with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.
The Court holds today that the Speedy Trial Clause of the Sixth Amendment does not apply to a Government appeal from a district court’s dismissal of an indictment, unless the defendant is incarcerated or otherwise under restraint during that appeal. The majority supports this result by equating the present case to United States v. MacDonald, 456 U. S. 1 (1982). That analysis, however, both ignores the considerable differences between this case and MacDonald and gives short shrift to the interests protected by the Speedy Trial Clause. I further disagree with the majority’s application *318of Barker v. Wingo, 407 U. S. 514 (1972), to the remaining appellate delays in this case.
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The majority concludes that when an appeal arises out of the district court’s dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is “accused,”1 and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government’s appeals. First, respondents were suffering only “[p]ublic suspicion,” ante, at 311, and not a formal accusation. Second, they were not subject to “actual restraints” on their liberty. Both of these rationales are seriously flawed.
A
In United States v. Marion, 404 U. S. 307 (1971), we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government’s suspicion, is not “the subject of public accusation,” id., at 321, and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in MacDonald, supra. In that case, military charges of murder against MacDonald, an Army officer, were dropped after an investigation. MacDonald was then given an honorable discharge, only to be indicted by a civilian grand jury nearly *319four years later for the same murders. The Court held that this delay did not implicate the speedy trial right because “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” Id., at 7. The Court reasoned that after the termination of the first formal prosecution, MacDonald was “in the same position as any other subject of a criminal investigation,” id., at 8-9, and thus was no more an “accused” than was the defendant in Marion before his arrest.
The same cannot be said of respondents in the present case.2 Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in Marion that prearrest delay is not cognizable under the Speedy Trial Clause. See 404 U. S., at 322-323. More importantly, in contrast to MacDonald, the Government has not “dropped” anything in *320this case.3 There has been at all relevant times a case on a court docket captioned United States v. Loud Hawk — I can think of no more formal indication that respondents stand accused by the Government.
The majority argues that while “the Government’s desire to prosecute [respondents] was a matter of public record,” that desire constituted only “[p]ublic suspicion” that is insufficient to call Sixth Amendment rights into play, citing Marion and MacDonald. Ante, at 311. The reason that the Government’s desire to prosecute in both of those cases did not constitute an “accusation,” however, is that the Government had not yet formalized its commitment. Indeed, in MacDonald, the Government dismissed the murder charges because it “concluded that they were untrue,” 456 U. S., at 10, n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings.
The most telling difference between this case and MacDonald, however, is the fact that respondents’ liberty could have been taken from them at any time during the Government’s *321appeal. One of the primary purposes of the speedy trial right, of course, is to prevent prolonged restraints on liberty, id., at 8; Barker v. Wingo, 407 U. S., at 532, and the absence of any possibility of such restraints was a vital part of our MacDonald holding. See 456 U. S., at 9. In contrast, Congress has declared explicitly, in 18 U. S. C. §3731, that a person in respondents’ position shall be subject to the same restraints as an arrested defendant awaiting trial.4 Thus the District Court had the undoubted authority to condition respondents’ release on the posting of bail, or indeed to keep them in jail throughout the appeal, see 18 U. S. C. § 3142(e) (1982 ed., Supp. III). Respondents’ release could have been accompanied by restrictions on travel, association, employment, abode, and firearms possession, or conditioned on their reporting regularly to law enforcement officers and/or keeping a curfew. See § 3142(c). Considering all the circumstances, therefore, I believe that respondents’ position is most closely analogous to that of a defendant who has been arrested but not yet indicted.
B
As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to pre-arrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government’s appeals, the automatic exclusion rule of MacDonald would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to ‘“actual restraints,’” ante, at 310, *322quoting Marion, 404 U. S., at 320 (emphasis added by majority opinion). The majority completely misreads Marion while creating a rule that is flatly inconsistent with our prior holdings.
