II. STATUTES OF LIMITATIONS IN CRIMINAL RICO CASES
A. History and Justifications
At common law, the king could bring a criminal prosecution at any time, as the rule was nullum tempus occurit regi. (51) The first American criminal statute of limitations appeared in the Colony of Massachusetts in 1652. (52) The First Congress passed a similar law applicable to federal offenses in 1790. (53) This first federal criminal statute of limitations set a short limitations period--two years for non-capital offenses and three years for capital offenses (willful murder and forgery excepted). (54) Congress has extended this general period over the years, (55) and now, various crimes specify a different, usually longer, limitations period. (56)
Criminal statutes of limitations limit the exposure of an individual to prosecution to a certain period following the commission of the crime. (57) The purpose of criminal statutes of limitations is to balance the interest of the government in prosecuting crimes against the interest of the defendant in not having to answer "overly stale criminal charges" (58) along with general considerations of fairness and efficiency. (59) The state possesses a strong interest in prosecuting crimes for the protection and maintenance of society, and in recent years, legislators have placed more emphasis on just deserts as a justification for criminal punishment as well as on victims' rights. (60) Statutes of limitations by their nature prevent punishment, sometimes "arbitrarily" (61) allowing a criminal to escape prosecution. Thus, many people mistakenly see statutes of limitations as only preventing criminals from receiving their just deserts and as a barrier to vindicating victims' fights.
If the government's interest in prosecuting crimes, and the goals of just deserts and victims' rights were the only considerations, statutes of limitations might well be "arbitrary," but other weighty considerations argue in favor of having time-bars to prosecution. (62) As time passes after the commission of a crime, and "basic facts ... [are] obscured by the passage of time," (63) just deserts is no longer a valid consideration, and victims' rights are problematic. In fact, the presumption is that a "fair"--either in the sense of accurate or consistent with a proper balance between the power of the state and the individual in a free society--trial is not possible. (64) Even if a fair trial were possible, when a long time passes between the commission of a crime and its prosecution, the perpetrator may have reformed his life and become a productive member of society, or changed so drastically that he is, at least arguably, in a psychological sense, not the "same" person who committed the crime. (65) In that case, a prosecution is arguably unfair, and might do more harm than good. (66)
Statutes of limitations benefit society as well as the accused. They encourage "law enforcement officials promptly to investigate suspected criminal activity," (67) to devote their limited resources to solving recent crimes that pose an immediate threat to society, because of repetition, as from recidivists come most offenses. (68) Statutes of limitations also incentivize law enforcement efficiency by keeping stale cases out of over-taxed court systems (69) and providing a bright-line rule guiding when a prosecutor can and cannot bring a case. (70) Finally, statutes of limitations offer repose to society, the alleged perpetrator, and the victim. (71) In the United States, most jurisdictions have statutes of limitations that bar prosecution after the stated period elapses. (72) In determining the appropriate period of limitations, when the limitations period should accrue, and when it should toll, courts, and legislatures ought to take into account the factors that militate for and against having a period of limitations for any set period. Every extension of the limitations period, every tolling rule, and every accrual rule that starts the limitations period running later tends to undermine the purposes of having statutes of limitations in the first place. …