The opinion of the court was delivered by: Justice McMORROW
We are asked to decide whether defendant Anthony Crane's constitutional right to a speedy retrial was violated when 26 months elapsed between the time the appellate court reversed defendant's conviction for murder and defendant filed his motion for dismissal on speedy-retrial grounds. After balancing the opposing interests in light of the circumstances of this case, we conclude defendant's constitutional right to a speedy retrial was not violated.
Defendant was arrested on October 31, 1989, for possession of drugs. While in custody, he was questioned about a robbery and arson murder which occurred at McHugh's tavern earlier that month. On the following day, defendant gave an assistant State's Attorney a signed, handwritten statement admitting to the arson murder. Defendant was tried in the circuit court of Cook County and convicted of aggravated arson and first degree murder and sentenced to natural life imprisonment.
On May 28, 1993, the appellate court reversed the convictions (People v. Crane, 244 Ill. App. 3d 721 (1993)), finding that the testimony presented at the suppression hearing failed to establish probable cause for defendant's arrest and, consequently, that the trial court erred when it denied defendant's motion to suppress his confession. Defendant's convictions were overturned and the matter was remanded for a new trial.
The State petitioned this court for leave to appeal. We denied the petition on October 6, 1993. People v. Crane, 152 Ill. 2d 566 (1993). The State then filed a petition for a writ of certiorari with the United States Supreme Court. The appellate court's mandate was recalled pending resolution of the State's petition. 155 Ill. 2d R. 368.
On February 28, 1994, the Unites States Supreme Court denied the State's application. Upon receiving notification of the denial, the appellate court's mandate should have been reissued. See 155 Ill. 2d R. 368. However, in this case the mandate was not transmitted to the circuit court until February 2, 1995.
After the mandate was received, the case was placed on the circuit court docket. On March 15, 1995, defendant made his first appearance before the trial court. On that date, defendant's attorney was unavailable and a continuance was granted to March 21, 1995. On March 21, 1995, defendant agreed to a May 31, 1995, trial date. On May 31, 1995, defendant answered ready and demanded trial. The case was continued on the State's motion until July 31, 1995. On July 31, 1995, defendant moved for dismissal of the charges against him, alleging the State violated his constitutional right to a speedy retrial because "more than a reasonable length of time has elapsed since cert was denied by the U.S. Supreme Court." Defendant also alleged his statutory right to a speedy retrial was violated because "more than 120 days has elapsed since [his] case was remanded." On September 7, 1995, the trial court denied defendant's motion for dismissal, giving no explanation for its decision.
After other pretrial issues were resolved, defendant's second trial commenced on October 15, 1996. *fn1 Defendant again was found guilty of first degree murder and aggravated arson. He later was sentenced to a term of 75 years' imprisonment on the murder conviction and a concurrent term of 30 years' imprisonment for the aggravated arson.
On appeal, the appellate court reversed defendant's convictions. 307 Ill. App. 3d 816. Applying the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the appellate court ruled that defendant's constitutional right to a speedy retrial had been violated. In assessing defendant's claim, the appellate court held: the delay in bringing defendant to trial after his convictions were reversed-a period of 26 months until defendant moved for dismissal-was presumptively prejudicial; that defendant did not waive his right to a speedy trial by his inaction; and that defendant was severely prejudiced because he remained incarcerated during the entire 26-month period. In addition, the appellate court held the unexplained delay of 11 months, though not a deliberate attempt to circumvent defendant's speedy-trial rights, was unjustified. Based on this unexcused "lengthy delay," the appellate court concluded that defendant had been denied his constitutional right to a speedy trial and dismissed the indictment.
We granted the State's petition for leave to appeal. 177 Ill. 2d R. 315(a).
Both the United States Constitution and the Constitution of Illinois guarantee to anyone accused of a crime the right to a speedy trial. See U.S. Const., amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"); Ill. Const. 1970, art. I, §8 ("In criminal prosecutions, the accused shall have the right *** to have a speedy public trial by an impartial jury"). The sixth amendment right to a speedy trial is fundamental and, like other sixth amendment rights, is made applicable to the states by the due process clause of the fourteenth amendment. See Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967).
