No.

21-1336

In the Supreme Court of the United States

__________
JEFFREY OLSEN,
Petitioner,
v.

UNITED STATES OF AMERICA,

Respondent.
__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit
__________
BRIEF OF THE CATO INSTITUTE AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
__________

Jay R. Schweikert
Counsel of Record
Laura A. Bondank
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1461
jschweikert@cato.org

May 3, 2022
 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ ii
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT ................................................................ 4
I. DISREGARD FOR THE IMPORTANCE
OF THE SPEEDY TRIAL WILL LEAD TO
THE CONTINUED ERASURE OF THE
JURY TRIAL FROM THE AMERICAN
CRIMINAL JUSTICE SYSTEM. ................................ 4
A. The Ninth Circuit’s Opinion Is At
Odds With the Language and Purpose of
the Speedy Trial Act and the Sixth
Amendment Speedy Trial Guarantee. ................. 4
B. The Ninth Circuit’s Disregard for the
Importance of the Speedy Trial Right
Will Directly Contribute to the Continued
Erasure of the Criminal Jury Trial...................... 9
II. LOCAL ORDERS SUSPENDING JURY
TRIALS DUE TO THE COVID-19
PANDEMIC DO NOT ABROGATE THE
CONSTITUTIONAL RIGHT TO A SPEEDY
TRIAL. ........................................................................ 15
CONCLUSION .......................................................... 18
 ii

TABLE OF AUTHORITIES
Page(s)
Cases
Barker v. Wingo, 407 U.S. 514 (1972) ....................... 11
Bloate v. United States, 559 U.S. 196 (2010) .............. 5
Lafler v. Cooper, 566 U.S. 156 (2012) ........................ 9
Roman Catholic Diocese v. Cuomo, 141 S. Ct.
63 (2020) ....................................................... 3, 16, 17
Strunk v. United States, 412 U.S. 434 (1973) ............. 5
United States v. Clymer, 25 F.3d 824 (9th Cir.
1994) ..................................................................... 7, 8
United States v. Gambino, 59 F.3d 353 (2d
Cir. 1995) .................................................................. 7
United States v. Haymond, 139. S. Ct. 2369
(2019) .............................................................. 2, 4, 17
United States v. Jones, 56 F.3d 581 (5th Cir.
1995) ......................................................................... 7
United States v. Jordan, 915 F.2d 563 (9th
Cir. 1990) .............................................................. 7, 8
United States v. Lattany, 982 F.2d 866 (3d
Cir. 1992) .................................................................. 7
United States v. MacDonald, 456 U.S. 1
(1982) ........................................................................ 5
United States v. Marion, 404 U.S. 307 (1971) .......... 13
United States v. Olsen, No. 20-50329, 2022
U.S. App. LEXIS 513 (9th Cir. Jan. 6, 2022) .... 8, 17
United States v. Pollock, 726 F.2d 1456 (9th
Cir. 1984) .................................................................. 8
 iii

United States v. Rush, 738 F.2d 497 (1st Cir.

1984) ......................................................................... 7
United States v. Sabino, 274 F.3d 1053 (6th
Cir. 2001) .................................................................. 7
United States v. Salerno, 481 U.S. 739 (1987) .......... 14
United States v. Spring, 80 F. 3d 1450 (10th
Cir. 1996) .................................................................. 7
Zedner v. United States, 547 U.S. 489 (2006) ............. 6
Statutes
18 U.S.C. § 3161(c)(1) .................................................. 5
18 U.S.C. § 3161(h)(7)(A) ............................................. 6
18 U.S.C. § 3162(a)(2) .............................................. 5, 8
Constitutional Provisions
U.S. Const. amend. V................................................... 2
U.S. Const. Amend. VI............................................. 2, 4
Other Authorities
2017 Sourcebook of Fed. Sent’g Stats., Figure
C (U.S. Sent’g Comm’n 2017),
https://bit.ly/3LFcjgE ............................................... 9
2021 Sourcebook of Fed. Sent’g Stats., Table
11 (U.S. Sent’g Comm’n 2021),
https://bit.ly/3Mv0ud0 ............................................ 10
Clark Neily, A Distant Mirror: American-
Style Plea Bargaining through the Eyes of a
Foreign Tribunal, 27 Geo. Mason L. Rev.
719 (2020) ......................................................... 10, 11
George Fisher, Plea Bargaining’s Triumph,
109 Yale L.J. 857 (2000) .......................................... 9
 iv

