JOHN THE OBSCURE ™

By John Ruch

© 2006

On Getting Away With It: The History and Theory of Criminal Statutes of Limitations

It is a remarkable feature of American and European law that you can get away with just about any crime short of murder simply by waiting long enough.

Various laws known as statutes of limitations lay down defined periods of time after which the government cannot prosecute you, even if you mailed yourself in handcuffs to the nearest police station with a signed confession in your mouth.

I was intrigued by the air of raw, radical freedom lurking within this device, the idea of a legal system that, at a certain point, finds value in letting people get away with it. I also wondered why, if it’s such a good mechanism, it doesn’t apply to the worst crimes, where its logic would presumably hold all the more forcefully.

I said statutes of limitations are remarkable; but what I discovered is that almost no one ever makes remarks about them. They pass through law books and court decisions as a bizarre given. I couldn’t find any serious research about them less than a decade old, and very little throughout legal scholarship of all time periods.¹

Meanwhile, statutes of limitations around the country are under assault, particularly in the era of DNA evidence and new social sympathy for child sexual abuse survivors. But as forces from across the political spectrum work to lengthen the statutes’ periods or eliminate them altogether in scores of criminal cases, the historical and theoretical understandings expressed in the effort are often mistaken or half-true—that is, when history and theory are considered at all.

Most legal commentary on statutes of limitations is simply drawn from recent US Supreme Court decisions—the sort of practical, applied, precedent/opinion-based manner in which lawyers are used to working and arguing. Naturally, the court itself usually has an imperfect understanding of statutes of limitations for exactly the same reason. But the rulings also tend to be arcana-within-arcana, noting places where statutes of limitations conflict with other legal mechanisms such as the ban on retroactive punishments or a defendant’s ability to plead guilty to a lesser offense than the one he or she is charged with. As those other mechanisms are usually better understood, the rulings tend to say a lot more about them, and express more interest in defining them.

While statutes of limitations have some of the grand antiauthoritarian sweep of constitutional ideas like due process and the bar on double jeopardy, they are not themselves constitutional. They are entirely optional creations of individual legislatures (though almost every state and the federal government have them to some extent). They have been described as “legislative grace.”²

Statutes of limitations generally operate very quietly. Nobody keeps a database on how many cases go unprosecuted because of them.³ There is no evidence that statutes of limitations encourage crime (or deter it).⁴ The limitations expire on hundreds of crimes every day. You’re probably glad to know the police can’t suddenly show up with a videotape of you running a red light 10 years ago and drag you to court over it; but even more significantly, you almost certainly don’t even think about a statute of limitations protecting you at all.

Like so many mechanisms of justice, statutes of limitations leap into consciousness only when they result (or seem to result) in grave injustice. The child sexual abuse scandal in the Catholic Church is one shining recent example (though, as we’ll see, the statutes of limitations may be at best a neutral non-factor there).

As usual, such controversies tend to generate more heat than light on the subject. What I find interesting about such controversies is they seem to shock us into the realization that, as legal historian Lawrence Friedman has put it, “crime is a legal [and political] concept” that the state can create and dismiss at will.⁵ The sometimes unsettling arbitrariness of statutes of limitations makes us see the general arbitrariness of our (and of any) justice system. It is a hard thing to face and grapple with. But it is important to remember, as history shows, that statutes of limitations are an attempt to balance the system, to perfect it, to make it more just. That is not obvious, especially when most understandings of statutes of limitations come from controversies about them. At the very least, if we are to dismiss statutes of limitations as failures, we should know exactly how (or at least how badly) they are failing—as distinguished from everything else human and thus also doomed to some form of imperfection.

Modern statutes of limitations (which are present in all Western legal systems) generally involve time limits that vary with the severity of the crime; maybe one year for assault and 20 years for rape, for example. Statutes of limitations on murder are rare (nonexistent in the US); other serious, especially violent, felonies are sometimes also unlimited. The US federal government has blanket limitations on all of its prosecutions of five years, except for capital crimes, and with several other detailed tweaks in areas such as income tax evasion.

