Contemporary prosecutions of civil rights era crimes: an argument against retroactive application of statute of limitations amendments.

• Author: Rowe, Michael

1. INTRODUCTION

   Racial tensions in the South and especially those in Mississippi boiled over in the summer of 1964, partly as a result of the convergence of the Freedom Summer volunteers on the state and the imminent passage of the Civil Rights Act of 1964. (1) One newspaper account described Mississippi as a "besieged fortress" where "[c]rosses were burned in 64 of the state's 82 counties the night of April 24." (2) Pervasive racism also infiltrated many levels of state government, which included both non-violent, silent support and violent, public support of racial segregation in public schools and public accommodations. (3) Partially as a response to the perceived equalization of the races, the Ku Klux Klan received significant support not just from ordinary citizens, but also from sympathizers entrenched within certain state and local law enforcement agencies. These embedded Klan sympathizers "provided both protection against prosecution and the appearance that Klan activities--to some extent--were conducted under color of state law." (4)

   In the six months prior to May 26, 1964, five African Americans were reported as murdered in a five-county radius in the southern corner of Mississippi. (5) Less than one month later, three Freedom Summer volunteers--Michael Schwerner, Andrew Goodman, and James E. Cheney--were reported missing in what was to become perhaps the most famous of the Civil Rights Era murders, the "Mississippi Burning" case. (6) Among the racially motivated murders that summer were the May 2, 1964 murders of Charles Moore and Henry Hezekiah Dee, a college student and local laborer, respectively. (7) On the day of their murders, Moore and Dee were hitchhiking when a Volkswagen driven by James Ford Seale stopped to pick up the two boys. A truck carrying three co-conspirators followed the Volkswagen to the national forest, where Seale and Charles Marcus Edwards, among others, tied Moore and Dee to trees and "beat them with 'bean poles,' while [a co-conspirator] interrogated them ...." (8) Moore and Dee eventually were tied to an engine block and dropped into the river, all while they were still alive. (9)

   Six months later, Seale and Edwards were arrested and charged with killing Moore and Dee. (10) While in custody, Edwards confessed to taking Moore and Dee into the forest and whipping them, but nothing else, while Seale stated that he had done it but the police would have to "prove it." (11) District Attorney Lenox Forman signaled his intention to bring the case before a grand jury. (12) Forman's actions all but ended the investigation, as a grand jury composed entirely of white residents of Mississippi would never bring an indictment against Edwards and Seale. (13) In fact, the charges were dismissed on January 11, 1965, only two months after the original arrest. (14)

   Even if the defendants were indicted and brought before a jury, it was unlikely that Seale and Edwards would have been convicted, given the racial divisiveness of the time. (15) In fact, almost nothing about the murders was mentioned for the next forty years, until a number of other Civil Rights Era crimes were brought to the public's attention by a variety of local and national media. (16) As a result of the renewed interest in prosecuting Civil Rights Era crimes, James Ford Seale was charged again in 2007 for the role he played in the deaths of Moore and Dee. Charles Marcus Edwards, his co-conspirator, was given immunity by federal prosecutors in exchange for his testimony against Seale. (17) The federal government indicted Seale under 18 U.S.C. [section] 1201(a) and (c) for two counts of kidnapping and one count of conspiracy to commit kidnapping. (18) Seale ultimately was found guilty on all charges and sentenced to life in prison. (19)

   The charges and conviction were predicated on the 1964 version of the statute, which identified kidnapping as a capital punishment eligible offense "if the kidnap[p]ed person has not been liberated unharmed, and if the verdict of the jury shall so recommend." (20) In conjunction with the capital nature of the kidnapping statutes, 18 U.S.C. [section] 3281 provided an unlimited statute of limitations for all federal indictments of capital offenses. (21) However, in the intervening period of time between the crime and the 2007 indictment, the Supreme Court ruled that the death penalty for [section] 1201 charges was unconstitutional. (22) As a result of that ruling, Congress amended [section] 1201 to eliminate the death penalty as a potential punishment for a [section] 1201 conviction. (23)

