It would be “highly, highly extraordinary” for a criminal case in the US to start more than 18 months after arrest, said a senior judge who sits on one of America’s busiest federal appeals courts.

That is the diplomatic reaction of Judge Diarmuid O’Scannlain to a newspaper report carried on the day of the interview about a trial that started 12 years after the body of young Therese Agius was recovered from the sea off Delimara.

Feeling it was inappropriate to comment, the judge said he was “not familiar with any case that has gone on for that long… So many end up in guilty pleas that they last just a few months – typically, six from arrest to a guilty plea and within a year from arrest to trial”.

Most trials in the US are also fairly short – a matter of days. Only if it is a complex, multi-defendant, international, drug-trafficking case, for example, with lots of witnesses, could it take weeks, Judge O’Scannlain explained.

But it would be “highly, highly extraordinary” for a criminal case in the US to start more than 18 months after arrest.

Judge O’Scannlain, a Harvard University graduate nominated by President Ronald Reagan to a seat on the US Court of Appeals in 1986 and responsible for deciding federal issues in nine states, was speaking after a lecture held by the Chamber of Advocates on the US federal criminal justice system and the mechanisms judges and prosecutors use to deal efficiently with criminal cases.

He invited Maltese lawyers to take a look at the Speedy Trial Act, which requires a trial to begin within 70 days after an arrest is made, and to see whether it could be transferred to their criminal procedures, albeit different from the US, to tackle the backlog of cases.

They might also want to examine the plea-bargaining procedure of the US, he suggested, whereby the Attorney General could negotiate with the defendant, who might be willing to plead guilty in exchange for a lower sentence than would otherwise be available after conviction.

In view of the forthcoming introduction of parole, the US judge was asked whether the system in his country had brought marked reform to prisoners, as it set out to do, or whether it was merely a means of keeping prison populations low. Judge O’Scannlain said that, in many states, it was “an important ingredient because of the finite amount of prison beds. Nevertheless, from a philosophical point of view, if it can be shown during incarceration that the prisoner has readjusted and is a good prospect for safe release, then it should be pursued.”

Release is based on the prisoner’s record during incarceration but, he added, “prison officials are happy it is available because there is a limited number of beds and there is always a resistance to spend money to build more jails”.

The parole system was consistent with the theory of punishment – that, during incarceration, the prisoner has time to contemplate on the crimes he has been convicted of.

“His conduct in prison is often a sign of whether he realises he should not have done that and would not do it again. Parole boards, composed of citizens trained to evaluate their conduct, look for that.”

Having said that, Judge O’Scannlain pointed out that “some prisoners are incorrigible and have no possibility of redemption, based on their violent and totally anti-social conduct in prison. That prisoner would never be considered for early release”.

The federal system has abandoned parole in favour of what is called good time credit – “a sort of catalogue that entitles prisoners to credits, which only shorten sentences by a few days a year”.

The reform to get rid of parole in the federal system was aimed at eliminating wide disparities among decisions, depending on how kind-hearted or strict the members of the board were. It was a political decision to squeeze some of the subjectivity out of it, Judge O’Scannlain explained.

In the same reform, the US Congress introduced a sophisticated system of sentencing guidelines so the judge has to “literally almost do an algorithm”. The federal system has a mechanical chart that is six columns wide and each one has 37 levels.

If Maltese judges followed that chart, a suspended sentence for a first-time offender would only be an option in the first column and halfway down it. “Beyond that, there is no probation,” Judge O’Scannlain said when asked about suspended sentences to repeat offenders. “It would be impossible for a repeat offender to get probation in the federal system.”

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