Jed S. Rakoff, Why Innocent People Plead

Guilty, N.Y. Rev. of Books., Nov. 20, 2014,
https://bit.ly/3KC6EHa .......................................... 10
John H. Langbein, Torture and Plea
Bargaining, 46 Univ. Chi. L. Rev. 3 (1978) ........... 10
Lauryn P. Gouldin, Disentangling Flight Risk
from Dangerousness, 2016 BYU L. Rev. 837
(2016) ...................................................................... 12
Magna Carta (1215) ..................................................... 4
Michael Nasser, Plea Bargaining in the Dark:
The Duty to Disclose Exculpatory Brady
Evidence During Plea Bargaining, 81
Fordham L. Rev. 3599 (2013) ................................ 11
Nancy Gertner, Bruce Bower & Paul
Schectman, Why Innocent Plead Guilty: An
Exchange, N.Y. Rev. of Books, Jan. 8, 2015,
https://bit.ly/3FdFoOc ............................................ 13
Nat’l Assoc. of Crim. Def. Law., The Trial
Penalty: The Sixth Amendment Right to
Trial on the Verge of Extinction and How to
Save It (2018), https://bit.ly/38IF8KG ................... 11
Nicholas Babaian, The Clock Stops Here: A
Call for Resolution of the Circuit Split on
Plea Bargain Exclusions within the Speedy
Trial Act, 54 New Eng. L. Rev. 239 (2020).... 5, 6, 14
Nick Petersen, Do Detainees Plead Guilty
Faster? A Survival Analysis of Pretrial
Detention and the Timing of Guilty Pleas,
31 Crim. Just. Pol’y Rev. 1015 (2020) ............. 12, 13
Order of the Chief Judge 22-004, C.D. Cal.
(Feb. 8, 2022) .......................................................... 15
 v

Rachel A. Harmon, Why Arrest?, 115 Mich. L.

Rev. 307 (2016) ....................................................... 12
Russel M. Gold, Paying for Pretrial Detention,
98 N.C.L. Rev. 1255 (2020) .................................... 12
Shon Hopwood, The Not So Speedy Trial Act,
89 Wash. L. Rev. 709 (2014) .............................. 6, 15
Why Do Innocent People Plead Guilty To
Crimes They Didn’t Commit?, The
Innocence Project (2018),
https://bit.ly/3OHEptX ........................................... 10
William R. Kelly & Robert Pitman,
Confronting Underground Justice (2018) ............. 11
 1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy
research foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Project on
Criminal Justice was founded in 1999, and focuses in
particular on the scope of substantive criminal liabil-
ity, the proper and effective role of police in their com-
munities, the protection of constitutional and statu-
tory safeguards for criminal suspects and defendants,
citizen participation in the criminal justice system,
and accountability for law enforcement officers.
Cato’s concern in this case is preserving the consti-
tutional principles underpinning our criminal justice
system, namely the right to a speedy trial guaranteed
by the Sixth Amendment and the Speedy Trial Act of
1974, in order to stem the erasure of the jury trial from
American courtrooms due to the increasing prevalence
of plea bargaining.

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. No part of this brief was authored
by any party’s counsel, and no person or entity other than amicus
funded its preparation or submission.
 2

SUMMARY OF ARGUMENT
The right to a jury trial has been described as “the
heart and lungs” of liberty “without which the body
must die.” United States v. Haymond, 139. S. Ct. 2369,
2375 (2019) (internal citations omitted). Under our
Constitution, and within the Anglo-American legal
tradition generally, the jury trial is the cornerstone of
criminal adjudication. As long as there has been crim-
inal justice in America, the independence of citizen ju-
rors has been understood to be an indispensable struc-
tural check on executive, legislative, and even judicial
power.
The Founders took great care in establishing the
framework for the American criminal justice system,
not only by guaranteeing the right to a trial by jury
generally, but by laying out in specific detail the form
such trials shall take. See U.S. Const. amends. V, VI.
Among the constitutional guarantees afforded to crim-
inal defendants is the Sixth Amendment guarantee to
a speedy trial. The speedy trial guarantee is crucial to
the attainment of justice, and without it criminal de-
fendants would be subjected to lengthy pretrial incar-
ceration, the impairment of individual liberties, and
the general disruption of life that accompanies arrest
and criminal prosecution.
In an effort to define and enforce the Sixth Amend-
ment’s speedy trial guarantee, Congress enacted the
Speedy Trial Act of 1974. But the Ninth Circuit’s deci-
sion below severely undermines the inviolability of the
right to a speedy trial by rendering the Speedy Trial
Act’s requirements hollow and ineffective. By allowing
open-ended continuances and prohibiting the dismis-
sal of cases based on local orders and alleged safety
concerns, the Ninth Circuit has placed criminal
 3