In most cases, there are provisions for “tolling,” or suspending, the statute of limitations period. For example, if a defendant becomes a fugitive from justice, or simply moves outside the court’s jurisdiction, the statute of limitations is frequently tolled until she or he returns. The limitation is also tolled when something like war or disaster prevents the courts from operating. However, many statutes of limitations also place a limit on the tolling period, often making it a maximum suspension of three years. After that, the limitation runs even if the defendant remains a fugitive, etc.

While I want our understanding of statutes of limitations to come out of their history, for perspective it is important to note the two main reasons for them articulated in modern case and legislative law, and serving as received common wisdom. Essentially, they are to protect defendants from unfair trials because of the erosion of evidence and witness memories, and to encourage swift prosecution.

I must emphasize that I’m talking about criminal statutes of limitations. There is a separate category of limitations in civil or tort law—the system of private lawsuits—which functions with different procedures and some different rationales. But we will explore both, because criminal law evolved out of tort law, and criminal limitations evolved out of tort limitations.

Another thing to emphasize is that US statutes of limitations are special. As history will show us, limitations are in some ways an inevitable mechanism that has turned up in some form everywhere. But the US established what may be the first system of general, blanket criminal limitations, and with very short time periods, from its very beginning. Exactly why and how criminal limitations became so extensive, popular and rather extreme in the US is “an interesting historical mystery.”⁶ However, it is pretty clearly more ideological than previous limitations, and undoubtedly ties into the revolutionaries’ suspicion of unlimited government power. Criminal limitations are a significant and unique part of our judicial and cultural heritage.

Some of their mystery lingers in the way they’re treated by the courts. Generally, courts view them as absolute jurisdictional bars—that the court literally has no authority over someone for the limited crime. But they are usually also willing to allow the defendant to voluntarily waive the statute of limitations’ protection. Such ambiguity reflects the lack of legal attention.

However special they are in the US, statutes of limitations are also as old as Western culture. Ancient Greece had limitations in specific types of property and contract law. (Remember, there was no criminal law per se at the time.) There are some specific surviving examples from Athens, such as a one-year limit on bringing “an action based on a guarantee” (something like the time limit on a product warranty today), a five-year limit on orphans bringing actions against their guardians, and a limit on inheritance suits that was the lifetime of the heir plus five years.⁷ The Athenians themselves credited the legendary lawgiver Solon with reputedly putting forward a “law of proscription” that called for a five-year limit on bringing contract claims.

Plato also included some limitations in his “Laws,” his idea of a utopian justice system. At least in part, they reflected some of the real-world limitations, such as the one on suits against guardians. But he also laid out limitations on property claims, including limits on seeking restitution for bad goods and for trying to regain property lost by something akin to modern adverse possession (the system under which someone effectively becomes the owner of found property by owning it for long enough).

We have very little contemporary information on why the Greeks created limitations. The degradation of evidence is usually one presumption, though it’s mostly interpolated from modern rationales. It’s likely a valid one. (And the reason we don’t know for sure is because—the evidence has degraded.)

However, Plato lays out another, related rationale in describing his property law system: “There shall be a limit of time in the case of disputed things, and he who has possession of them during a certain time shall no longer be liable to be disturbed.”⁸ This idea of social rest would become a significant part of later limitations systems under the terminology of “repose,” which in turn influenced criminal limitations. Essentially, it declares that individuals—and the court system—deserve to eventually be able to rest secure in their persons and possessions, not having to constantly fend off legal challenges, especially fraudulent ones. That’s another reason for worrying about evidence going bad; if there were no limitations, you’d have to keep records of everything you’ve ever owned in perfect condition, or risk being sued out of them.

The ancient Romans seem to have taken the Greek limitations wholesale and then established many twists of their own. The Romans had a very complex and highly evolved system of property law, especially land law. The legendary Twelve Tables of the laws of the realm set up in public in early Rome reputedly declared a two-year limit on land-related claims and a one-year limit on other property claims. (Such short periods presumably reflect a small, easily regulated community.)

