Unraveling criminal statutes of limitations.

• Author: Powell, Lindsey

INTRODUCTION I. THE GENERAL RULE AND ITS EXCEPTIONS A. A Brief History and Overview of the General Rule B. The New Trend Toward Exceptions II. REASONS FOR THE RULE AND ITS EXCEPTIONS A. Traditional Rationales B. Fitting the Changing Rule to Traditional Rationales? C. Explaining the Shift: Retributivism and Victims' Rights III. A RULE-BASED APPROACH TO RESTORING THE BALANCE A. Disadvantages Typical of a Rule-Based Approach B. Additional Disadvantages of a Rule-Based Approach to Preindictment Delay IV. AN ALTERNATIVE APPROACH TO RESTORING THE BALANCE A. Advantages and Disadvantages of a Hybrid Approach B. Learning from Existing Models C. A Proposal for Going Forward CONCLUSION APPENDIX: TIMELINE OF THE RULE AND ITS EXCEPTIONS INTRODUCTION

Criminal statutes of limitations, which have been a hallmark of American law since the Founding, (1) are meant to "represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice." (2) Without interfering unduly with the state's ability to prosecute offenses, limitations periods are designed to further two sets of interests. First, they are intended to promote fairness by "protect[ing] individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time" and by providing for repose. (3) Second, they are meant to improve efficiency by encouraging government agents "promptly to investigate suspected criminal activity" (4) and by limiting the need for case-by-case inquiry into the appropriateness of prosecution. (5) The rules are additionally thought to further both of those interests by making the circumstances of prosecution more predictable. (6) Because legislative history for the federal rule is "meagre," (7) the rule's purpose has been articulated over the years primarily by courts and commentators (but it bears mentioning that Congress has never corrected those articulations or suggested an alternate purpose).

Although offense patterns, forensic science, law enforcement, and prosecution have seen innumerable changes since 1790, when Congress first promulgated the criminal statute of limitations, the default period of limitation has changed very little. The rule originally provided that the indictment for most crimes must be brought within two years of commission of the offense. (8) The limitations period was extended in 1876 from two years to three, (9) and again in 1954 from three years to five, (10) which remains the limitations period for most federal offenses. (11) It is unclear what motivated each instance of reform, but little on the face of the statute or in the legislative history suggests that Congress sought either to adjust the balance of interests the rule is meant to reflect or to respond to the changing circumstances of crime and its prosecution. As one commentator has noted, Congress seems to have amended the limitations period "with little consideration of the aims which the limitations should achieve." (12)

In addition to periodically extending the general limitations period, Congress has from time to time created specific-offense exceptions to that rule. Indeed, the practice of creating exceptions to the rule is almost as old as the rule itself. (13) Some of those exceptions provide for shorter periods of limitation, but more commonly they extend the window for indictment. (14)

Exceptions that substantially extend the limitations period threaten to undermine the interests the rule is meant to protect. Commentators have long noted mat "the development of exceptions and devices for avoiding the statutes has curtailed the protection which such statutes should offer." (15) Despite such warnings, the trend toward exceptions has only accelerated, and the last two decades have witnessed an unprecedented rash of new exceptions, extensions, and tolling rules. (16) As with extensions of the duration of the general rule, there is no evidence that these specific-offense exceptions are driven by, or even consistent with, the interests that criminal statutes of limitations are traditionally thought to further. (17)

This trend toward exceptions underscores the fundamental arbitrariness of limitations periods. "Statutes of limitations always have vexed the philosophical mind for it is difficult to fit them into a completely logical and symmetrical system of law," (18) and the parameters of the general rule applicable to most offenses are not easy to justify: Why is a five-year period any more appropriate than a three- or ten-year period? Is a single limitations period really appropriate for most offenses? Do the minor amendments to the general rule enacted since 1790 properly take into account changes in American society and law enforcement since that time as they are relevant to the balancing of interests that limitations periods are meant to achieve? Moreover, even if we were to assume that it is appropriate to have a general rule that applies to most offenses and that the current five-year period is a fitting term, many of the exceptions to that rule are (to varying degrees) difficult to explain. For instance, how can we reconcile the complete lack of a federal limitations period for homicide (including felony murder) with the mere five-year limitation on the prosecution of other serious offenses? And, if the gravity of the offense is to be one of the organizing principles of the limitations regime, should the scheme distinguish not only capital from non-capital offenses, but also, e.g., petty theft from aggravated robbery? Many of the recently created exceptions are still more difficult to explain.

Of course, any duration selected for a limitations period will necessarily be somewhat arbitrary. (19) There is no science for calculating the precise duration that most fairly balances the relevant competing interests for each crime, nor is it even clear that such a duration exists. But Congress should at least "attempt to weigh all factors which may affect the achievement of the aims of limitations statutes" and to explain decisions to amend the rule by reference to those aims. (20) A statute of limitations, like any other law, "should be determined by the legislative goals and purposes underlying" the law. (21)

But the shortcomings of limitations periods are not limited to the inevitable arbitrariness of their duration. By mechanically dictating a particular outcome where a fair balancing of the relevant interests demands another, statutes of limitations create arbitrary results; they prevent some prosecutions that would be in the public interest while permitting others to go forward even though preindictment delay might produce injustice. (21) Because the rule does not allow courts or prosecutors to consider the effect of delay in determining whether prosecution is appropriate, after the statutory period has lapsed the rule bars even those prosecutions that present little to no risk of delay-created prejudice to the defendant. In such instances, the statute of limitations operates as a senseless bar to prosecution (which likely explains in part the growing public dissatisfaction with such rules (23)).

The recent case against two former New York City detectives associated with the Gambino crime family who were convicted by a jury on racketeering charges demonstrates the effect of this inevitable arbitrariness. Although the judge in that case agreed with the jury that "[t]he evidence presented at trial overwhelmingly established the defendants' participation in a large number of heinous and violent crimes, including eight murders," and showed that, "[w]hile serving as New York City police detectives, the defendants used their badges not in service of the public, but in aid of organized crime," he held that the five-year federal statute of limitations "mandate[d] granting the defendants a judgment of acquittal." (24) The judge discussed at length the legal standards for determining when a crime is complete for purposes of running the limitations period, (25) but he of course did not consider the effect of delay on the defendants' ability to produce evidence in their defense or whether application of the rule would actually further any of the other interests it is meant to protect, because the statute of limitations does not permit judges to balance the competing interests in individual cases. Indeed, the very purpose of the rule (as is the case with rules in general) is to eliminate the need for such individualized analysis. But the absence of that analysis is vexing nonetheless, as the only interests that application of the statute of limitations may have furthered in this case are those of predictability and repose--interests that may not outweigh the particularly strong interest in prosecution. (26)

In addition to preventing the prosecution of some offenses that it is in the public interest to punish, the criminal statute of limitations permits prosecution of some crimes even after the evidence has become stale or prosecution is otherwise inconsistent with the interests the statute is meant to protect. Over-reliance on the rule has also undermined protections for defendants by precipitating an unduly watered-down conception of due process for preindictment delay claims. Formally, the "statute of limitations does not fully define [defendants'] rights with respect to the events occurring prior to indictment," (27) and defendants may claim that preindictment delay short of that permitted by the statute of limitations is nonetheless so prejudicial and unjustified that it violates their due process rights. (28) But the role of the Due Process Clause in protecting defendants against prejudicial delay is very limited. (29) The Supreme Court has long stated a policy of avoiding constitutional preindictment delay questions by shrugging responsibility onto the statute of limitations as "the primary guarantee against bringing overly stale...