Turning the Rule of Lenity Into a Rule of Lenity

Report Crime and Justice

Turning the Rule of Lenity Into a Rule of Lenity

November 17, 2015 13 min read Download Report

Contributors: Paul Larkin and John-Michael Seibler

“Too many crimes, too much punishment”[1] has been a recurrent problem in our criminal justice system.[2] That concern gave rise to a canon of statutory construction known as the Rule of Lenity, which has evolved to ensure that criminal laws, if objectively ambiguous, are read in favor of the defendant and against the government. So wrote William Blackstone in 1765: “[P]enal statutes must be construed strictly.”[3]

By and large, federal and state legislatures have left the development of canons of construction of criminal statutes to the courts as part of their common law, case-by-case decision-making process. Yet legislatures have occasionally intervened to make their wishes known, enacting statutes to direct the courts how to interpret particular laws.[4]

In June 2015, Texas followed other states in passing a lenity statute, essentially mandating William Blackstone’s 1765 directive. The Texas statute may serve as an indication that the legislatures will attempt to take back from the courts the development of canons of statutory construction. At a minimum, the new Texas law is a welcome addition to the legal developments underway to respond to the overuse of the criminal law that we have witnessed over the past four decades.

The Traditional Role for the Rule of Lenity

At common law, the English courts defined crimes.[5] In America, by contrast, legislatures have taken over that responsibility.[6] The result is that understanding the criminal law is principally a matter of statutory interpretation. When a court cannot determine what a statute means simply by reading its text, the process of statutory interpretation can become difficult. In those cases (and sometimes even when a statute seems quite clear), the courts must turn to canons of statutory construction—guideposts, rules-of-thumb, or sound advice—to define what is and is not a crime.

Consider the following hypothetical law: “The speed limit on this road is 35 miles per hour any day, anytime, anywhere, rain or shine, no exceptions—and we mean it.” The text of that law seems unambiguous. The legislature appears to have rendered irrelevant every excuse or justification that the average motorist could manufacture. Being late for a meeting, a flight, a movie, a concert, a dinner with your boss, a wedding, a funeral—or just absentmindedly driving 40 mph—does not count. It therefore might seem that a court would never need to apply a canon of construction when interpreting that law. But life is often unruly, and language therefore is often unclear.

What about a fire truck, a police cruiser, or an ambulance? Does the law apply to them when they are engaged in official government business, perhaps when the driver is responding to an emergency such as “shots fired” or “officer needs assistance”? What if the reason for exceeding the speed limit is to save a person’s life? Can a government emergency vehicle exceed the speed limit in that case? It certainly sounds reasonable, but if a government official is excused from compliance in cases of a life-threatening emergency, can a private party exceed the speed limit for the same reason? If so, what about a private citizen transporting his wife, who is in labor, to the hospital?[7] Ask yourself, “Does it matter to your answer whether the driver is fined $50 or imprisoned for five years for violating that law?” If it does (and it should[8]), perhaps the statutory text does not answer every question that could arise. That is why canons of construction are often useful.

The Rule of Lenity is one such canon. The rule guides the proper interpretation of criminal statutes and operates in a manner that should be familiar to all baseball fans: When the government’s and a defendant’s interpretations of a criminal law are equally persuasive, “the tie goes to the defendant.”[9] Put more broadly, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”[10]

The rule furthers several important goals in the criminal law. Because the criminal law and the Constitution require legislatures to draft criminal statutes in “common language that the world can understand,”[11] the rule ensures that no one is held accountable for violating a law “whose commands are uncertain” or “subjected to punishment that is not clearly prescribed.”[12] In so doing, the Rule of Lenity operates as a “due process safety valve” against the “hydraulic pressures” of federal criminal law: the passage of ambiguous legislation and the overzealous pursuit of dubious cases of criminality[13] in response to the public’s tough-on-crime-mania, which has often been stoked by legislatures and prosecutors for electoral purposes.[14] These purposes are balanced as lenity is designed to enhance legislative supremacy and democratic accountability, at least as between branches.[15] The rule also “places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.”[16]

This “venerable rule”[17] is one of the most ancient canons of statutory construction.[18] In the 18th century, English judges applied the canon “to stem the march to the gallows” under the “vast and irrational proliferation of capital offenses” initiated by Henry VIII.[19] The Supreme Court of the United States first applied the Rule of Lenity in 1820 to limit the reach of a federal manslaughter statute.[20] The rule therefore has an ancient lineage.

