Academic journal article Harvard Law Review

The New Rule of Lenity

Academic journal article Harvard Law Review

The New Rule of Lenity

Article excerpt

When interpreting criminal laws, courts routinely recite the maxim that "penal statutes should be strictly construed against the government." (1) This canon of construction, known as the rule of lenity, requires that a court interpreting a criminal statute resolve any ambiguity in favor of the defendant. The rule's application in the United States dates at least to 1820, when Chief Justice Marshall described it as "perhaps not much less old than construction itself." (2) Modern courts describe the rule as "venerable" (3) and "well-recognized." (4)

Despite its long pedigree and apparent continuing endorsement by the courts, the rule of lenity has recently become the target of substantial criticism. Observers argue that courts apply the rule inconsistently, or even randomly. (5) Many go further and claim that courts have stopped applying it altogether. (6) These critics explain the routine invocations of the rule of lenity as mere lip service: courts may nominally acknowledge the rule, but they find statutes to be unambiguous and therefore decline to apply it unless they would have found for the defendant on other grounds anyway.

Some of these critics welcome the rule's apparent demise. They argue that it cannot be justified by any of its traditional rationales and therefore conclude that the courts would do well to make their abandonment of the rule official. (7) Other scholars disagree with this normative conclusion and instead advocate a return to a more robust application of lenity. (8) Both camps, however, assume that modern courts have rendered the rule of lenity largely impotent.

This Note reexamines that shared assumption. Based on a comprehensive review of the Rehnquist Court's application of the rule of lenity, it concludes that the critics are partially right: the Court did not apply the rule to every ambiguous penal statute. However, lenity is not defunct. In a small but significant number of cases, the Court applied the rule to reach results that cannot plausibly be explained on other grounds. Moreover, the application of the rule was neither random nor unprincipled. Instead, the Court seems to have adopted a narrower rule of lenity de facto. The new rule requires that an ambiguous criminal statute be construed narrowly only when a broad interpretation would penalize "innocent" conduct. As the term is used here, a statute punishes "innocent" conduct if it defines a strict liability offense or if the conduct at issue is not wrong by its very nature but rather wrong because it is prohibited (malum prohibitum instead of malum in se) and the statute does not make knowledge of wrongfulness or illegality an element of the offense.

This new, innocence-protecting rule of lenity is arguably an improvement over the traditional rule. It not only better describes current judicial practice, but also rests on stronger normative foundations. First, the new rule more closely aligns with one of lenity's primary justifications: providing notice of the scope of criminal conduct. Second, like many of the Court's substantive canons of statutory construction but unlike the traditional version, the new rule protects important or "quasi-constitutional" values from inadvertent or casual infringement by Congress. Finally, the new rule would resolve potential tensions between the rule of lenity and other canons of construction that depend on a threshold finding of ambiguity, most notably Chevron deference. For these reasons, this Note concludes that the Court should codify its recent practice by formally adopting the new rule of lenity.


A. The Traditional Rule

The Anglo-American rule of lenity originated as an effort by seventeenth- and eighteenth-century English judges to nullify the harsh effects of sweeping death penalty laws. (9) For example, Blackstone describes a use of the rule of lenity (then known as the rule of strict construction) to interpret a law imposing capital punishment for stealing "sheep, or other cattle" to apply only to the theft of sheep. …

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