Is the Rule of Lenity Rooted in Due Process?

This wikilog article is a draft, it was not published yet.

by: Ryan • June 18, 2014 • no comments

Thanks to attorney James Leuenberger for bringing Scalia's dissent from Monday's SCOTUS opinion -- Abramski v. US -- to my attention. I had previously written about the Rule of Lenity and its arguable Constitutional roots here.

In Oregon, there used to be a statutory rule of lenity. It meant that when a criminal statute was ambiguous, then the court's interpretation should be the defense-favorable one. In part it's a remedy against sloppy drafting by the legislature. And it was only fair. Analogous to contract law, the legislature drafts the statute, not the citizens. If a citizen is faced with ambiguous terms, it shouldn't be the citizen who gets the shaft; the fault -- and the consequences -- fall on the drafter.

It's also a simple but fair rule to live by: if we can't tell what the legislature intended, then better to err on the side of punishing lightly, not moreso. But that concept is anathema to an executive branch that often stretches statutory meaning to its limit in order to justify punishing someone more severely simply because it can.

Alas, the statute was repealed, and the Oregon appellate courts haven't applied the rule of lenity since. Shockingly, in those situations where the rule of lenity would have applied (see State v. Ofodrinwa), the courts routinely come down in favor of the state.

With that in mind, note the following paragraphs from Scalia's recent dissent. Note especially the bolded parts.

Even if the statute were wrongly thought to be ambiguous on this point, the rule of lenity would defeat the Government’s construction. It is a “familiar principle” that “‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’” Skilling v. United States, 561 U. S. 358, 410 (2010). That principle prevents us from giving the words of a criminal statute “a meaning that is different from [their] ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 12). And it means that when a criminal statute has two possible readings, we do not “ ‘choose the harsher alternative’” unless Congress has “‘spoken in language that is clear and definite.’” United States v. Bass, 404 U. S. 336, 347–349 (1971). For the reasons given above, it cannot be said that the statute unambiguously commands the Government’s current reading. It is especially contrary to sound practice to give this criminal statute a meaning that the Government itself rejected for years.

The majority does not mention the rule of lenity apart from a footnote, ante, at 18, n. 10, responding to this dissent. The footnote concedes that “the text creates some ambiguity” but says that “context, structure, history, and purpose resolve it.” Ibid. But for the reasons given above, context and structure do not support the majority’s interpretation, history refutes it by showing that the Government itself interpreted the statute more leniently for many years, and “purpose” supports it only if one imputes to the statute a crime-fighting purpose broader than the text discloses (a practice that would nullify the rule of lenity in all cases). See Part I–B, supra.

If lenity has no role to play in a clear case such as this one, we ought to stop pretending it is a genuine part of our jurisprudence. Contrary to the majority’s miserly approach, the rule of lenity applies whenever, after all legitimate tools of interpretation have been exhausted, “a reasonable doubt persists” regarding whether Congress has made the defendant’s conduct a federal crime, Moskal v. United States, 498 U.S. 103, 108 (1990)—in other words, whenever those tools do not decisively dispel the statute’s ambiguity. Skilling,supra,at 410; see, e.g., Scheidler v. National Organization for Women, Inc. , 537 U. S. 393, 409 (2003); Cleveland v. United States , 531 U. S. 12, 25 (2000); Crandon v. United States, 494 U. S. 152, 158 (1990). “[W]here text, structure, and history fail to establish that the Government’s position is unambiguously correct . . . we apply the rule of lenity and resolve the ambiguity in [the defendant]’s favor.” United States v. Granderson, 511 U. S.39, 54 (1994). It cannot honestly be said that the text, structure, and history of the Gun Control Act establish as “unambiguously correct” that the Act makes Abramski’s conduct a federal crime. By refusing to apply lenity here, the majority turns its back on a liberty-protecting and democracy-promoting rule that is “perhaps not much less old than construction itself.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.); see, e.g., 1 W. Blackstone, Commentaries on the Laws of England 88 (1765) (“Penal statutes must be construed strictly”). As Chief Justice Marshall wrote, the rule is “founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” Wiltberger, supra, at 95. It forbids a court to criminalize an act simply because the court deems that act “of equal atrocity, or of kindred character, with those which are enumerated.” Id., at 96. Today’s majority disregards that foundational principle.