defendants at a distinct disadvantage. These defend-

ants will now have to wait indeterminately long for
their day in court, invariably pressuring them to seek
plea bargains due to the looming presence of pending
criminal charges.
The COVID-19 pandemic stalled court proceedings
nationwide. Now, almost two years later, many crimi-
nal defendants are still waiting for their day in court.
The Supreme Court has held that “even in a pandemic,
the Constitution cannot be put away and forgotten.”
Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 68
(2020). Permitting fears about the pandemic to tri-
umph over the Constitution will further dilute the pro-
tections of the Speedy Trial Act and the speedy trial
guarantee.
It is especially important to protect the sanctity of
the speedy trial guarantee, in light of the near-disap-
pearance of the criminal jury trial generally. Today,
jury trials have been all but replaced by plea bargain-
ing as the baseline for criminal adjudication, and there
is ample reason to doubt whether the bulk of these
pleas are truly voluntary. If defendants are forced to
face indefinite delays and uncertainty surrounding
when they might go to trial, they will feel increased
pressure to plead guilty. Disregarding the importance
of a speedy trial not only places coercive pressure on
criminal defendants, whether guilty or innocent, but
also contributes to the erasure of criminal jury trials
from American courtrooms.
 4

ARGUMENT
I. DISREGARD FOR THE IMPORTANCE OF
THE SPEEDY TRIAL WILL LEAD TO THE
CONTINUED ERASURE OF THE JURY
TRIAL FROM THE AMERICAN CRIMINAL
JUSTICE SYSTEM.
There are few rights as fundamental to liberty and
justice as the right to a jury trial. “[T]hose who wrote
our constitution considered the right to trial by jury
the heart and lungs . . . of our liberties, without which
the body must die; the watch must run down; the gov-
ernment must become arbitrary.” United States v.
Haymond, 139 S. Ct. at 2375 (internal quotations
omitted). As such, the Founders took great care in cre-
ating the framework for the jury trial and the Ameri-
can criminal justice system in general. It was not
enough for the Founders to simply guarantee the right
to a trial—it was imperative that the trial be handled
without unnecessary delay.
A. The Ninth Circuit’s Opinion Is At Odds
With the Language and Purpose of the
Speedy Trial Act and the Sixth Amend-
ment Speedy Trial Guarantee.
The Sixth Amendment guarantees to all criminal
defendants the right to a speedy trial. See U.S. Const.
amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .”).
The importance of speedy justice dates back to 1215
and the language of Magna Carta. See Magna Carta cl.
40 (1215) (“We will not sell, or deny, or delay right or
justice to anyone.”). This principle is a critical element
of the American criminal justice system and without
 5

the guarantee of speedy justice, individual liberty be-

comes jeopardized.
The purpose of the speedy trial guarantee is to limit
the possibility of lengthy pretrial incarceration, reduce
the impairment of liberty imposed on defendants re-
leased on bond, and to lessen the disruption of life
caused by arrest and pending criminal charges. United
States v. MacDonald, 456 U.S. 1, 7 (1982); see also
Strunk v. United States, 412 U.S. 434, 439 (1973) (“The
speedy trial guarantee recognizes that a prolonged de-
lay may subject the accused to an emotional stress that
can be presumed to result in the ordinary person from
uncertainties . . . uncertainties that a prompt trial re-
moves.”). Legal scholars have written extensively on
how the prolonged delay of criminal trials is tanta-
mount to the denial of fundamental justice. See Nich-
olas Babaian, The Clock Stops Here: A Call for Resolu-
tion of the Circuit Split on Plea Bargain Exclusions
within the Speedy Trial Act, 54 New Eng. L. Rev. 239,
240 (2020) (“Legal scholars for generations have
equated the delay of a criminal trial with a denial of
fundamental justice.”) (internal citations omitted).
Although the Sixth Amendment promises defend-
ants speedy trials, Congress sought to give more mean-
ing to the speedy trial guarantee. For this reason, it
passed the Speedy Trial Act of 1974. The Act “serves
not only to protect defendants, but also to vindicate the
public interest in the swift administration of justice.”
Bloate v. United States, 559 U.S. 196, 211 (2010).
The Speedy Trial Act sets deadlines by which
courts must fully adjudicate criminal cases. 18 U.S.C.
§ 3161(c)(1). In the event these deadlines are not met,
the district court has discretion to dismiss the indict-
ment. § 3162(a)(2). The ends-of-justice provision of the
 6