Roman law included very different standards for full, noble citizens of Rome and those who lived in outlying provinces. Their property law eventually reflected these divisions with two systems something like the quasi-adverse possession rule found in Greece. While such rules aren’t statutes of limitations per se, they are certainly their forerunners and bear much of the same intent.

Special classes of property held by full Roman citizens—such as land in Rome—were covered by usucapio. If you acquired that type of property, you still had to wait—usually a year—before you actually owned it. During that time, you were subject to reclamation actions from the former owner and so forth. But after that time, it was fully yours, and unactionable. Usucapio became a huge influence in modern European law, but really has no direct analogies to our ideas of property and ownership.

Much more familiar was the system for “foreigners” (non-Romans or provincial residents), known as longi temporis praescriptio. It was something closer to a squatting rule: after X amount of time without taking action, an owner can no longer assert a claim against you for holding his or her property. But unlike usucapio, you aren’t automatically declared the owner, either. It just becomes an unenforceable grey area—something much closer to statutes of limitations. Longi temporis was also much more demanding—a 10-year wait if the original owner/potential claimant was still living nearby, and 20 years if not.

Longi temporis’ basis was that by not exercising a right to property, you essentially lose it. You can’t not complain for 10 years, then suddenly complain. This is another huge basis of civil statutes of limitations, though not so much of criminal ones. It also ties into the related modern (dating to the old English courts of equity, a kind of mix of common and statute law) concept of laches, which essentially allows a you-waited-too-long argument to be made in court (including in British criminal cases).

Usucapio and longi temporis were tweaked and eventually melded in the late Roman empire. The alterations were tortuous, but basically, in the end, 40 years would get you free and clear on any property claim. What’s more interesting is that there also developed limitations on certain kinds of related claims, where perhaps you were seeking damages. There wasn’t any full limitations system, but the usucapio/longi temporis time limits did cover some of those actions as well.

As the Roman empire died, its law lived on and became European “civil law” (what we would consider common law; we use “civil law” to mean tort and other non-criminal law). Usucapio/longi temporis became the foundations for statutes of limitations in European legal systems, including criminal limitations as criminal law developed out of tort law in the early modern period.

The US, however, was more directly affected by English/British law, which remained isolated from most of this Roman stuff, instead developing its own common law. But it ran into the same sorts of property law problems, and ended up developing statutes of limitations out of them as well.

Having been invaded and conquered a billion times, England was a nightmarish mess of property claims. One day, an army rides through, and suddenly some Norman “owns” your farm. You can imagine the lawsuits.

You can also see the need to limit them—right or wrong—or face never-ending chaos. As University of Oxford law professor Mike Macnair opined to me, “some time limit on property claims is inherent in the right of property as such”; otherwise, arguments could go “back into the Stone Age.”

Hence, in 1237 the government put through the first English limitations act, which essentially invalidated any property disputes that dated before the 1135 death of King Henry I. There were occasional updates to this that seem bizarre today, such as moving the limit date up to “the return of King John from Ireland.”

Actually, this fixed-date system didn’t only seem bizarre—it was bizarre, and became just another mess as it wasn’t updated often enough, and was probably too arbitrary to begin with. As the great legal commentator William Blackstone remarked, “this date of limitation continued so long unaltered, that it became indeed no limitation at all.”

That led to the groundbreaking limitation act of 1540, which laid down abstract, rather than fixed-date, limits of 30 or 50 years on land claims (depending on the type of ownership). Notably, it also covered related actions such as rent collection—an expansion of limited actions that would only continue.

The preamble to the act made it clear that degraded evidence was one of its main concerns. It noted that otherwise, such a long period would be “above the remembrance of any living man, truly to try and know the perfect certainty of such things”—with “any living man” including potential jurors.⁹

Updated laws began expanding the limitations to other types of claims. For example, under Elizabeth I, a limitation of one year (or two years for non-subjects) was put on any suit that involved making a forfeiture to the Crown (a type of penalty that we don’t have).

