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Old 08-16-2018, 03:29 PM
aldiboronti aldiboronti is offline
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Is retroactive legislation constitutional?

There's some talk in Pennsylvania following the report on child molestation and the clergy of introducing retroactive legislation to abolish time limits on prosecution to enable victims to seek justice even though the statute of limitations has expired for the crimes. Would that be constitutional? Can any retroactive legislation be constitutional?
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Old 08-16-2018, 03:54 PM
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SCOTUS allowed the Lautenberg Amendment to include individuals that were convicted of misdemeanor domestic violence before the law was even passed. Thus, some retroactive legislation is apparently constitutional and not considered ex post facto per SCOTUS.
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Old 08-16-2018, 04:13 PM
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Ex post facto laws are unconstitutional i.e. you can't make something a crime that wasn't a crime at the time it happened. But that's not what's going on here. Child molestation *was* a crime already, and it still is today. All that's changing is the length of time during which the government has to prosecute the crime.

Consider a fictional person named Bill Stickers. He commits a crime, does something that is already illegal. The statute of limitations for that particular crime is 7 years, hence the government has to prosecute Bill for his crime within 7 years or not at all. But even after the 7 years are up, it is still true that Bill Stickers actually did commit a crime. Essentially, Bill has been given a Get Out Of Jail Free card. If the legislature rewrites the statute, it could effectively revoke Bill's card. And then, Bill Stickers will be prosecuted.

Last edited by sbunny8; 08-16-2018 at 04:14 PM.
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Old 08-16-2018, 04:21 PM
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No, the PA legislature cannot extend the Statute of Limitations to allow criminal prosecution if the SOL in place at the time the crime was committed has already expired. This has already been tried by the CA legislature, and the Supreme Court ruled it was an unconstitutional ex post facto law.
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Old 08-16-2018, 07:21 PM
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Originally Posted by muldoonthief View Post
No, the PA legislature cannot extend the Statute of Limitations to allow criminal prosecution if the SOL in place at the time the crime was committed has already expired. This has already been tried by the CA legislature, and the Supreme Court ruled it was an unconstitutional ex post facto law.
Just to note: That was a 5-4 decision carried by the so-called liberals. Given the shift in the court, it's possible that this would be overturned if examined again. But yeah, a lower court would probably have to rule as unconstitutional a law that changed the SoL.

Last edited by John Mace; 08-16-2018 at 07:22 PM.
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Old 08-16-2018, 07:53 PM
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Originally Posted by sbunny8 View Post
Ex post facto laws are unconstitutional i.e. you can't make something a crime that wasn't a crime at the time it happened. But that's not what's going on here. Child molestation *was* a crime already, and it still is today. All that's changing is the length of time during which the government has to prosecute the crime.

Consider a fictional person named Bill Stickers. He commits a crime, does something that is already illegal. The statute of limitations for that particular crime is 7 years, hence the government has to prosecute Bill for his crime within 7 years or not at all. But even after the 7 years are up, it is still true that Bill Stickers actually did commit a crime. Essentially, Bill has been given a Get Out Of Jail Free card. If the legislature rewrites the statute, it could effectively revoke Bill's card. And then, Bill Stickers will be prosecuted.
It's my understanding that, for you to be subject to a revised law extending the statute of limitations, the law extending it must have been passed while you are still subject to the original law.

So, your example would be incorrect. If Bill's crime can be prosecuted within 7 years, and he is not prosecuted within those 7 years, you can't then apply a new law to him which extends the statute of limitations if it is passed outside the original 7 year window.

BUT...if the 7 year statute is extending to, say 15 years, but that law is passed within 7 years of Bill's original crime, then the new extended statute would apply to him.
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Old 08-16-2018, 08:01 PM
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Just to note: That was a 5-4 decision carried by the so-called liberals. Given the shift in the court, it's possible that this would be overturned if examined again. But yeah, a lower court would probably have to rule as unconstitutional a law that changed the SoL.
Even conservative judges may be hesitant to mess with the limitations. In both CA and PA to the limitations are fairly short but they would avoid setting a precedent that could allow endless extensions.
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Old 08-16-2018, 08:42 PM
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Even conservative judges may be hesitant to mess with the limitations. In both CA and PA to the limitations are fairly short but they would avoid setting a precedent that could allow endless extensions.
But there's no constitutional requirement to have a statute of limitations at all, is there? If a state never introduces a statute of limitations for criminal prosecutions, that's fine; consequently a system of provisional or contingent limitations would seem acceptable in principle, provided its not applied in a way that denies due process or equal protection.
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Old 08-16-2018, 09:16 PM
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But there's no constitutional requirement to have a statute of limitations at all, is there? .
Still, once there is one, there is one.
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Old 08-16-2018, 09:16 PM
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But there's no constitutional requirement to have a statute of limitations at all, is there? If a state never introduces a statute of limitations for criminal prosecutions, that's fine; consequently a system of provisional or contingent limitations would seem acceptable in principle, provided its not applied in a way that denies due process or equal protection.
I'd say extending the limit does affect due process. But I'm not on the SC. The CA case was based on ex post facto, I don't know if other aspects of statute of limitations were addressed.

