with whom Justice Brennan and Justice Marshall join, dissenting.
This is the kind of case that reasonable judges may decide differently. The issues have been narrowed by the Government’s abandonment of the two principal arguments that it advanced in the District Court and in the Court of Appeals.1 But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there is room for disagreement between conscientious and reasonable judges. The question, however, is one that district judges are in a much better position to answer wisely than are appellate judges.
A judge who has personally participated in the series of events that culminates in an order of dismissal has a much better understanding, not only of what actually happened, but also of the significance of certain events, than does a judge who must reconstruct that history from a confusing sequence of written orders and motions. Moreover, the trial judge is privy to certain information not always reflected in the appellate record, such as her impression of the demeanor and attitude2 of the parties, her intentions in handling the future course of the proceedings, and her understanding of how *347the limited issue faced on appeal fits within the larger factual and procedural context. I am convinced that in this case the District Judge made the sort of reasoned judgment that we as appellate judges would do well not to second-guess.
This is not a case in which dismissal with prejudice resulted in a dangerous criminal promptly returning to society without suffering substantial punishment for his wrongs. Rather, the District Court only dismissed the charges dealing with narcotics violations, while denying the motion to dismiss the failure-to-appear charge.3 On that count, after respondent entered a guilty plea, the judge sentenced respondent to five years’ imprisonment, the maximum permissible sentence. That sentence was more severe than the 3-year sentence she imposed on respondent’s original codefen-dant who was found guilty on charges that paralleled the two dismissed counts.
The majority, however, declines to consider this important fact, concluding that it would have been improper for the District Judge to have given any weight to the presence of the remaining charge. I strongly disagree. Even though respondent was entitled to a presumption of innocence on the failure-to-appear charge, I believe it would be entirely proper to consider the strong possibility of conviction — given the fact that respondent’s flight occurred shortly before his case was to be tried, the fact that a failure-to-appear prosecution generally does not involve even moderately complicated *348issues of proof, and the further fact that the circumstances of his subsequent arrest and detention had been fully explored in connection with the motion to dismiss the narcotics charges — and to conclude that even if respondent was guilty of the narcotics charges, a dismissal with prejudice would not mean that he would return to society unpunished. Although “at the time the District Court decided to dismiss the drug charges against respondent, . . . the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing,” ante, at 338, the judge undoubtedly could have assumed that there was a high probability that the Government could prove its case. Nor would such an assumption have interfered with the presumption of innocence. The presumption is, after all, for the benefit of the accused and not the Government.
The majority further posits that it would have been “highly improper” for the judge in sentencing respondent on the failure-to-appear charge to consider the dismissed narcotics charges. In my view, just the contrary holds —the facts of the dismissed narcotics charges were highly relevant and should properly have been considered. The statute respondent was charged under defined two classes of violations, each carrying a different sentencing range. Under that statute, a defendant who failed to appear to face felony charges could be sentenced to up to five years’ imprisonment, while a defendant who failed to appear to face misdemeanor charges could not be sentenced to more than one year’s imprisonment. See 18 U. S. C. § 3150. For the same reason that the statute differentiated between those who fail to appear to face felony and misdemeanor charges, I would think that the severity of the pending charge would be relevant to the determination of where within the 5-year range to fix sentence. While flight to avoid a relatively minor felony charge would not generally merit a 5-year sentence (particularly in cases in which the possible sentence for the underlying charge is substantially less than five years), flight to avoid a murder trial *349might well warrant the maximum sentence. In fact, the current statute now imposes four — rather than two — possible sentencing ranges, varying more acutely with the severity of the underlying alleged offense. See 18 U. S. C. §3146 (1982 ed., Supp. IV).
In addition, the majority appears to assume that the District Judge intended to impose a higher sentence for the failure-to-appear charge based on her “untested and unsubstantiated assumption of what the facts might have been shown to be with regard to the drug charges.” Ante, at 338, n. 9. Yet, there is no basis for Court’s assumption that the judge planned to take into account the narcotics charge without informing the parties of her intention to do so and without permitting them the opportunity to proffer relevant evidence. Indeed, the concern the Court expresses today did not come to fruition in this case. Not only has respondent not complained of unfair treatment, his attorney informs us that respondent requested to be sentenced “for [his] total conduct.” Tr. of Oral Arg. 32. The greater risk of unfair treatment is presented by the possibility that respondent will now be sentenced twice for the same misconduct.
