State and Local Governments Are Extending Criminal Statutes of Limitation In Response to The COVID-19 Pandemic – Can They?

State and Local Governments Are Extending Criminal Statutes of Limitation In Response to The COVID-19 Pandemic – Can They?

Here on the Brown White & Osborn LLP Blog, we’ve covered many of the emergency steps that different branches of government have taken to address the COVID-19 pandemic.  In several jurisdictions, authorities have extended the statute of limitations within which prosecutors must file criminal charges on the theory that prosecutors cannot investigate and file cases during the pandemic.  Can they do that, or does it violate the United States Constitution’s prohibition against ex post facto laws?  The answer is that the government can do that – it can extend existing criminal statutes of limitation, so long as they don’t attempt to revive a statute that has already passed.

The Efforts to Extend Criminal Statutes of Limitations

For better or worse, prosecuting criminals is always one of the government’s top priorities.  The COVID-19 crisis has not changed that.

On March 24, 2020,  United States Department of Justice (DOJ) asked Congress for legislation extending suspending the statute of limitations for criminal and civil offenses during national emergencies “and for one year following the end of the national emergency.”  Congress may enact such legislation.  Across the United States, state authorities are taking similar steps.  For example, on March 20, 2020, New York Governor Andrew Cuomo issued an executive order suspending until April 19, 2020 all time limits for the commencement or filing of any legal action, including those under New York’s criminal procedure laws.

California, which delegates the power to respond to emergencies to local court officials, has taken a more patchwork approach.  Though Governor Newsom issued an order empowering the California Judicial Council to enact emergency rules to govern court responses to the pandemic, the Judicial Council only extended the statute of limitations for civil actions.  Similarly, to date the various Superior Courts across California have suspended statutes of limitations for civil cases, not criminal cases.  Though California hasn’t yet suspended or extended criminal statutes of limitations, it’s likely to do so.  Other states are taking the lead, and anti-crime measures are always politically popular.

The Government Can Suspend Or Extend Criminal Statutes of Limitations, But Can’t Revive Them After They Have Expired

Statutes of limitations provide security, stability, and repose – they mean we don’t have to keep looking over our shoulder for prosecution for things that happened long ago.  The prospect that  criminal statutes of limitations may be tolled indefinitely creates uncertainty for people being investigated for crimes, and prevents them for planning for the future.  It’s common for clients to ask “can the government do that?  Can they just keep me in suspense, never knowing when I am safe from prosecution?”  The answer is that so long as the government acts before the statute of limitations has lapsed in connection with a crime, the government can keep extending that statute.     

A retrospective change to a statute of limitations – one aimed at a statute that has already lapsed – would violate the ex post facto clause of the United States Constitution.  Ex post facto is Latin for “with retroactive effect or force,” and the Constitution prohibits such laws twice: Article 1, section 9 prohibits Congress from passing any laws which apply ex post facto, and section 10 prohibits states from the same.  Generally, this means the government cannot pass a law that retroactively punishes actions that were not criminal when originally performed.  Moreover, the Fifth and Fourteenth Amendments prohibit the federal government and the states, respectively, from violating the right to due process.  At least some courts consider ex post facto laws a violation of the constitutional right to due process.[1]  

Federal and state courts have ruled that the ex post facto clause prohibits the government from reviving a statute of limitations that has already lapsed, but does not prevent extending one that has not lapsed yet.  According to the Supreme Court, any law “enacted after expiration of a previously applicable limitations period violates the ex post facto clause when it is applied to revive a previously time-barred prosecution.”[2]  For instance, in Stogner v. California , the Supreme Court found that California violated the ex post facto clause by prosecuting a defendant for child sexual abuse under a statute that purported to revive a long-passed statute of limitations.

On the other hand, state and federal courts have rejected arguments that governments violated the ex post facto clause by prosecuting defendants under statutes that had been extended but had not yet lapsed. For instance, in United States v. Leo Sure Chief, 438 F.3d 920, 924 (9th Cir. 2006), the Ninth Circuit Court of Appeals upheld a conviction when Congress extended the limitations period for sexual abuse of a child when the previously applicable limitations period had not yet expired for the defendant, “so the amendment did not purport to resurrect an expired criminal charge.”  Therefore, “retroactive application of the statute was appropriate” and the defendant’s 2004 indictment did not violate the ex post facto clause.  The California Court of Appeal came to the same conclusion, for the same reasons, in People v. Ornelas, No. F074183, 2018 WL 4907999, at *1 (Cal. Ct. App. Oct. 10, 2018) (because “legislative extension occurred before the statute of limitations applicable to Ornelas expired,” prosecution was “both timely and constitutional under the ex post fact and due process clauses”).

These cases do not address the propriety of extending a civil limitations period.  There the rule is much more lenient.  In United States v. Falcon, 805 F.3d 873, 876 (9th Cir. 2015), the Ninth Circuit ruled that Congress to completely eliminate all statutes of limitations on actions to recover on defaulted federally-guaranteed student loans, even if doing so would have revived an otherwise untimely action to collect debt. 

[1] State v. Cookman, 127 Or. App. 283, 286 (1994) (revival of a lapsed prosecution “transgresses the recognized due process principle of ‘fundamental fairness’”), aff’d on state law grounds, 324 Or. 19 (1996).

[2] Stogner v. Cal., 539 U.S. 607, 632–33 (2003).

M. Kwon Gordon

M. Kwon Gordon is an associate at the Los Angeles office of Brown White & Osborn LLP, specializing in civil litigation.
M. Kwon Gordon