Speedy Trial Act allows courts to exclude delays re-

sulting from a continuance where “the ends of justice
served by taking such action out-weigh the best inter-
est of the public and the defendant in a speedy trial.”
§ 3161(h)(7)(A); see also Zedner v. United States, 547
U.S. 489, 508-09 (2006) (describing the purpose and
applicability of ends-of-justice continuances).
While the language of the Speedy Trial Act appears
to provide strict rules and mandatory timeframes for
criminal cases, over the last thirty years, federal
courts have abused the ends-of-justice provision and
effectively circumvented the purpose of the Act. Ba-
baian, supra, at 719 (“Because the ends-of-justice con-
tinuance provides district courts with flexibility and a
degree of subjectivity about the need for pretrial de-
lays, the continuance has been one of the most fre-
quently abused provisions of the STA.”). Although this
provision was intended to be applied sparingly and in
limited circumstances, district courts have been in-
creasingly flexible in their application of the ends-of-
justice provision. See Shon Hopwood, The Not So
Speedy Trial Act, 89 Wash. L. Rev. 709, 719 (2014) (ex-
amining the different ways in which district courts
have justified ends-of-justice continuances).
One of the most frequent examples of such applica-
tion is the issuance of broad, open-ended continuances.
“Despite Congressional belief that the ends-of-justice
continuances would be a highly circumscribed and a
rarely used process, several courts of appeals have
held that trial courts may grant open-ended continu-
ances.” Id. at 724. Circuit courts allowing open-ended
continuances have varying requirements, but many
simply require a relatively abstract showing of reason-
ableness before an open-ended continuance may be
 7

granted. See United States v. Rush, 738 F.2d 497, 508

(1st Cir. 1984) (finding that open-ended continuances
are permissible when it is impossible to know “exactly
how long the reasons supporting the continuance will
remain valid”); United States v. Lattany, 982 F.2d 866,
868 (3d Cir. 1992) (allowing open-ended continuances
if “they are reasonable in length”).2
While the majority of Circuit Courts have leaned
toward allowing open-ended continuances, the Second
Circuit and the Ninth Circuit stand in staunch opposi-
tion. See United States v. Gambino, 59 F.3d 353, 358
(2d Cir. 1995) (holding that continuances under the
Speedy Trial Act must be “limited in time”); United
States v. Clymer, 25 F.3d 824, 829 (9th Cir. 1994) (find-
ing that the purpose of the Speedy Trial Act would be
“seriously distorted” if open-ended continuances were
permitted). In fact, until its opinion below, the Ninth
Circuit was arguably the most conservative in its in-
terpretation of the Speedy Trial Act. It has consist-
ently held that allowing open-ended continuances un-
der the ends-of-justice provision “could exempt the en-
tire case from the requirements of the Speedy Trial Act
altogether, and open the door for wholly unnecessary
delays in contravention of the Act’s purpose.” United
States v. Jordan, 915 F.2d 563, 565-66 (9th Cir. 1990).

