The rule of lenity provides that ambiguities in penal statutes “are resolved in favor of the defendant” and against the government1×1. United States v. Bass, 404 U.S. 336, 348 (1971). — thus operating to block convictions and reduce sentences. An ancient rule,2×2. See Latin for Lawyers 172 (photo. reprt. 1992) (1915) (reciting the Roman legal maxim that “[i]n penal causes the interpretation ought to be the more favourable” to the accused). once energetically wielded by courts to strike down criminal laws and counter “legislative blood lust,”3×3. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985). lenity today remains a “real, but not an overriding aspect of [statutory] interpretation.”4×4. Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 115 (1998). Recently, in State v. Gonzales,5×5. 2017-Ohio-777, 2017 WL 938679 (Ohio Mar. 6, 2017). the Supreme Court of Ohio failed to apply lenity in a criminal case. By neglecting the rule, the court missed an opportunity to clarify the rule’s intellectual underpinnings and to reorient the rule toward a mercy-based justification.
In the summer of 2012, Rafael Gonzales telephoned Saul Ramirez, angling for cocaine.6×6. State v. Gonzales, 2015-Ohio-461, 2015 WL 502263, ¶ 2 (Ohio Ct. App. 2015). Gonzales and Ramirez met, and Ramirez allowed Gonzales to try a small sample of his cocaine.7×7. See id. Satisfied with the quality, Gonzales asked to purchase a larger quantity.8×8. See id. But Ramirez was in fact — and unbeknownst to Gonzales — a police informant.9×9. Merit Brief of Amicus Curiae, Office of the Ohio Public Defender, in Support of Rafael Gonzales at 1–2, State v. Gonzales, 2017-Ohio-777 (Nos. 2015-0384, 2015-0385), 2015 WL 8959387. Ramirez offered Gonzales two bricks of imitation cocaine, with a small bag containing real cocaine weighing 139 grams hidden inside one.10×10. Gonzales, 2015-Ohio-461, 2015 WL 502263, ¶ 3. Gonzales paid $58,000 in cash in exchange for the two bricks.11×11. Id. Ohio authorities apprehended and arrested Gonzales soon afterward.12×12. Id. ¶ 4.
Gonzales was indicted for cocaine possession.13×13. Id. ¶ 5. At trial, the jury determined that Gonzales was guilty and further found that he possessed at least 100 grams of cocaine at the time of arrest,14×14. Id. ¶ 7. which qualified him as a “major drug offender” and mandated an enhanced sentence of eleven years’ imprisonment.15×15. Ohio Rev. Code Ann. §§ 2925.11(C)(4)(f), 2929.14(A)(1) (LexisNexis 2014). If not for the finding that the amount of cocaine was at least 100 grams, Gonzales would likely have been sentenced to a prison term between three and eleven years. See id. §§ 2925.11(C)(4)(e), 2929.14(A)(1). Gonzales appealed, arguing that the trial court improperly increased his sentence based on the total weight of cocaine including fillers.16×16. See Appellee Rafael Gonzales’ Merit Brief at 5–6, State v. Gonzales, 2017-Ohio-777 (Nos. 2015-0384, 2015-0385), 2015 WL 8959386. Powder cocaine is almost invariably adulterated with filler materials, which decrease purity; common fillers include baking soda and baby laxatives. Ohio Dep’t of Mental Health & Addiction Servs., Surveillance of Drug Abuse Trends in the State of Ohio, January–June 2015, at 88 (2015).
The Ohio Sixth District Court of Appeals agreed with Gonzales, reasoning “that the plain language of [the cocaine possession statute] support[ed] appellant’s argument.”17×17. Gonzales, 2015-Ohio-461, 2015 WL 502263, ¶ 41; see also id. ¶ 57. The statutory definition of cocaine, unlike those of other controlled substances, did not include the term “mixture”;18×18. Compare Ohio Rev. Code Ann. § 2925.01(X) (LexisNexis 2014) (defining cocaine for purposes of drug crimes), and id. § 3719.41 sched. II(A)(4) (listing coca leaves and cocaine), with id. § 3719.41 sched. I(C)(19) (listing marijuana). instead, cocaine was defined strictly as “a salt, compound, derivative, or preparation of coca leaves.”19×19. Id. § 2925.01(X)(2). This meant that the State could establish the level of Gonzales’s offense only if he carried over 100 grams of chemically pure cocaine.20×20. See Gonzales, 2015-Ohio-461, 2015 WL 502263, ¶ 47.
