Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue. Meanwhile, we have to deal with the gruel they dish out.
So, keep an eye on any changes to the statute of limitations for various sex related offenses. AND, keep an eye on any potential increases to punishments.
In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations. In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):
(1) laws that aggravate a crime, or make them greater than they were when committed and
(2) laws that alter the legal rules of evidence and receive less, or different, testimony than the law required at the time of the commission of the offence in order to convict the defendant.
In Peugh v. United States, ___ U.S. ___, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (212), the Supreme Court had a sentence/guidelines case before it. Peugh involved a defendant who was convicted and sentenced on bank fraud counts. The defendant argued that his sentencing under the 2009 Federal Sentencing Guidelines, which were in effect at the time of sentencing, required a heavier sentence than the sentence he would have received at the time of the offense, which would have been governed by the 1998 Guidelines. Under the 1998 Guidelines, Peugh’s sentencing range would have been 30 to 37 months, but the 2009 Guidelines led to a range of 70 to 87 months, which was more than double the earlier calculation. The District Court and the U.S. Court of Appeals for the Seventh Circuit rejected his Ex Post Facto arguments and sentenced him to 70 months, but the Supreme Court agreed with him that the Clause had been violated. The Supreme Court ruled, 5-4, that the Ex Post Facto Clause precludes a sentence that is more severe than that which would have been likely to have been rendered at the time of the offense.
See also, Ashran Jen, Stogner v. California: A Collision between the Ex Post Facto Clause and California’s Interest in Protecting Child Sex Abuse Victims, 94 J. CRIM. L. & CRIMINOLOGY 723 (2003-2004); Marci Hamilton, The Supreme Court Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders: What the Ruling Means for Child Safety, Verdict, June 14, 2013.
Then see United States v. Kebodeaux, ___ U.S. ___, 133 S. Ct. 2496, 186 L. Ed. 2d 540 (2013), in which the Supreme Court makes a distinction regarding conviction at Special Court-Martial for a sex offense and the collateral effect of a sex offender registration.