The Epstein Indictment and Statutes of Limitations

by Michael C. Dorf

The indictment of Jeffrey Epstein for sex trafficking and conspiracy to commit sex trafficking of minor girls alleges acts "from at least in or about 2002 up to and including at least in or about 2005." That is hardly the most felicitous phrase, but it fairly conveys the sense that the crimes allegedly occurred from a period roughly 14 to 17 years ago. It is possible that yesterday's discovery of a "trove of lewd photographs of girls" in a safe inside Epstein's NYC home could lead to additional charges for more recent conduct--either for possession of child pornography or for other offenses for which the photos provide evidence or leads. Even so, however, readers may be wondering how Epstein can be charged now for offenses that allegedly occurred a decade and a half ago. What about the statute of limitations?

Although the default federal statute of limitations for non-capital crimes is five years, Congress has made numerous exceptions. In 2006, it eliminated the statute of limitations entirely for child kidnapping and child sex trafficking. Per constitutional case law construing the Ex Post Facto Clauses' limits in criminal cases, it could only do so for future alleged conduct and past alleged conduct for which the statute had not yet run when Congress eliminated it. By going back only to 2002, the indictment covers most of whatever Epstein allegedly did that was still within the old five-year limit when the 2006 Act was adopted.

What should we make of the elimination of this and other statutes of limitations or of the parallel trend in recent decades to extend limitations periods (both at the state and federal levels)? The case for extension or abolition is straightforward: Those who commit heinous crimes should not be able to avoid justice by out-waiting it. That impulse is understandably especially strong with respect to minor victims, who may not have the wherewithal to come forward with charges until many years later.

But the severity of the offense is a double-edged sword.

English, colonial, and American law traditionally excepted murder from the statute of limitations, as current law continues to do. Reasoning from that longstanding exception, advocates of extending or eliminating statutes of limitations for particular offenses have tended to point to the seriousness of the crime. Crime X (whether terrorism, rape, sex-trafficking a minor, or some other admittedly terrible act) is not murder, but it too is very serious and therefore should likewise have no statute of limitations, they argue.

Despite the success of this argument, we might question the logic. The more serious the offense, the more unjust that a perpetrator gets away with his crime, but also the more serious the offense, the greater the stakes for the accused. Put differently, the stakes go up for both the prosecution and the defense as the seriousness of the crime under consideration increases. Thus, if we think the five-year statute of limitations makes sense for mail theft, which carries a maximum penalty of five years in prison, it is not clear that a longer period or no statute of limitations at all is appropriate for a more serious offense. Again, the greater seriousness means that the defendant could get away with more, but it also means that a wrongly convicted defendant will suffer a greater injustice.

And of course, statutes of limitations exist to protect defendants. Over time, memories fade, witnesses become unavailable, and evidence grows stale. These are problems for the prosecution as well as the defense, but the statute of limitations protects only the defendant. After all, if the passage of time substantially weakens the prosecution's case, then a savvy prosecutor won't bring it, or if an unsavvy prosecutor does bring it, the jury will acquit. But if the prosecution's evidence has been preserved, the defendant may need the statute of limitations or else risk being unable to produce a defense that would have been available had the case been brought in a timely manner.

But what about murder itself? Doesn't my argument suggest that even murder should be subject to the more-or-less standard statute of limitations? Yes, it does. However, I'll conclude with four observations:

(1) The fact that Anglo-American law has long adhered to the principle that the most heinous crime should not be subject to a statute of limitations does not suffice to justify the principle. As O.W. Holmes, Jr., famously said: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

(2) My (admittedly tentative) argument here is not for any particular statute of limitations. I'm not even arguing against wholesale abolition of statutes of limitations for all offenses. I am questioning the relation between seriousness of the offense and the urge to lengthen or abolish the statute of limitations. If there are good reasons for some statute of limitations L for the "ordinary" crime C, then the fact that some other crime S is more serious than C does not entail that S should not be subject to L as well.

(3) Apart from heinousness, there are reasons why one might nonetheless think that a statute of limitations should be waived in particular cases. For example, a state or the federal government could adopt a rule under which a showing by the government that the defendant's efforts to conceal his crime or the youth or other vulnerability of the victim at the time preluded the bringing of a timely indictment, would estop the defendant from invoking the statute of limitations.

(4) I am not taking any position at all on the strength of the evidence against Epstein or the ease or difficulty of mounting a defense at this date. I'm using the fact that the case is in the news simply as a point of departure to make a point about statutes of limitations in general.