The Illinois Speedy Trial Statute has been in existence for nearly forty years, but despite the substantial volume of litigation it has spawned, some very basic questions about it have gone unanswered, and almost unasked. Whether these issues have been overlooked due to the well-known difficulty of finding something hidden in plain sight or as a result of willful blindness is perhaps the most interesting unanswered question of all. This discussion will be confined, however, to two substantial legal questions which should some day be addressed by the courts of this state.
1. What is the sanction?
The Speedy Trial Statute provides that "[e]very person in custody in this State shall be tried ... within 120 days from the date he was taken into custody...."1 In addition, "[e]very person on bail or recognizance shall be tried ... within 160 days...."2 of a demand for trial. In each case, certain kinds of delay are excluded from the calculation. If, after exclusion of authorized delays, the defendant has not been tried within the specified time limits, subsection (d) creates a sanction:
Every person not tried in accordance with subsections (a), (b), and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.3
Since the word "shall" is ordinarily (although not invariably) construed to be mandatory,4 it seems clear from the statutory language that when the statutory time limits are not met, the Court has no choice but to release the defendant from custody or from the obligations of his bond.
Curiously, however, Illinois courts go beyond the statutory sanction and dismiss the charges against the defendant when the statutory time limits are not met. That this is required is part of the unexamined folklore of the law and does not derive from the statutory language. Even the Supreme Court of Illinois has incautiously remarked that "[t]he appropriate remedy for a violation of the speedy-trial provision of section 103-5(a) is dismissal of the charges,"5 supporting its assertion only with unexplained citation to statutory language which, as we have seen, says no such thing.
Does this mean that dismissal of charges for violation of the speedy trial statute is never appropriate? By no means. Authority to dismiss the charges derives from section 114-1 of the Code of Criminal Procedure, which states that:
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with section 103-5(d) of this Code....6
Aside from the obvious fact that it authorizes dismissal, while section 103-5(d) does not, section 114-1(a) differs from the latter section in a most significant way, namely, that the mandatory "shall" of the Speedy Trial statute gives way to the ordinarily permissive "may." Time after time Illinois courts have held that use of the term "may" affords court discretion.7
The statutory scheme should be apparent. If a defendant is not brought to trial within the time limits set by subsections (a), (b) and (c), the trial court "shall" release the defendant from custody or the obligations of his bond, and "may" dismiss the indictment or information. Although supported by the plain language of the Code, such a reading is contrary to the consistent practice of Illinois courts and to the unconsidered dicta of the state’s highest court. Can it be correct?
Fortunately, we do not approach the problem of construction unaided. First, sections 114-1(a) and 103-5(d) are in pari materia and must be construed together. So considered, the legislative decision to abandon the mandatory "shall" for the permissive "may" must be taken as significant, and as evidence of the legislative intent that the same judge who is required to discharge the defendant from custody or bond, has discretion to dismiss, or not to dismiss, the charges. Close conjunction of the words "shall" and "may" in a statutory scheme has previously been given the same construction.8
Second, and more compellingly, the Illinois statutes governing criminal law demonstrate conclusively that when the Illinois legislature intends to require dismissal of charges, it knows how to do so in unequivocal language. If a prisoner against whom an intra-state detainer has been lodged is not brought to trial within 160 days of a demand, then "the charge for which he has requested a speedy trial shall be dismissed."9 Violation of the Interstate Agreement on Detainers means that "such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."10 Most significantly of all, the same distinction exists within the speedy trial statute itself. A prisoner simultaneously facing multiple charges in the same county is subject to a special rule, and must be brought to trial on the remaining charges within 160 days of his trial on the first charge. If not, "such charge or charges shall be dismissed and barred for want of prosecution...."11 The contrast with the sanction provided by subsection (d) could not be more stark.
Indeed, the construction urged here dovetails nicely with the overall structure of the statute. By its terms, the speedy trial statute applies only to persons "in custody" or "on bail or recognizance." It has been held to be inapplicable to a defendant prosecuted on a summons or a notice to appear.12 To be "discharged from custody or released from the obligations of ... bail or recognizance" is therefore a remedy neatly tailored to the class of persons to whom the statute applies, in that it removes the burden that defines the class. A statutory construction mandating in every case that the criminal go forever free because the court or prosecutor has blundered should rest on a far firmer expression of legislative intent than can be discerned from this statutory language.