2 See also United States v. Jones, 56 F.3d 581, 586 (5th Cir. 1995)
(allowing open-ended continuances where the same is “ade-
quately justified by the circumstances of the particular case”);
United States v. Spring, 80 F. 3d 1450, 1458 (10th Cir. 1996)
(“[W]hile it is preferable to set a specific ending date for a contin-
uance, there will be rare cases where that is not possible, and an
open-ended continuance for a reasonable time period is permissi-
ble.”); United States v. Sabino, 274 F.3d 1053, 1065 (6th Cir. 2001)
(finding open-ended continuances “permissible in cases where it
is not possible to preferably set specific ending dates”).
 8

Previous Ninth Circuit precedent further rein-

forced the more general idea that the ends-of-justice
provision is a rare exception, only to be used in specific
circumstances. See United States v. Pollock, 726 F.2d
1456, 1461 (9th Cir. 1984) (“The ‘ends of justice’ exclu-
sion, was not, however, meant to be a general exclu-
sion for every delay no matter what its source, but was
to be based on specific underlying factual circum-
stances.”); Clymer, 25 F.3d at 829 (“The ‘ends of jus-
tice’ exclusion in § 3161(h)(8)(A) was ‘intended by Con-
gress to be rarely used, and [] the provision is not a
general exclusion for every delay.” (quoting Jordan,
915 F.2d at 565)).
The District Court in this case determined that an
ends-of-justice continuance was inappropriate and
that Mr. Olsen’s speedy trial rights had been violated.
Consequently, it dismissed Mr. Olsen’s indictment
based on the remedy provision of the Speedy Trial Act,
which requires dismissal in the event the court finds a
violation of the defendant’s rights under the Act. See
18 U.S.C. § 3162(a)(2). In reversing the District
Court’s order, the Ninth Circuit took the Speedy Trial
Act’s mandatory remedy and effectively made it avail-
able only to those defendants it deemed worthy. See
United States v. Olsen, No. 20-50329, 2022 U.S. App.
LEXIS 513, at *107-08 (9th Cir. Jan. 6, 2022) (Collins,
J., dissenting) (“By allowing continuances to be
granted . . . on the ground that the defendant does not
deserve the Act’s mandatory remedy, the panel’s deci-
sion threatens to destroy a central feature of this sin-
gularly important statute.”), reh’g en banc denied.
Of course, resolving this case does not necessarily
require that the Court offer a definitive opinion on
whether open-ended continuances are inherently
 9

improper under the Speedy Trial Act. But the increas-

ing prevalence of the practice illustrates just how wa-
tered down the protections of the Speedy Trial Act
have become and how urgently the Court’s guidance is
needed in this area of law.
B. The Ninth Circuit’s Disregard for the
Importance of the Speedy Trial Right Will
Directly Contribute to the Continued
Erasure of the Criminal Jury Trial.
The jury trial is foundational to the notion of Amer-
ican criminal justice, and it is discussed more exten-
sively in the Constitution than nearly any other sub-
ject. Yet despite the intent to have the jury trial act as
the central pillar of our criminal justice system, jury
trials have all but disappeared from modern American
courtrooms. The proliferation of plea bargaining,
which was completely unknown to the Founders, has
transformed our robust “system of trials” into a “sys-
tem of pleas.” Lafler v. Cooper, 566 U.S. 156, 170
(2012); see also George Fisher, Plea Bargaining’s Tri-
umph, 109 Yale L.J. 857, 859 (2000) (observing that
plea bargaining “has swept across the penal landscape
and driven our vanquished jury into small pockets of
resistance”).
Today, guilty pleas comprise all but a tiny fraction
of convictions. When Mr. Olsen was indicted in 2017,
97.2% of criminal convictions were the result of guilty
pleas. 2017 Sourcebook of Fed. Sent’g Stats., Figure C
(U.S. Sent’g Comm’n 2017).3 Today, that number has
only increased, with 98.3% of convictions resulting

3 Available at https://bit.ly/3LFcjgE.
 10

from guilty pleas in 2021. 2021 Sourcebook of Fed.