The next major update was the Limitation Act of 1623.¹⁰ But it was so much more than an update. Expanding on the 1540 act’s inclusion of related civil claims and expanded later updates, it established general limitations on all sorts of minor, tort-type offenses that today would fall under criminal law. It laid down a general six-year limit on all personal injury actions, as well as four years on assault, battery and similar wrongs, and two years on libel and slander. (It’s unclear how any of those time limits were chosen, but obviously they reflect a kind of hierarchy of wrongs.)

The act cited the idea of repose as a significant benefit both for potential defendants and for society in general—essentially, that things function more smoothly when people know they can’t be dragged into court forever, and when the court doesn’t have to have lousy claims dragged before it forever. (The full name of the act was “An Act for Limitation of Actions, and for Avoiding of Suits in Law.”)

Later updates only expanded the reach of limitations, such as one under William III that placed a 20-year limit on appeals to reverse judgments.

Commenting in the 1760s, Blackstone said, “The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time.”

To sum up, English law declared that at some point, it’s worth letting bygones be bygones, especially because claims eventually become unfair by the natural decay of proof.

All the same, as criminal law developed, British law did not extend general limitations to crimes. Many British crime laws today have limitations written into them, but there is nothing so expansive as the civil/tort limitations. The reasons for this are unclear and speculative.

However, I think we can speculate fruitfully on why felony wrongs such as murder were rarely covered. (At least in English and US law; European limitations sometimes did cover murder.) Even in the days when most “crime” had to be prosecuted by the victim through tort suits, serious crime was almost always considered a direct affront to the state and prosecuted by it in one way or another. Certainly in Britain, the Crown was considered has having no restraints on its authority—time included. We can get into a circular argument here, of course, about why serious crime was so considered—common morality must have played into it, for example. But it is thus not surprising that the Crown would consider its own actions unlimited, instead limiting only actions brought by its presumably less reputable subjects. That is likely reflected in the lack of blanket limitations in criminal law in general.

I should also note a glaring exception in English common law, which also entered US law (and still lurks in some places). The “Year and a Day Rule” said that exclusively in murder cases, if the victim didn’t die within a year and a day of the allegedly murderous act of the suspect, it could not be considered murder. In a way, this is a specialized statute of limitations about causality—that after that long, it was impossible to demonstrate that the suspect actually caused the victim’s death. Causality is not a main theme in criminal statutes of limitations, so there is no real direct relationship here. But it’s worth pointing out that the Year and a Day Rule is considered outdated with modern medical techniques and has been repealed virtually everywhere (though in some places only a few years ago), similar to the situation of statutes of limitations and DNA. It was also discussed in statutes of limitations terms in a 2001 US Supreme Court case (Rogers v. Tennessee) in which a defendant argued against the state being able to retroactively abolish the Year and Day Rule, which otherwise protected him from prosecution. He lost.

Many of the early American colonies adopted the 1623 Limitation Act (or even the 1540 one) into their own law, even copying it verbatim. (The magic six-year limit continues to linger in modern statutes such as Massachusetts’.) But something changed significantly between then and the early post-Revolution period.

One of the very first acts of the new US Congress in 1790 was to pass a sweeping statutes of limitations bill. It put a three-year limit on treason and all other capital offenses except for “wilful murder” and forgery, and a two-year limit on all other federal crimes. It also tolled the limits indefinitely for fugitives.

As I said before, it is indeed a mystery where precisely this federal criminal statute of limitations came from. It originated in the Senate, but there are no transcripts of the debate, because at the time that elitist body was meeting in private, closed-door sessions. And Congressional records of the time are scanty anyway. But it’s remarkable how little attention the limitations got. The only debate recorded over the bill was whether forgery should be made a capital crime, and about an amendment that called for all executed murderers’ bodies to be given to science for dissection as a kind of final insult.

