NOTE: This article has updated content to reflect how the First Step Act (P.L. 115- 391) has adjusted U.S. federal law. After an effective date of December 21, 2018, the First Step Act has applied a diversity of adjustments to federal criminal justice, including extension of the safety valve provision that allows some non-violent offenders to secure more lenient punishment.
A criminal charge is like a civil lawsuit in one respect – the statute of limitations. This legal term refers to the time limit for filing against the defendant. The federal statute of limitations that applies to criminal charges provides a five-year statute of limitiations. After five years pass from the commission of the offense, the federal government cannot file criminal charges.
The federal statute of limitations is 18 USC 3282, which provides the following:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.
See 18 USC 3282(a).
What is the purpose of statute of limitations?
The purpose of the statute of limitations is to protect defendants from having to defend themselves against charges concerning events that took place long in the past. Evidence they would use to prove their innocence may no longer be available through no fault of their own. It would arguably be a violation of due process for a prosecution to take place in these circumstances.
The statute of limitations is a complete defense to a criminal charge. But failure to raise it prior to trial is a waiver, and the prosecution would be allowed to proceed, even if the statute of limitations lapsed.
To prevail on a statute of limitations defense, the defendant must show that the date of filing of the criminal complaint (also called an information) or indictment by the grand jury was beyond the five-year period.
The general five-year limitation established by 18 USC 3282 has exceptions. Federal law says that the general five-year statute of limitations applies in every case, unless there is specific statute concerning the offense.
For capital crimes (e.g., death penalty cases), the United States Attorney is not subject to any statute of limitations. See 18 USC 3281. Terrorism is not subject to any statute of limitations, if there was a death, serious bodily harm, or threats of the same. See 18 USC 3286. Likewise, there is no statute of limitations for sex offenses in which a child was the victim. See 18 USC 3283.
Offenders who commit capital crimes, such as murder or terrorism, are also excluded from consideration for the safety valve provision of the First Step Act. These violent offenders will be sentenced according to the mandatory minimum punishment schedules required by federal law.
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