Progress of the Rule of Lenity in the Supreme Court

After it first applied the Rule of Lenity, the Supreme Court did not follow a consistent approach to the application of the rule, sometimes applying it seriously, sometimes simply mentioning it in a throwaway passage.[21] The Supreme Court has also displayed an unenthusiastic attitude toward the rule since then. Some scholars have noted that the Court’s reliance on the rule has dwindled over the past two centuries as other canons more amenable to “opportunistic use” gained favor.[22] Moreover, because courts interpret statutes, the value of the rule depends on exactly how the courts apply it.[23]

Nonetheless, the Rule of Lenity remains a valuable criminal law canon precisely because it forces the legislatures to define crimes themselves rather than punt that task to the courts[24] and because it helps to control “legislative blood lust.”[25] For that reason, despite criticism and indifference from the courts, the Rule of Lenity has endured.[26]

The Contemporary Role for the Rule of Lenity

Over the past decade, the Supreme Court has occasionally resuscitated the Rule of Lenity.[27] Justice Ruth Bader Ginsburg most recently applied that canon in Yates v. United States.[28] In Yates, the government argued that a fisherman who threw overboard three undersized fish violated the Sarbanes–Oxley Act of 2002,[29] a massive overhaul of the federal laws requiring corporations to report accurately on their financial health. Among other things, the act prohibits a corporation or accounting firm from destroying a “tangible object” for purposes of preventing the discovery of a crime.

The Supreme Court rejected that remarkable interpretation of the Sarbanes–Oxley Act.[30] As the Court explained, “if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of [a phrase], we would invoke the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[31] This shielded citizens from the government’s reading of a statute “that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil.”[32]

Nonetheless, the Court has frequently declined to invoke the Rule of Lenity even when the text of a statute is ambiguous. In Barber v. Thomas, two federal prisoners challenged the Federal Bureau of Prisons’ method for calculating good-time-credit earned over a “term of imprisonment”—the allegedly ambiguous term—under 18 U.S.C. § 3624(b).[33] Using “a simplified example” of the bureau’s method,[34] the Court decided that “‘term of imprisonment’ must mean ‘time actually served’ the third time that it appears” in § 3624(b) while meaning something different “the first two times it is used in the very same sentence. This in itself indicates that something is quite wrong here.”[35] More, the petitioners argued that the “term of imprisonment” meant “the sentence imposed,” and dissenting Justices Anthony Kennedy, John Paul Stevens, and Ruth Bader Ginsburg argued a third interpretation: “the span of time that a prisoner must account for in order to obtain release.”[36]

By sidestepping these interpretations that would have “maximize[d] the amount of available good time credit,”[37] the majority actively shirked the Rule of Lenity.[38] The Court instead filled in any “grievous ambiguity or uncertainty” by resort to other canons of statutory construction.[39] The result of this type of analysis is that the Court has avoided giving the rule its intended effect by applying it only in a halfhearted manner.[40 ]

Part of the problem is that the rule becomes relevant only at the end of the statutory interpretation process.[41] The Supreme Court has established the following sequence for courts’ use when interpreting a statute. Step 1: Start with the text and read it in a straightforward manner. Undefined terms should be given their dictionary meaning.[42] If the text alone does not resolve the dispute, then comes Step 2: Examine the context of the relevant provision, its role in the statute, perhaps the common law history of the problem and the policies that the law seeks to address. For some Justices, such as Antonin Scalia, that is where the analysis ends. For others, there is a Step 3: Consider the legislative background to the adoption of the statute.[43] The Rule of Lenity is locked away until Step 4, which arises only when “‘a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies’ of the statute.”[44] Even then, the Court has said that a statute is not “‘unclear unless we think there are decent arguments for each of the two competing interpretations of it.’”[45] Accordingly, the Rule of Lenity serves only as a tiebreaker.[46]

There are certain recurring problems in determining when a statute is ambiguous. These problems include open-endedness,[47] use of lists,[48] manipulation of modifiers,[49] possible multiple punishment problems,[50] the possibility that a court could stretch the text of a statute to ensure that it covers a particular heinous crime or offender,[51] and novel applications of statutes.[52] At least one subset of statutes—antitrust, securities, and federal fraud—has been thought to contain ambiguity because Congress “intentionally delegated to federal courts the power to devise and revise rules of conduct in common law fashion.”[53] Surveying such rocky terrain, both critics and advocates of lenity suggest that new legislation is “the most effective way to secure reform” in statutory construction toward more predictable, uniform use of the rule.[54]

New Texas Rule-of-Lenity Statute

Until recently, Texas law rejected the Rule of Lenity. Section 1.05(a) of the Texas Penal Code is explicit on that point, providing that “the rule that a penal statute is to be strictly construed does not apply to this code.”[55] Nonetheless, the Texas courts had applied the rule to offenses defined in the Texas Penal Code as a matter of practice.[56]

In June 2015, Texas decided to codify that practice. The legislature enacted a new law, H.B. 1396, which amends the Government Code as follows:

A statute or rule that creates or defines a criminal offense or penalty shall be construed against the government and construed in favor of the actor if any part of the statute or rule is susceptible to more than one objectively reasonable interpretation, including: (1) an element of offense; or (2) the penalty to be imposed.[57]

H.B. 1396 was adopted to reverse “the erosion of the rule of lenity,” to ensure that “Texas courts continue to follow it when considering criminal offenses,” and to provide for “uniform, consistent application throughout the state.”[58] The lenity statute further acts “as a reminder to courts and prosecutors working outside of the Penal Code that the rule should be applied”[59] and is designed to ensure notice to the legislature to make clear any ambiguous statutes.[60] Accordingly, the new law compels use of lenity in the case of statutory ambiguity when a criminal proceeding arises outside the penal code.

