“Too many crimes, too much punishment” has been a recurrent problem in our criminal justice system. 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.”
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.
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. In America, by contrast, legislatures have taken over that responsibility. 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? 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), 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.” Put more broadly, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”
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,” 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.” 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 in response to the public’s tough-on-crime-mania, which has often been stoked by legislatures and prosecutors for electoral purposes. These purposes are balanced as lenity is designed to enhance legislative supremacy and democratic accountability, at least as between branches. 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.”
This “venerable rule” is one of the most ancient canons of statutory construction. 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. The Supreme Court of the United States first applied the Rule of Lenity in 1820 to limit the reach of a federal manslaughter statute. 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. 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. Moreover, because courts interpret statutes, the value of the rule depends on exactly how the courts apply it.
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 and because it helps to control “legislative blood lust.” For that reason, despite criticism and indifference from the courts, the Rule of Lenity has endured.
The Contemporary Role for the Rule of Lenity
Over the past decade, the Supreme Court has occasionally resuscitated the Rule of Lenity. Justice Ruth Bader Ginsburg most recently applied that canon in Yates v. United States. In Yates, the government argued that a fisherman who threw overboard three undersized fish violated the Sarbanes–Oxley Act of 2002, 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. 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.” 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.”
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). Using “a simplified example” of the bureau’s method, 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.” 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.”
By sidestepping these interpretations that would have “maximize[d] the amount of available good time credit,” the majority actively shirked the Rule of Lenity. The Court instead filled in any “grievous ambiguity or uncertainty” by resort to other canons of statutory construction. 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. 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. 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. 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.” 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.’” Accordingly, the Rule of Lenity serves only as a tiebreaker.
There are certain recurring problems in determining when a statute is ambiguous. These problems include open-endedness, use of lists, manipulation of modifiers, possible multiple punishment problems, the possibility that a court could stretch the text of a statute to ensure that it covers a particular heinous crime or offender, and novel applications of statutes. 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.” 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.
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.” Nonetheless, the Texas courts had applied the rule to offenses defined in the Texas Penal Code as a matter of practice.
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.
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.” The lenity statute further acts “as a reminder to courts and prosecutors working outside of the Penal Code that the rule should be applied” and is designed to ensure notice to the legislature to make clear any ambiguous statutes. 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. 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.” 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.
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.”
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, where the courts have applied their lenity statutes unenthusiastically, if at all. 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.
While a few scholars believe that enacting a lenity statute might actually deter courts from liberally applying the Rule of Lenity, it is unclear what, if any, empirical evidence supports that claim. 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.
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. 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. 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. 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.
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.”
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.” 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.