Nor can I agree with the Court’s conclusion that the District Court did not offer any “indication of the foundation for its conclusion” that the Government’s conduct leading to the Speedy Trial violation was “lackadaisical.” Ante, at 338. Of particular importance, the District Judge found that the clock ran, in part, as a result of the Marshals Service’s failure to comply with a court order from a San Mateo County judge requiring that respondent be produced in state court. See App. to Pet. for Cert. 28a, 30a. Failure to comply with a court order is certainly a serious matter, and, if anything, the District Court’s characterization of such a violation as “lackadaisical” appears understated. Although the dissenting judge on the Court of Appeals expressed the view that a state court judge cannot order that the United States Marshal produce a defendant and that respondent could have *350been transferred to state custody at any time the local authorities arrived at the San Francisco County jail with the required papers, 821 F. 2d 1377, 1387 (CA9 1987), the important issue is not whether the Marshals Service was technically in contempt, but whether the Service acted carelessly or without regard for respondent’s and the public’s interest in seeing justice administered swiftly. This is precisely the sort of issue that is more difficult for an appellate court than for a district court to address.
On the record before us, I do not know whether I would have dismissed counts I and II with prejudice had I been confronted with the issue as a district judge. As a district judge, I would know that a dismissal without prejudice would be a rather meaningless sanction unless, of course, the statutes of limitations had run, in which event the choice between dismissal with and without prejudice would itself be meaningless. I would also know — especially if I had foreknowledge of the opinion announced today — that I could best avoid reversal by adopting a consistent practice of dismissing without prejudice, even though such a practice would undermine the years of labor that have gone into enacting and construing the Speedy Trial Act. I would have assumed, however, that the choice of remedy was one that was committed to my discretion and that if I set forth a sensible explanation for my choice that it would withstand appellate review.
Although the Court’s opinion today boils down to a criticism of the adequacy of the District Judge’s explanation for her ruling, see ante, at 342-343, her opinion identifies the correct statutory criteria and, in my view, proceeds to apply them in a clear and sensible fashion. After explaining why she found the Government’s legal arguments to be without merit, she wrote:
“To summarize the above discussion, the conclusion is inescapable that the government did violate the [Speedy Trial Act (STA)]. The court rules that, even allowing the government a full ten days to effectuate the defend*351ant’s return to this district, there elapsed at least fourteen days of nonexcludable time in excess of the 70-day requirement set forth in § 3161(c)(1) prior to April 24, 1985, the date on which the government filed the superseding indictment against defendant. Therefore, pursuant to § 3162(2), Counts I and II of the . . . indictment must be dismissed. The real question is whether this dismissal should be with or without prejudice. On this point, the STA, § 3162(2), provides as follows:
“ Tn determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.’
“Regarding the first factor as applied to the instant case, there is no question that the drug violations with which the defendant is charged are serious. However, the second factor, the circumstances of the case leading to the dismissal, tends strongly to support the conclusion that the dismissal must be with prejudice. There is simply no excuse for the government’s lackadaisical behavior in this case. Despite the government’s insistence on the temporary nature of the federal custody from February 7 until February 28, 1985, the [United States Marshals Service (USMS)] did not return defendant to state authorities after the purported reason for that temporary custody had ended on February 22, 1985. Even more telling is the failure of the USMS to produce defendant on February 28, 1985 pursuant to a specific court order from a San Mateo County judge.
“After the state hold was dropped, it took the government six more days to arrange for defendant’s initial appearance before a magistrate despite the fact that he had been in federal custody in the district for almost a *352month. Nor did the order of removal issued on April 3 prompt any particular show of concern on the government’s part. Instead of responding with dispatch, the government apparently placed more value on accommodating the convenience of the USMS than on complying with the plain language of'the STA. Pursuant to the third factor, the court concludes that the administration of the STA and of justice would be seriously impaired if the court were not to respond sternly to the instant violation. If the government’s behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the STA would become a hollow guarantee. Counts I and II of the . . . indictment must be dismissed with prejudice.” App. to Pet. for Cert. 29a-31a (footnote omitted).