Opponents of the new law criticized it on three grounds. They argued that a statute mandating the Rule of Lenity was unnecessary because the Texas courts already apply the rule.[61] They also claimed that “[p]lacing the rule in [a] statute could make it appear to be a directive to the judiciary considering cases outside the Penal Code, instead of having its place as one of the other principles commonly used by the courts.”[62] Opponents’ last argument was that the statute was potentially confusing, particularly in the case of white-collar crimes, because they may be defined by Texas law outside the Penal Code.[63]

Because it enacted the new law, the Texas legislature must have found those arguments unconvincing. Unfortunately, the terse committee reports provide little insight into legislative intent beyond what the text of the statute itself offers. Even those reports, however, state the conviction that lenity “should be codified, especially as it relates to criminal laws outside of the Penal Code.”[64]

Potential Effectiveness of the New Texas Statute

What effect will the new Texas law have on the state courts’ interpretation of Texas criminal law? The answer hinges on the degree of respect that the Texas courts afford to its terms. The statute is far more explicit and demanding than its counterparts in Florida and Ohio,[65] where the courts have applied their lenity statutes unenthusiastically, if at all.[66] Further, both the Florida and Ohio statutes are written into those states’ criminal codes and do not necessarily apply in criminal proceedings based on some criminal provision(s) tucked away in an otherwise civil statute. Because it gives the courts less opportunity to evade its demands through creative interpretation, the Texas statute could wind up having its intended effect.[67]

While a few scholars believe that enacting a lenity statute might actually deter courts from liberally applying the Rule of Lenity,[68] it is unclear what, if any, empirical evidence supports that claim.[69] It is true, though, that past lenity statutes have not been applied by courts with sufficient regularity or uniformity to frame a reliable forecast for how Texas courts are likely to interpret and apply the new statute. Justice Felix Frankfurter foretold some degree of inevitability here:

Perfection of draftsmanship is as unattainable as demonstrable correctness of judicial reading of legislation. Fair legislation and fair adjudication are attainable. The ultimate reliance of society for the proper fulfillment of both these august functions is to entrust them only to those who are equal to their demands.[70]

A statute incorporating the Rule of Lenity may offer a benefit that the common law doctrine lacks. By virtue of its status as a statute, a lenity rule can skip ahead to second place on the list of items that a court must consider when interpreting a law.[71] The text of the law will always be the starting point for statutory analysis because it is the text that was passed by Congress and signed by the President and because it is the text—and only the text—to which a person must refer to know what the law means.[72] A statute directing a court to apply the Rule of Lenity could force the courts to invoke that canon if a simple reading of the text alone does not readily make clear what is and is not a crime.[73] The structure of that statute, its purposes or goals, the problem that the statute sought to fix, the view of the legislators who sponsored the statute or who debated its meaning—those and other features of a law are the types of considerations to which lawyers turn when trying to learn exactly what a statute means and how it should be applied to a specific case. But the criminal law does not require that a statute be readily intelligible to a lawyer. The Void-for-Vagueness Doctrine asks whether a statute is readily understandable by the average person, not the average attorney.[74]

A statute directing the courts to apply the lenity canon should leapfrog over all of those other factors and canons when a criminal law is involved. A statute with that effect would change for the better current federal law, which relegates the lenity canon to last place, which in turn often results in the canon’s being given nothing more than “lip service.”[75]


The Texas lenity statute provides a clear directive to courts that any ambiguity in a criminal statute must be construed in favor of the defendant. Although it is difficult to predict how the Texas law will operate in the courts, the text of the statute is straightforward and offers little opportunity for evasion or “creative interpretation.” While some Texas courts have vigorously applied the Rule of Lenity in the past, the legislative bill analysis suggests that the new law has the potential for more uniform application and robust accountability.

History demonstrates both lenity’s importance against overcriminalization and that “when lenity and cruelty play for a kingdom, the gentler gamester is the soonest winner.”[76] An aggressive lenity statue like Texas’s H.B. 1396 is a worthwhile experiment.

—Paul J. Larkin, Jr., is Senior Legal Research Fellow and John-Michael Seibler is a Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

[1] Douglas Husak, Overcriminalization: The Limits of the Criminal Law 3 (2008).

[2] Some scholars have said that it has been a problem since at least the 14th century. See Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 Harv. C.R.-C. L. Rev. 197 (1994) (citing Leon Radzinowizc, A History of English Criminal Law and Its Administration from 1750, at 3–4 (1948)).

[3] William Blackstone, Commentaries on the Laws of England *88.

