The Court after Scalia: The Rule of Lenity
on Sep 2, 2016 at 2:14 pm
Zachary S. Price is an Associate Professor at UC Hastings College of the Law.
One of Justice Antonin Scalia’s many contributions to Supreme Court jurisprudence was to revitalize the rule of lenity – the ancient maxim that ambiguous penal statutes should be construed narrowly in the defendant’s favor.
Hopefully, this contribution will stick, no matter who ends up replacing Scalia on the Supreme Court.
Yet the Court can and should go further than Scalia himself did. While Scalia succeeded in making lenity-based arguments a recurrent feature of criminal law cases, in practice even Scalia was only a fair-weather friend of the rule. In recent years, Scalia and his colleagues frequently invoked the rule rhetorically to back up interpretations reached on other grounds. They rarely gave it real bite. Scalia’s own approach to the rule, moreover, was rooted in a broader interpretive approach of plain-meaning textualism that even a conservative replacement might not fully embrace.
In my view, the Court’s weak commitment to lenity is unfortunate. The next Justice, whether liberal or conservative, should build upon Scalia’s rhetorical groundwork to make lenity a more rigorous feature of the Court’s jurisprudence.
I advocated reinvigorating the rule of lenity in a 2004 article, The Rule of Lenity as a Rule of Structure. Noting that courts generally paid only lip service to the rule, my article attributed lenity’s weakness to deficiencies in the rule’s traditional rationales. Courts often associate the rule with due process principles of fair notice, the idea being that defendants should not be held to account for violating prohibitions they could not anticipate. The trouble with this rationale is that criminals generally do not read statutes; like all of us they rely mainly on social norms to separate right from wrong. What is more, even if they did read the U.S. Code, why should due process protect reliance on self-serving narrow interpretations when other interpretations are possible?
Courts have also often linked lenity to legislative supremacy, but this rationale is even more curious. In fact, there is good reason to think that legislatures would prefer a rule of severity. Congress and state legislatures routinely overturn narrowing constructions of criminal laws. Several states have gone so far as to abolish the rule of lenity by statute.
My article advanced a different theory of lenity. In my view, the rule of lenity is justified and important because it advances crucial structural values in criminal lawmaking and enforcement.
The political dynamics surrounding criminal law tend to push towards over-breadth. At least until very recently, legislators have faced strong pressure from a tough-on-crime electorate to ensure that all culpable conduct is subject to criminal sanction. But at the same time prosecutors’ discretion over which charges to pursue may spare legislators full accountability for the breadth of the prohibitions they enact.
In this environment, lenity helps ensure genuine popular support for any criminal prohibitions that end up being enforced. It ensures, I argued, that “politicians must lay bare the full extent of the conduct they intend to criminalize, exposing themselves to whatever resistance or ridicule their choices entail; they cannot use vague or general language to obscure the law’s reach.” By the same token, the rule helps ensure accountability for prosecutors’ charging decisions. It makes it more likely that the true nature of the punished conduct will be apparent on the face of the charges, rather than buried in the details of the underlying conviction or plea agreement.
To give effect to lenity, however, one must first identify which statutes are ambiguous enough to trigger the rule’s application. How ambiguous does a law need to be before narrow construction is mandatory?
I identified three possibilities:
- Courts might rank lenity dead last among interpretive considerations. In other words, they might invoke the rule only if all other generally accepted interpretive resources – text, context, legislative history, and overall statutory purpose – fail to support one reading over another.
- Courts might employ lenity to cut off extra-textual considerations (such as legislative history and statutory purpose) that support a broader interpretation when the text alone most naturally carries a narrower meaning.
- Courts might rank lenity first in the interpretive hierarchy for criminal statutes. Doing so would require a two-step inquiry (somewhat analogous to the more familiar two-step under Chevron v. Natural Resources Defense Council in administrative law). First, courts would identify interpretations satisfying some threshold standard of plausibility, based on one or another of the usual interpretive considerations. Second, lenity would compel selection of the narrowest such reading. Under this approach, if a statute’s terms were broad but legislative history suggested a narrower purpose, legislative history would trump text. But by the same token, if the text were narrow and the purpose broad, text would prevail over intent.
My article advocated this third approach, which would give lenity greatest effect. Unhappily for my proposal, the Court as a whole has increasingly favored the first approach. Indeed, since 2004, the Court has held repeatedly that the rule of lenity applies only if “grievous ambiguity” remains “after considering text, structure, history and purpose.” Needless to say, this approach gives the rule of lenity almost no practical impact.
