argument next in case fourteen fourteen fifty seven betterman vs montana  mr chief justice and may please the court the speedy trial cause applies to a criminal prosecution through its culmination in sentencing it is not cut off when the defendant pleads or is found guilty the court has said that the clause guarantees and early and proper disposition of a criminal charge and that guarantee applies to the guilt stage of the prosecution when most defendants plead guilty and to the sentencing stage which may be the only place  honor my understanding is that is limited to trial the court has recognized specific interests that are protected by the speedy trial clause and those interests apply not just to presumptively innocent defendants as the state in the united states suggests but some of them apply specifically to guilty defendants in barker for instance the court notes that one of the interests that are protected by this clause that  protected by the of this clause is the interest in rehabilitation and that a prolonged period of detention in jail can affect a defendant's rehabilitation will that's specific to a guilty defendant and in smith's the hooey the court noted that even though the defendant had been incarcerated in federal prison that that defendant could still be prejudiced by a prolonged delay in the state prosecution that followed because it could affect his ability to seek a concurren that interest also is specific to a guilty different so this sharp line between the guilt stage of the prosecution and the criminal state and the sentencing stage of a prosecution isn't supported by this court speedy trial proce so the defendant is either adjudicated guilty or the charges are dismissed or the defendant is acquitted so there's two possible outcomes at the guilt stage guilt or innocence at sentencing the situation is quite different there's greater opportunity for tailoring which is what the court requires her morrison and there may be a greater need for tailoring because the defendant has been adjudicated guilty so in the sentencing context where courts have wide discretion where there's a range of possible sentences where there's a range of possible outcomes tailoring there's greater opportunity for tailoring and since you went with the remedy be in a case like this your honor we submit that the proper remedy in a case like this would be to reduce by the period of delay in the montana supreme court concluded that the period of unjustified delay here was fourteen months when he was serving them another sentence he was serving sentence for another crime yes your honor he was so he got time s credit on the prior sentence that that he was serving but that period of delay the fourteen months was not credited to his sentence on the bail jumping sentence which is the sense of that's at issue here and we submit that a proportionate remedy an appropriate remedy would be to reduce that sentence by the period during which he was denied access to rehabilitation programs and suffer the anxiety that is detailed in his affidavit  sentence but here we submit that a tailored remedy would be just reducing his sentence by what do you make of the fact that the sixth amendment says that the accused show enjoying the right to a speedy and public trial by an impartial jury your honor the impartial jury clause doesn't cut off or limit the word trial we know that because the court has recognized that the public trial right might apply at a suppression hearing and there's no jury convened at a suppression hearing the court concluded that in waller so the impartial jury clause applies to the portions of a criminal prosecution the stages of a prosecution were a jury is actually impanel and if you go back to the purpose of an import of the impartial jury clause which was to prevent jurors from offering evidence against the defendant it makes good sense that it would apply to the stages of a criminal prosecution or a jury is convene the if we were to disagree with you and say that there's no sixth amendment rights and there was only a due process right have you waived any argument that you me the due process standard we have included that we didn't include that in the question presented your honor and the montana supreme court rejected that challenge it applied to due process test and concluded that under a due process analysis mr betterment wouldn't be entitled to relief and that gets to an important point here because i understand that so you're admitting you're giving up that it's analysis and to the process clause might have been that your honor we are not advancing that claim here  and so there is a significant difference we submit between the due process analysis and the barker test that this court has applied under the sixth amendment speedy trial right and that is that under a barker analysis prejudice may be pursue and barker also addresses specific orms of prejudice that may flow from a delay in a criminal prosecution the law vasco test that is applied under a due process analysis does not address some of those specific i agree but why do you think of a school applies to the law meaning that's to korean dikembe until way where we were creating an exception and saying generally you have the state has the period of a statute of limitations to bring into action your honor if i want to cut them off from having that right you need to show actual prejudice your honor that's and that test creates a significant burden for example mr religious to continue on this line of questioning there's another case that we have which dealt with civil forfeiture which is the eight thousand eight hundred fifty dollars in u s currency case where it's said well we're going to do a due process analysis but we're going to take the barker the fact there is as our test for that due process analysis so i think one of the questions that justice sotomayor is asking is why wouldn't that be equally appropriate here in other words even if and i'm not saying that this is right but even if there is this is force within the due process box rather than the sixth amendment that there's still a further question draw on parker principles in applying it but if you compare the result in this case to say the exit the result in the burkhead case where the court analyzed the specific forms of prejudice