Recognizing an appellate split,21×21. See State v. Smith, 2011-Ohio-2568, 2011 WL 2112609 (Ohio Ct. App. 2011). the Supreme Court of Ohio accepted an appeal by the State and affirmed.22×22. State v. Gonzales (Gonzales I), 2016-Ohio-8319, 2016 WL 7449218, ¶¶ 1, 7 (Ohio Dec. 23, 2016) (plurality opinion), vacated and superseded on reh’g, 2017-Ohio-777, 2017 WL 938679 (Ohio Mar. 6, 2017). Writing for a three-justice plurality, Justice Lanzinger23×23. Justice Lanzinger was joined by Justices Pfeifer and O’Neill. first recited the rule of lenity,24×24. Gonzales I, 2016-Ohio-8319, 2016 WL 7449218, ¶ 10. but then proceeded to find the statutory language unambiguous: the term “cocaine” did not include cocaine mixtures and referred solely to pure cocaine.25×25. Id. ¶ 15–17. The plurality thus rejected the dissent’s argument that the statutory term “compound” included mixtures26×26. Id. ¶ 19. and viewed the term “compound” as referring only to “[t]he chemical makeup.”27×27. Id. ¶ 18; cf. The Merriam-Webster Dictionary 148 (new ed. 2016) (defining “compound” as “a distinct substance formed by the union of two or more chemical elements”). Further, the plurality was unpersuaded by the State’s assertions that the interpretation urged by Gonzales would run counter to legislative intent.28×28. Gonzales I, 2016-Ohio-8319, 2016 WL 7449218, ¶ 22. Not only was the legislative intent irrelevant where the statute was unambiguous,29×29. See id. ¶ 17. but the State also misunderstood the legislative aim — which was, when the statute was last amended by an omnibus criminal justice reform bill,30×30. See H.B. 86, 129th Gen. Assemb., Reg. Sess. (Ohio 2011). to reduce criminal sentences overall.31×31. Gonzales I, 2016-Ohio-8319, 2016 WL 7449218, ¶ 17. A pure-weight standard would result, on average, in reduced prison terms for defendants and advance the statutory purpose.32×32. See id.
Justice Kennedy concurred in the judgment. She considered the term “of cocaine” ambiguous, but agreed that the statute should be read such that the major drug offender classification required possession of at least 100 grams of pure cocaine.33×33. Id. ¶¶ 24, 29 (Kennedy, J., concurring in judgment only). Ambiguity allowed Justice Kennedy to consider legislative history in order to assign meaning consonant with the legislative intent.34×34. Id. ¶¶ 25–26 (citing Ohio Rev. Code Ann. § 1.49 (LexisNexis 2015) (allowing courts to make certain considerations to determine legislative intent in construing ambiguous statutes)). And echoing the plurality, she reasoned that the legislative intent militated toward the statutory interpretation that reduced sentences overall.35×35. See id. ¶¶ 32–35.
Three justices disagreed. In dissent, Chief Justice O’Connor36×36. Chief Justice O’Connor was joined by Justices O’Donnell and French. accused the plurality of “introduc[ing] a purity or weight requirement for cocaine possession that is not found in the language of the statute or supported by the reality of how cocaine is produced, distributed, or consumed.”37×37. Gonzales I, 2016-Ohio-8319, 2016 WL 7449218, ¶ 37 (O’Connor, C.J., dissenting). The statutory definition of cocaine included any “compound” made from cocaine, and, under both the ordinary understanding and the dictionary definition, the word “compound” would encompass mixtures of cocaine and fillers.38×38. See id. ¶ 42. The statute, then, was unambiguous and did not include a pure-weight standard.39×39. See id. ¶ 46–47.
The Ohio General Assembly acted immediately after the decision, with the lower chamber voting unanimously to amend the statute and establish a total-weight standard for cocaine possession.40×40. Jim Provance, Ohio Clears Wording of Cocaine Sentencing, The Blade (Feb. 16, 2017, 1:29 AM), http://www.toledoblade.com/State/2017/02/16/Ohio-clears-wording-of-cocaine-sentencing.html [https://perma.cc/8U4H-NF2H]. The State simultaneously filed a motion for reconsideration, arguing that the court misunderstood and misapplied the rule of lenity.41×41. Appellant State of Ohio’s Sup.Ct.Prac.R. 18.02 Motion for Reconsideration at 2–4, State v. Gonzales, 2017-Ohio-777 (Nos. 2015-0384, 2015-0385). The Ohio Supreme Court voted 4–3 to reconsider the case.42×42. State v. Gonzales (Gonzales II), 2017-Ohio-777, 2017 WL 938679, ¶ 22 (Fischer, J., concurring in part and dissenting in part). Authoring a new majority opinion — and preempting the legislative effort to supersede Gonzales I by statute — Chief Justice O’Connor43×43. Chief Justice O’Connor was joined by Justices O’Donnell, French, and DeWine. vacated the prior decision and reversed the intermediate court judgment.44×44. Gonzales II, 2017-Ohio-777, 2017 WL 938679, ¶ 3 (majority opinion). She adopted in substantial part her own reasoning in Gonzales I. By its plain meaning, the word “compound” included fillers.45×45. Id. ¶¶ 10–13. Any contrary conclusion would “insert the words ‘actual’ or ‘pure’” into the statute.46×46. Id. ¶ 13.