Congress enacted the Speedy Trial Act because of its concern that this Court’s previous interpretations of the Sixth Amendment right to a speedy trial had drained the constitutional right of any “real meaning.”4 The Judiciary Committees in both the Senate and the House of Representatives recognized that unless violations of the Act generally required dismissals with prejudice — as was the rule in several States — the Act would be unlikely to accomplish its purposes.5 As the Court correctly notes, this view was eompro-*353mised by amendments during the floor debates. See ante, at 3B4-335. The compromise, however, was one that was intended to give district judges discretion to choose the proper remedy based on factors identified in Judge Rothstein’s opinion in this case. See 120 Cong. Rec. 41777-41778 (1974) (remarks of Reps. Cohen and Dennis). If that discretion is not broad enough to sustain her decision, as the Court now concludes, the statute is surely nothing more than the “hollow guarantee” that she described.
I respectfully dissent.
The Government’s primary submission in the lower courts was that the Speedy Trial Act’s 70-day clock should have been restarted when Taylor was apprehended. See App. to Pet. for Cert. 26a-27a; 821 F. 2d 1377, 1380-1383 (CA9 1987). Its second submission was that even if the clock was not restarted, there was no violation of the Act. See App. to Pet. for Cert. 27a-29a; 821 F. 2d, at 1383-1385.
As the majority recognizes, see ante, at 338-339, the Government’s attitude concerning the administration of the Speedy Trial Act is a relevant factor in determining whether to dismiss an indictment with or without prejudice.
Although it is unlikely that he was actually unaware of the fact that the failure-to-appear charge remained pending against respondent, the opinion of the dissenting judge on the Court of Appeals incorrectly suggests on its face that no additional charges remained against respondent. He wrote: “The district court dismissed the indictment (and with it the entire case against the defendant) with prejudice. I believe this was entirely uncalled for and constituted an abuse of allowable discretion.” 821 F. 2d, at 1386 (emphasis supplied).
The mere possibility that the dissenting judge may have overlooked the fact that a charge remained against respondent illustrates the danger of second-guessing district courts in cases of this type.
The House Report notes:
“The Committee finds that the adoption of speedy trial legislation is necessary in order to give real meaning to that Sixth Amendment right. Thus far, neither the decisions of the Supreme Court nor the implementation of Rule 50(b) of the Federal Rules of Criminal Procedure, concerning plans for achieving the prompt disposition of criminal cases, provides the courts with adequate guidance on this question.” H. R. Rep. No. 93-1508, p. 11 (1974).
The House Committee on the Judiciary adopted the position of the American Bar Association concerning the need for dismissal with prejudice. See H. R. 17409, 93d Cong., 2d Sess., § 101 (1974). The Committee Report quotes the commentary accompanying the ABA Standards Relating to Speedy Trial:
*353“ ‘The position taken here is that the only effective remedy for denial of speedy trial is absolute and complete discharge. If, following undue delay in going to trial, the prosecution is free to commence prosecution again for the same offense, subject only to the running of the statute of limitations, the right to speedy trial is largely meaningless. Prosecutors who are free to commence another prosecution later have not been deterred from undue delay.’” H. R. Rep. No. 93-1508, p. 37 (1974).
As the Committee Report further notes, Judge Zirpoli, the spokesman for the Judicial Conference also endorsed this view. See id,., at 38.
Although admitting of qualification in cases involving “compelling evidence that the delay was caused by exceptional circumstances which the government and the court could not have foreseen or avoided,” S. 754, 93d Cong., 2d Sess., §101 (1974), the Senate Committee on the Judiciary agreed in principle with the position articulated by the American Bar Association, see S. Rep. No. 93-1021, p. 16 (1974). See also Speedy Trial, Hearings on S. 895 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess., 21 (1971) (statement of Sen. Hart).