Military Crimes and Statutes of Limitations (Part 2)

Justice Alito concluded in relevant part: The most natural place to look for Congress’s answer to whether rape was “punishable by death” within the meaning of §843(a) is §920’s directive that rape could be “punished by death.” That is so even if the UCMJ’s separate prohibition on “cruel or unusual punishment,” §855, would have been held to provide an independent defense against the imposition of the death penalty for rape.

Second, respondents’ interpretation of §843(a) is not the sort of limitations provision that Congress is likely to have chosen. Statutes of limitations typically provide clarity, see United States v. Lovasco, 431 U. S. 783, 789, and it is reasonable to presume that clarity is an objective when lawmakers enact such provisions. But if “punishable by death” means punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear. That deadline would depend on an unresolved constitutional question about Coker’s application to military prosecutions, on what this Court has described as “‘evolving standards of decency’” under the Eighth Amendment, Kennedy v. Louisiana, 554 U. S. 407, 419, and on whether §855 of the UCMJ independently prohibits a death sentence for rape.

 Third, the ends served by statutes of limitations differ sharply from those served by provisions like the Eighth Amendment or UCMJ §855. Factors legislators may find important in setting a statute of limitations—such as the difficulty of gathering evidence and mounting a prosecution—play no part in the Court’s Eighth Amendment analysis. Thus, it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions.

An unresolved question is why there was more than a five-year delay in the commencement of these three rape prosecutions. Justice Alito shows hi pro-prosecution inclinations in noting that the difficulty gathering of evidence and mounting a prosecution are the important factors in setting statutes of limitations. Those statutes exist first and foremost as a matter of fundamental fairness to the accused so that they do not have to look over their shoulders forever for charges that might be brought after exculpatory evidence has disappeared.