that are a you mean by that is because in this other case the civil forfeiture case we just said we're going to apply the four factors of arthur and if that were the result of the due process approach i mean it just wouldn't make any difference which box it was in that would that would certainly be true your honor but that's not what the montana supreme court here did so it didn't apply all the factors and barker he didn't apply barker in a straightforward fashion because it approached prejudice the same way that love vasco did it required the defendant to make an affirmative showing a prejudice that required that that showing be substantial that's different from the parker test and we submit also that given the specificity of this right that it's a numerated in the sixth amendment that it would not be appropriate for the court to shunt that interest that set of interests that are numerated in the sixth amendment into the due process test that the better approach is to do what the lower courts have done which is to take the parker framework which already exists and apply  straightforward fashion to a delay at sentencing but you're not asking us to do it in a straightforward fashion that's what justice ginsburg asked you because you're giving up the parker remedy your honor the lower court's in a part in applying parker to the sentencing context have fixed more tailored remedies in recognition of a fact that there may be a difference between a delay at the guilt stage in a delay at sentencing because the now the defendant's been convicted and so the lower courts in applying barker have done this they have tailored remedies they have applied remedies that leave the convictions standing and try to fix some proportionate remedy for the delay at the so why don't you think that they've done the same thing under the due process clause recognizing that it is unfair to undue conviction that the reason why the due process test as it's been applied by the lower courts doesn't do the job is because they continue to require an affirmative showing a prejudice so they don't presume prejudice which may be significant washington the case out of the fifth circuit that we cite illustrates this point because the court there didn't presume prejudice and if the court explained in dog it it may be important to presume prejudice because it is sometimes hard to show the effect that the delay on the defendants defense or other forms of prejudice and so even the courts that have applied and have modified it still still don't presume prejudice still don't require the prosecution to make a showing in response to articulated prejudice they just a pile of asking one require an affirmative showing of substantial prejudice so even this modified version that you see in the montana supreme court's opinion below we submit is inadequate and indeed in a case like this where the defendant has articulated specific forms of prejudice i was denied access to rehabilitation programs i suffered anxiety the state ought to be able to come in and rebut that presumption now here despite those specific forms of prejudice being set out in the motion to dismiss that mr betterman the state did not offer that evidence the first evidence that we saw was in the briefing on the merits in this court so the state did have the opportunity to make a showing and it didn't do that when you say that the remedy should be tailored tailored to what it what is the court supposed to do and in your view select a punishment that is appropriate to deter the state from doing this again or select a remedy that in some way and as the damage of the prejudice that's been done to the defendant your honor speaks to this and it requires that the court fix a remedy that is tailored to the injury suffered from the constitutional violation ok well then in that situation i don't know why reducing the sums by the length of the unconstitutional the lie that supposedly unconstitutional de laet undoes the damage that's been done by the dalai your honor it's a proportionate remedy because the defendant was denied mr benjamin was denied rehabilitation programs that aren't only good in them selves as barker recognizes but that also bear on his prospects for role on his case for parole or early release and so the fact that he was denied access to them for a significant period of time bears on his ability to try to win early release and this court has recognized that any amount of time the defendant has to spend in prison as a result of a sixth amendment violation is c and so we submit that it is proportionately tailored even if it isn't perfect when justice ginsburg asked you about the federal speedy trial act and you said that does not cover sentencing but there are provisions of montana law that do cover sentencing why didn't you seek relief under those your honor there are montana statutes that require that sentencing phase within a reasonable amount of time and foreclose on reasonable delay but we have been unable to find a case where the defendant was actually able to win some kind of relief on the basis of those statutes as the montana supreme court decision below reflects the court's view there was that those statutes incorporate d so and so it would be due process principles that provided the relief and we haven't found any case that gives any free standing independent relief on the basis of those statutes if you look at the rule thirty two cases because you are wearing a claim under those the prosecution offered that kind of evidence it would weigh in the balance and barker itself discussed the status it notes that the speedy trial clause is unusual in that delay in some instances may benefit of the defendant but  where mr betterman has submitted an affidavit and also in the initial motion detail the prejudice that he suffered from this delay inability to access these programs that he was ordered to complete as part of the suspended portion of his sentence that under montana regulations would bear directly on his case for parole the prejudice is palpable it resonates strongly with parker itself and with smith v who we were the court noted that even if you're incarcerated on a prior charge you may yet suffer prejudice as a result of delay in a subsequent prosecution so back to just a sort of my orse question about vas and