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davidwr's Journal: Reforming Criminal Statutes of Limitations: A Phased-In Approach 1

Journal by davidwr

Reforming Statutes of Limitations: A Phased-In Approach

Current statute of limitation laws are "all or nothing."

If the prosecution decides to file charges 1 day before the time limit expires, you can get the full sentence, even if you've been a responsible citizen for years after the crime.

But if they wait one day later, you are off the hook.

This is unfair to the guilty party and to society.

The purposes of statutes of limitations include:
* encourage swift justice, discourage prosecution laziness
* give people who have committed long-ago crimes some certainty that it really is behind them, at least with respect to criminal charges

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A phased-in approach would be better.
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Set an initial time period based on the minimum sentence, within a range of 1-10 years. Any charges brought before this time expires would not be affected by statutes of limitations.

Set a maximum time period based on the maximum possible sentence PLUS the initial time period. Any charges brought after this time period could be tried but there would be no prison term.

If charges are filed between these times, the trial and sentencing would be carried out as normal, but the newly-convicted criminal would be given day-for-day credit for time served for each day of delay after the initial period expired. The fact that he would be given such credit could not be used against him during sentencing or parole-eligibility or mandatory-release determination. However, the parole board can decide he hasn't spent enough time behind bars and deny parole up to but not past his mandatory-release date, if any.

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Some examples:
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A person committed second-degree murder 12 years before charges were filed. The law says the judge can sentence him from 2 years on the low end to 20 on the high end. The judge sentences him to 15 years. He gets 12-2=10 years of credit, so his effective sentence is only 5 years even though his criminal record will show a 15-year sentence.

A person stole a car 25 years ago. The police found the car with DNA but "John Doe DNA" indictments aren't allowed for property crimes in that state. 25 years later the same guy is arrested on a relatively minor felony. He is convicted and gets 1 year on the new felony. He could get 2-20 on the old car theft charge. He's charged and pleads guilty but no matter what the judge sentences him to, since 25-2=23 is more than the maximum sentence he will not serve any prison time for the car theft. He will, however, have a second criminal conviction on his record. If he later commits a third felony he may face serious prison time under "3-strikes" laws.

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Some special considerations:
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Tolling the statute of limitations:
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Current rules on tolling would not be changed. Most states toll the statute of limitations for:
* Fleeing the jurisdiction
* Legal incapacity of a key witness, such as being a minor or medically unable to testify
* Intimidation or perceived intimidation of a witness, such as if the victim is financially or otherwise dependent on the alleged criminal
* An ongoing criminal enterprise
* Judicially granted extensions for an ongoing investigation
* "John Doe" indictments against the person matching a DNA sample, photograph, or other evidence that is presumed unique to the alleged criminal
* Any pending charge, once an indictment or equivalent is made

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Reduction of charges by the prosecutor:
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The prosecutor would be allowed offer reduced charges before conviction while allowing an effective sentence up to the same as if the original charges were filed (but no more than the maximum actual sentence on the reduced charge). Take the murder case above: The prosecution could offer a plea of manslaughter, which carries a 2-10 year sentence, on the condition that the person accept a 10 year sentence but serve the same 5-year effective sentence he would serve on the more serious charge. If it was to his advantage, the newly-convicted murderer could ask the parole board to treat him as if he had served 75% of a 20-year sentence.

To prevent abuse by prosecutorial bullying, if the effective sentence on the lesser charge under this rule is more than the effective sentence if the lesser charge had been the original charge, the actual plea would be the legal equivalent of pleading guilty or no contest to both charges with a judge acting on the prosecutor's motion to dismiss the higher charge. Since all pleas are under oath, a prosecutor encouraging a false plea is suborning perjury.

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Reduction in charges by routine clemency:
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A modified version of this would reduce the charge to match the maximum effective sentence, or to some "minimal" charge if the maximum effective sentence was zero as in the car-theft example above.

