Rules vs. Discretion: Statute of Limitations Edition

If politics is exchange, so surely is the machinery of criminal justice. But as in much in the jurisdiction of the state, the time and attention of police and prosecutors is not coordinated by unambiguous. competitive price signals. It is generally in the taxpaying (and justice-seeking) public's interest that the limited resources of the DA's office be directed towards those cases most likely to deliver swift resolution.

A statute of limitations is a technology directing law enforcement to discard extra-marginal cases.

Radley Balko has been working on a four-part series debunking bite mark analysis. In the addenda, Manhattan DA Cyrus Vance responds:

Melissa Mourges is a veteran prosecutor and a nationally recognized leader in her field. As Chief of the Manhattan District Attorney’s Forensic Science/Cold Case Unit, she has solved dozens of cold case homicides, including two recently attributed to “Dating Game” serial killer Rodney Alcala. In addition to being a Fellow at the American Academy of Forensic Sciences, ADA Mourges has also served as co-chief of the DNA Cold Case Project, which uses DNA technology to investigate and prosecute unsolved sexual assaults. As part of that work, she pioneered the use of John Doe indictments to stop the clock on statutes of limitation and bring decades-old sexual assaults to trial. Her work and reputation are impeccable, and her record speaks for itself.

Emphasis added.

John Doe indictments are a counter-technology. It's the DA's way of saying, "hold on, the margins have shifted. We can now see justice done well after the fact, and the economic calculus implied by the limitations statute no longer apply."

This subtext may be true or it may be false. That's an empirical question. But if they have changed, using an ad hoc legal maneuver like a John Doe indictment with great frequency should be a strong hint to the legislature that their statutory technology is obsolete, or at least that it could stand to be renegotiated.

So here's the puzzle: why hasn't it? "Tough on crime" is legislative frotteurism. Wooing voters by saying "the candidate has introduced legislation to extend/remove the statute of limitations on the most heinous crimes in society" is a no-brainer, isn't it? Can voters' status quo bias be so strong that a campaign promise like that is too weird to fly?

Citizens employ governments to provide law and order. When investigators have to subvert the law to chase crooks, the provision of this service is in disrepair. Constituents have a natural expectation to be subject to a clear, consistent rule of law. If we must have a legislature, and we must lift the statute of limitations, perhaps we should consider doing it in the legislature rather than at the whim of zealous, dogged prosecutor's offices.