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Lenity
by David S. Romantz*
Volume 40 Issue 2
The full text of this article may be downloaded by clicking on the PDF
link.
INTRODUCTION
The rule of lenity is easy to define but difficult to apply. Simply stated,
it is a rule of statutory construction that requires a court to resolve
statutory ambiguity in favor of a criminal defendant, or to strictly
construe the statute against the state. Scores of courts and
commentators have tried to make sense of the rule with little success.
As a result, it is difficult, if not impossible, to predict when the rule
should apply and—if it does apply—to predict the result of its
application. A serious problem is the tension between lenity’s two
opposing functions. Lenity purports to support two important
constitutional objectives. First, it serves to preserve the separation of
governmental powers. As applied, lenity limits the scope of statutory
language in penal statutes, because the legislature and not the courts
ought to establish the contours of a crime and its punishment. Lenity
then serves to protect the legislature’s constitutional lawmaking
prerogative and to limit the courts’ encroachment on a legislative
function. Second, lenity preserves the constitutional right of fair
warning found in due process. The rule ensures that we do not have to
guess as to the breadth and meaning of a penal statute, the application
of which could seriously impact our life or liberty. Thus, lenity
promotes fair notice and helps secure our right to (procedural) due
process. But while the United States Supreme Court—the highest court
in the land—purports to uphold both constitution-based rationales, it
routinely favors one and ignores the other. Thus, judges and
commentators have questioned its continued viability.
Beginning in the 1950s, the Court began tipping the lenity scale in
favor of the separation of powers function over the fair warning
function, thus limiting lenity’s application and frustrating its
foundation in due process. The modern application of the rule simply
asks whether statutory ambiguity in a criminal statute can be resolved
using traditional tools of statutory construction. This test sharply
focuses on the separation of powers leg of the lenity ladder, since it
asks whether Congress spoke to the issue; and if the Court can resolve
the ambiguity—if the Court concludes that Congress has spoken to the
issue—then the inquiry ends and Congress’s discovered intent
controls. Once ambiguity is resolved, the Court can avoid fair warning
on the grounds that the statute is no longer in doubt, and so there is
no longer a need for lenity. Since the 1950s, the Court typically
reserves the application of lenity to those few cases where it fails after
effort to resolve statutory ambiguity. What remains in these cases is a
statute that is ultimately ambiguous with lenity reduced to a mere
tiebreaker.
Lenity is an ancient doctrine that speaks to fair warning and fair play.
It is afforded out of fairness to a criminal defendant when she faces the
possibility of conviction and sentencing under a statute that is less
than clear. Minimizing the due process function of lenity and failing to
articulate just when lenity applies not only harms the Court’s
credibility, but does violence to our deeply-held notions of liberty and
fair play.
This Article examines the Supreme Court’s use and abuse of the rule of
lenity. It argues that courts ought to weigh both the separation of
powers objective and the fair warning objective that define lenity. It
also argues that the Court must develop a credible test and a
consistent application if it intends to preserve the venerable rule. First,
the Article explains briefly the origins of the rule. Then, it describes
the Supreme Court’s evolving view of lenity and its function. Next, the
Article examines the Court’s modern view of the rule; a view that
defers to Congress’s law-making authority—a view that has little to do
with leniency. Lastly, the Article argues that the rule of lenity ought to
be reconstructed to recover and reclaim the important due process
foundation that begat the rule.
The Supreme Court has avoided the tension by planting its judicial
thumb firmly on the separation of powers side of the lenity scale. 266 If
the Court can resolve statutory doubt, then it usually will. And without
statutory doubt, there is no room for lenity. Thus, the doctrine has lost
its due process bona fides. Curiously, the Court has declined to strike
the rule and continues to cite it as a viable and important tool. 267 But
if the rule of lenity is to mean anything, the Court must give due
weight to both sides of the lenity equation, including fair warning. It is
a question of timing. Does the rule of lenity apply at the outset when a
court first recognizes statutory doubt or at the end of the process once
a court concludes it cannot, after effort, resolve the ambiguity? Is
lenity a substantive rule of construction of penal statutes or merely a
tiebreaker to apply when a court can only guess what Congress
intended?
The question is practical and imperative. If lenity is applied at the end
of the process of statutory interpretation, then it cannot purport to
defend fundamental rights to fair notice. To suggest that a person is
fairly warned of criminal conduct, not because the statute is clear but
because a court could clarify it, is reckless and undermines the reason
for the rule. As Justice Holmes observed in 1931:
statutory purpose;
the whole statute rule;
the golden rule exception; and
legislative history.284