I do think the reason the SCOTUS might review this and come to a different conclusion is because the conservative majority also has a Statist leaning. But even a Statist might balk at the ability of a state to change it's laws in an ex post facto manner that has the potential to affect due process. States could extend limitations by decades to bring a case that can no longer be practically be defended because of the passage of time.

But this is now out of GQ territory and discussing the implications of factual answers annoys some people.
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Old 08-16-2018, 09:21 PM
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I think Moriarty's distinction here is very important. Someone that commits a crime and manages to not have it noticed for the current statute of limitations can breathe somewhat easier and not have to hide what they did. While obviously one should not brag about getting away with a crime because of the statute of limitations, it's possible that a person simply no longer hides it when they could have continued to do so. There may be evidence that would never have seen the light of day if it had been keep it secret because of being subject to possible criminal penalties. If someone goes from being unable to be prosecuted for something they did in the past, does nothing else criminal, and then can be prosecuted by later action of the legislature, it would prejudice those that believed that they didn't have to cover it up. This becomes a little more morally ambiguous when the crime being considered is not something that universally regarded as a crime, such as marijuana smoking or participation in deviant sexual activities with fully consenting adults. If people might come out after the statute of limitations has expired and stated they committed those crimes and nothing bad happened because of it and try to get the law changed, if the statute of limitations could be retroactively extended they would be less likely to speak out about the injustice of the bad law.
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Old 08-17-2018, 08:07 AM
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Good point, glowacks. I think this is a key separation from things like Lautenberg.

If your actions were okay (providing evidence of your crime after SOL ran out) before the law was passed, they should still be okay after a new law was passed.
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Old 08-17-2018, 08:26 AM
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Let me start by saying that I have great sympathy for the victims of these atrocities and little sympathy for the perpetrators or those who participated in covering up the abuse.

That being said, exposing alleged criminals to prosecution via an ex post facto law is an extremely steep slippery slope that could easily be abused.

It would seem to me that a civil action, as has been the case in the past, is a better way to pursue the perpetrators in cases like this. It will, of course, not take away the pain of the victims, but it is a better way than a law setting a *very* dangerous precident.
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Old 08-17-2018, 08:36 AM
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The Constitution doesn't say anything about statutes of limitations specifically, because the Constitution is really vague about all sorts of things. But it does guarantee a right to a speedy trial, and one could argue that a statute of limitations is one manifestation of that right.
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Old 08-17-2018, 10:25 AM
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"What? I would never have raped little Jimmy if I knew the statute of limitations was 15 years!?"
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Old 08-17-2018, 11:08 AM
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I thought too that at least for civil action (and criminal?) some interpretation of the Statute of Limitations applied to the fact that the clock started ticking once the offense had become known to authorities (or in the case of some offenses against children, when they turned 18?)

The logic of the SoL is simple - how would the average citizen possibly defend themselves against "what were you doing on the night of Sept. 16th, 2003?" Physical evidence gets destroyed (all those phone records or gas station receipts, perhaps) and eyewitness testimony becomes blurred - "are you sure it's him from 2003, or he's familiar because you saw him every week since 2011?"

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Old 08-17-2018, 11:17 AM
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Even conservative judges may be hesitant to mess with the limitations. In both CA and PA to the limitations are fairly short but they would avoid setting a precedent that could allow endless extensions.
Actually, right now the PA SOL is pretty long - criminal charges until the victim is 30 years old, civil until the victim is 50. And they're trying to extend that to 50/unlimited.