about the difference between these two tests we submit that if you compare the outcome here and compare the outcome and bearcat were tech involve the defendant who advanced a very similar theory of prejudice the theory was he was denied access to rehabilitation programs and that he suffered anxiety the defendant testified to that effect and the third circuit concluded that in the absence of contrary evidence that that was enough to state or to show a sixth amendment violation whereas in the court when the decision below the montana supreme court place the burden squarely on mr betterman to make an affirmative showing of substantial prejudice so even though he submitted this affidavit that detailed the prejudice montana supreme court deemed it speculate my problem is with this use of language prejudice is prejudice and they are there seem to be arguing that substantial prejudice means something like actual damages the the point is something that i've actually been damaged by either having served longer than the sentence i or something else like that but why are you even taking on the substantial damage definition why aren't you just arguing that prejudice is prejudice well that is your honor but love vasco actually uses the word so the the way that parker approaches prejudice could be actionable under the due process clause that would be a different story but simply not the way that lower courts have had it have examined it that would effectively give a defendant sixth are no further questions like to preserve balance thank you counsel that purpose is consistent with the text in history of the clause it's consistent with the remedy this court has said must apply the speedy trial violations and importantly it leaves the thing is with other means of challenging unjustified syncing away without the court to modify both the test and the remedy for a speedy trial violation this retrial causes unique among six around the rights because it goes to the heart of the government's authority to try a presumptively innocent defendant at all if the after conviction none of the interests that are supported by the speech clause apply for example there can be no anxiety over public accusation because the accusation has been confirmed at the moment of conviction to present mitigating evidence at sentencing because of the passage of time my last witness that that may be one example if he's if he's serving a if he's awaiting sentencing for a time longer than the maximum thousand and fourteen conditioned on that he would throw out all rehabilitation program he started the rehabilitation program and sixteen days later he quit quit i'm so his parole was rescinded and that's that's the sort of ask to be sentenced the defense in this case didn't mention until nine months into the progress process that there may be some real differences between the pretrial contacts and the pre sentence and contacts but one which seems quite similar is the potential of to let to impair the defense so i guess i would like you to address that because you know as the petitioners point out in most cases these days most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage given that we don't have very many trials anymore and certainly barker and certainly docket made it very clear that this was an even if it's a similar interest so i think there's doesn't have ask a really talks about a whole different set of considerations in the pretrial context which simply don't apply once the indictment once the accusation has been  agreements so often the real action is in the plea bargain anyway and the prosecutor in the defendant agree on a sentence or a range of sentence and then and that's implemented by the judge well sometimes but there may also be real factual  disputes that might be about the amount of loss that might be about the amount of drug quantity it might be about prior bad acts it might be about a whole range of things which are the kinds of things that we actually typically think of as contested issues at trial that's true i would argue that the due process provides adequate remedy in that situation but there is a different standard too in the rules of evidence don't apply the compensation to cause doesn't apply there's no burden of proof facts beyond reasonable doubt so it is a different type of this one where you have the plus ability of a sentence between zero and ten years how do you how does the judge know whether if the don't you think that there's a lot of pressure on the judge if the defendant's hearing is the leave for eight years to say time served that really took don't you think there's he should ask to be sentenced and like you said you can always file a man in this petition in that context well this defendant asked to be sentenced faster he was so that there were other issues  court was dealing with so up all of the months were not his fault clearly not his fault it was an administrative fall if that's true there was not all the delay was his fault and i bet he didn't he didn't mention anything about wanting i still not quite sure why your definition of substantial prejudice or actual prejudice should be the controlling one i think in the course of even court lower courts that have appl don't apply and they recognize that in order to fashion a remedy in a post conviction setting different has to show prejudice in addition it takes into account that the balance has shifted the person is no longer accused but convicted and his presumption innocence has vanished assume a slowdown that there is a prompt trial then a very substantial delay in sentencing and then there's an appeal and the appeal results a new trial  the speedy trial act then apply when the defendant says my second trial was delayed or there are cases on that i don't i don't think so i think generally when chords or course are applying the way any appellate fashion a remedy just for delay i think is difficult because my friend mentioned fourteen years but the day really i mean for two months though i really wasn't for two months of unjustified delay like i said he didn't make his claim until nine months but before that know it was there or if the court took a while before to decide post conviction motions and it was and stupid all the way i don't i don't disagree with that but my point is that there's always