We held in Marion that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government’s formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See id., at 316-319; see also United States v. Gouveia, 467 U. S. 180, 185-186 (1984). Although it specified detention and bail as possible deleterious effects of a formal criminal charge, Marion nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal charge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U. S., at 321, n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is “accused,” while a defendant who is arrested and released without bail, on the same evidence, is not “accused.”5
Indeed, we have rejected precisely the interpretation of Marion that the majority now adopts. In Dillingham v. United States, 423 U. S. 64 (1975) (per curiam), we held that *323Marion does not require “actual prejudice” to invoke the speedy trial right for postarrest, preindictment delay. Such “actual prejudice” included the “actual restraints” that the majority now requires. The Court of Appeals in-that case noted that the defendant was released on bond, but without any other restrictions, pending trial. After citing Marion, it held that “any increased strain on this man’s life which followed his arrest. . . does not rise to the level of substantial actual prejudice.” United States v. Palmer, 502 F. 2d 1233, 1237 (CA5 1974), rev’d sub nom. Dillingham v. United States, supra. We summarily rejected the “actual prejudice” rationale, and the majority gives no reason whatsoever for resurrecting it today.6
There can be no question that one who had been arrested and released under 18 U. S. C. § 3141(a) (1982 ed., Supp. Ill) would be entitled, under Marion, to the protections of the Speedy Trial Clause. Because respondents were by statute subject to the same restraints as that hypothetical defendant, I am at a loss to understand why they should enjoy less protection.
II
The majority also declines to hold the Government accountable for delay attributable to appeals during which respond*324ents were under indictment. In doing so the majority emphasizes the second Barker factor — the reason for the delay, see 407 U. S., at 530. Because it concludes that “[tjhere is no showing of bad faith or dilatory purpose on the Government’s. part,” the majority declines to accord any “effective weight” to this factor in the speedy trial balance. Ante, at 316. In reaching this conclusion, it virtually ignores the most obvious “reason for the delay” in this case — the fact that the Court of Appeals was unable to decide these appeals in a reasonably prompt manner.
In Barker, we explained the application of the “reason for the delay” factor as follows:
“[Djifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 407 U. S., at 531 (footnote omitted).
The majority’s application of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals,7 the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government’s behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant’s interest in fairness and society’s interest in provid*325ing swift justice. Id., at 519. Courts as well as prosecutors must necessarily work to promote those interests if they are to have any vitality. Because it is the Government as a whole — including the courts — that bears the responsibility to provide a speedy trial, the prosecutor’s good faith cannot suffice to discharge that responsibility.8
The Court of Appeals frankly admitted that “most of the delay must be attributed to the processes of this court,” 741 F. 2d 1184, 1191 (CA9 1984), a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court’s Rule 20. Yet it took over five years for the Court of Appeals to decide two appeals, one of them “expedited.” No complicated analysis is needed to identify the reason for the delay in this case.
I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to “overcrowded courts,” ibid., even at the appellate level.9 In the *326present case, the amount of time that the appeals consumed is patently unreasonable. I would therefore weigh the second Barker factor against the Government in this case.
Ill
The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of Barker v. Wingo to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent.
The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
It is also instructive to compare the present case and MacDonald with respect to another Sixth Amendment right — the right to counsel. Surely a Government appeal under 18 U. S. C. § 3731 is a “critical stage” of the prosecution, implicating the Sixth Amendment right to counsel. Cf. Evitts v. Lucey, 469 U. S. 387 (1985) (defendant in state prosecution has due process right to effective assistance of counsel on appeal, whether counsel is retained or appointed). As during other critical stages, the defendant needs an attorney during a government appeal “as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence.” Ross v. Moffitt, 417 U. S. 600, 610-611 (1974). Again, the contrast to MacDonald is striking. The defendant in that case would have had no Sixth Amendment right to counsel during the time between the dropping of the Army charges and the filing of the grand jury charges; that period was not a “critical stage” of a prosecution.
In United States v. Gouveia, 467 U. S. 180 (1984), we held that the Sixth Amendment right to counsel is satisfied in a narrower class of cases than the speedy trial right. It therefore defies logic to conclude that respondents could be protected by the former, but not the latter, during the Government’s appeal.