[4] See Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341, 350 (2010) (“[I]t appears that legislative codification of the canons is both a widespread and substantive practice.”). For examples of statutes abolishing strict construction, see Ariz. Rev. Stat. Ann. § 13-104 (West 2001); Del. Code Ann. tit. 11, § 203 (2001); Idaho Code Ann. § 73-102(1) (1999); Mich. Comp. Laws § 750.2 (2001); N.H. Rev. Stat. Ann. § 625:3 (1996); see also David D. Field et al., Draft of a Penal Code for the State of New York § 10 (1864) (abandoning “[t]he rule of the common law that penal statutes are to be strictly construed,” for “the fair import of their terms, with a view to effect its objects and to promote justice.”). For examples of statutes codifying a rule requiring the strict construction of criminal statutes, see Fla. Stat. Ann. § 775.021 (West 2000); Ohio Rev. Code Ann. § 2901.04(a) (Anderson 2002).

[5] From 1660 to 1860 (and in scattered instances thereafter), the English courts exercised authority to declare as crimes certain actions that were deemed contra bonos mores. See Jerome Hall, General Principles of Criminal Law 179 (2d ed. 1947).

[6] Federal courts have never had the authority to create common law crimes. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812). The Hudson & Goodwin decision does not apply to the states, but the Due Process Clause imposes the same type of restriction on state courts by not allowing them to adopt an unforeseeable interpretation of a penal law. See, e.g., Metrish v. Lancaster, 133 S. Ct. 1781, 1787–88 (2013); Rogers v. Tennessee, 532 U.S. 451, 458–62 (2001); Marks v. United States, 430 U.S. 188, 192 (1977); Douglas v. Buder, 412 U.S. 430 (1973); Rabe v. Washington, 405 U.S. 313 (1972); Bouie v. City of Columbia, 378 U.S. 347 (1964).

[7] Consider Lon Fuller’s famous hypothetical about a sign stating that “Sleeping in the railway station is prohibited.” The admonition seems quite clear on its face, and for most purposes it is. The directive is designed to keep the homeless from camping out overnight at an unoccupied train depot. No one would find it surprising for a police officer to instruct a camper to leave or face a fine, but it would be unreasonable to apply that prohibition to a commuter who momentarily nods off while waiting for the morning train even though, for a second or two, he fell asleep. See Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 664 (1958).

[8] See Paul J. Larkin, Jr., Oversized Frauds, Undersized Fish, and Deconstruction of the Sarbanes–Oxley Act, 103 Geo. L.J. Online 17 (2014); Stephen F. Smith, Proportionality and Federalization, 91 Va. L. Rev. 879 (2005). It matters to the Supreme Court as well. See United States v. Santos, 553 U.S. 507, 515–16 (2008) (plurality opinion).

[9] United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion); Yates v. United States, 135 S. Ct. 1074, 1088 (2015) (plurality opinion); Burrage v. United States, 134 S. Ct. 881, 891 (2014); Roberts v. United States, 134 S. Ct. 1854, 1859 (2014); DePierre v. United States, 131 S. Ct. 2225, 2237 (2011).

[10] See Santos, 553 U.S. at 514 (plurality opinion); Yates, 135 S. Ct. at 1088 (plurality opinion); Johnson v. United States, 135 S. Ct. 2551, 2567 (2015) (Thomas, J., concurring); Abramski v. United States, 134 S. Ct. 2259, 2280 (2014) (Scalia, J., dissenting); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 296–302 (2012); Herbert L. Packer, The Limits of the Criminal Sanction 95 (1968); Norman J. Singer & J. D. Singer, Statutes and Statutory Construction 125 (2001).

[11] McBoyle v. United States, 283 U.S. 25, 27 (1931).

[12] Santos, 553 U.S. at 514 (plurality opinion).

[13] The Yates case is a recent example. See infra text accompanying notes 28–32.

[14] See, e.g., William J. Stuntz, The Collapse of American Criminal Justice (2011); Daniel Richman, Overcriminalization for Lack of Better Options: A Celebration of Bill Stuntz, in The Political Heart of Criminal Procedure 64 (Michael Klarman et al. eds., 2012); Sara Sun Beale, What’s Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 Buff. Crim. L. Rev. 23, 29 (1997) (arguing that “The epithet ‘soft on crime’ is the contemporary equivalent of ‘soft on Communism.’”); Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 721 (2013) (A number of “incentives lead political actors to use criminal law as the first resort to a social problem and often the second, the third, the fourth, and so on.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 911 (2004).

[15] See generally Roger J. Marzulla, Lenity: An Essential Rule for Interpreting Environmental Crime Statutes, 13 Engage 62, 67–72 (Oct. 2012); Vikrant P. Reddy, Codifying the Rule of Lenity, Texas Public Policy Foundation (Sept. 2014), http://www.texaspolicy.com/library/docLib/2014-06-pb08-ruleoflenity-cej-vikrantreddy.pdf; Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 332 (2000) (lenity acts as a “non-delegation doctrine” in criminal law-making). But see Reed Dickerson, The Interpretation and Application of Statutes 206 (1975) (“strictness relates not to the meaning of the statute but to using the statute as a basis for judicial lawmaking by analogy with it.”); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345 (1994).

[16] Santos, 553 U.S. at 514 (plurality opinion); see also, e.g., United States v. R.L.C., 503 U.S. 291, 294 (1992) (plurality opinion).

[17] Santos, 553 U.S. at 514 (plurality opinion).

[18] See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.); 1 Blackstone, supra note 3, at *88.

