Cite as: 558 U. S. ____ (2009) 1 

Statement of STEVENS, J. 

SUPREME COURT OF THE UNITED STATES 

UNITED STATES v. JAMES FORD SEALE 

ON CERTIFIED QUESTION BY THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

No. 09–166. Decided November 2, 2009 

The question certified by the United States Court of

Appeals for the Fifth Circuit is dismissed. 

Statement of JUSTICE STEVENS, with whom JUSTICE 

SCALIA joins, respecting the dismissal of the certified 

question.

This certificate presents us with a pure question 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 statute of limitations applies to a prosecution under 18 U. S. C. §1201 commenced in 2007 for a 

kidnaping offense that occurred in 1964. 

James Ford Seale was found guilty of violating §1201, a 

provision that does not include its own limitations period. 

Title 18 U. S. C. §3281 provides that “any offense punishable by death” may be prosecuted “at any time without 

limitation,” whereas §3282(a) imposes a 5-year period of

limitations for all other offenses “[e]xcept as otherwise 

expressly provided by law.” In 1964 a violation of §1201

was a capital offense when the victim was harmed, and 

since 1994 a violation of §1201 has been a capital offense

when the kidnaping results in the loss of life. But for 

more than two decades in between, Seale’s crime was not 

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 jury,” United States v. Jackson, 390 U. S. 570, 

581, and in 1972 we cast significant doubt on the constitu-
2 UNITED STATES v. SEALE 

Statement of STEVENS, J. 

tionality of death penalty laws nationwide, Furman v. 

Georgia, 408 U. S. 238 (per curiam). Following Furman, 

Congress repealed the death penalty clause of §1201, see 

Act for the Protection of Foreign Officials and Official 

Guests of the 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 retroactively change the character of a violation of 

§1201 as a capital offense within the meaning of §3281—

and therefore that the prosecution of Seale could go forward—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 court vacated the 

panel decision and, by an equally divided 9-to-9 vote,

affirmed the District Court’s ruling on the limitations 

defense. 570 F. 3d 650 (CA5 2009) (per curiam); see also 

id., at 651 (DeMoss, J., dissenting) (noting the affirmance’s “nominal” nature in light of the deadlock). Following the procedure authorized by Congress in 28 

U. S. C. §1254(2) and by this Court’s Rule 19, a majority of 

the members of the en banc court voted to certify this

question of law to us for decision. 

The question is narrow, debatable, and important. I 

recognize that the question reaches us in an interlocutory 

posture, as Seale appealed his conviction on numerous 

grounds, and that “[i]t is primarily the task of a Court of 

Appeals to reconcile its internal difficulties,” Wisniewski v. 

United States, 353 U. S. 901, 902 (1957) (per curiam). Yet 

I see no benefit and significant cost to postponing the 

question’s resolution. A prompt answer from this Court

will expedite the termination of this litigation and determine whether other similar cases may be prosecuted. In 

these unusual circumstances, certification can serve the 

interests not only of legal clarity but also of prosecutorial 

economy and “the proper administration and expedition of 
Cite as: 558 U. S. ____ (2009) 3 

Statement of STEVENS, J. 

judicial business.” Ibid. 

The certification process has all but disappeared in

recent decades. The Court has accepted only a handful of

certified cases since the 1940s and none since 1981; it is a 

newsworthy event these days when a lower court even

tries for certification. Section 1254(2) and this Court’s

Rule 19 remain part of our law because the certification

process serves a valuable, if limited, function. We ought to 

avail ourselves of it in an appropriate case. In my judgment, this case should be briefed and set for argument.