Reviving Lenity: Prosecutorial Use of the Rule of Lenity as an Alternative to Limitations on Judicial Use

By Hester, Conrad | The Review of Litigation, Spring 2008 | Go to article overview
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Reviving Lenity: Prosecutorial Use of the Rule of Lenity as an Alternative to Limitations on Judicial Use

Hester, Conrad, The Review of Litigation


Who is the most powerful figure in the United States? While the possible answers may vary, even one as mighty as a Supreme Court Justice recognized that the most powerful person in America is the prosecutor.1 To mitigate the expansive power that adheres to the position, prosecutorial behavior is constrained in multiple ways.2 Yet, one important area has managed to avoid limitations thus far. The prosecutor's discretion in interpreting ambiguous statutes is a powerful tool as prone to abuse as any form of prosecutorial discretion.

Meanwhile, a judicial canon of construction-the rule of lenity-is being scaled back at both the federal and state levels, leaving certain interests unprotected. This Note suggests a revival of the rule to resolve both the problem of unfettered prosecutorial discretion and concerns raised by a decline in lenity. The proposal requires prosecutors to apply the rule of lenity to ambiguous statutes before indictment in jurisdictions that limit or do not speak to judicial use of the rule.

Part II examines the application of the rule of lenity in the judicial interpretation of penal statutes and discusses the nature, benefits, disadvantages, and current state of the rule as a canon of construction. Part III analyzes the scope of discretion exercised by prosecutors, particularly in bringing charges. Part IV introduces the proposal for incorporating the rule of lenity in the prosecutorial function, describes the benefits of adopting this proposal, and acknowledges and responds to potential criticisms. Part V sums up the argument for using the rule of lenity to limit prosecutorial reading of ambiguous statutes, thus confining excessive discretion.


A. Purposes and Benefits

The rule of lenity is the strict construction of criminal statutes.3 By choosing the more restrictive meaning of the text, judges resolve ambiguities in the defendant's favor.4 For example, when faced with ambiguous language in a statute criminalizing the transfer of stolen motor vehicles, Justice Holmes chose the narrower and, consequently, more defendant-friendly interpretation that an airplane should not be included as a "vehicle" within the statute's ambit.5 The rule of lenity originated in England in the eighteenth century as a judicial creation to decrease the number of executions resulting from violations of the numerous capital offenses set by Parliament.6 The rule was applied by not only the judiciary, but prosecutors as well.7 In the United States, the rule serves a number of functions, including the constitutional principles of separation of powers,8 Due Process,9 Equal Protection,10 and providing for the legality11 of criminal statutes.12 Apart from constitutional considerations, disclosure of criminalization by lawmakers has been touted as a benefit of the rule.13

1. Separation of Powers

In United States v. Wiltberger, Chief Justice John Marshall justified the rule of lenity's introduction into American law while noting that "[t]he rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself."14 Writing for the Court, Marshall stated:

[Strict construction of penal statutes] 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. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.15

As set out in Wiltberger, the dual purposes served by the rule of lenity, those of notice and legislative supremacy, are the primary traditional rationales for the rule under the common law.16

Legislative authority to deem certain acts criminal is dependent on giving credence to popular determination of which acts are perceived as criminal, so that individuals are not punished for acts the public did not intend to criminalize.

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Reviving Lenity: Prosecutorial Use of the Rule of Lenity as an Alternative to Limitations on Judicial Use


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