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Article Excerpt
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 criminal charges." (30) Accordingly, defendants are held to a high standard in making out a constitutional preindictment delay claim: "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and ... the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." (31) The standard in some circuits used to be more lenient, and courts more often undertook the type of balancing of the interests that is now so rare. (32) But as courts have placed more emphasis on rule-based statutes of limitations, the safety valve that the Due Process Clause provides--and the balancing that it permits--have fallen into disuse.
This Article examines more closely the rationales underlying the general limitations period and its exceptions and explores alternatives to the current regime. Although federal prosecutions account for only a fraction of all criminal prosecutions, the following discussion takes the federal regime as a case study because it is the largest single jurisdiction, and because the legislative histories of federal enactments are generally more complete. The federal rule and the recent changes to it are also broadly representative of state-level rules and trends, (33) and this Article should therefore supply a starting point for analysis of state regimes. Part I provides an overview of the federal rule and its exceptions, documenting in particular the unusual number of exceptions created in the last two decades. Part II examines the rationales traditionally given to justify the criminal limitations period and those given by Congress for creating exceptions to the general rule and asks whether the exceptions are consistent with the rule's purpose. That Part also suggests an explanation for the recent trend toward exceptions. Part III weighs the advantages and disadvantages of a rule-based regime and considers the respective institutional competencies of the judicial and legislative branches for determining when prosecution should be barred on account of delay. Finally, Part IV considers alternatives to the current rule and proposes a new, standard-based regime that takes into account the foregoing concerns.
I. THE GENERAL RULE AND ITS EXCEPTIONS
A. A Brief History and Overview of the General Rule
Federal law states that, "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." (34) At criminal law, statutes of limitations begin to run from the completion of the offense and are tolled by the filing of an indictment or information. (35) Equitable tolling rules have not traditionally been imported into the statutory regime, but some quasi-equitable principles are codified therein--for instance, the rule that the limitations period does not run while a person is fleeing from justice. (36)
The general absence of equitable principles from the federal criminal limitations regime likely results from the fact that criminal limitations periods did not exist at common law but rather evolved through legislative enactments and adjustments. (37) Although the rule marks a departure from the common law, it is by no means an American invention. To the contrary, ancient Roman law barred prosecution of most offenses after twenty years, (38) and that tradition was adopted by most civil law countries, (39) which today "impose a limitation on the prosecution of all crimes, the period varying with the seriousness of the crime." (40) There is no consensus among commentators as to whether the federal rule was borrowed from Roman law or British civil law, at which limitations periods have been in effect at least since the seventeenth century, (41) but in either case the law has a notable pedigree.
Whatever their source, limitations periods have long been a feature of American criminal law. And for almost as long as such rules have existed, Congress has created exceptions to them. (42) Occasionally, Congress has enacted legislation to reduce the period of limitation for a specific offense. In 1860, for instance, Congress provided that "prosecution for the seduction of a female passenger on an American vessel during the voyage shall be limited to 1 year after the vessel on which the offense was committed arrives at its destination." (43) Similarly, Congress enacted legislation in 1948 providing that criminal contempt could not be indicted more than one year after the commission of the offense. (44) Such exceptions reflect a legislative judgment that the circumstances of the offense either reduce the need for preindictment delay (e.g., because the demands of investigation will be relatively slight) or raise suspicion about delayed reporting.