Fourth, and finally, as will be seen below, to construe section 103-5(d) as mandating dismissal would raise grave doubts of its constitutionality. Wherever possible, a statute should be interpreted in such a way as to avoid doubts about its validity.13
The correct construction is that when faced with a violation of the 120 or 160 day provisions of the speedy trial statute, a trial court must release the defendant from custody or the obligations of his bond or recognizance. The court "may," in its discretion, dismiss the charges, but need not do so. The court should consider all the relevant facts and circumstances in making its decision. It should, for instance, weigh the four factors set out in Barker v. Wingo.14 It might also consider such additional factors as the seriousness of the offense charged, and the public and private interest in resolving the allegations in the indictment or information. Of course, in the rare case where the court finds that there has been a violation of the defendant’s federal constitutional right to a speedy trial, as opposed to his state statutory right, then dismissal will always be the appropriate remedy.15
Such an approach permits a reasoned, rather than an arbitrary, response to the passage of 120 or 160 days. It protects a defendant’s private interest, by freeing him from the most onerous burden of being charged with an offense, while permitting the court in an appropriate case to accommodate the important public interest in resolving criminal cases on the merits. What a court may not do, however, is to mistake a discretionary duty for a mandatory one, and go about its duties as if it were merely a clerk.16
2. Is the statute constitutional?
Illinois courts, usually so quick to defend their prerogatives from encroachment by the legislative or executive branches, have been curiously reluctant to address the constitutionality of the speedy trial statute.17 Yet, if section 103-5(d) is read to mandate dismissal of charges where a defendant is not brought to trial within 120 or 160 days, then it arguably violates the principle of separation of powers and is unconstitutional.
The Illinois Constitution provides for the separation of the legislative, executive, and judicial branches, stating that: "No branch shall exercise powers properly belonging to another."18 Although the constitutional separation of powers does not contemplate rigid compartmentalization, it does command that each branch be free of the coercive influence of another within its proper sphere of authority.19 The Constitution vests judicial power "in a Supreme Court, an Appellate Court, and Circuit Courts."20 Although the Constitution does not define "judicial power," all such power is granted exclusively to the courts.21
Consider, for example, an overworked trial court trying to arrange its trial schedule. It has before it a civil case of great public importance; a criminal case where important policy considerations dictate early resolution of the charges even though there has been no speedy demand; and another criminal case of no great moment, but which is nearing the end of a 160 day clock. Certainly the court might find valid reasons to give priority to one of the first two cases, but its hands are tied. The legislature and the defendant’s speedy trial demand have dictated to the court which of these cases it will try first. The court must resolve the least urgent case first or never resolve it at all. Multiply this conflict by the number of cases on the call of a busy Illinois trial judge, and the degree of legislative intrusion becomes apparent.
Among the inherent powers of an Illinois court is the power to control its own docket, a power that cannot be abrogated by the legislature.22 Although cases in this area have not been so logically consistent as to eliminate any suspicion that at least some decisions may have been designed to achieve a particular result, nevertheless Illinois courts have not hesitated to invalidate statutes which appeared to interfere with the judiciary’s management of its own business.
In perhaps the leading case, Agran v. Checker Taxi Co.,23 the Supreme Court considered the constitutionality of a section of the Civil Practice Act which declared that no ex parte action could be taken to dismiss a case for want of prosecution unless every attorney of record had been notified by the clerk at least five days prior to the contemplated action.24 The court characterized this section as "one wherein the General Assembly attempts to regulate the procedure of the courts in the administration of their judicial business," and went on to state:
It regulates, in intimate detail, the procedure of the court in executing its judicial business. Once the court’s jurisdiction has been properly invoked and it has entered upon the performance of its purely judicial duties, this legislative rule specifies the procedure to be followed by the court in promulgating its determination. The power to adjudge, determine and render a judgment is beyond all question or judicial act, and can only be employed by judicial authority. The rendition of a judgment by default has been held to be manifestly a judicial act. (Citation) The legislature cannot direct the judiciary how cases shall be decided.25
Accordingly, the court declared the section unconstitutional.