[19] John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985); John Laurence, A History of Capital Punishment 8 (1932). “The common law courts adopted it in response to the profligate use of capital punishment. England once had more than two hundred capital crimes, and, unlike today, courts could not mitigate a death sentence. The choice was between the rule and the executioner.” Larkin, supra note 8, at 20–21 (footnote omitted). Of course, the crown could have exercised its clemency power to commute an unjust sentence, but kings rarely did. See id. at 21 n.24 (“The king could commute a sentence, but Henry VIII is reputed to have executed 72,000 subjects, Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749 (1935), so any gathering of his clemency recipients would have fit into a Mini Cooper.”).

[20] United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); Lawrence Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 103 (1998).

[21] See, e.g., John Choon Yoo, Note, Marshall’s Plan: The Early Supreme Court and Statutory Interpretation, 101 Yale L.J. 1607, 1626 (1992).

[22] See, e.g., Jonathan R. Macy & Geoffrey P. Miller, The Canons of Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 660 (1992); see also, e.g., Kahan, supra note 15, at 347 (construing lenity as similar to the non-delegation doctrine in administrative law, and equally dormant); Price, supra note 14, at 885–86 (arguing that reduction in use of lenity indicates confusion as to its purpose); Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 751 (1935) (making a historical argument that “the reason for the rule has largely passed away”).

[23] See, e.g., Hall, supra note 22, at 769–70 (recommending liberal construction except when strict construction is “necessary”; offering a model statute: “Sec. 1… [S]tatutes shall be construed liberally, without regard to any distinction between the construction of penal and non-penal statutes, except as specifically provided in Section 2 of this Act. Sec. 2. A penal statute may be construed strictly where such construction is necessary (1) to make the words of the statute not misleading to persons acting in good faith and honestly attempting to comply with all provisions of law regulating their conduct; or (2) to prevent the imposition of a penalty which is so disproportionate to other penalties imposed by law or which is so clearly inappropriate in view of changed social or economic conditions in the state that it is reasonable to believe that the legislature did not intend such a result.”).

[24] See Sunstein, supra note 15, at 332 (lenity acts as a “non-delegation doctrine” in criminal law-making); Reddy, supra note 15.

[25] Jeffries, supra note 19; cf. Henry M. Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 431 (1958) (asking why “insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place”?); Herbert L. Packer, The Aims of the Criminal Law Revisited: A Plea for a New Look at “Substantive Due Process,” 44 S. Cal. L. Rev. 490 (1971).

[26] See Reddy, supra note 15. The rule has frustrated some because there is no easy way to identify when a statute is ambiguous. See Moskal v. United States, 498 U.S. 103, 107–08 (1990) (“[H]ow much ambiguousness constitutes…ambiguity[?]”); Price, supra note 14, at 889–90 (“As with other legal rules, a specific predicate (ambiguity) calls the rule of lenity into operation, dictating a specific result (lenity). Unlike other rules, however, this rule’s predicate is not a self-evident fact…. [T]he rule that the President of the United States must be thirty-five requires only an examination of birth date. The rule of lenity, by contrast, requires the judge to make a finding of ambiguity—and textual ambiguity is itself an interpretive, legal judgment.”).

[27] “Before Santos, scholars deemed the doctrine dead, dying, or restricted to protecting innocent conduct.” The Supreme Court 2007 Term, Leading Cases, Rule of Lenity, 122 Harv. L. Rev. 475, 480 (2008); see, e.g., Santos, 553 U.S. at 515–19 (plurality opinion); Skilling v. United States, 561 U.S. 358, 410–11 (2010); Clark v. Martinez, 543 U.S. 371, 378–83 (2005); Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004); Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 408–09 (2003); cf. Fowler v. United States, 131 S. Ct. 2045, 2055 (2011).

[28] 135 S. Ct. 1074 (2015) (plurality opinion).

[29] Pub. L. No. 107-204, Tit. VIII, § 802(a), 116 Stat. 745 (2002).

[30] See Yates, 135 S. Ct. at 1081–89 (plurality opinion); id. at 1089–90 (Alito, J., concurring in the judgment). As Justice Alito noted in his separate opinion, “How does one make a false entry in a fish?” Id. at 1090 (Alito, J., concurring in the judgment). Justice Kagan dissented, but she recognized that “the real issue” in the case was the “overcriminalization and excessive punishment in the U.S. Code.” Id. at 1100 (Kagan, J., dissenting). Moreover, the problem is not limited to the one section charged against Yates. Section 1519 of Title 18 “is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.” Id. at 1100 (Kagan, J., dissenting).

[31] Yates, 135 S. Ct. at 1088 (plurality opinion) (citing Cleveland v. United States, 531 U.S. 12, 25 (2000), in turn quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).

[32] Id. (emphasis in original).

[33] Barber v. Thomas, 560 U.S. 474 (2010).

[34] Id. at 477.

[35] Id. at 494–95 (Kennedy, J., dissenting, joined by Justices Stevens and Ginsburg) (emphasis added).