Sent’g Stats., Table 11 (U.S. Sent’g Comm’n 2021).4
These statistics are extraordinarily concerning be-
cause there is ample reason to believe that many crim-
inal defendants—regardless of factual guilt—are effec-
tively coerced into taking pleas, simply because the
risk of going to trial is too great. See Jed S. Rakoff, Why
Innocent People Plead Guilty, N.Y. Rev. of Books., Nov.
20, 2014.5 Indeed, according to the National Registry
of Exonerations, 18 percent of known exonerees
pleaded guilty to crimes that it is virtually certain they
did not commit. Why Do Innocent People Plead Guilty
To Crimes They Didn’t Commit?, The Innocence Pro-
ject (2018).6 Yet, “[i]nstead of vacating their convic-
tions on the basis of innocence, the prosecution offers
the wrongly convicted a deal—plead guilty.” Id.
The government is at a distinct advantage during
the plea bargaining process. “Plea bargaining merges
the[] accusatory, determinative, and sanctional phases
of [criminal] procedure in the hands of the prosecutor.”
John H. Langbein, Torture and Plea Bargaining, 46
Univ. Chi. L. Rev. 3, 18 (1978). Therefore it comes as
no surprise to learn that many of those who plead
guilty “have been induced by the government to do so.”
Clark Neily, A Distant Mirror: American-Style Plea
Bargaining through the Eyes of a Foreign Tribunal, 27
Geo. Mason L. Rev. 719, 726 (2020).
Prosecutors have a number of tools at their disposal
to pressure defendants into pleading guilty, including,

4 Available at https://bit.ly/3Mv0ud0.
5 Available at https://bit.ly/3KC6EHa.
6 Available at https://bit.ly/3OHEptX.
 11

but not limited to: threatening increased penalties for

defendants hoping to go to trial (commonly known as
the “trial penalty”),7 threatening to add charges in an
effort to increase a potential sentence,8 withholding
exculpatory evidence during plea negotiations,9
threatening to use uncharged or acquitted conduct to
enhance a potential sentence,10 and threatening to
prosecute family members.11 See also Neily, supra, at
730.
Most importantly for this particular case, prosecu-
tors also use the threat of pretrial incarceration as a
means of pressuring defendants to plead guilty. Id. at
733 (“Research indicates that pretrial detention repre-
sents a powerful plea-bargaining lever because indi-
viduals who are incarcerated while awaiting trial are
demonstrably more likely to plead guilty than people
who are free.”). Defendants facing pretrial incarcera-
tion face immense pressure to plead guilty, particu-
larly when holding out for acquittal may mean spend-
ing weeks, months or years behind bars. See Barker v.
Wingo, 407 U.S. 514, 532 (1972) (“The time spent in
jail awaiting trial has a detrimental impact on the in-
dividual.”).

7 See generally Nat’l Assoc. of Crim. Def. Law., The Trial Pen-
alty: The Sixth Amendment Right to Trial on the Verge of Ex-
tinction and How to Save It 5 (2018), https://bit.ly/38IF8KG.
8 Id. at 50.
9See Michael Nasser, Plea Bargaining in the Dark: The Duty to
Disclose Exculpatory Brady Evidence During Plea Bargaining,
81 Fordham L. Rev. 3599, 3613 (2013).
10See William R. Kelly & Robert Pitman, Confronting Under-
ground Justice 75 (2018).
11 Id.
 12

It is no secret that prosecutors have taken ad-

vantage of pretrial detention as a means of obtaining
guilty pleas. See Russel M. Gold, Paying for Pretrial
Detention, 98 N.C.L. Rev. 1255, 1269 (2020) (“Detain-
ing a defendant pretrial affords the government a mas-
sive advantage in securing guilty pleas.”). Those incar-
cerated prior to trial face economic and societal chal-
lenges, including loss of employment, disruption to
family life, and pressure from public accusation of a
crime. Rachel A. Harmon, Why Arrest?, 115 Mich. L.
Rev. 307, 313-20 (2016) (detailing the specific effects of
pretrial detention). Moreover, defendants detained be-
fore trial “are more likely to be convicted and to serve
longer sentences than defendants with comparable
risk levels who are released before trial.” Lauryn P.
Gouldin, Disentangling Flight Risk from Dangerous-
ness, 2016 BYU L. Rev. 837, 860 (2016). Therefore, it
is unsurprising that “pretrial detainees—even those
who claim innocence—feel heightened pressure to
plead guilty.” Id.
More than one-third of all criminal defendants face
pretrial incarceration. Nick Petersen, Do Detainees
Plead Guilty Faster? A Survival Analysis of Pretrial
Detention and the Timing of Guilty Pleas, 31 Crim.
Just. Pol’y Rev. 1015 (2020). Defendants detained
prior to trial plead guilty 2.86 times faster than those
who post bail. Id. Researchers have found that the psy-
chological effects of pretrial detention cause many de-
tainees to plead guilty for no other reason than to es-
cape incarceration. Id. (“Detainees often plead guilty
to escape poor confinement conditions, keep their job,
or hold their family together.”). Additionally, pres-
sures stemming from uncertainty surrounding the du-
ration of pretrial detention directly correlates with
higher rates of guilty pleas. Id. Prosecutors use these
 13