The issue has nothing to do with whether a long SOL is constitutional - murder in general doesn't have an SOL at all - the issue is whether it's constitutional to reset an SOL that's already expired.
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Old 08-17-2018, 11:25 AM
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As I understand it, at the federal level, the statute of limitations for sex assault extends to the life of the victim (and sometimes beyond). If there was a way to get these priests into federal court, they are still able to be prosecuted. The issue is jurisdiction - Could the transfer of priests across state lines make it a federal issue? What about if they ever took trips out of state with the kids?

If I’m in Congress, I would be considering laws to make churches subject to federal jurisdiction, so that any assault on church property would be a federal crime.

Last edited by Moriarty; 08-17-2018 at 11:26 AM.
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Old 08-17-2018, 01:12 PM
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Where does Congress get the power to criminalise conduct in churches?
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Old 08-17-2018, 02:20 PM
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Let me start by saying that I have great sympathy for the victims of these atrocities and little sympathy for the perpetrators or those who participated in covering up the abuse.

That being said, exposing alleged criminals to prosecution via an ex post facto law is an extremely steep slippery slope that could easily be abused.
Here's the other point. Memories get crappier and crappier the longer they exist.
http://time.com/5368078/pennsylvania...-church-abuse/

"Currently, the statute of limitations law allows victims of child sex abuse to come forward with criminal allegations until they are 50 years old. Victims can file civil claims until they are age 30. Most of the allegations in the grand jury report go back decades; many of the victims are in their 60s and 70s – meaning they are years past the time when criminal charges can be filed."

Now in this case there are also contemporary paper records, but the testimony of those abused 30 years ago is frankly worthless.

https://en.wikipedia.org/wiki/McMartin_preschool_trial
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Old 08-17-2018, 02:27 PM
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Where does Congress get the power to criminalise conduct in churches?
I'm willing to concede that there may be issues here, but where does Congress get the power to make banks subject to federal jurisdiction?

From a brief google search, it looks like bank robbery was made a federal crime in 1934, and it looks like the federal aspect is that the banks are subsidiaries of the federal reserve system

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Originally Posted by 18 USC 2113(f)
As used in this section the term “bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.
So, yeah, it's a stretch to figure out some federal authority over church property. Maybe some angle along the lines of being federally tax exempt? As I said, I realize it may not work.
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Old 08-17-2018, 03:01 PM
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Banks are clearly involved in inter-state commerce. But the Supreme Court held in Lopez that the commerce power wasn't sufficient to support a ban on gun possession near a school:

https://en.wikipedia.org/wiki/United_States_v._Lopez
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Old 08-17-2018, 05:04 PM
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Oops. I see I didn't finish my post. Just meant to add that by the Lopez analysis, how can the commerce clause support federal criminalising of an assault, just because it's in a church?
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Old 08-17-2018, 06:05 PM
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As I understand it, at the federal level, the statute of limitations for sex assault extends to the life of the victim (and sometimes beyond). If there was a way to get these priests into federal court, they are still able to be prosecuted. The issue is jurisdiction - Could the transfer of priests across state lines make it a federal issue? What about if they ever took trips out of state with the kids?

If I’m in Congress, I would be considering laws to make churches subject to federal jurisdiction, so that any assault on church property would be a federal crime.
One of the most horrendous and notorious child abusing priests began his career in Illinois. The first victim came forward something like 30 years after he had been assaulted. The Illinois statute of limitations had long since run. But the priest had a habit of taking his victims to a retreat house in Wisconsin. (Ironically, the house was owned by the parents of one of his victims.) Wisconsin law tolls (suspends) the statute of limitations for non-residents while they are out of state. So he couldn't be convicted in Illinois, but they got his first conviction in Wisconsin, because he didn't spend much time there.

Since then, he has also been convicted in Arizona and on federal charges of taking boys on international trips.

There was also recently a case in Illinois where a police officer was accused of having sex with underage girls. The federal penalty was worse than the state penalty, so they wanted to try him on federal charges. One of the justifications they used for federal jurisdiction was that he used condoms manufactured in a foreign country. He took a plea bargain, so the condom theory never got tested. Frankly, I'm all in favor of severe punishment for this kind of crime, but I'm not sure I like the message "use a condom, go to jail longer."

