Can the Rule of Lenity Be Found in the Due Process Clause?
by: Ryan • April 23, 2011 • no comments
For years now, the Oregon Court of Appeals has refused to apply the rule of lenity in reaching its decisions. When it had applied the rule in the past, it did so under authority of a statute that has since been repealed. Since there is no longer any statutory authority for the rule of lenity, the court has concluded, there is no authority for the court to apply it.
If, however, there is a constitutional basis for the rule of lenity - the due process clause - then the COA is failing to apply a constitutional principle. Is there a constitutional basis?
In a recent petition for cert, in a case called Henderson v. US, the following paragraph can be found:
"This court [SCOTUS] has repeatedly ruled that where a court is deciding on conflicting statutory interpretations, lenity should apply. Moskal v. United States, 498 U.S. 1103, 131(1990)(Scalia, J., dissenting); United States v. Gradwell,243 U.S. 476, 485 (1917); Bass, 404 U.S. at 348. This means that in order for a Court to adopt the harsher interpretation, Congress must, "have spoken in language that is clear and definite." ld. (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222 (1952)(internal quotations omitted). This Court has also made it clear that the principle of lenity "applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose." Bifulco v. United States, 447 U.S. 381, 387 (1980). "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178 (1958)"
The brief in response had this to say, regarding the rule of lenity:
"As petitioner concedes (Pet. 28), the "rule of lenity traditionally applies to ambiguity within statutes." See, e.g., United States v. Santos, 553 U.S. 507 (2008); United States v. Granderson, 511 U.S. 39 (1994); United States v. Thompson~Center Arms Co., 504 U.S. 505 (1992); Crandon v. United States, 494 U.S. 152 (1990); Williams v. United States, 458 U.S. 279 (1982); BifuIco v. United States, 447 U.S. 381 (1980). Moreover, the rule applies only where a statute includes a "grievous ambiguity or uncertainty," such that, "after seizing everything from which aid can be derived," a court "can make no more than a guess as to what Congress intended." Muscarello v. United States, 524 U.S. 125, 138-139 (1998) (citations, internal quotation marks, and alterations omitted). That is not the case here. AIthough Section 841(b) does not define "conviction," Dickerson makes clear that "[i]n the absence of a plain indication to the contrary," it is to be assumed that a federal statute's application turns on federal law. 460 U.S. at 119. As discussed above, the courts of appeals have uniformly reached that conclusion, and none has found that the statute is grievously ambiguous on that point."
All of this raises more questions than it answers, not least of which is, do the cases cited above have any application to state prosecutions? Do other states believe the rule of lenity can be found in the due process clause? I do not intend to answer those questions here.
But I would point out that declining to apply the rule of lenity simply allows the Oregon legislature to do a crappy job. They have no incentive to be precise and careful with the laws they draft. Without the rule of lenity, they are held to a much lower standard than a solo practitioner writing a pre-nup. Consequently, we have all sorts of laws where the parties simply have to guess what the legislature intended, and as a result, defendants go to prison for years until the appellate courts sort it out. Ambiguity drastically favors the state, because it's the defendants who risk everything when trying to guess what the legislature meant. Too many cases, defendants are in prison for years before the COA or Oregon Supreme Court says, "hey, you know, we don't think the legislature even intended to criminalize (or impose quite as severe a sentence for) the actions of this defendant."
Example # 1: sexual abuse II. The COA had to guess whether a law criminalizing sex in which one party doesn't consent was intended to apply to sex with 17 year olds who do consent but can't as a matter of law. And when the COA made that guess, they guessed badly, which resulted in a more serious punishment for sexual abuse II involving otherwise consensual sex with a 17 year old than rape III for otherwise consensual sex with a 14 year old.
That's not the only example. Criminal laws are often written so poorly that I occasionally have to tell clients that I honestly don't know whether what they actually did was ever intended to be punished by the crime they've actually been charged with. The same might be true with the rule of lenity in place, but at least I could tell my client that the law favors the more narrow interpretation.