But it’s pretty easy to guess the main influences on this unique American innovation. Pre-existing state statutes were obviously a basis. European law with its Roman roots already had broad criminal limitations, often with short time periods. France, as a US ally, was likely an especially big influence. (Even English law of the era was favoring short periods on its criminal limitations.) For that matter, the well-educated founders of America likely familiarized themselves with Roman and Greek law, including the limits therein. And they were also surely familiar with their contemporary Blackstone and his pro-limitations comments. All in all, I’m not stunned by the “mystery” of US criminal limitations. The lack of contemporary commentary suggests that the obvious sources speak for themselves. (I do, however, wonder if further thoughts could be lurking unrecorded in the papers of some of those congressmen, particularly Oliver Ellsworth, who headed the Senate committee on the bill and later was chief justice of the US Supreme Court.)

What is stunning is how they were so quickly and prominently enacted. They seem part of the Revolutionary mindset that also included the Bill of Rights with its many safeguards against government action and abuse. Tight statutes of limitations fit squarely with items like double jeopardy protections and the right to a speedy trial.

We do have an early Supreme Court case that gives us a taste of the founders’ thinking. In Adams v. Woods (1805), the defendant was arguing he should not be subject to a government suit to collect a financial penalty because the statute of limitations was passed, while the government argued such suits weren’t covered by the statute of limitations—nor were any laws passed after it. The Supreme Court agreed with the defendant. Writing for the majority, Chief Justice John Marshall said that a lack of limitations in that case “would be utterly repugnant to the genius of our laws. In a country where not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that an individual would remain for ever [sic] liable to a pecuniary forfeiture.” Source-wise, Marshall refers to the 1623 Limitation Act, noting that it specifically applied itself only to existing laws, whereas the US version clearly applies to any laws.

The message is pretty clear: the genius of American law is that the government doesn’t get to come after you forever. At least, not for most crimes.

The US also developed limitations in civil law, which have been even less controversial than their criminal counterparts.

Since then, criminal limitations seem to have run on two parallel opinion tracks. Legislatures have generally moved to abolish them or expand their time periods (everywhere from pollution laws to “terrorist” activities in the 2003 PATRIOT Act amendment). Meanwhile, courts have generally spoken highly of them.

There have certainly been major controversies that threw the whole concept into question. Jefferson Davis, president of the Confederacy during the Civil War, got away with treason in part because of the federal statute of limitations, resulting in a frenzy of attempts to retroactively punish him.

For a European example, there was a huge controversy in 1960s West Germany when statutes of limitations on murder were set to expire and thus let Nazi war criminals off the hook. Germany passed an anti-genocide law, but it could not be applied retroactively. Nazis could be prosecuted only under regular criminal law, which had a 20-year statute of limitations on murder. The government eventually passed a 10-year extension to the murder limitations as a compromise with the country’s still-strong right-wing bloc.

Child sexual abuse cases have been another hotbed of statute of limitations extensions and repeals. The Massachusetts legislature is engaged in one such repeal effort as I write. The subject highlights some of the concerns and content of limitations. (The debate variously involves both criminal and civil limitations; while I’ll mostly address criminal limitations, many of the arguments also apply civilly, and civil limitations are in general less controversial.)

As a heinous crime that by its very nature involves victims prevented from seeking help, child sexual abuse would seem to call for longer limitation periods. There is precedent all the way back to ancient Rome for claims involving minors to have extended limitation periods. And there is clearly a fresh level of public understanding of and outrage about such crimes. Statutes of limitations are not fixities; they are one of the instruments with which legislatures reflect the public will and norms, and are certainly free to alter them appropriately.

On the other hand, the recent history of child sexual abuse prosecutions and lawsuits include horror stories that precisely echo some of the rationales for statutes of limitations, including bad (or outlandishly induced) memory and bad evidence. What strikes me here in Massachusetts, where the debate revolves around the Catholic Church’s sexual predators, is that the statute of limitations is hardly the villain. Many victims did complain well within the statute of limitations, but were ignored (or worse) by church officials, police, prosecutors and media who were pro-church and thus hid and coddled the criminals for decades (including right up until a few years ago). Perhaps the real argument against the statute of limitations here is that it aids cops and prosecutors who don’t want to do their jobs.