Justices DeWine and Fischer — who both joined the Ohio Supreme Court after Gonzales I was decided47×47. See Randy Ludlow, Paul E. Pfeifer: Retiring Ohio Supreme Court Justice Has Left Mark, Columbus Dispatch (Dec. 26, 2016, 10:21 AM), http://www.dispatch.com/content/stories/local/2016/12/26/paul-e-pfeifer-retiring-justice-has-left-mark.html [https://perma.cc/7C7R-JGCQ]. Justice DeWine replaced Justice Pfeifer. Id. Justice Fischer replaced Justice Lanzinger. Jim Provance, Lanzinger Gets Set for Retirement from Ohio’s Top Court, The Blade (Dec. 27, 2016, 11:44 AM), http://www.toledoblade.com/Courts/2016/12/27/Judith-Ann-Lanzinger-gets-set-for-retirement-from-Ohio-s-top-court.html [https://perma.cc/S33A-KQSJ]. — wrote brief separate opinions but agreed with the majority on the merits of the case.48×48. See Gonzales II, 2017-Ohio-777, 2017 WL 938679, ¶ 20 (DeWine, J., concurring); id. ¶¶ 22–24 (Fischer, J., concurring in part and dissenting in part). Justice DeWine emphasized his belief that reconsideration was proper because Gonzales I was “fundamentally flawed.”49×49. Id. ¶ 20 (DeWine, J., concurring). Justice Fischer, on the other hand, voiced his discomfort with reconsideration but nevertheless argued that it was his “duty to participate” after the court granted the State’s motion for reconsideration.50×50. Id. ¶ 27 (Fischer, J., concurring in part and dissenting in part); see also id. ¶¶ 22, 25–26.
Justice Kennedy dissented. The majority, she suggested, was underhandedly overruling court precedent and slyly subverting core constitutional values.51×51. See id. ¶¶ 33, 38 (Kennedy, J., dissenting). Reconsideration should be limited to cases suffering from “obvious error.”52×52. Id. ¶ 35 (quoting Dublin City Sch. Bd. of Educ. v. Franklin Cty. Bd. of Revision, 2014-Ohio-1940, 11 N.E.3d 222, 224 (Ohio 2014)). Yet the court now willfully accepted the State’s fictive “assert[ions] that the court misapplied the rule of lenity,”53×53. Id.; see also id. ¶ 38. despite the “stark absen[ce]” in Gonzales I of any consideration of lenity.54×54. Id. ¶ 36. Reiterating her concurrence in Gonzales I, Justice Kennedy stressed that the cocaine possession statute was ambiguous.55×55. See id. ¶¶ 44–46. Ambiguity necessitated the use of legislative history for interpretation, and the legislative history clearly supported a pure-weight standard.56×56. Id. ¶¶ 58–64. In any event, the State was wrong to assert that lenity would not determine the outcome in this case. The rule of lenity required construing the statute to punish only “clearly proscribed” conduct.57×57. Id. ¶ 66. The statute had not clearly set out a sentencing enhancement for possession of 100 grams of cocaine “mixture”; lenity thus favored Gonzales.58×58. See id. According to settled principles of statutory interpretation, the State had to lose.59×59. See id. ¶¶ 70–71.
Likewise, in a separate dissent, Justice O’Neill inveighed against the assertion that “Gonzales I misapplied any canon of statutory construction.”60×60. Id. ¶ 74 (O’Neill, J., dissenting). However, unlike Justice Kennedy, he maintained that the statutory language was unambiguous — and that the majority’s contrary interpretation was “a major disservice to the English language.”61×61. Id. ¶ 78; see also id. ¶ 75.