pressures and fears to their advantage in the plea bar-

gaining process—relying on their ability to request
pretrial detention as a “prosecutorial hammer.” Id. As
a result, many detainees, including those who main-
tain their innocence, plead guilty rather than wait a
potentially indeterminate amount of time for trial.
Nancy Gertner, Bruce Bower & Paul Schectman, Why
Innocent Plead Guilty: An Exchange, N.Y. Rev. of
Books, Jan. 8, 2015.12
Even defendants who do not face pretrial detention
are still pressured by lengthy pretrial delays of the sort
that the Sixth Amendment and the Speedy Trial Act
were meant to guard against. Criminal proceedings
considerably impact a defendant’s life, “whether he is
free on bail or not.” United States v. Marion, 404 U.S.
307, 320 (1971). Even when a defendant posts bail, the
looming presence of criminal prosecution “may disrupt
his employment, drain his financial resources, curtail
his associations, subject him to public obloquy, and
create anxiety in him, his family and his friends.” Id.
“[E]ven if an accused is not incarcerated prior to trial,
he is still disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion, and
often hostility.” Wingo, 407 U.S. at 533. Most notably,
when a defendant faces lengthy delays between indict-
ment and trial, there is a presumption that the preju-
dice caused by pretrial delay “intensifies over time.”
Doggett v. United States, 505 U.S. 647, 652 (1992)
(finding that the “extraordinary 8 ½-year lag” between
the defendant’s indictment and his arrest clearly “trig-
gered a speedy trial inquiry”).

12 Available at https://bit.ly/3FdFoOc.
 14

The Central District of California, in its opinion be-

low, noted that the United States Attorney’s Office for
the Central District authorized its prosecutors to offer
better deals to defendants “so long as they waive their
right to in-person hearings, sign plea agreements
quickly (before October 16, 2020), and enter their plea
at the first date ordered by the court.” United States v.
Olsen, 494 F. Supp. 3d 722, 731 (C.D. Cal. 2020). “In
other words, the government is [] offering very favora-
ble plea deals, based not on the defendant’s individual
circumstances, but rather based on exigencies manu-
factured by the Central District’s refusal to resume
jury trials.” Id. This method of adjudication is in direct
opposition to the system of American criminal justice
contemplated by the Founders, and it further leads to
the conclusion that “if a jury trial is the ‘heart and
lungs of liberty’ than a plea bargain is the knife that
viciously removes it from the body of justice.” Babaian,
supra, at 247.
The speedy trial guarantee and the Speedy Trial
Act were designed to curb injustices resulting from
prolonged delays in criminal proceedings. However,
the Ninth Circuit’s decision below “twists the text of
the Speedy Trial Act beyond recognition.” Appellant’s
Br. at 21. The court’s opinion ignores the Act’s text
and purpose by authorizing open-ended and long-term
prohibitions on criminal jury trials under the guise of
serving justice. In effect, the Ninth Circuit’s opinion
allows District Courts to utilize the ends-of-justice pro-
vision to suspend speedy trial rights indefinitely. See
Doggett, 505 U.S. at 652. In theory, the negative effects
of prolonged trial delays are supposed to be “limited by
the stringent time limitations of the Speedy Trial Act.”
United States v. Salerno, 481 U.S. 739, 747 (1987). But
those limitations have “been watered down to the point
 15

