concurring.
I concur rather than dissent in the decision of this case only because I feel that the elapsed arrest-to-trial time barely satisfies state and federal constitutional rights of the defendant. However, I wish to make clear that the efficient administration of justice should not tolerate an 18 and 2/3-month delay in bringing these routine drug cases to trial. As pointed out by Justice Powell in Barker v. Wingo, 407 US 514, 519, 92 S Ct 2182, 33 L Ed 2d 101 (1972), the right of an accused to a speedy trial does not address the rights of other persons in our society to have accused persons brought to trial in a prompt and efficient manner. The inability of our courts to provide a prompt trial to an accused contributes to the large backlog of cases in many Oregon courts. When cases back-up because of delay by the defendant,1 lack of preparation by the prosecution or unavailability of judges to try cases, defendants in criminal cases are enabled to negotiate for pleas to lesser offenses than they are entitled, to be released on recognizance for lengthy periods of time awaiting trial, to be handed the opportunity to commit other crimes while awaiting trial and to flee the jurisdiction. On the other hand, delay in bringing a defendant charged with a crime to trial may well affect his ability to defend himself for the same reasons that delay *380weakens a prosecution case: witnesses may die, leave the jurisdiction or commit acts and make statements which could be used for impeachment. Further, memories may fade and there is an enhanced possibility of loss of documentary or other physical evidence.
Our state constitution mandates that sentencing of convicted criminals is to be founded on reformation and not vindictive justice, Or Const, Art I, § 15. The delay between arrest and trial virtually halts any reformation or rehabilitation of the individual offender and, as a consequence, society as a whole suffers. We all recognize that if we are attempting to correct the behavior of our children that we cannot impose discipline for a bad act 18 months after the event and have any hope that the sanctions imposed will have any rehabilitative effect. If a person is guilty of a crime, then arrest, trial and final conviction must flow in a timely manner if rehabilitation is to be effective. If protection of society from dangerous offenders is the goal of the sentence, then timeliness of the conviction and ensuing sentence is all the more important. Of course, for those offenders who are incarcerated in lengthy pretrial detention, the costs of overcrowding county jails contribute to the already deplorable state of our penal institutions.
Since the defendant in this case had no prior criminal record of any kind and no history of violence, we assume the purpose of his probationary sentence was to rehabilitate him and was not imposed against him for the protection of society as being a dangerous offender.
What happened to the rehabilitation process of defendant Dykast when 560 days elapsed between his original arrest and his conviction resulting from a one-day stipulated facts trial? In this case there was evidence that the delay caused the defendant to postpone marriage plans and impeded his working capacity. He was restricted from carrying on his family’s farming operation which was already impaired due to his father’s failing health. He suffered business losses and the money that he deposited for his release was tied up in court so that he was unable to use it for his business. His defense costs mounted with each delay. He suffered mental anguish as to the uncertainty of his future and, in his words, the delay has *381“made it hard for me to make decisions” and his life was placed in a “holding pattern.”
As we said in Haynes v. Burks, 290 Or 75, 80, 619 P2d 632 (1980), the Oregon Constitution commands that “justice shall be administered * * * without delay” in all proceedings, not only in favor of a defendant in a criminal trial. To secure the rights of all the citizens of this state as well as the rights of defendants in criminal cases, the courts in this state should adopt standards as recommended by the American Bar Association, National Conference of State Trial Judges, Standards Relating to Court Delay Reduction 12, § 2.52 (1984), as follows:
“The following time standards should be adopted and compliance monitored:
‡ % ijc sfc
D. FELONY — 90% of all felony cases should be adjudicated or otherwise concluded within 120 days from the date of arrest; 98% within 180 days and 100% within one year.
MISDEMEANOR — 90% of all misdemeanors, infractions and other nonfelony cases should be adjudicated or otherwise concluded within 30 days from the date of arrest or citation and 100% within 90 days.”
Further, to ensure that these standards are maintained this court, acting through the Chief Justice, should, by the authority set forth in ORS 1.001, enact a speedy trial rule similar to that adopted by other jurisdictions. A good example of a court speedy trial rule is found in the Florida Rules of Court. That state’s Rule of Criminal Procedure 3.191(a)(1) provides that every person charged with a crime by indictment or information shall be brought to trial within 90 days if the charged be a misdemeanor, or within 175 days if the crime charged is a felony. Of course, the rule provides for exceptional circumstances, but the circumstances are indeed exceptional. They include:
“* * * (1) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) a showing by the State that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation and preparation within *382the periods of time established by this Rule; (3) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) a showing by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial; (5) a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly; (6) a showing by the State that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.”
Absent a showing of documented exceptional circumstances the charge against the accused is dismissed with prejudice and the defendant is forever discharged from the crime.
The problem of arrest-to-trial delay is not exclusively one of backlogs in our urban courts as it is in some other jurisdictions. Trial delay is also found in some rural courts in this state. For example, the Fourth Judicial District Circuit Court comprising Multnomah County has one of the most current arrest-to-trial records in the state. From January 1, 1985, to June 30, 1985, the judges in that county tried 180 trials of which 78 were court trials and 102 were jury trials, with an average elapsed time from arrest to trial of 74.5 days. Under the strong leadership of Judge Robert Paul Jones, acting as Chief Criminal Judge, the diligent efforts of pro tern Judge Thomas Price, acting as Pretrial Conference Judge, and the cooperation of the trial judges, that county was able to bring its arrest-to-trial time for felony cases from 115 days in September 1984, to 53 days in April 1985, with no increase in judicial personnel other than Judge Price and without any increase in numbers of prosecutors or defenders. These improvements were brought about by innovative internal administrative procedures. In contrast, although many of our rural county dockets are current, one of our rural counties averaged 372.5 days from arrest to trial for the same period of time. In disposing of 24 criminal cases in that county, one was tried to the court and 23 by jury trial. In Linn County, where this defendant was tried, 30 cases were tried, 9 to the court and 21 to a jury, with an average arrest-to-trial time of 106.4 days.2 That county’s record was somewhat better than the statewide *383average for arrest-to-trial in felony cases of 128.3 days for the term January 1,1985, to June 30,1985. See Statistical Report Relating to the Circuit and District Courts of the State of Oregon, compiled by the Office of the State Court Administration, Supreme Court of Oregon (First Quarter 1985).
It should be apparent that if we follow the ABA Standards Relating to Court Delay Reduction and if we adopt a rule similar to Florida’s to set specific arrest-to-trial time limits, that all the citizens of this state, including criminal defendants and crime victims, would truly reap the benefits of a “speedy trial.”
Lent and Roberts, JJ., join in this concurring opinion.As pointed out by Justice Powell in Barker v. Wingo, 407 US 514, 521, 92 S Ct 2182, 33 L Ed 2d 101, 111 (1972), delay is not an uncommon defense tactic. Many defendants could not care less if they were ever brought to trial because as the time between the commission of the crime and the trial lenghtens, prosecution witnesses may become unavailable or their memories may fade.
There is no doubt that the statistics for Linn County would have been much *383better had it not been for the fact that the district attorney’s staff was cut by two deputies because of lack of funds. The highly respected veteran district attorney of Linn County testified that the main reason for the delay in the case at bar was because of the cut in his staff, over which he had no control.