That neither Congress nor this Court has had any difficulty recognizing the fundamental difference between the Government’s dismissal of an indictment and the court’s dismissal, subject to appellate review, is clear from Federal Rule of Criminal Procedure 48. Subdivision (a) of that Rule permits the Government, with leave of court, to dismiss an indictment, and provides that when the indictment is dismissed, “the prosecution shall thereupon terminate.” Subdivision (b) permits the district court to dismiss an indictment, but contains no language suggesting that such action brings the prosecution to an end — nor could it, because the court’s dismissal is subject to the Government’s statutory right to appeal.
Asking whether the indictment “exists” during the appeal, while interesting from the standpoint of ontology, is of limited practical help. Yet it is significant that in the MacDonald situation the Government must go back to the grand jury and seek reindictment. When the district court dismisses an indictment, on the other hand, the court of appeals can reinstate the indictment with the stroke of a pen.
Title 18 U. S. C. §3731 provides in pertinent part: “Pending the prosecution and determination of the appeal. . . the defendant shall be released in accordance with chapter 207 of this title.” Chapter 207, 18 U. S. C. §§ 3141-3156, contains the procedures for pretrial release, and permits the district courts to impose various restraints pending trial. The Government concedes that respondents could have been incarcerated or put under other restraints during the Government’s appeals. Tr. of Oral Arg. 6, 18.
It is worth noting that the Speedy Trial Act puts time limits on the Government beginning with “the date on which [the defendant] was arrested or served with a summons,” 18 U. S. C. § 3161, without regard to the terms of the defendant’s release.
Moreover, Federal Rule of Criminal Procedure 48(b), which “provides for enforcement of the [speedy trial] right,” Pollard v. United States, 352 U. S. 354, 361, n. 7 (1957); see Marion, 404 U. S., at 319, states: “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court,... the court may dismiss the indictment, information or complaint.” That language clearly confers the same rights on a defendant who is arrested and unconditionally released as one who is released on conditions.
Apparently relying on the fact that the defendant in Dillingham, had to post a $1,500 bond, see 502 F. 2d, at 1234, the Government reads Dillingham to stand for the proposition that any restriction, no matter how insignificant, invokes the Speedy Trial Clause when no indictment is outstanding. See Tr. of Oral Arg. 19. Once again, neither the plain language of the Sixth Amendment nor any decision of this Court suggests this peculiar constitutional standard. Moreover, while an indictment and an arrest are comparable in that each one constitutes a formal assertion of probable cause, there is no such symmetry between an indictment and incarceration or posting of bond. Simply put, the position advanced by the Government and the majority lacks even internal consistency.
The only sensible reading of Dillingham is that actual restraints, like other types of prejudice to a defendant, are relevant to the speedy trial *324balance, but are not prerequisites to application of the Speedy Trial Clause. See Barker v. Wingo, 407 U. S. 514, 533 (1972).
See, e. g., United States v. Saintil, 705 F. 2d 415 (CA11 1983); United States v. Herman, 576 F. 2d 1139 (CA5 1978).
This assumes, of course, that the defendant wants a speedy trial and is not intentionally hindering the government’s attempt to provide one. That assumption may be open to question in this ease. The majority points out that respondents’ strategically timed demands for a speedy trial ring somewhat hollow in light of respondents’ overall behavior during the litigation. Were that the basis for the Court’s opinion, I might be able to accept a remand to the Court of Appeals for further consideration of that factor. I am unable, however, to agree with the majority’s analysis of the second Barker v. Wingo factor.
The majority’s focus on the prosecution’s, rather than the court’s, contribution to the delay undoubtedly comes in part from a reluctance to permit district courts to tell a court of appeals, or possibly this Court, that it has taken too long to decide a case. However, appellate courts have no privilege to decline constitutional obligations. The appellate courts would be better advised to adopt procedures for the speedy resolution of interloe-*326utory criminal appeals than to force district courts into the uncomfortable position of dismissing indictments because of appellate delay.