1 Cite as: 55 8 U

. S. ____ (2009)

Statement of S TEVENS , J. 

## SUPREME CO URT O FTHE UNI TED STATES
UNITE D STATE S v. JAMES FOR D SE ALE

ON CERTIFI E D QUESTION BY THE UNITED STAT ES COURT OF APPEAL S FOR THE FIFTH CIRCUIT
No. 09–1 66. Dec i ded Nov e mber2, 2009 The question certified by the United State s Court o f Appeals for the Fifth Circuit is dismissed. Statement of J USTICE S TEVEN S , with whom J USTIC E S CALIA joins, respect i ng the dismissal of the certified question. This certificate presents us with a pure ques t ion of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statu t e of limitations applies to a prose

cution under 18 U. S. C. §1201 commenced in 2007 for a kidnaping o ffense that occurred in 1964. James Ford Seale was found guilty of violatin g §1201, a provision that does not includ e it s own lim itations period. Title 18 U. S. C. §3281 provides that “an yoffense punis h

able by death” may b eprosecuted “at an y time without limitation,” whereas §3282(a) imposes a 5-year period of limitationsfor all other offenses “[e]xcept as otherwise expressly provided by law.” In 1 964 a viola t ion of §12 0 1 was a capital offens e when the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnaping results in th e los s of l i fe. But for more than two decade s in between, Seale’s crime was n o t punishable by death. Several developments accounted for this. In 1968 this Court held that the death penalty provision in the old §1201 was unconstitutional because it applied “only to those defendants who assert the right to contest their guilt before a ju ry,” Uni t edStatesv. Jackson , 390 U. S. 570 , 581, and in 1972 we cas tsignifican t doubt on the constitu

-2 UNITED STAT ES v. SEAL E

Statement of S TEVENS , J. tionality of death penalty laws nationwide, Furmanv. Georg i a , 40 8 U. S. 238 (per curia m )

. Following Furma n , Congress repealed the death penalty clause of §1201, s e e Act for the Protection of Fo reign Officials and Official Guests of th e United States, Pub. L. 92–539, §201, 86 Stat. 1072, which had the effect of changing the applicable statute of limitations from §3281 to §3282. In this case, the District Court held that the 1972 repeal did not retr oactively ch ange the character of a violation of §1201 as a capital offense within the meanin gof §3281— and therefore that the prosecution of Seale could go fo r
ward—but a panel of the Court of Appeals reversed. 542 F. 3d 1033 (CA5 2008). In response to the Government’s petition for rehearing en banc , the full courtvacated th e panel decision and, by an equally divided 9-to-9 vote, affirmed the District Court’s rul i ng on the limitations defense. 570 F. 3d 65 0 (CA5 200 9) (percuri am) ; see also id., at 651 (DeMoss, J., diss en ting) (noting the affi r
mance’s “nominal” nature in light of the dea d lock). Fol

lowing the procedure authorized by Con gress in 28 U. S. C. §1254(2) and b ythis Court’s Rule 19, a majority of the members of the en banc cou rt voted to certify thi s question of law to us for decision. The question is narrow, debatab le, and important. I recognize that the question re aches us in an interlocutory posture, as Seale appealed his c o nviction on numerous grounds, an d that “[i]t is primarily the task of a Court of Appeals to reconcile its internal difficulties,” Wisniewskiv. United S t a t es , 353 U. S. 901, 902 ( 1957) (per c u riam)

. Yet I see n ob e nefit and significant cost to postponing th e question’s resolution. A prompt a n swer from this Court will expedite the termi nation of th is litigation and deter

mine whether other similar cases may be prosecuted. In these unus ual circumstances, certification can serve th e interests not only of legal clar ity but also of prosecutorial economy and “the proper administration and expedition of3 Cite as: 55 8 U

. S. ____ (2009)

Statement of S TEVENS , J. judicial business.” Ibid

. The certification proc ess has all but disappeared in recent deca des. The Court has accepted only a handful of certified cases since th e 1940san d none since 1981; it isa newsworth y event th ese days when a lower court eve n tries for certification. Secti on 1254(2) and this Court’s Rule 19 remain part of our law because the certificatio n process serves a valuab le, if limit ed, function. We ought to avail ourselves of it inan appropriate case. In my ju dg

ment, this case should be briefed a n d set for argument.