"Tolling Justice"

The title of this post is the title of this new paper authored by Anjelica Hendricks available via SSRN.  Here is its abstract:

Police officers commit crimes. All too often, however, they are not prosecuted.  For decades, the conventional explanation has been that unprosecuted police crimes are the product of human choices: prosecutors who shield the police, unions that immunize their members from accountability, and police themselves for refusing to condemn their colleagues.  Though these explanations play a role in the phenomenon, they are incomplete.

This Article shows that there is another reason why police officers frequently escape criminal accountability: statutes of limitations.  Using a hand-built, original dataset of 838 likely police crimes, I find that statutes of limitations prevented prosecutors from bringing charges based on 642 of those crimes — a rate of 76.6%.  These crimes were not minor offenses: in many instances, officers tortured suspects, committed perjury, tampered with evidence, and sexually abused witnesses.  Shockingly, after committing these offenses, many unprosecuted officers remain in positions of power, as leaders of police agencies and even judges.

After presenting this evidence, the Article grapples with the question whether statutes of limitation should shield police in this way.  Although statutes of limitation are reasonably understood to protect certain fairness and legitimacy values associated with procedural justice, I argue that those very values should counsel against applying statutes of limitation to insulate police wrongdoing.

Furthermore, society has developed criminal law to address what we believe to be particularly egregious acts. When police commit crimes, there is expressive value in treating them as such.  Fortunately, although statutes of limitations currently work to shield the police, they are amendable.  They exist at the mercy of legislatures who have seen fit to amend statutes of limitations previously in the interests of justice.  The Article accordingly concludes by describing the political economy of reform.