   The critical legal question to come from Seale's 2007 conviction is whether Civil Rights Era kidnapping prosecutions should proceed under the unlimited statute of limitations offered by the 1964 version of [section] 1201 or under the 1972 amendment to [section] 1201. This Comment addresses this issue beginning in Part II, which provides a more complete introduction to the procedural history of Seale's conviction, including the Fifth Circuit's appellate review of Seale's conviction and the Supreme Court's refusal to address the Fifth Circuit's certified question. Part II also provides a description of the changes to [section] 1201 since it was originally introduced in 1932. Part III is divided into three subparts: subpart A addresses the various tools a court may use to interpret the 1972 amendment to [section] 1201 including the general rule regarding statutory retroactivity; subpart B addresses the potential for due process violations associated with the forty-three year delay between the commission of the crime and the indictment; and subpart C addresses normative considerations for not applying the 1972 amendment retroactively. Finally, Part IV argues that the stature of limitations for Civil Rights Era kidnappings under [section] 1201 should be unlimited.

2. BACKGROUND

   A full understanding of the background of Seale's offense requires, first, an appreciation of the procedural complexity of the case, and second, a primer on how [section] 1201 has evolved in the last forty years. This Part will address both of these issues individually.

   1. PROCEDURAL POSTURE

      Procedurally, United States v. Seale took a circuitous path through the federal courts, notwithstanding the fact that it took forty-three years to bring Seale to trial in the first place. (24) As mentioned, Seale was initially convicted in the Southern District of Mississippi for two counts of kidnapping and one count of conspiracy to commit kidnapping. (25) In an oral opinion on a defense motion to drop the charges based on an expired statute of limitations, the district court focused almost exclusively on United States v. Jackson in ruling that [section] 1201 was a capital crime for purposes of Seale's criminal offense and, as such, the unlimited statute of limitations should apply. (26) Seale's attorneys appealed to the Fifth Circuit on seven different issues, including an assertion that the district court erred in denying the defense's statute of limitations motion. Seale's motion asserted that as a result of the intervening 1972 amendment to [section] 1201, a five-year statute of limitations was applicable and had since expired. (27) A three-judge panel on the Fifth Circuit only considered Seale's statute of limitations argument and unanimously voted to vacate the conviction by ruling "that the five-year limitations period made applicable to the federal kidnap[p]ing statute by the 1972 amendment applies to this case, where the alleged offense occurred in 1964 and the indictment was issued in 2007." (28)

      In November 2008, a majority of the Fifth Circuit judges voted to rehear the case en banc over a vigorous dissent by Judge Smith. (29) The following June, the en banc Fifth Circuit split nine-to-nine on whether to affirm the conviction. (30) In July, the Fifth Circuit sent a certified question to the Supreme Court, asking: "What statute of limitations applies to a prosecution under 18 U.S.C. [section] 1201 for a kidnap[p]ing offense that occurred in 1964 but was not indicted until 2007?" (31) In November 2009, the Supreme Court refused to answer the certified question over vigorous disagreement from both Justice Stevens and Justice Scalia. Justice Stevens--writing for himself and Justice Scalia--recognized the importance of the certified question and reasoned that "[a] prompt answer from this Court [would] expedite the termination of this litigation and determine whether other similar cases may be prosecuted." (32) Justice Stevens also characterized the certified question as "narrow, debatable, and important." (33) By refusing to answer the certified question, the Supreme Court effectively affirmed the district court's decision to deny Seale's statute of limitations motion. Thus, the district court's initial conviction of Seale and imposition of a life sentence were affirmed.

   2. BRIEF HISTORY OF 18 U.S.C. [section] 1201

      Equally as important as understanding the procedural complexity of Seale is an understanding of the various changes 18 U.S.C. [section] 1201 has undergone since its adoption. The statute was first enacted in 1932 as part of the Federal Kidnapping Act, which followed the outrage generated from the kidnapping of the Charles Lindbergh baby. (34) Prior to that high-profile case, kidnapping was only punishable under state law. (35) Thus, [section] 1201 created a new federal offense for kidnapping that crossed state lines. (36)

      The first major change to [section] 1201 was made in 1972 as a response to both United States v. Jackson (37) and Furman v. Georgia. (38) Jackson invalidated and severed from [section] 1201 the potential for the imposition of the death penalty for kidnapping offenses. (39) More specifically, the Court held that "[t]he statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to [a] jury trial or upon one who pleads guilty," (40) and the "inevitable effect of any...