Sunday, December 6, 2020

Pending US Supreme Court cases about statute of limitations

On 15 October 2020 we referenced the Supreme Court litigation about the statute of limitations applicable to rape cases in United States v. Collins and United States v. Briggs.

For much of the UCMJ’s life, most offenses were subject to a three or five-year statute of limitations (SOL). Over time that has changed especially for sex offenses. Some time ago the SOL for rape was removed—there now being no SOL. That change has caused a collision with the Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977)—the court decided that the death penalty for rape of an adult, absent a death, was cruel and unusual punishment and issues of retroactivity.

You know the military has been proactive investigating and at times prosecuting “old” sex offenses. For example, Collins was prosecuted about 20-years after his offenses, Mangahas 18 years after his offenses, and Briggs about eight years after his offenses. There are similar cases now in the appellate pipeline affected by the Supreme Court’s decision in Collins and Briggs. See, e.g., United States v. McPherson, No. 20180214, 2020 CCA LEXIS 350 (A. Ct. Crim. App. Sept. 28, 2020) (unpub.). The Army TJAG certified the case to CAAF on 3 November 2020. [[1]]

In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), the Court of Appeals for the Armed Forces (CAAF) held the five-year SOL prohibited his rape prosecution because the five-year SOL had expired and any new change did not apply. In doing so, the CAAF reversed itself from a 1998 case. The Government did not appeal to the U. S. Supreme Court.

Mangahas is a case concerning the statute of limitations for rape that we decided while Appellant's petition for certiorari was pending. In Mangahas, we corrected our interpretation of the version of Article 43(a), UCMJ, 10 U.S.C. § 843(a), that was in force from 1986 until 2006. 77 M.J. at 222. That version of Article 43(a), UCMJ, provided that "any offense punishable by death, may be tried and punished at any time without limitation." 10 U.S.C. § 843(a) (1994). Two precedents of this Court, United States v. Stebbins, 61 M.J. 366, 369 (C.A.A.F. 2005), and Willenbring v. Neurauter, 48 M.J. 152, 178 (C.A.A.F. 1998), had interpreted this language to mean that the offense of rape did not have a period of limitations because at the time those cases were decided, Article 120(a), UCMJ, provided that rape may "be punished by death or such other punishment as a court-martial may direct." In Stebbins and Willenbring, we recognized that the Supreme Court had earlier held in Coker v. Georgia, 433 U.S. 584, 598 (1977), that imposing capital punishment for the offense of rape of an adult woman would violate the Eighth Amendment of the United States Constitution. Stebbins, 61 M.J. at 369; Willenbring, 48 M.J. at 178. But in both cases we concluded that the Coker decision did not affect the application of Article 43(a) to the offense of rape as defined in Article 120(a). Stebbins, 61 M.J. at 369; Willenbring, 48 M.J. at 178. In Mangahas, however, we reconsidered this view because there is, in fact, no set of circumstances under which anyone could constitutionally be punished by death for the rape of an adult woman. 77 M.J. at 223-24. Accordingly, we overruled Stebbins and Willenbring to the extent that they held that rape was punishable by death at the time of the charged offenses. Id. at 222. We then concluded that the period of limitations for rape of an adult woman under the version of Article 43(a), UCMJ, in force from 1986 until 2006, was five years. Id.


Reconsidering Appellant's statute of limitation defense in light of Mangahas in this remand also requires us to address whether a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (NDAA FY 2006), Pub. L. No. 109-163, §§ 552-53, 119 Stat. 3136, 3264 (2006), applies to an offense that occurred before its enactment. 

United States v. Briggs, 78 M.J. 289, 291-92 (C.A.A.F. 2019).

 SCOTUSBlog has all you need to know about Collins’ and Briggs filings.

 I have taken a long way round to Jonathan M. Gaffney, Supreme Court Considers Statute of Limitations for Military Rape Cases. Legal Sidebar, Congressional Research Service, 4 December 2020. The author does an excellent job of informing the Congress on the cases and issues and concludes with this rather pithy point. [[2]] 

Although the resolution of Briggs’s, Collins’s, and Daniels’s cases rests with the Court, the legal issues at play highlight several considerations for Congress should it decide to amend the UCMJ. First, if Congress seeks to clarify that it intends a future UCMJ amendment to apply retroactively, it could include an “unambiguous” statement to that effect. Second, Congress could consider amending the UCMJ to clarify whether Article 55’s prohibition on “cruel and unusual punishment” is congruent with the Eighth Amendment’s similar prohibition. Finally, to avoid future uncertainty as to the proper statute of limitations for offenses “punishable by death,” Congress might define statutes of limitations under Article 43 by categories of crimes, rather than by the type of authorized punishment.

 So, rather than a note to practitioners this is a note to legislators.

[1] Article 67(a)(2), UCMJ, 10 U.S.C. 867(a)(2) allows the Government to “appeal,” by “certification,” a decision of a court of criminal appeals. CAAF must hear the case. Article 67a, UCMJ, 10 U.S.C. 867a, then gives the Government direct access to the U. S. Supreme Court—access mostly denied to appellants. See Appellate review by the Supreme Court—still discriminatory, GMJR 4 December 2020.

[2] The CRS “provides the public with access to research products produced by the Congressional Research Service (CRS) for the United States Congress. By law, CRS works exclusively for Congress, providing timely, objective, and authoritative research and analysis to committees and Members of both the House and Senate, regardless of political party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for more than a century.

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