Unraveling Criminal Statutes of Limitations
Powell, Lindsey, American Criminal Law Review
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
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. …