[36] Id. at 495. Exacerbating the problem, “under the Court’s reading, a prisoner serving a ten-year sentence will never reach year ten of his term; year ten simply does not exist. According to the Court, year nine is the final year, and even year nine is not a full year: It lasts no more than 298 days. If this sounds confusing, it will be all the more so to the prisoner who has just received his sentence and turns to the statute books to figure out when to expect his freedom.” Id. at 498 (internal quotation marks omitted).

[37] Id. at 489.

[38] “When a penal statute is susceptible of two interpretations, the one more favorable to the defendant must be chosen unless ‘text, structure, and history…establish that the [harsher] position is unambiguously correct.’” Id. at 500–01 (quoting United States v. Granderson, 511 U.S. 39, 54 (1994)).

[39] “[T]he rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a ‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply guess as to what Congress intended.” Barber, 560 U.S. at 488 (internal quotation marks omitted) (citing Muscarello v. United States, 524 U.S. 125, 139 (1998); Ladner v. United States, 358 U.S. 169, 178 (1958); United States v. Hayes, 555 U.S. 415, 429 (2009); United States v. R.L.C., 503 U.S. 291, 305–06 (1992) (plurality opinion)). For a civil suit analog, in terms of analysis, see Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995) (Justice Scalia wrote for the majority that § 2543 of the Plant Variety Protection Act, which governs the use and sale of another’s crop seed, is a “verbal maze” (id. at 186), that “there are two ways to read the provision” (id. at 189), and that “the meaning of the text is by no means clear” (id. at 192) but ruled against the defendant. Only Justice Stevens wrote in dissent that “doubts should be resolved against purported restraints on freedom.” Id. at 195.

[40] Instead, courts adopt a so-called extra-textual analysis to support finding that the statute is not ambiguous, most often siding with the government. See, e.g., Kawashima v. Holder, 132 S. Ct. 1166, 1176 (2012); United States v. Nofziger, 878 F.2d 442, 456 (D.C. Cir 1989) (Edwards dissenting) (“Although the rule is a widely accepted theoretical notion, my review of the nearly one hundred federal cases in which reviewing courts in the last ten years have paid lip service to the principle reveals that, almost without exception, courts have found the rule to be altogether inapplicable to the facts before them.”); William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. Pa. L. Rev. 1007, 1083 (1989) (“invocation of the rule” is “random,” “bizarre”); contra Wayne R. LaFave and Austin W. Scott, Criminal Law § 2.2(d) at 109 (1986) (noting that the rule is subject to numerous “generally accepted limitations”).

[41] “[I]f lenity is only considered at the end of the interpretive process, its scope is necessarily reduced.” Newland, supra note 2, at 198; see, e.g., United States v. R.L.C., 503 U.S. 291, 298–305 (1992) (plurality opinion) (finding plain text ambiguous and adopting a narrow reading on the basis of legislative history); Moskal v. United States, 498 U.S. 103, 108 (1990); Singer, supra note 10, at 188–89 (“The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning.”).

[42] See Yates, 135 S. Ct. at 1082 (plurality opinion) (noting that the dictionary definitions of the words “tangible” and “object” are relevant but are not dispositive to the meaning of “tangible object”); see also, e.g., FAA v. Cooper, 132 S. Ct. 1441, 1448–49 (2012) (“actual damages” has different meanings in different statutes); Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 313–14, (2006) (“located” has different meanings in different provisions of the National Bank Act); T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 820 (2015) (Alito, J., concurring); Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013) (relying on dictionary definition of “continued” to conclude that § 1912(f) of the Indian Child Welfare Act, which requires a determination that continued custody of a child by a parent or custodian is likely to result in serious damage to the child before parental rights are terminated, “does not apply in cases where the Indian parent never had custody of the Indian child.”); United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion).

[43] See, e.g., Howe v. Smith, 452 U.S. 473, 483–85 (1981); Solan, supra note 20, at 144 (taking a historical perspective explaining the influence of Justice Scalia’s textualism); Michael H. Koby, The Supreme Court’s Declining Reliance on Legislative History: The Impact of Justice Scalia’s Critique, 36 Harv. J. on Legis. 369 (1999).

[44] United States v. R.L.C., 503 U.S. at 305–06 (plurality opinion) (quoting Moskal v. United States, 498 U.S. 103, 108 (1990) (emphasis added)); see also United States v. Bass, 404 U.S. 336, 347–49 (1971); United States v. Granderson, 511 U.S. 39, 54 (1994).

[45] Young v. Community Nutrition Inst., 476 U.S. 974, 988 (1986) (Stevens, J., dissenting) (quoting Ronald Dworkin, Law’s Empire 352 (1986)).

