Commonwealth v. Bargeron

¶1(dissenting, with whom Hennessey, C.J., and Wilkins, J., join). For the first time in the history of this Commonwealth, the court today gives retroactive effect to a criminal statute of limitations. The court does this, contrary to the intent of the Legislature; in so doing, the court aligns us with a small group of our sister States who have addressed the issue.

¶2“As a general rule, statutes operate prospectively unless a contrary legislative intent is clearly shown. Yates v. General Motors Acceptance Corp., 356 Mass. 529, 531 (1969). Welch v. Mayor of Taunton, 343 Mass. 485, 487 (1962).” Nantucket Conservation Found., Inc. v. Russell Management, Inc., 380 Mass. 212, 214 (1980). It is a fundamental precept that criminal statutes are strictly construed against the government and in favor of the accused. See Commonwealth v. Clinton, 374 Mass. 719, 721 (1978). Moreover, “criminal limitations statutes are ‘to be liberally interpreted in favor of repose.’ ” United States v. Habig, 390 U.S. 222, 227 (1968), quoting United States v. Scharton, 285 U.S. 518, 522 (1932).1 In the absence of any *595legislative intent to make the amendment retroactive, I see no reason to override the presumptions stated above.

¶3The court states: “ [I]t is not reasonable to assume that the Legislature intended to delay the application of the new ten-year statute of limitations [G. L. c. 277, § 63].” Ante at 593. No explanation is given for this conclusory statement. On the contrary, the only reasonable conclusion is that the Legislature intended prospective application. In the past thirty-five years, G. L. c. 277, § 63, has been amended only three times: once in 1987, an amendment not in issue; once in 1985, the amendment at issue in this case; and once in 1955. Statute 1955, c. 781, § 2, provided: “Section 1. Section 63 of chapter 277 of the General Laws, as appearing in the Tercentenary Edition, is hereby amended by inserting after the first sentence the following sentence: — An indictment for the crime or crimes set forth in sections seventeen, eighteen, nineteen and twenty-one of chapter two hundred and sixty-five, or for conspiracy to commit such crime or crimes, or as accessory thereto, or any one or more of them may be found and filed within ten years of the date of commission of said crime or crimes. Section 2. The second sentence of section sixty-three of chapter two hundred and seventy-seven of the General Laws, as appearing in section one of this act, shall apply to indictments for such crimes committed within the six years next prior to the effective date of this act as well as thereafter” (emphasis supplied). Thus, in 1985, when the Legislature amended this statute which, in its 1955 enactment specifically provided for retroactivity, it did not repeat the language providing for retroactive application of the amendment. The 1985 amendment, and the legislative history accompanying the amendment, are silent on the issue of retroactivity. This silence, in light of the statute’s pre*596vious explicit language of retroactivity, speaks volumes. It is far more “reasonable” to assume that, because they did not so provide, the Legislature did not want the 1985 amendment to operate retroactively.

¶4Furthermore, it is clear, generally, that the Legislature knows how to make a statute retroactive when it wants it to operate in that way. In addition to the explicit langauge of retroactivity in the 1955 amendment to G. L. c. 277, § 63, the Legislature has provided explicitly for a retroactive application with regard to other criminal statutes.2 Indeed, when the Legislature *597amended G. L. c. 269, § 10, in 1981, and a prior amendment in 1976 contained a clause providing for retroactivity, the Legislature enacted a new provision also allowing for retroactivity. Compare G. L. c. 269, § 10, as amended by St. 1976, c. 34, § 2, with St. 1981, c. 411, § 2. In this context, the omission of the retroactivity language in the 1985 amendment to G. L. c. 269, § 63 (as compared with the 1955 amendment), is a compelling indication that the Legislature did not intend the 1985 amendment to be retroactive.

¶5The court also states, as justification for its views, that the Legislature was concerned with “one of the great scourges of our society — the sexual abuse of children.” Ante at 593. Obviously, the Legislature was so concerned, and properly so. But the court’s conclusion is a classic non sequitur. While I agree that child abuse is a terrible and tragic crime, the fact that the Legislature lengthened the statute of limitations for crimes of that nature has no bearing on the retroactivity or nonretroactivity of the statute. Normally, when the Legislature is keenly concerned with remedying a problem, it will invoke the emergency clause, thereby making the legislation effective immediately, rather than in ninety days. No emergency provision was attached to this amendment. Nor did the Legislature utilize its prior technique of making the statute explicitly retroactive.

¶6To date, no case in this Commonwealth has given retroactive effect to a criminal statute of limitations. The case cited by the court, Commonwealth v. Greenberg, 339 Mass. 557 (1959), is off the mark; that case dealt with a statute governing the admissibility of evidence, clearly a procedural rule. The question whether a statute of limitations is procedural or substantive in this context has not been addressed in this Commonwealth, and there is a significant split of opinion among sister jurisdictions, as noted in the court’s opinion. Contrary to the court’s assertion that the split among jurisdictions is “hopeless,” my review of the cases of other jurisdictions reveals a decided preference for prospective application of a criminal statute of *598limitations.3 I find the logic and reasoning of the majority of the States to be persuasive. I dissent.4