the state’s interest in postponing jury trials outweighs the interests of individuals to receive a speedy trial. In State v. Rosas, the court employed the Barker balancing test and found that delays that are solely a result of the COVID-19 pandemic do not weigh against the state. Similarly, “every federal court that has dealt with a speedy trial argument in light of the coronavirus pandemic has held that the delay caused by the closing of courthouses and unavailability of juries is ‘excludable time’ for purposes of the federal Speedy Trial Act” (State v. Duonnolo). Stripped of the standard tools used to assert speedy trial violations, individuals throughout the country have been forced to remain in carceral facilities, waiting for their day in court.




State and federal courts across the nation have also adopted a range of tactics for facing the mounting backlogs resulting from over a year of limited jury trials.

First, courts have become particularly focused on case prioritization for the few trials that can be carried out, either in-person or virtually. As with standard court dockets before the pandemic, with an individual’s liberty at stake, criminal trials have been widely prioritized over civil ones. Judges and court administrators have also been considering factors such as if the case is a felony or misdemeanor, the seriousness and violent nature of the alleged crimes, how long the case has been pending and if speedy trial rights have been asserted, if the individual facing charges is in or out of custody while awaiting trial, and the availability of witnesses to testify. Felonies that are more serious or violent, or have been pending for a long time, particularly when the individual is incarcerated pretrial, are most likely to be assigned a trial date.

Many courts have also focused efforts on downsizing the population of individuals held in custody to avoid overcrowding and extended instances of pretrial detention. Strategies have included releasing individuals with bonds below a certain threshold, setting $0 in bail amounts for certain nonviolent or low-level offenses, releasing “low-risk” individuals, and even retroactively reviewing past cases of individuals in jail for nonviolent offenses. District attorneys, like Marilyn Mosby in Baltimore, have also attempted to reduce the flow of individuals into the criminal legal system altogether by refusing to prosecute certain misdemeanor offenses. Since the onset of the pandemic, Mosby’s office has decided to permanently stop prosecuting certain offenses including drug possession, prostitution, trespassing, and open container laws, among others. Finally, some law enforcement agencies have agreed to decrease arrests, relying instead on citations, to reduce the number of new people in jails for low-level offenses. Colorado's governor took this initiative even further, issuing statewide guidance to law enforcement to rely on summons or warnings instead of arrests, particularly when public safety is not found to be at risk.

See a full list of responses to COVID-19 in the courts and jails

Outside of the courts, legislators are considering novel reforms to deal with outstanding backlogs. In Kansas, where backlogs have reached upwards of 5,000 cases, lawmakers recently passed HB 2078, a bill to suspend statutory speedy trial rights in all criminal cases until May 1, 2023. At present, state law requires cases to be tried within five months of a plea if the accused individual is incarcerated pretrial, and within six months if the individual is free on bond. However, with Governor Laura Kelly signing HB 2078 into effect on March 30, 2021, the state has paused this timeframe, raising the possibility that defendants will be subject to lengthy pretrial waiting periods, sometimes behind bars. While this poses potentially detrimental impacts to the constitutional rights of individuals accused of crimes, for courts and prosecutors, this bill serves as a solution to the looming backlogs across the state, allowing them to process cases without being forced to dismiss charges on speedy trial violations.

Similarly, Georgia’s governor has signed SB 163, authorizing chief judges to suspend, toll, extend, or modify statutory speedy trial requirements for up to eight months if compliance with such requirements is impracticable. At present, Georgia courts can declare a judicial emergency to suspend statutory speedy trial rights for 30 days, which may be extended for a maximum of two subsequent 30-day periods. Additionally, if the Governor has declared a public health emergency, the suspension may remain throughout such an emergency. SB 163 grants judges total authority to suspend speedy trial rights, independent of any declared public health emergency. While temporary, Kansas and Georgia’s legislative remedies both set a worrisome precedent for the future of accused individuals’ constitutional rights during emergencies.

As the search for innovative and safe solutions to backlogs continues, courts are increasingly turning to virtual jury trials. To learn about the benefits and constitutional concerns of remote hearings and trials, visit the link below on jury trials during and after the pandemic.

Virtual Proceedings & COVID-19




Articles and Reports

How criminal justice systems are responding to the coronavirus outbreak (Crime and Justice Institute)

Constitutional Concerns Related to Jury Trials During the COVID-19 Pandemic (National Center for State Courts, February 22nd, 2021)

Timely Justice in Criminal Cases: What the Data Tells Us (National Center for State Courts, 2021)

A Right to a Speedy Jury Trial? Don't Count On It During the Coronavirus Pandemic (Reason, December 9th, 2020)

The Collision of the Speedy Trial Clock with the Coronavirus’s Slowdown Realities: Justice in the Time of COVID-19 (National Association for Presiding Judges, October 26th, 2020)

Timely Justice in Criminal Cases: What the Data Tells Us (National Center for State Courts, August 2020)

Analyzing Court Orders Tolling the Speedy Trial Act During COVID-19 (Winston & Strawn LLP, May 7th, 2020)



Practical Considerations, Constitutional Challenges, and Lessons Learned

As the criminal legal system explores ways to resume court proceedings, stakeholders must balance public health concerns with efforts to uphold core constitutional rights. Moderated by Professor Andrea Roth (UC Berkeley Law), panelists Sherry Boston (District Attorney, DeKalb County, GA), Martín Sabelli (Law Offices of Martín Sabelli, San Francisco, CA) and Circuit Court Judge Annie O’Connell (Louisville, KY) discuss the legal and practical definitions of what it means to confront a witness, hold a public trial, and ensure an accused receives the effective assistance of counsel. This webinar was hosted by NACDL, RTI, APA, and NSCL on November 19th, 2020.

Preserving the 6th Amendment: The Right to a Speedy Trial Amid Court Closures & Re-Openings

The Sixth Amendment guarantee to a speedy trial is a cornerstone of the American criminal legal system. Today, as judges, prosecutors, and defendants begin to navigate the aftermath of long periods of court closures and the resulting backlog of cases, stakeholders face new questions and challenges in meeting obligations to community health and safety while also protecting core constitutional rights.

This webinar, hosted on September 3rd, 2020 by NACDL, RTI, APA, and NSCL, features a discussion on the speedy trial right generally and offers a variety of stakeholder perspectives on how to meet today’s challenges.

How Will You Address COVID-Caused Criminal Case Backlogs?

This webinar, hosted on January 22nd, 2021 by the National Association for Presiding Judges, reviews research-based approaches to modernize criminal case processing, reduce backlogs, and sustain successful operational improvements within the court’s culture. Questions addressed include:

  • Is your court ready and able to apply proven criminal case management solutions to restart case processing?
  • What should individual judges do to become more proficient in managing their criminal dockets?
  • How can court leaders help reduce systemic barriers to improve criminal caseflow?