[46] Some scholars have argued that Justice Scalia has used a “lenity-second” approach. See, e.g., Santos, 553 U.S. at 507 (plurality opinion); Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting); Moskal, 498 U.S. at 132 (Scalia, J., dissenting). But Justice Scalia’s textualism has also conflicted with lenity analysis. See, e.g., Deal v. United States, 508 U.S. 129, 131 (1993) (majority opinion by Scalia, J.) (rejecting appeals to the Rule of Lenity and holding that the statutory phrase “second or subsequent conviction” applies when the two convictions are simultaneous); Chapman v. United States, 500 U.S. 453, 455 (1991) (Rehnquist, C.J., joined by White, Blackmun, O’Connor, Scalia, Kennedy, & Souter, JJ.) (interpreting sentencing provision to count blotter paper as a “mixture” containing the drug LSD). He identifies the plain meaning of the text first, resolves any ambiguities without regard for the Rule of Lenity, and then employs the rule “to cut off broad readings based on policy, legislative history, or other extra-textual sources.” Price, supra note 14, at 891–92 (criticizing Justice Scalia’s preference for textualism over lenity); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621 (1990); William D. Popkin, An Internal Critique of Justice Scalia’s Theory of Statutory Interpretation, 76 Minn. L. Rev. 1133 (1992). That approach enables a court to resolve statutory ambiguity without use of the Rule of Lenity, especially in regulatory and “business crime” contexts. See, e.g., Reddy, supra note 15 (this would include untimely oyster harvesting, improperly thrashing pecan trees, and mislabeling citrus).

[47] See, e.g., United States v. Kozminski, 487 U.S. 931 (1988) (finding the federal anti-peonage laws, 18 U.S.C. §§ 241 & 1584, ambiguous in prohibiting actions that may violate Thirteenth Amendment policies). But see Carpenter v. United States, 484 U.S. 19, 27–28 (1987) (adopting an expansive view of “fraud”); Durland v. United States, 161 U.S. 306 (1896) (same).

[48] Risking overbroad use of analogy, see Yates v. United States, 135 S. Ct. 1074 (2015) (plurality opinion) (questioning whether a grouper is a “tangible object” used to record or preserve information under the Sarbanes–Oxley Act); People v. Davis, 766 N.E.2d 641 (Ill. 2002) (questioning whether a BB gun fit with a list of “dangerous weapons” for purposes of an “armed violence” charge). But see Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (acknowledging that “a generally phrased residual clause” may “serve[] as a catchall for matters not specifically contemplated—known unknowns.”).

[49] See, e.g., United States v. Bass, 404 U.S. 336, 337 (1971) (quoting 18 U.S.C. § 1202(a) (1968)) (holding that the modifier “in commerce” applied to only possession of a firearm); State v. Huggins, 802 So. 2d 276, 279 (Fla. 2001) (holding that the term “occupied dwelling” could not cover an unoccupied dwelling).

[50] See, e.g., Ball v. United States, 470 U.S. 856, 865 (1985) (finding that “Congress did not intend a convicted felon…to be convicted of both receiving a firearm in violation of 18 U.S.C. § 922(h), and possessing that firearm in violation of 18 U.S.C. App. § 1202(a).”).

[51] See, e.g., Bell v. United States, 349 U.S. 81 (1955) (holding that “transportation of two women on the same trip and in the same vehicle [for the purpose of prostitution] in violation of the Mann Act constituted a single offense.”); State v. Richard, 786 A.2d 876 (N.H. 2001) (declining to apply the Rule of Lenity in a statutory inquiry as to whether multiple convictions for multiple pattern offenses “for assaults committed against a single victim during a common time frame” violated double jeopardy).

[52] See Price, supra note 14, at 928–31 (covering cases where conduct at issue is beyond what the legislature sought to prohibit; the law neglects a class of conduct; and “where social circumstances have moved beyond the terms of the statute.”).

[53] Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203 (2002) (“If so, these are areas where Congress understood the ambiguity and clearly indicated that it wanted courts to resolve it, not to return the matter to Congress.”).

[54] Lenity’s critics and advocates alike have noted the need for reform. See, e.g., Hall, supra note 22, at 769; Ellen S. Podgor, Do We Need a “Beanie Baby” Fraud Statute, 49 Am. U. L. Rev. 1031, 1034–35 (2000).

[55] See Tex. Penal Code Ann. § 1.05(a) (“The rule that a penal statute is to be strictly construed does not apply to this [penal] code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”). It is unclear whether this no-Rule-of-Lenity provision also applied to crimes defined outside of the penal code.

[56] Tx. House Research Organization, Bill Analysis TX H.B. 1396, 2 (May 11, 2015), http://www.hro.house.state.tx.us/pdf/ba84r/hb1396.pdf.

[57] TX HB 1396, (Tx. 2015), to take effect on Sept. 1, 2015. https://legiscan.com/TX/text/HB1396/id/1122254. Compare Hall, supra note 22. The bill does not “expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision; nor does it expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.” Tx. H.R. riminal Justice Committee Report, TX H.B. 1396 (2015) (Apr. 29, 2015), available at http://www.legis.state.tx.us/billlookup/Text.aspx?LegSess=84R&Bill=HB1396.

[58] Tx. House Research Organization, supra note 56.

[59] Id. at 2.

[60] Id. (stating that when “application of the rule of lenity result[s] in outcomes counter to the intention of the law, the Legislature [can] resolve the issue by revising the law so that its meaning [is] clear”); see also Podgor, supra note 54; William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 564 n.227 (2001).