Although it had long been held that determining whether an accused had been denied the constitutional right to a speedy trial depended on "circumstances" (Beavers v. Haubert, 198 U.S. 77, 87, 49 L. Ed. 950, 954, 25 S. Ct. 573, 576 (1905)), in Barker v. Wingo, the United States Supreme Court recognized that there was a need to set out "criteria by which [a constitutional] speedy trial right is to be judged." Barker, 407 U.S. at 516, 33 L. Ed. 2d at 109, 92 S. Ct. at 2185. In doing so, the Barker Court analyzed the nature of the speedy-trial right and found it was "generically different" from other constitutionally guaranteed protections. Barker, 407 U.S. at 519, 33 L. Ed. 2d at 110, 92 S. Ct. at 2186. One reason is because "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Barker, 407 U.S. at 519, 33 L. Ed. 2d at 110-11, 92 S. Ct. at 2186. Society's interests are not served, the Barker Court held, when delay in prosecution contributes to court backlog, allows defendants released on bail an opportunity to commit more crimes, prevents defendants from receiving rehabilitation, and lengthens pretrial detention, which causes overcrowding in jails and is costly. Barker, 407 U.S. at 520, 33 L. Ed. 2d at 111, 92 S. Ct. at 2187.
The speedy-trial right also differs from other rights because abridgment of the right to a speedy trial may, at times, work to the advantage of the accused and against the State. Barker, 407 U.S. at 521, 33 L. Ed. 2d at 111, 92 S. Ct. at 2187. Delay is often used as a defense tactic. For this reason, the Barker Court observed, "deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself." Barker, 407 U.S. at 521, 33 L. Ed. 2d at 112, 92 S. Ct. at 2187.
Finally, the Barker Court noted that the right to a speedy trial is "a more vague concept than other procedural rules," which makes it "impossible to determine with precision when the right has been denied." Barker, 407 U.S. at 521, 33 L. Ed. 2d at 112, 92 S. Ct. at 2187. Instead, determining whether an accused's constitutional right to a speedy trial has been violated "necessitates a functional analysis of the right in the particular context of the case." Barker, 407 U.S. at 522, 33 L. Ed. 2d at 112, 92 S. Ct. at 2188. Because of the seriousness of the remedy-"a defendant who may be guilty of a serious crime will go free, without having been tried"-the right to a speedy trial should always be in balance, and not inconsistent, with the rights of public justice. Barker, 407 U.S. at 522, 33 L. Ed. 2d at 112, 92 S. Ct. at 2188.
The indistinct quality of the constitutional speedy-trial right has been recognized by this court. In People v. Henry, 47 Ill. 2d 312, 316 (1970), we held the constitutional right to a speedy trial "cannot be defined in terms of an absolute or precise standard of time, within which an accused must be given trial." In People v. Bazzell, 68 Ill. 2d 177, 181 (1977), we announced that whenever a constitutional speedy- trial claim has been raised, "[t]he record in its totality must be examined to ascertain whether the defendant has enjoyed the right guaranteed by the constitution."
In an attempt to provide some structure for a court's inquiry into whether an individual has been deprived of his constitutional speedy- trial right, the Barker court identified four factors that may be considered: the length of the delay; the reasons for the delay; the prejudice, if any, to the defendant; and defendant's assertion of his right. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17, 92 S. Ct. at 2192. Deciding whether a defendant's constitutional right to a speedy trial has been violated requires a balancing of these four factors. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17, 92 S. Ct. at 2192; Bazzell, 68 Ill. 2d at 182-83; Henry, 47 Ill. 2d at 316.
Because of the imprecise nature of the constitutional guarantee to a speedy trial, our legislature enacted section 103-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West 1998)). This statute specifies certain time periods within which a defendant must be brought to trial. The statute implements the constitutional guarantee, but is not equivalent to, or coextensive with, the constitutional right. People v. Staten, 159 Ill. 2d 419 (1994); Bazzell, 68 Ill. 2d at 181. When a defendant asserts a violation of his statutory right to a speedy trial, the statute " `operates to prevent the constitutional claim from arising except in cases involving prolonged delay or novel issues.' " People v. Anderson, 53 Ill. 2d 437, 441 (1973), quoting People v. Stuckey, 34 Ill. 2d 521, 523 (1966).
In this appeal, the only issue presented to this court is whether defendant's constitutional speedy-retrial right has been violated. *fn2
As a preliminary matter, we address the dispute over the proper standard for review. We have held that "[w]hether an accused has been denied a speedy trial within the constitution is a judicial question," unrestricted by legislative time limitations. Bazzell, 68 Ill. 2d at 181. However, the degree of deference to be paid a lower court's determination ...