where [they] no longer have any taste.” Hopwood, su-

pra, at 739.
The disappearance of the jury trial is a deep, struc-
tural problem that far exceeds the bounds of any one
case or doctrine. However, we can avoid further dis-
couraging defendants from exercising their right to a
jury trial by preserving the Speedy Trial Act and the
Sixth Amendment speedy trial guarantee.
II. LOCAL ORDERS SUSPENDING JURY TRI-
ALS DUE TO THE COVID-19 PANDEMIC
DO NOT ABROGATE THE CONSTITU-
TIONAL RIGHT TO A SPEEDY TRIAL.
Since the beginning of the COVID-19 pandemic,
courts have struggled with to how to safely hold trials
without infringing upon individual liberties. At the
start of the pandemic, courts throughout the country
chose to temporarily suspend in-person proceedings
due to safety concerns and uncertainties surrounding
the severity of the virus. Over two years later, the vi-
rus is still cause for concern and our nation is working
on coming to terms with this “new normal.” With the
slow return to in-person proceedings, criminal defend-
ants have been left in limbo. Bans on jury trials span-
ning the past two years have forced criminal defend-
ants to endure significant delays and impediments on
their individual rights.
In the Central District of California, where Mr. Ol-
sen’s case awaited jury trial, criminal trials were sus-
pended for almost two entire years. See Order of the
Chief Judge 22-004, C.D. Cal. (Feb. 8, 2022) (ordering
the resumption of jury trials in the Central District of
 16

California beginning February 22, 2022).13 During this

time, however, grand juries were still issuing new in-
dictments, even while the ban on jury trials remained
in full force and effect. See Olsen, 494 F. Supp. 3d at
728-29 (noting that grand juries had convened and is-
sued 41 indictments from the Central District of Cali-
fornia’s courthouse between June and September
2020). Yet despite the Central District’s allowance of
in-person grand jury proceedings, it maintained that it
was unsafe to resume in-person criminal jury trials.
Therefore, when Mr. Olsen sought to enforce his con-
stitutional and statutory right to a speedy trial, the
Chief Judge and the Ninth Circuit balked at his re-
quest. Judge Cormac, in finding that the District’s lo-
cal order temporarily halting jury trials did not sup-
plant Mr. Olsen’s constitutional rights, saw no other
option than dismissing the indictment based on a vio-
lation of the Speedy Trial Act.
While courts struggle with how to reopen and man-
age their overcrowded dockets, criminal defendants
continue to suffer the consequences of the two-year
pause. In Roman Catholic Diocese v. Cuomo, the Su-
preme Court reviewed an Executive Order issued by
the New York Governor, which imposed severe re-
strictions on attendance at religious services in areas
with high numbers of COVID-19 cases. 141 S. Ct. at
68. In granting an injunction against the State’s order,
the Supreme Court held that the State’s COVID-19 re-
strictions undoubtedly infringed upon the guarantees
of the First Amendment, reasoning that “even in a
pandemic, the Constitution cannot be put away and
forgotten.” Id. at 68.

13 Available at https://bit.ly/3kqyVFM.
 17

In reviewing the Ninth Circuit’s decision below,

this Court should apply the same reasoning from its
holding in Cuomo. “Even in the midst of a pandemic,
there are some things that, in a constitutional repub-
lic, should be all but unthinkable.” United States v. Ol-
sen, 2022 U.S. App LEXIS at *69 (Collins, J., dissent-
ing) (citing Cuomo, 141 S. Ct. at 68). Among those “un-
thinkable” measures is the suspension of the speedy
trial guarantee. While “[t]he Constitution principally
entrusts the safety and health of the people to the po-
litically accountable officials of States, . . . judicial def-
erence in an emergency or a crisis does not mean
wholesale judicial abdication.” Cuomo, 141 S. Ct. at
73-74 (Gorsuch, J., concurring).
“[T]he Constitution’s guarantees cannot mean less
today than they did the day they were adopted.”
United States v. Haymond, 139 S. Ct. at 2376. By re-
viewing open-ended continuances based on an arbi-
trary safety standard of its own creation, the Ninth
Circuit has diluted the Speedy Trial Act to the point of
meaninglessness. The Ninth Circuit’s interpretation of
the Speedy Trial Act allows for complete circumven-
tion of the speedy trial guarantee by giving District
Courts authority to indefinitely suspend jury trials
based on local orders and subjective safety concerns.
This result is at not only at odds with the text and pur-
pose of the Speedy Trial Act; it is incompatible with
the framework for liberty and justice established by
our Constitution. If the Court does not step in to curb
the steady corrosion of the Speedy Trial Act and the
speedy trial guarantee, criminal defendants will be ef-
fectively stripped of one of their most fundamental
rights.
 18

CONCLUSION
For the foregoing reasons, and those described by
the Petitioner, this Court should grant the petition.

Respectfully submitted,

Jay R. Schweikert
Counsel of Record
Laura A. Bondank
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1461
jschweikert@cato.org

May 3, 2022