State v. Gonzales offered a unique opportunity to analyze the rule of lenity. Yet the Ohio Supreme Court did not seriously consider it. Even though Ohio is one of only two states to have codified the rule of lenity,62×62. Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 902 (2004); see Ohio Rev. Code Ann. § 2901.04(A) (LexisNexis 2014). the court was willing to countenance clearly contradictory interpretations of a criminal statute without meaningful discussion of the rule. State v. Gonzales thus contrasts sharply with other recent state decisions in which lenity was supplied as a mechanism for resolving ambiguity.63×63. E.g., Day v. State, 57 N.E.3d 809, 813 (Ind. 2016). And in declining to apply the rule, the court missed an opportunity to reject lenity’s traditional notice justification and consequently its chance to normatively justify the rule on another ground — namely, on the basis of mercy, a historically important yet currently underappreciated theory — and ensure its robust application in future cases.
As applied to the facts of this case, the usual justification for the rule of lenity falters. The most commonly recited reason for the rule of lenity is “to promote fair notice.”64×64. United States v. Kozminski, 487 U.S. 931, 952 (1988). But fair notice seems incompatible with the interpretation of Ohio’s cocaine possession statute that lenity would urge. A defendant almost certainly does not know the purity of any cocaine in his possession. The purity of cocaine can vary widely,65×65. See, e.g., Drug Enf’t Agency, National Forensic Laboratory Information System: Year 2001 Annual Report 16 fig.4.6 (2001). with substantial disparities evident in the average purities across geographic regions66×66. See id. at 16. and fiscal quarters.67×67. See Arthur Fries et al., Inst. for Def. Analyses, The Price and Purity of Illicit Drugs: 1981–2007, at 9 (2008). Even sophisticated cocaine traffickers likely lack the ability to test the purity of cocaine. In fact, Ohio authorities still lack the necessary resources to determine cocaine concentration.68×68. Jona Ison, Court’s Cocaine Ruling Impacts Indictments, Chillicothe Gazette (Jan. 7, 2017, 3:36 PM), http://www.chillicothegazette.com/story/news/local/2017/01/07/ross-county-grand-jury-january-6/96251610 [https://perma.cc/68VB-HEJJ]. Thus, the pure-weight standard is in some sense an unknowable rule incompatible with providing fair notice to defendants. This case corroborates what a chorus of scholars has already hypothesized: that the notice justification is insufficient to sustain the rule of lenity.69×69. See, e.g., Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 348.
However, another justification — mercy — may be particularly well suited. As framed by Professor Claudia Card,70×70. See Claudia Card, On Mercy, 81 Phil. Rev. 182, 184 (1972). mercy involves the mitigation of “punishment to insure that the legally permissible punishment does not exceed the amount of suffering the wrongdoer deserves.”71×71. Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest 191 (1989). This definition of mercy contrasts with definitions postulated by others that mercy is the compassionate “mitigation of a punishment that would otherwise be deserved as retribution,” Jean Hampton, The Retributive Idea, in Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 111, 158 (1988) (emphasis omitted). Mercy, then, requires consideration of personal deserts.72×72. Card, supra note 70, at 193. For example, although the letter of the law would require the even application of punishment to every criminally negligent driver who critically injures a pedestrian, mercy would argue against further penalizing a driver who kills her husband.73×73. See id. at 201. The driver would have “already served part of what we consider a morally just punishment.”74×74. Alwynne Smart, Mercy, 43 Philosophy 345, 348 (1968). Mercy thus does not violate “the basic rule of justice” that like cases be treated alike;75×75. Card, supra note 70, at 183–84. mercy must “rest upon some good reason — some morally relevant feature.”76×76. Jeffrie Murphy, Mercy and Legal Justice, in Forgiveness and Mercy, supra note 71, at 162, 181.
Mercy has especial force in criminal trials in which there is no moral distinction between the conduct that would be prohibited under the harsher reading of an ambiguous statutory provision and the conduct that would be prohibited under the more lenient reading. In these cases, a defendant’s personal deserts would typically call for the lesser sentence; imposition of the harsher sentence instead would reveal “a gap between moral justice and legal justice” that would otherwise be remedied by mercy.77×77. Smart, supra note 74, at 348; see also Card, supra note 70, at 201. For instance, in State v. Gonzales, it is not clear that there is a relevant moral difference between carrying 100 grams of 20% pure cocaine and carrying 20 grams of 100% pure cocaine, yet under the State’s proposed interpretation, the former would be penalized much more harshly. “To base punishment on the weight of the [filler] makes about as much sense as basing punishment on the weight of the defendant.”78×78. United States v. Marshall, 908 F.2d 1312, 1333 (7th Cir. 1990) (en banc) (Posner, J., dissenting) (referring to LSD blotter paper). The total weight says nothing about the personal deserts of the defendant. In these cases, then, a mercy-based rule of lenity would actualize substantive justice, enabling courts to “[t]reat like cases alike” and “treat different cases differently.”79×79. H.L.A. Hart, The Concept of Law 159 (3d ed. 2012).