The Agran rule retains its vitality, perhaps all the more so since the Constitution of 1970 enhanced the autonomy of the courts. Among the statutes invalidated for undue legislative interference with the judicial function have been statutes limiting the power of the Circuit Court to reconsider an order issuing a tax deed;26 regulating the conduct of voir dire;27 prohibiting assignment of post-conviction proceedings to the judge who heard the trial;28 setting standards for setting bail pending appeal;29 and altering the standard of appellate review of sentences.30 Arguably, none of these statutes is so intrusive of the judicial function as one which purports to dictate the time within which criminal cases must be brought to trial, and to determine the priority in which each must receive its share of the limited time of the court.
As in Agran, the speedy trial provisions of the Criminal Code seek to regulate "the procedure of the court in exercising its judicial business," after "the court’s jurisdiction has been properly invoked and it has entered upon the performance of its purely judicial duties." The statute does this in one or both of two ways. First, the 120 day rule (or 160 day rule, as the case may be) tends to impose
inflexible constraints upon a court’s control over its own docket. Such constraints necessarily impinge upon courts’ "administration of their judicial business," and, as such, constitute an incursion into areas inherently judicial in nature.
Secondly, if non-compliance with the speedy trial statute in fact terminates the jurisdiction of the court and requires dismissal of the charges against the accused, then it, like the statute held invalid in Agran constitutes "a restriction on the power of the courts to render a judgment of dismissal." In Agran, the unconstitutional restriction required that a judgment of dismissal be withheld until the passage of a fixed number of days. As now interpreted, the speedy trial statute in effect requires a court to render judgment of dismissal, subject to specific exceptions, if an accused is not tried within a fixed period of days. Although the avowed purpose of the statute is to implement the constitutional guarantee of a speedy trial,31 the effect of the statute as now interpreted is to preclude the court from applying the applicable constitutional standards in rendering its judgment, by restricting its consideration to the presence or absence of certain specified exceptions to the 120 (or 160) day rule. It reaches the heart of inherently judicial determinations by dictating what importance is to be accorded to certain facts above others (e.g. the passage of 120 days) in deciding what are at bottom judicial questions concerning the constitutionality of a pre-trial delay, and the effect of the delay on the rights of the parties properly before the court.
A solution to this problem presents itself. For guidance we should look to the decision of the Supreme Court in People v. Flores.32 In Flores the Court grappled with a statute remarkably similar to the speedy trial statute, in that it purported to place stringent time restrictions on the Circuit Court’s conduct of its business. On its face a portion of the Illinois statute33 providing for trial in absentia appeared to require a trial court to wait until two days after the defendant had absented himself before proceeding to conclude a trial which had already begun. The Supreme Court held that if the statute were mandatory, as it appeared, it would unduly infringe the inherent authority of the trial judge to control his docket.34 In order to save the statute, the Court took the bold step of construing the statute as permissive only, and therefore constitutional.
The speedy trial statute should be construed the same way. In order to reach its holding in Flores, the Supreme Court had to interpret "shall" as meaning "may" in the context of that statute. As we have seen, a reading of the speedy trial statute and the accompanying section on dismissal as permissive, rather than mandatory, does much less violence to the statutory language, and is in fact in harmony with the statutory scheme.
Certainly no one can predict how the Supreme Court of Illinois would resolve the unanswered questions discussed above were it to confront them squarely in a proper case. It cannot be denied, however, that there is a serious, non-frivolous argument grounded in the statutory language that the Illinois speedy trial act permits, but does not mandate, dismissal as a sanction for violation of the 120 or 160 day rules. Moreover, interpretation of the statute in the manner prevailing at present raises serious questions about its constitutionality. If these questions are to be decided authoritatively, it is the responsibility of the bar, especially prosecutors, to preserve these arguments at trial level and to argue them on appeal with the persuasive force that they deserve.
1. 725 ILCS 5/103-5(a).
2. 725 ILCS 5/103-5(b).
3. 725 ILCS 5/103-5(d).
4. People v. Williams, 143 Ill.2d 477, 484, 577 N.E.2d 762, 765, 160 Ill.Dec. 437, 440 (1991); People v. Nicholls, 45 Ill.App.3d 312, 359 N.E.2d 1095, 1099, 4 Ill.Dec. 143, 147 (5th Dist. 1977), aff’d in part and rev’d in part on other grounds, 71 Ill.2d 166 (1978).