For example, if routine clemency were offered, the murderer would still be stuck with his original charge since 5 years is within the sentencing range for his crime. But the car theif would have his charged administratively reduced to the highest felony theft charge that allowed probation of 1 day or less, or to a special charge created by lawmakers for this purpose.

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Effective dates of discharge and release when considering post-release and post-discharge conditions:
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The date of discharge is no later than what the date of discharge would have been if the person had started serving the maximum sentence on the day the initial time period expired, plus extensions for tolls of the statute of limitations.

For example, if a person committed 2nd degree murder in 1970 and could have received 2-20 years, any conviction today will be considered to have been discharged in 1992.

If there are any post-discharge conditions or legal disabilities that are based on time, he will be given credit for all time since 1992 towards fulfilling these conditions and towards the eventual expiration of these legal disabilities.

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Ultimate expiration of the statute of limitations
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Allow only a specific period of time, such as 5 years for felonies or 1 year for misdemeanors - after the time where all legally-imposed time-based post-discharge penalties will have expired to file charges.

This allows prosecutors a short additional window to gain a "symbolic" conviction or to brand someone a criminal years or decades after a crime, while giving society a "date certain" beyond which they won't have to interrupt their lives to face possibly-false allegations of long-ago alleged crimes in criminal court.

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Effect on fines
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This plan is not designed to change the fine schedule.

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The bottom line: The practical effect
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Some example crimes and the effect of this change on them:

Petty crimes: Maximum sentence of 1 year or less:
1 year to bring charges to get the full maximum sentence.
2 years and a day to bring charges at all.
Latest discharge date after back-dating applied: 2 years after crime committed.

Higher-jail-time crimes: Minimum sentence 1 year or less, maximum sentence 2 years, no post-discharge conditions
1 year to bring charges to get the full maximum sentence.
3 years and a day to bring charges to get any jail time.
This is also the latest release date and the latest discharge date if the discharge date is back-dated.
4 years and a day to bring charges at all.

Low-prison-time crimes: Minimum sentence 2 years, maximum sentence 10 years, 5 years of post-discharge conditions
2 years to bring charges to get full maximum sentence.
12 years to bring charges to get any prison time.
This is also the latest release date and the latest discharge date if the discharge date is back-dated.
17 years to bring charges to get any post-discharge conditions.
22 years to bring charges at all.

Medium-time prison crimes: Minimum sentence 5 years, maximum sentence 40 years, 10 years of post-discharge conditions
5 years to bring charges to get full maximum sentence.
45 years to bring charges to get any prison time.
This is also the latest release date and the latest discharge date if the discharge date is back-dated.
55 years to bring charges to get any post-discharge conditions.
60 years to bring charges at all.

Very serious felonies less than life: Minimum sentence 10 years, maximum sentence 99 years, up to 25 years of post-discharge conditions
10 years to bring charges to get full maximum sentence
109 years to bring charges to get any prison time
This is also the latest release date and the latest discharge date if the discharge date is back-dated.
134 years to get any post-discharge conditions
139 years to bring charges at all

In practical terms:

If the person COULD have received a sentence that would have had him in prison for the rest of his life if he'd been charged by the end of the initial period, there is no statute of limitations.

If the person COULD have received a long sentence that would've had him under post-discharge conditions for the rest of his life if he'd been charged by the end of the initial period, he'll live to see daylight but there is no statue of limitations.

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Reforming Criminal Statutes of Limitations: A Phased-In Approach

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  • Some counter-arguments:

    * It's too complicated

    Yes, it is complicated in practice.

    The principle, however, is simple:

    Your age at the end of your sentence should be the same as if you were brought to justice on time, quickly convicted, and started your sentence immediately.

    Obviously there are exceptions if the delay is caused by significant factors that toll the statute of limitations. Likewise, if you don't push for a speedy trial once you are charged, you shouldn't get any reduced sentence merely because of

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