Child sexual abuse is so heinous it’s hard to think of any remedy that amounts to real justice, short of building a time machine. There’s certainly no clear-cut answer about the statute of limitations.

The same can be said to my original question of why the statute of limitations doesn’t apply to murder. If good evidence and fair trials are so important, aren’t they all the more important when defendants face the greatest accusations? On the other hand, if we don’t have them for murder, why have them at all?

There are those aforementioned arguments about the power of the state and so forth. But I think Ohio State University law professor Joshua Dressler, one of the country’s top criminal law experts, comes closer when he calls the lack of limitations on murder “pretty much a compromise with the logic of the argument....We’re just not willing to allow murderers to go free.” The statutes of limitations are not a cold mechanism (or not entirely). They bow to the most widely held morals. Someday, we may not be willing to allow sexual predators to go free, either.

I do want to emphasize, however, that criminal statutes of limitations are not about letting any particular suspect go free. They simply state that no one will be prosecuted for a known crime. That may sound semantic, but it’s important to depersonalize the issue. After all, in all modern justice systems, the suspect is innocent until proven guilty. If they are not prosecuted, they remain legally not guilty. And in reality, any particular suspect may indeed be innocent of the crime.

All the same, there are some larger criticisms of statutes of limitations making the rounds. Some go to the heart of the good-evidence rationale. The broadest arguments simply say that today’s criminal procedure allows for such good challenges to evidence and witnesses that the mechanism is outdated and unnecessarily arbitrary. After all, a defendant always gets the chance to blow apart the prosecution’s case in court. This is not, however, much of an answer to the idea of “repose.”

More specifically, the striking power of DNA evidence is sorely assaulting statutes of limitations. Dressler said he wouldn’t be surprised to see DNA exceptions written into statutes of limitations; reportedly, that’s already happening. Dressler also notes that some jurisdictions have experimented with indicting unknown suspects based solely on DNA evidence in the hopes that if the suspect is actually caught some day, the statute of limitations will not be beaten because it will have been tolled from that indictment.

On the other hand, DNA evidence is certainly open to challenge in the way it is collected, handled and analyzed, and also in the interpretation of the suspect’s presence at the scene of the crime, as well as such unusual circumstances as suspects who have twins. DNA is good evidence, but arguably not any more procedurally solid than any other form of evidence. It surely can degrade over time. After all, if DNA evidence was perfect, we’d just have a lab test instead of a trial.

Meanwhile, on the pro-limitations side (generally meaning the courts), there have also been the promotion of rationales that in some cases seem equally novel (or at least ahistorical).

One of the most frequently articulated is that statutes of limitations encourage prompt investigation and prosecution of crimes. This obviously echoes the old civil law idea of making parties assert their claims quickly. It’s also a patently true rationale. You rarely hear about the statute of limitations when it works, but a classic example is the 1950 Brink’s Job, the well-planned robbery of a Boston armored-car center that at the time was the biggest heist in the nation’s history. No one was charged in that crime until 11 days before the statute of limitations expired, when FBI agents feeling the limitations heat put the screws to one of the suspected thieves, who was in prison on other charges.

Mushier arguments have been put forward by such august sources as the Supreme Court and the Model Penal Code (the American Law Institute’s model for state and federal legal codes). They include the idea that society may no longer care so much about punishing the offender; likewise, that the offender may have reformed, or alternatively already have gone to prison for subsequent offenses. They also argue that statutes of limitations prevent criminals from being blackmailed, or at least not for very long.

It’s easy to imagine cases in which those arguments could hold true, but harder to find real ones. They seem to be more speculative. Critics contend that most of them can be handled in the sentencing phase.

“The broader social purposes of the criminal statute of limitations are debatable and uncertain,” wrote Alan L. Adelstein in his history of limitations.¹¹ He argues it’s essentially a protective device for the accused, and should be honored as such.