It is important to note that Card’s conception of mercy is already a feature of the American justice system. The U.S. Supreme Court has stated that, at minimum, “[n]othing in any of [the Court’s] cases suggests that the decision to afford an individual defendant mercy violates the Constitution”; rather, mercy could be exercised at any of various stages in the criminal justice system, by a variety of actors.80×80. Gregg v. Georgia, 428 U.S. 153, 199 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Prominently, the executive pardon power already rests largely on a theory of mercy. See 4 William Blackstone, Commentaries *396–97; Linda Ross Meyer, The Merciful State, in Forgiveness, Mercy, and Clemency 64, 67 (Austin Sarat & Nasser Hussain eds., 2007). Judges — with a full view of the facts of the case and a keen sense for when “legal rules . . . have lagged behind our sense of justice”81×81. Meyer, supra note 80, at 67. — may be the best situated of those actors to determine a defendant’s deserts and apply the principle of mercy. And judicial mercy in fact comports with the original understanding of the basis for the rule of lenity. Lenity in its modern form emerged in seventeenth-century England as an antidemocratic nullification of harsh penal laws that mandated capital punishment for mundane crimes.82×82. Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749–52 (1935); see also id. at 752–58 (tracing modern development in the United States). Early English commentators explicitly labeled the rule as an exercise of mercy.83×83. See, e.g., 5 Edward Christian, Notes to Blackstone’s Commentaries 16 (Boston, Thomas & Andrews 1801). Modern commentators have noted the same. E.g., Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 514–21 (2002) (describing the English rule of lenity as “[i]nstitutional [m]ercy,” id. at 514). Fair notice and other justifications were invented at least after the creation of the U.S. Constitution.84×84. See Antonin Scalia & Bryan A. Garner, Reading Law 296–97 (2012).
Admittedly, grounding the rule of lenity in mercy is susceptible to the objection that mercy would enable excessive judicial discretion and encourage courts to pass judgment on morally irrelevant criteria, with potentially disastrous consequences for disfavored groups.85×85. See Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Aff. 83, 114 (1993). This risk may be heightened by the fact that the rule of lenity is typically applied by appellate courts, composed of judges who are often not “drawn directly from, or politically accountable to, disadvantaged communities.”86×86. Carol S. Steiker, Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration, in The Boundaries of the Criminal Law 27, 54 (R.A. Duff et al. eds., 2010). To some extent, this concern may be alleviated by the fact that mercy would be constrained by its limited application to criminal cases in which the relevant penal statute is ambiguous. And while a successful mercy-based lenity is of course contingent on a nonpathological judicial system and on judges not in thrall to prejudicial passions,87×87. Cf. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1359–60, 1363–64 (2006). it is not clear that the American judiciary is irredeemably pathological. Indeed, the judicial branch is typically considered the most protective of disfavored groups.88×88. See Andrea Specht, Comment, The Government We Deserve? Direct Democracy, Outraged Majorities, and the Decline of Judicial Independence, 4 U. Saint Thomas L.J. 132, 142 (2006). Moreover, as Professor Carol Steiker has argued, even given the risk that mercy would preferentially advantage “members of powerful groups,” any alternative may be intolerable: untempered by judicial discretion, legislative overpenalization — which a mercy-based rule of lenity could combat — has already had “especially devastating effects on minority groups.”89×89. Steiker, supra note 86, at 56. The present limitations on judicial discretion may be significantly worse than any increase in sentencing leeway.90×90. See Carol Steiker, The Mercy Seat: Discretion, Justice, and Mercy in the American Criminal Justice System, in The Political Heart of Criminal Procedure 212, 217 (Michael Klarman et al. eds., 2012).
State v. Gonzales provides a useful prism for analyzing the rule of lenity. The poor fit between the usual reason for lenity and the facts of this case may explain why the court declined to engage with the rule of lenity, despite the clear opportunity. Mercy can provide a satisfying normative theory of lenity in cases like this, in which there is no strong moral distinction between the conduct that would be penalized under the statutory interpretation urged by the State and the reading urged by the defendant. Mercy-based lenity not only may grant greater intellectual clarity to this case, but also may restore some potency to the rule of lenity — granting a sword to defendants and courts to cut down overly punitive prosecutions — by shoring up its shaky foundations.91×91. See Price, supra note 62, at 886 (suggesting that the rule of lenity may be moribund due to insufficiently strong intellectual underpinnings). The court, however, missed its opportunity to reinvigorate the rule.