going to be some delay in the process and so to figure out what the remedy would be simply by by including the entire fourteen months i think would be a windfall that is the finish especially in this case where he's he was receiving credit on his sentence is that typical typical for a sentencing court to give credit for time served yes it's in fact it's statutory is there any way that you can do that when you have an indeterminate range sentences zero to ten is there any way they can do that and they say it should be zero nine in this case  against a sentence in the court specifically state on the record that he took into account and applied that against against his sentence i think the courts or the judges are incapable bookmaking to terminations of a remedy held you know that it was going to be two things extraordinary delay it was an eight half year delay between when a person was indicted and they were brought to trial and then it was all there was a when the court said there was no justifiable reason looking at that in the case itself it doesn't presume prejudice because neither it analyzes whether there was or was not prejudice so i want to know where that requirement of presume prejudice comes from the first remember who he was going to call in all the witnesses will be gone and so forth so i think it's fair to say there was prejudice and such a case if that's what it's about and so if it isn't presumed all the time do you have any objection as he apparently does not have any objection to our saying you're right it's the due process clause now you know applying the due process clause to cases where the sentencing has been unduly delayed or that is the claim you the court should apply the factors as set out in barker versus when you go and there's a couple problems with that one that barker was specifically designed to take into quote that sentence and say those are the factors that should be taken into account under the due process clause do you have any objection to that prejudice needs to take the forefront and that analysis and as you just reverse the four well the problem  okers that held holds that i mean the post conviction saying is that none of the factors are necessary so prejudice doesn't necessarily have to be shown in barker lower courts have modified that and said in the  to show prejudice and the test that lower courts use the barque the modified barker test looks a lot like the waskow in fact i'd say it's indistinguishable because prejudice and prejudice is the key to the answer your question justice prior to that in a appendix sixty six and sixty eight where he made his claim of prejudice in the space of a couple of paragraphs and this is sort of the straights the problem the state has and rebutting claims of prejudice that aren't substantiated he didn't file his his  that might present some challenges but there are also challenges on the other side it's often hard to show that people have forgotten things that you know they've forgotten them so unless there's something like a witness  it's very difficult to make the kind of showing that you were suggesting and that's why barker you know left things flexible and said you know in most cases we really are going to look at prejudice we're going to see what you have to say for yourself in some extreme cases we're not going to do that so again i guess with justice briar's question it's yes this is a different context but why don't all the same considerations apply the court is there ever a presume simply that parker says it's not always necessary to show prejudice that there are extreme circumstances in which we'll just take that for granted i don't think that takes into consideration the change that happens it can conviction and this is substantial rule has to do with impairment of the ability to defend yourself and if you think that that kind of consideration applies just as well at the sentencing phase as it does at the conviction stage maybe in most cases more so given that most of the action these days takes place in the sentencing i guess i just wouldn't see why there is any need for a different rule especially given the level of flexibility that parker gives not by parker says we're presuming prejudice in all circumstances parker is saying prejudice is one of the four factors and it's a very i'm important one and usually will expect people to come in with some kind of show it except for in extreme cases when not i think comes down to remedy i mean the remedy for a speedy trial violation is dismissal and so in the post conviction that's what we said in barker when we were talking about a pretrial case but the remedy in this case would be different right but it be more difficult if the defendant doesn't have to show prejudice i courts usually usually require some show when it comes to to the determination of facts of the role of at sentencing that does not take place exclusively or probably even though it doesn't take place  primarily at the time when the sentence is pronounced as in the corrected it takes place during the preparation of the pre sentence report at least in the federal system is not true in montana as well may answer is yes yes justice zander's mr chief justice and may please the court and to go right to justice cain's concern about the possibility that a defendant's defense at sentencing could be impaired we think the due process analysis is adequate to address that and we think that's so because although the defendant has to show prejudice the prejudice standard for essentially be the same one that applies in cases of other violations of constitutional rights that may affect the defendant's ability to defend at sentencing and that is the defendant should have to show that there's a reasonable probability that the result would have been different the outcome would have been different that is the same standard that you used in cases of brady violations of ineffective assistance of counsel it's one that doesn't require the defendant to show by preponderance that he would have received a different sentence or anything like that he just has to show that he suffered prejudice that that when you when you take all the evidence into account it puts the outcome in a different and how do you see that it's different from what goes on under the barker analysis well i