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Old 08-17-2018, 09:44 PM
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Here's the other point. Memories get crappier and crappier the longer they exist.
http://time.com/5368078/pennsylvania...-church-abuse/

"Currently, the statute of limitations law allows victims of child sex abuse to come forward with criminal allegations until they are 50 years old. Victims can file civil claims until they are age 30. Most of the allegations in the grand jury report go back decades; many of the victims are in their 60s and 70s – meaning they are years past the time when criminal charges can be filed."

Now in this case there are also contemporary paper records, but the testimony of those abused 30 years ago is frankly worthless.

https://en.wikipedia.org/wiki/McMartin_preschool_trial
I personally think that statute of limitations should exist for the bolded reasons, but a caveat should be made for cases where the crime was documented contemporaneously in some form (recorded testimony, unprocessed rape kits, etc.).
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Old 08-17-2018, 10:03 PM
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The fact that the SoL has already passed for many of the victims isn't a reason not to extend the SoL. I have no doubt that there are far too many more incidents that are still prosecutable under the current limit that won't be revealed until it's currently too late.

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Old 08-18-2018, 11:33 AM
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The Constitution doesn't say anything about statutes of limitations specifically, because the Constitution is really vague about all sorts of things. But it does guarantee a right to a speedy trial, and one could argue that a statute of limitations is one manifestation of that right.
Seems like a weak argument to me. If you want a speedy trial, turn yourself in right away. It's not like statue of limitation laws are based on criminals challenging the constitutionality of not having been given a speedy trial, right?
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Old 08-18-2018, 11:44 AM
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Turn myself in for what? I didn't do it. And if you had asked me before, instead of waiting ten years when all of the evidence had dried up, I could prove it.
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Old 08-18-2018, 12:03 PM
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The fact that the SoL has already passed for many of the victims isn't a reason not to extend the SoL. I have no doubt that there are far too many more incidents that are still prosecutable under the current limit that won't be revealed until it's currently too late.
Indeed, this is true and has been done in many cases already, but it then requires the clarification of what is intended by the proposal. Extending the pending term is not the same thing as retroactively restarting an expired term.
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Old 08-18-2018, 12:07 PM
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Turn myself in for what? I didn't do it. And if you had asked me before, instead of waiting ten years when all of the evidence had dried up, I could prove it.
I you trying to imply there's an implied presumption of innocence in the justice system or something?
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Old 08-18-2018, 02:28 PM
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Indeed, a statute of limitations may very well not apply if the accused has deliberately fled to avoid prosecution. But if Alice is just innocently going about her business, unaware that she's even a suspect, blithely destroying old potentially exculpatory records ("Oh, another box of old receipts showing I was out of town on the night of August 18, 2003? Well, I'll certainly never need those") then of course the statute of limitations does apply, and the state needs to make its case in a timely manner or let the issue drop.
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Old 08-18-2018, 09:10 PM
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For what it's worth, the speedy trial guarantees and the statute of limitations do not measure the same time frame.

Typically, a speedy trial clock starts at the moment of arrest, or at the moment the indictment is unsealed if the indictment precedes the arrest. Speedy trial statutes typically provide both a minimum time where trial cannot commence, and then a maximum time by which trial must commence. The accused can waive both those time periods, agreeing to a quicker trial or agreeing to extend the beginning of the trial date.

The criminal statute of limitations typically begins to run when the crime is complete. For some crimes, this is simple: if you break into my house and shred my priceless Vermeer on Tuesday January 10th, then the clock starts on that date.

But if you steal it, keep it hidden for seven years until you think the statute of limitations has run, and then sell it, you're in for a surprise: keeping the painting is a continuing offense, and the statute of limitations clock hasn't even started yet, much less ended.
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Old 08-20-2018, 05:03 AM
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nm

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Old 08-20-2018, 07:38 AM
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nm
What does this mean?
Sorry for the trivial aside, but this has perplexed me for years.
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Old 08-20-2018, 08:08 AM
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What does this mean?
Sorry for the trivial aside, but this has perplexed me for years.
Never mind.

Usually typed, posted, thought better of it, edited to read nm.
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Old 08-20-2018, 08:15 AM
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What does this mean?
Sorry for the trivial aside, but this has perplexed me for years.
Abbreviation for the latin phrase non curae sibi est.
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Old 08-20-2018, 08:16 AM
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Thank you.
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Old 08-20-2018, 08:27 AM
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Abbreviation for the latin phrase non curae sibi est.
Dolor asinum !
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Old 08-20-2018, 08:39 AM
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