5. People v. Ladd, 185 Ill.2d 602, 708 N.E.2d 359, 361, 236 Ill.Dec. 773, 775 (1999).
6. 725 ILCS 5/114-1(a) (emphasis added).
7. E.g. Coles v. Moultrie Electric Cooperative, 8 Ill.App.3d 441, 289 N.E.2d 491, 493 (4th Dist. 1972); People v. Koczur, 100 Ill.App.2d 481, 241 N.E.2d 531 (1st Dist. 1968).
8. Myers v. Pink, 42 Ill.App.2d 230, 191 N.E.2d 659, 664 (1st Dist. 1963).
9. 730 ILCS 5/3-8-10(emphasis added).
10. 730 ILCS 5/3-8-9, Article IV(e) (emphasis added).
11. 725 ILCS 5/103-5(e) (emphasis added).
12. People v. Eblin, 114 Ill.App.3d 891, 449 N.E.2d 575, 70 Ill.Dec. 446 (2d Dist. 1983); People v. Leannah, 94 Ill.App.3d 628, 418 N.E.2d 1054, 50 Ill.Dec. 60 (2d Dist. 1981); 725 ILCS 5/107-12.
13. People v. Flores, 104 Ill.2d 40, 50, 470 N.E.2d 307, 311, 83 Ill.Dec. 349, 353 (1984); People v. Nastasio, 19 Ill.2d 524, 168 N.E.2d 728, 731 (1960).
14. 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed. 2d 101, 117 (1972).
15. Strunk v. United States, 412 U.S. 434, 93 S. Ct. 2260, 37 L.Ed.2d 56 (1973).
16. Cf. People ex rel. Hanrahan v. Felt, 48 Ill.2d 171, 269 N.E.2d 1, 4 (1971).
17. E.g. People v. Bauer, 70 Ill.App.3d 537, 539, 388 N.E.2d 1013, 1014, 27 Ill.Dec. 50, 51 (5th Dist. 1979).
18. Article II, Section 1.
19. Strukoff v. Strukoff, 76 Ill.2d 53, 389 N.E.2d 1170, 1172, 27 Ill.Dec. 762, 764 (1979).
20. Article VI, Section 1.
21. People v. Jackson, 69 Ill.2d 252, 371 N.E.2d 602, 604, 13 Ill.Dec. 667, 669 (1972).
22. People v. Stanley, 116 Ill.App.3d 532, 452 N.E.2d 105, 107, 72 Ill.Dec. 173, 175 (4th Dist. 1983).
23. 412 Ill. 145, 105 N.E.2d 713 (1972).
24. Ill.Rev.Stat., 1951, ch. 110, §174a.
25. 105 N.E.2d at 715.
26. In re Application of the County Collector, 281 Ill.App.3d 467, 667 N.E.2d 109, 217 Ill.Dec. 316 (2d Dist. 1996).
27. People v. Jackson, 69 Ill.2d 252, 371 N.E.2d 602, 13 Ill.Dec. 667 (1977).
28. People v. Joseph, 113 Ill.2d 36, 495 N.E.2d 501, 99 Ill.Dec. 120 (1986).
29. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762, 160 Ill.Dec. 437 (1991).
30. People v. Cox, 82 Ill.2d 268, 412 N.E.2d 541, 45 Ill.Dec. 190 (1980).
31. People v. Reimolds, 92 Ill.2d 101, 106, 440 N.E.2d 872, 874 65 Ill. Dec. 17, 19 (1982); People v. Love, 39 Ill.2d 436, 443, 235 N.E.2d 819 (1968).
32. 104 Ill.2d 40, 470 N.E.2d 307, 83 Ill.Dec. 349 (1984).
33. Ill.Rev.Stat. 1977, ch. 38, §115-4.1.
34. 104 Ill.2d at 49, 470 N.E.2d at 311, 83 Ill.Dec. at 353.
Gillum Ferguson is an Assistant United States Attorney for the Northern District of Illinois. He is a graduate of Harvard College and the University of Illinois College of Law. Mr. Ferguson wishes to acknowledge the assistance of Stephen E. Norris, of Mount Vernon, Illinois, in the preparation of this article. The views expressed are those of the author, and do not necessarily represent the position of the United States Department of Justice.