think under barker the court does allow for prejudice to be presumed in some cases so the defendant does not have to show make any kind of concrete or particular a showing a prejudice we think that that in the case of sentencing prejudice and sentencing this is defendant should have to show some concrete you know effect some concrete effect but i take it that we've said that that's the case where the super long so take a delay of eight or ten years and you know why is it in that very extreme circumstance that the defendant should make that the defendant should have to make any particular rise chelan well i think the defendant may well be able to make a particular right showing in that case but i think i think there are two primary reasons that it's just not appropriate in any case for prisoners to be presumed at sentencing and the first one of those is that i think you know the constitutional rule has to take into account the wide range of s proceeding cyr so we're talking about pretrial delay and you know all trials involve historical facts that in theory could be affected could be prejudiced by de lay that's not the case of all sentencing hearings there are fully discretionary systems where historical facts would not have as great an effect there are some things that turn mostly on the carriage present characteristics of the defendant rather than on on historical facts so i think i think pretty should not be presumed in any case but in a situation where the defendant actually will be  affected the process analysis is tailored enough to allow him to have relief in that situation and i think the second reason it's not appropriate ever to presume a prejudice at sentencing is that the conviction changes everything at once and once a defendant has been convicted strong societal interest in giving him an appropriate sentence and so to give him a remedy for pre sentencing to lay i think in involved generally the remedy is going to involve lowering what would otherwise be an appropriate sentence so in that context i think it's appropriate to require the defendant to show some actual injury in order to justify the societal cost of lowering an otherwise appropriate sentence in the in the federal system the judges typically give credit for times  rule would apply to capital cases as well i think capital cases may be different if the court has said that in some context for instance double jeopardy the capital sentencing central in some respects and extension of the trial so in that situation you may see the same thing risk with respect to speedy trial claims as well i'm sorry could you say it's a little bit more than that you would you would say because the penalty phase really is a trial i think there are some respects in which you treat the penalty phase as a as an extension of the trial  yes i think if i have that the other reason that it's not appropriate to presume prejudice at sentencing is that in the pre indictment context force the court has said that the core interests of the speedy trial clause aren't implicated and therefore even though that kind of point the defendant doesn't have a cognizable liberty interest a cognizable interest in avoiding the the detriments that can be imposed on him as a result of the conviction and as an incident of the sentence if we take out the presume creators which is not part of well i think that i think there's one other difference i think in the two approaches aside from the presumed prejudice and that is what counts as cognizable prejudice so i think in the due process context the course said in marion that the type of prejudice we're concerned about is actual prejudice to the defense of a criminal case for the pretrial right but what we think what that means in the sentencing context is that the defendant should have to show a concrete effect on his defense of sentencing in other words the probability that the result would have been different or you know that he's been serving longer time and then he should have been but i think it also means that things like you know access to rehabilitation programs anxiety that those would not be independently cognizable as prejudice under the due process inquiry  that that if they defend it was writing to a judge every week saying i'm anxious i really need to know what my senses of the judge ignores it for a period of time that that the friend still has to prove something more that's not the entitle to any consideration by the trial court or that we should be poring the trial court from considering the two points of perspective that i mean certainly if that if if a defendant is asking for sentencing and the court is ignoring that that would be inappropriate the defendant would obviously have to have other remedies i think at that point after requesting sentencing perhaps mandamus perhaps a havey this petition but if all if the only prejudice that he's claiming is there as i did then then yes i do think that that would not become knights of under due process and i think that's that's really because once a defendant has been convicted he kempton now can be sentenced he can be subject to the practical deprivations that are an incident of sentence and i'd i think that after he's been sentenced of course he doesn't have an interest in not being anxious that kind of thing and so i think you'd be very odd to say that he has a a a sentencing delay related interest in that kind of claim that could be the basis for a constitutional violation sanders i'm sorry we want to the things that strikes me as odd about your argument is that you are suggesting that a remedy would be appropriate in certain circumstances you just want to put this under the due process clause and what's what's odd is that as you say that in this post conviction context the president the defendant has been deprived of any liberty interest and yet at the due process clause talks about a deprivation of liberty but the defendant no longer has the liberty interest so it seems a very odd place to park this right and this remedy the due process clause in this contest it seems much more natural that you would do it under the speedy trial clause on the assumption on the on the view that the that the trial guilt and the determination of the proper sentence well two points with respect to that i think if the court were to