Scalia, I argued, practiced the second approach. Although he often faulted colleagues harshly for disregarding the rule, his primary commitment was always to textualism rather than lenity. Scalia, moreover, practiced an idiosyncratic “plain meaning” brand of textualism – an approach under which statutes typically carry only their most immediate, most “plain” meaning, the meaning that would first jump out at an ordinary reader.
Scalia was not one to torture a text to get to a policy result Congress likely intended; nor was he one to find, as he famously put it, “elephants in mouseholes.” Not only in criminal law, but also in civil and administrative statutes, Scalia expected Congress to speak clearly so that the people would know what it had done and could better hold it to account.
This approach generally favors narrow interpretations. After all, a statute’s most obvious textual meaning is likely to be narrower than readings that could be formulated with more inferential steps. (This feature of Scalia’s method, incidentally, helps explain how in administrative law he could be at once hostile to delegation and committed to Chevron deference: treating ambiguities as delegations is less consequential if ambiguities are harder to find.)
In cases in which the text (in Scalia’s judgment) plainly supported a broad construction, Scalia showed his true colors. Thus, in decisions such as Yates v. United States, Dean v. United States, and Deal v. United States, Scalia joined or wrote opinions adopting broad constructions, despite significant extra-textual considerations supporting narrower readings.
It is true that in 2008 (no doubt to spite me) Scalia’s plurality opinion in United States v. Santos held that a criminal statute was genuinely ambiguous between two readings and that lenity broke the tie. Scalia also hinted there at the correct justification for the rule. The rule, he observed, “places the weight of inertia upon the party [the government] that can best induce Congress to speak more clearly.”
It is also true that in his separate opinions in James v. United States and Begay v. United States, Scalia invoked lenity to rule out one possible construction of the “residual clause” of the Armed Career Criminal Act’s sentencing enhancement for certain gun crimes.
Even Scalia’s understanding of the residual clause, however, was based mainly on his view of the statute’s “most natural reading.” Lenity served only to mop up some minor remaining ambiguity, and in any event in his 2015 majority opinion in Johnson v. United States Scalia ultimately deemed the provision unconstitutionally vague. Likewise, in Santos, the Court addressed a rare case in which a key statutory term (“proceeds”) was equally susceptible to two plausible plain-text meanings (“receipts” or “profits”).
Notwithstanding these decisions, the overall pattern of Scalia’s opinions and votes seems to me to reflect selective use of lenity as a backstop to textualism. Scalia did not embrace a more robust application of the rule as an independent interpretive principle.
Where does that leave the next Justice? A conservative appointee would certainly be far more likely than a liberal appointee to employ Scalia’s particular style of textualism. While the main consequences of that difference would be felt outside criminal law, at the margins it could mean that a conservative Justice would more often favor narrow readings of criminal statutes. Ultimately, as in Scalia’s own case, the strength of even that pattern would depend on the particular statutory texts that come before the Court.
Several very recent decisions, however, might suggest a different trend. Just this past Term, the Court held unanimously in McDonnell v. United States that a governor does not commit an “official act” within the meaning of a federal bribery offense by setting up a meeting, hosting an event, or contacting an official. In 2015, in Yates v. United States, the Court held that throwing an under-size fish overboard to evade detection did not amount to knowingly destroying or concealing “any record, document, or tangible object” under an obstruction-of-justice statute. And in 2014, in Bond v. United States, the Court held that lacing a mailbox with poison did not entail “us[ing]” a “toxic chemical” within the meaning of a chemical weapons statute.
Although the Court never even mentioned lenity in McDonnell and Bond, a rigorous rule of lenity would provide the best explanation for all these cases. In each case, ideologically diverse majorities spurned arguably more natural readings of the plain text. (Indeed, Justice Scalia joined a dissent to that effect in Yates, and he himself ridiculed the Court’s narrowing construction in Bond.) In all these decisions, moreover, the majority’s ruling seemed animated by concerns about prosecutorial over-reaching, as well as doubts about the asserted interpretations’ real legislative support – the very considerations I have argued form the correct basis for lenity.
Such decisions might augur, then, that the rule of lenity, which Scalia helped bring into wide currency, could finally acquire more bite. Because his primary commitment was to textualism, and indeed to a particularly narrow and de-contextualized textualism at that, Scalia could not lead the Court over this threshold. But the next Justice can.
Whoever replaces Scalia, whether liberal or conservative, should better entrench lenity – not just as a rhetorical makeweight or backstop to textualism, but as the real interpretive principle it deserves to be.