[61] Tx. House Research Organization, supra note 56, at 2.

[62] Id. at 2–3; see, e.g., Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341, 410 (2010). But lenity statutes likely do not intrude impermissibly on judicial powers. Compare United States v. Klein, 80 U.S. 128 (1871). For a positive view of lenity in the separation of powers context, see Sunstein, supra note 15, at 332.

[63] Id. at 3; see generally John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crimes Distinction in American Law, 71 B.U. L. Rev. 193, 198 (1991) (the federal law of “white collar” crime now seems to be judge-made to an unprecedented degree).

[64] Tx. House Research Organization, supra note 56. “Interested parties believe that a generally accepted canon of statutory construction that requires a criminal law to be interpreted in favor of a defendant subjected to the law should be codified, especially as it relates to criminal laws outside of the Penal Code.”

[65] Fla. Stat. Ann. § 775.021 (2000) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”); Ohio Rev. Code Ann. § 2901.04(a) (Anderson 2002) (“[S]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”). Far more states have codified anti-lenity statutes. See Scott, supra note 4.

[66] See, e.g., Huggins, 802 So. 2d at 279 (applying lenity); State v. Rife, 789 So. 2d 288, 292 (Fla. 2001) (quoting McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998)) (preserving the notion that “‘legislative intent is the polestar that guides’ the Court’s inquiry.”); Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001) (rejecting application of lenity). Virtually every state court applies lenity in this mixed manner, regardless of statutory directive. See Roger J. Marzulla, Lenity: An Essential Rule for Interpreting Environmental Crime Statutes, 13 >Engage 62, 67–72 (Oct. 2012), http://www.fed-soc.org/publications/detail/lenity-an-essential-rule-for-interpreting-environmental-crimes-statutes. See, e.g., Ala. Code § 13A-1–6 Commentary: “The old rule of strict construction is practically meaningless”; Franklin v. State, 152 So. 2d 158 (Ala. 1963) (condemnation statute is highly penal and is strictly construed; that is, its enforcement is not to be extended beyond the letter of the law).

[67] Even under the Texas Penal Code as it still stands today, some state courts have vigorously applied the Rule of Lenity. See, e.g., Cuellar v. State, 70 S.W.3d 815, 821 (Tex. Crim. App. 2002). Texas courts were not alone in this endeavor. See Solan, supra note 20, at 130–34 (“[T]he legislatures of many states replaced the rule of strict construction with the principle that courts should follow the legislative will,” but some judges in those states “that have rejected lenity use it anyway when the court has no other basis for deciding what to do.”).

[68] See Geraldine Moohr, Playing With the Rules: An Effort to Strengthen the Mens Rea Standards of Federal Criminal Law, 7 J.L. Econ. & Pol’y 685, 686 (2011); Marie Gryphon, The Better Part of Lenity, 7 J.L. Econ. & Pol’y 717, 722 (2011).

[69] See generally supra text accompanying notes 65–68.

[70] Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 544 (1947); Price, supra note 14, at 92 (the Rule of Lenity “is important because it at least facilitates democratic accountability in circumstances where political constraints would otherwise be weak.”).

[71] In State v. Huggins, 802 So. 2d 276, 279 (Fla. 2001), Justice Peggy Quince assessed the government’s and defendant’s textual arguments and the relevant statutory text itself, determined that the arguments flowed from textual ambiguity, and wrote that “any ambiguity must be resolved in favor of the defendant under the rule of lenity and section 775.021(1),” Florida Statutes (1997)—Florida’s lenity statute.

[72] United States v. R.L.C., 503 U.S. 291, 307–10 (1992) (Scalia, J., concurring) (plurality opinion) (stating that no one should be required to resort to legislative history to know what a statute means). “[O]nly once, to my knowledge, have we relied on legislative history to ‘clarify’ a statute, explicitly found to be facially ambiguous, against the interest of a criminal defendant.” Id. at 310 (citing Dixson v. United States, 465 U.S. 482, 500–01 n.19 (1984)); see Cuellar v. State, 70 S.W.3d 815, 824–25 (Tex. Crim. App. 2002) (Cochran, J., concurring) (stating that the Rule of Lenity exists to prevent any “legal gotcha,” where the law says one thing but means another.).

[73] “[I]f Congress does not fix…a federal offense clearly and without ambiguity,” the statute must be strictly construed in favor of the defendant. Bell v. United States, 349 U.S. at 84.

[74] See Paul J. Larkin, Jr., The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking, 38 Harv. J.L. & Pub. Pol’y 337, 358 nn.73–74 (2015).

[75] United States v. Nofziger, 878 F.2d 442, 456 (D.C. Cir 1989) (Edwards dissenting); Crandon v. United States, 494 U.S. 152, 168 (1990) (“[A]s we have already observed, we are construing a criminal statute and are therefore bound to consider application of the rule of lenity.”).

[76] William Shakespeare, King Henry the Fifth act 3, sc. 6 (1623).


Paul Larkin
Paul Larkin

Senior Legal Research Fellow