Far more common than these abbreviating exceptions (particularly of late) are their period-extending counterparts. Congress has been enacting such exceptions to the general limitations period since 1804, (45) and it has continued to create new exceptions at least every few decades as circumstances seem to demand. These exceptions have historically emerged in response to changed or newly understood circumstances--most often in moments of perceived national crisis. In 1869, Congress extended the period of limitation for offenses committed in the "late rebel states" until two years after a state was restored to representation in Congress. (46) And that was only the first wartime exception to the general rule. During World War I, Congress extended the limitations period to six years for fraud against the United States, (47) and during World War II it extended the term for such offenses until three years after the termination of hostilities. (48) Since that time, Congress has created a permanent exception that provides more generally that, in the event of war, the period of limitation for certain offenses under the Uniform Code of Military Justice (including fraud against the United States) shall be suspended until three years after the termination of hostilities. (49)
The creation of such extensions has by no means been limited to instances of war. The post-war 1950s, for example, was an unusually active period for legislative adjustments to the general rule. In 1950, Congress extended to ten years the period for prosecutions under the espionage statutes and for subversive activities. (50) Only a year later, it extended to ten years the period for violations of the naturalization laws (51)--an exception that is accompanied by one of the most complete legislative histories of any exception to the general rule. Congress first explained that the rule was necessary because "successful violations of the passport laws, like other crimes perpetrated by fraud and deceit, often are not discovered until after the present statute of limitations has run," (52) making the exception appear to be motivated only by the demands of fraud investigation. However, it is clear from the record that Congress was explicitly concerned about Communist activity when it created the exception: "During the period between World War I and World War II, the Soviet Government regularly sent to various countries all over the world espionage agents and agitators traveling with fraudulent American passports which were obtained through the assistance and connivance of American Communists," and this "broad conspiracy" made passport fraud both especially pernicious and unusually difficult to discover. (53) "If none of the guilty persons had sinister motives and used the passports only for travel which was otherwise legitimate, there would not be sufficient justification for asking that the statute of limitations be extended," (54) it was only the perception of an extensive Communist conspiracy that made the extension of the limitations period necessary. Just a few years later, Congress proposed to create yet another exception to extend the limitations period to five years for "special situations involving asserted government 'scandals,"' (55) but it ultimately decided to extend the general limitations period from three years to its current five-year duration, rather than create another exception. (56) Until the late 1980s, when the current period of exception-making began, the 1950s marked the most active period of legislative adjustments to the federal rule.
B. The New Trend Toward Exceptions
Even against this backdrop of episodic change, the recent fervor with which Congress has been carving out new exceptions to the general rule is unusual. In contrast to the one or two exceptions created every few decades since the rule's inception, and even the unusual number of exceptions created in the 1950s, the past two decades have seen about a dozen new exceptions to the rule, some of them quite sweeping. Like many historical changes to the rule, some of the new exceptions appear to be motivated by a legislative perception of crisis. For instance, in 1994, shortly after the first bombing of the World Trade Center in New York, Congress increased to eight years the limitations period for terrorism offenses. (57) Congress also proposed to extend to seven years the period of limitations for arson and explosives offenses at that time, (58) but the exception was not passed until two years later, when Congress enacted legislation creating a ten-year statute of limitations for such offenses. (59) In the same spirit of responding to attack, Congress in 2001 eliminated the limitations period for any terrorist offense that "resulted in, or created a foreseeable risk of, death or serious bodily injury to another person." (60) Congress explained the provision not with regard to the rationales and interests traditionally understood to underlie limitations periods, but as a necessary step toward "[r]emoving impediments to effective prosecution" of terrorists. (61)
Although a very different type of crisis, the Savings and Loan debacle of the late 1980s similarly provoked a new exception to the federal statute of limitations. The Major Fraud Act of 1988 established the criminal offense of major procurement fraud committed against the United States and made it indictable any time within seven years of the offense--a departure from the standard five-year limitations period. (62) In enacting the new rule, Congress was concerned not only with the high volume of major fraud cases being investigated at the time, but also the "extraordinary complexity of procurement fraud cases" and the ability of law enforcement and prosecutors to indict so many complex offenses within the usual period of time. (63)
The perception that certain offenses are by their nature more complex and therefore more difficult to investigate and indict has also motivated a number of recent exceptions to the general rule. In 1994, for instance, Congress extended to ten years the limitations period for insurance fraud, noting that "[i]nsurance fraud frequently involves complex 'paper trails,' and [shorter] statutes of limitations often expire before a criminal investigation for insurance fraud can be completed." (64) Although the legislative history for the enactments is quite limited, concerns about the difficulty of discovery seem also to have motivated the exception for thefts of major artwork, enacted in 1994, which creates a twenty-year limitations period for such offenses. (65)
Evidently provoked by some combination of these concerns, Congress has also created numerous extensions to the limitations period for offenses against children. Congress first provided in 1990 that "[n]o statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years." (66) Although it was "better than a flat 5-year rule," Congress found that the new rule "remain[ed] inadequate in many cases," because it would prevent...
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