say to you to to use the standard that we proposed so essentially no presume prejudice remedy but i do think after a defendant has been convicted the societal interests have shifted and that's why it's appropriate i think to apply due process the defendant has a liberty interest in the length of his sentence he hasn't he has a due process interest in a fundamentally fair sentencing proceeding and so we think due process nicely captures that interest that the defendant has and so the court has said before before us before a speedy trial kicks in due process applies and it provides a right and we think that after the defendant no longer has the interest protected by the have ten minutes for me the standard for prejudice articulated by the united states shows well why do process protections are ill suited to the specific interest protected by the speedy trial right the united states  that the defendant would have to show that the outcome would have been different consistent with the vasco the only form of prejudice that would be cognizable under that test is in effect on the defendant's defense that sentence but  and smithy who also illustrates there are other forms of prejudice that are specific to the speedy trial clause that may apply to a defendant and indeed may apply to a defendant even after they've been convicted so for example in smith we the defendant had already been incarcerated on a prior federal charge that defendant's liberty interest were already impinged and yet the court noted that the delay from the follow on prosecution could still prejudice him so this notion that you would adequately suited justice kagan's question points to another anomaly in the test that has been proposed by the government because of this focus on liberty interests and smithy who eat the defendant in oregon i suppose if it isn't liberty is not incorporated into the fourteenth amendment anyway yes yes your honor but bit of the stick the moment applies only to the federal government and it's only because of the fourteenth amendment liberty that applies to the states a liberty is yes honor but the position that the state of montana in the united states of taking is that at sentencing once a defendant has been convicted they don't have a specific liberty interest of the kind that was recognized in barker and the kind that was recognized in smith v huey and that is the interest in rehabilitation in accessing rehabilitation programs that could be affected by a delay in a prosecution liberty is certainly affected he's in jail so he's sitting there in jail tell him you're free i don't leave believes it and then the question is is at some point he's being in jail of deprivation of his liberty without due process because the d point is simply that the speedy trial test that the court articulated in parker is better suited to the specific forms of prejudice that are at issue in this case because it addresses this concern with a even  defendant who has been guilty accessing rehabilitation programs or the anxiety that that defendant may feel at the sentencing stage and this gets to another point that the united states me and that is that the conviction changes everything because the concerns of the court didn't bark or maybe get more significant at the sentencing stage given that most convictions today result from guilty pleas and so the fact that a defendant their defense may be impaired by a delay  in criminal proceedings may be more significant at the sentencing stage because it may be the only place where the defendant challenges an operative just meant or contest facts the fact that defendant may need to access rehabilitation programs would be more pronounce barker's the appropriate framework the park proper right to ground that analysis in is the sixth amendment and not the due process clause and that is particularly so because of the antecedents of the due process clause which apart which the right is rooted in this practice of circuit justices writing into the countryside in resolving cases not just presiding over jury trials but resolving cases they had the power to hear and decide those cases their jurisdiction was from the beginning of the prosecution through the end so we think that sixth amendment is the appropriate basis for this right now at the time of the adoption of the sixth amendment weren't posts trial but pre sentencing delays fairly common general rule the sentencing did take place soon after that the jury issued its verdict and oftentimes immediately in the cases that we catalog in our appendix illustrate the point but it's not just that is the court has recognized the sentence was usually automatic it flowed from the jury verdict and so on that that's just not true as an historical matter well that's not true as a historical matter if you look at the at the the first criminal provisions that were enacted by congress they called for  a range of sentences and they and the trial and the sentencing judge had to select within that range just as lee i'm talking about the early eighteenth century not when you say that it was automatic your honor i'm referring to the observations that this court is made in the opinion line of cases and it is the early part of the century because the court has noted i'm sorry in the early part of the nineteenth century because the court has noted states started to adopt statutes that gave sentencing courts more discretion but certainly a common law certainly at the time of the founding the court noted that typically the verdict dictated the sentence and so this right that was great that just isn't true we don't have the right to change history it isn't true the first if you look at the very first criminal provisions that were enacted by congress the first congress they were not it was not to term it sounds your honor many of the for many crimes serious crimes common even for some that today we would consider  not so serious usually the penalty was death and so there was this close relationship the court has called it a close relationship between the verdict and sentencing and we submit that that together with the way that the process was consulted w conducted shows that the right was created to cover the whole proceeding through the imposition or pronouncement of sentence there are no further questions thank you counsel