Dressler made the same point, though he wasn’t afraid to think more abstractly about it.

In many ways, limitations tie into what he called “a sense of fairness, that the government should not be able to have overwhelming power over individuals.” That fits into our prohibitions on the government prosecuting you repeatedly for the same crime, making up retroactive laws to charge you with, or keeping charges hanging over your head forever as a kind of Damoclean sword.

Even more perceptively, Dressler notes limitations ultimately go to the concept of legal time. “An entirely separate reason frequently given is just a sense of finality,” he said, noting that justice ultimately rests on the idea of resolution—even if it’s not the resolution we prefer.

In the case of statutes of limitations, it means that a person “who might know the police suspect him or her of a crime, they don’t have to live their whole life looking over their shoulder.”

Such reasoning, he acknowledged, “carries a lot less weight in the public view these days.” When we think of statutes of limitations today, we probably think more about sexual predators or stock-market scammers than King George III.

But, Dressler noted, finality is a pressing issue in other areas of criminal law. For example, one question the Supreme Court is likely to decide is how many appeals death row inmates get. Much like statutes of limitations, limits on appeals are arbitrary instruments of finality. They share concerns about evidence as well; Dressler noted that the current Supreme Court has stated that it is not inherently unconstitutional to execute an innocent person unintentionally by limiting their appeal process. As he puts it, “Finality trumps innocence” in such a case. That seems at the very least no worse than finality trumping guilt in statutes of limitations. Also note that this isn’t just a semantic analogy: as mentioned above, a limit on appeals was one of the clauses of an early English statute of limitations update.

I see some relationship to another form of legal time: prison sentences. Sentences are like the photographic negative of limitations, a set period beyond which you can’t be punished any further. They both tend to be graded according to the severity of the offense, and they both speak to the idea of the government holding power over defendants for only a limited, or at least defined, period. There is some kind of philosophical echo there, I think.

But let’s really get to heart of the matter—or at least the title of this column. Like many other devices of justice, statutes of limitations imply that in the interest of bigger things, some guilty bastards are going to walk. Or as the Supreme Court once put it, “Every statute of limitations, of course, may allow a rogue to escape” (indeed, in a case in which exactly that happened).¹² Unless the suspected or guilty party is us, that’s what really makes statutes of limitations so frequently hard to swallow: the idea of some criminal walking off scot-free.

Dressler notes that these days, it’s rarely that easy; suspects could still be charged with related crimes or face civil lawsuits. There’s frequently also debate about when the crime actually ends (and thus when the limitation period begins).

But what about making lemonade out of lemons? An obvious argument to me, but not one I have found elsewhere, is that there can often be value in letting someone off for a crime you’ve been unable to prosecute anyway. Under the aegis of a statute of limitations, perhaps they will tell you where a body is buried, or how a baffling crime was committed. It allows criminals to freely confess for our edification (or perhaps only entertainment, as I recall the references to statutes of limitations in the crime-bragging songs of rapper Ice-T).¹³

Prosecutors have certainly been known to grant immunity for similar reasons. Bolstering my case are the court decisions that the Fifth Amendment protection against self-incriminating statements is no longer valid on crimes that have passed the statute of limitations.¹⁴

“It does seem to me that’s an argument for statutes of limitations,” Dressler said.

Some crimes are also more patently political than others, and the “criminal” may be someone a lot of people are happy to see get off. One of the best-known Supreme Court statutes of limitations cases involved a draft-dodger. (He won.)¹⁵

And after all, as Friedman points out, the men who wrote our country’s laws in the first place were men who likely would’ve been executed for treason if the war went the other way. A serious debate about statutes of limitations is always worth having. But the fact remains: America was founded by people who got away with it.

¹ I must also note that my research was hobbled—hopefully not fatally—by my state of Massachusetts’ lack of a public law school (and related library), an embarrassing and ridiculous situation maintained directly by the lobbying of Boston’s many private law schools. Access to private law school libraries, when it is even available to the general public, involves lengthy, hat-in-hand applications—an incarnation of the maxim that information delayed is information denied. As I pondered whether to undertake such application processes, a major statutes of limitations debate exploded here, and I could feel my timeliness already slipping away. My particular problem aside, it would be unthinkable in modern society for the current laws to be unavailable, or not easily available, to the public. It is equally evil and materially no different to put up barriers to accessing the history and theory behind those laws, the context that enables us to understand them. Private law schools that actively battle against the establishment of a state law school should at least have the decency to open their library doors as freely as state schools do. Equal justice under the law is meaningless without equal access to law libraries.

² “Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial” by Alan L. Adelstein, “William and Mary Law Review,” fall 1995 (37, 199). (Via LexisNexis.)

³ Adelstein, op. cit., while noting a 1989 US Department of Justice stat that in the past year it had declined to prosecute 232 cases on statutes of limitations grounds.

⁴ The dissenting opinion in Stogner v. California, US Supreme Court, 2002.

⁵ “Crime and Punishment in American History” by Lawrence Friedman.

⁶ Adelstein, op. cit.

⁷ “The Law of Athens” (vol. 1) by A.R.W. Harrison.

⁸ From the Benjamin Jowett translation at http://classics.mit.edu/Plato/laws.html.

⁹ As quoted in “Limitation of Actions,” consulting paper by UK Law Commission, at www.lawcom.gov.uk/docs/cp151pt1.pdf.

¹⁰ The parliamentary session actually ran 1623-24, and it is unclear in which year the law was promulgated. Most sources use 1623.

¹¹ Adelstein, op. cit.

¹² Pendergast v. United States, US Supreme Court, 1943.

¹³ “That’s How I’m Livin’” by Ice-T, on “Home Invasion” (1993).

¹⁴ Summed up and strongly supported by Brown v. Walker, US Supreme Court, 1896.

¹⁵ Toussie v. United States, US Supreme Court, 1970.

Significant sources not cited in the text or footnotes include: “Annals of the Congress of the United States” (aka “The Debates and Proceedings in the Congress of the United States”), First Congress (1790), US Congress; “Black’s Law Dictionary” (7^th edition), Bryan A. Garner, ed.; “Commentaries on the Laws of England” (4^th ed.) by William Blackstone; “Community Law Reform Program: Ninth Report—Limitation of Actions for Personal Injury Claims” by New South Wales (Australia) Law Reform Commission, at www.lawlink.nsw.gov.au/lrc.nsf/pages/R50CHP2; “A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union” (6^th ed.) by John Bouvier, at www.jusbelli.com/Bouvier/bouvier1856_intro.html; Law Reform (Year and a Day Rule) Act 1996, UK act of Parliament, at www.opsi.gov.uk/acts/acts1996/1996019.htm; www.law.upenn.edu/fac/phrobins/books/statlimitoped.pdf (Northwestern University law professor Paul H. Robinson’s attack on statutes of limitations); New Mexico state laws at www.conwaygreene.com; www.riker.com/articles/index.php?id=3172 (law firm information on New Jersey’s repeal of environmental statutes of limitations); “Stale Claims: How Long Should the Law Nurse Old Grievances?” by Walter Olson, “Reason” magazine, Nov. 2000; “Statute of Limitations and the Prosecution of Nazi Crimes in the Federal German Republic” by Institute of Jewish Affairs (Background Paper No. 14, July 1969); “Statutes of Limitations in Massachusetts Criminal Cases” by Massachusetts Police Institute (document, July 1975); “Textbook of Roman Law” by J.A.C. Thomas; “Time-Tripping Over Prosecution Standards” by Mark Ballard, “The National Law Journal,” July 2, 2003. Many thanks to Prof. Macnair for extraordinary assistance and to Prof. Bruce Smith at the University of Illinois College of Law for recommending key sources. Posted March 19, 2006. Updated April 12 and May 17, 2006.

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