The rule of lenity provides that ambiguities in penal statutes “are resolved in favor of the defendant” and against the government1 — thus operating to block convictions and reduce sentences. An ancient rule,2 once energetically wielded by courts to strike down criminal laws and counter “legislative blood lust,”3 lenity today remains a “real, but not an overriding aspect of [statutory] interpretation.”4 Recently, in State v. Gonzales,5 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 Gonzales and Ramirez met, and Ramirez allowed Gonzales to try a small sample of his cocaine.7 Satisfied with the quality, Gonzales asked to purchase a larger quantity.8 But Ramirez was in fact — and unbeknownst to Gonzales — a police informant.9 Ramirez offered Gonzales two bricks of imitation cocaine, with a small bag containing real cocaine weighing 139 grams hidden inside one.10 Gonzales paid $58,000 in cash in exchange for the two bricks.11 Ohio authorities apprehended and arrested Gonzales soon afterward.12
Gonzales was indicted for cocaine possession.13 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 which qualified him as a “major drug offender” and mandated an enhanced sentence of eleven years’ imprisonment.15 Gonzales appealed, arguing that the trial court improperly increased his sentence based on the total weight of cocaine including fillers.16
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 The statutory definition of cocaine, unlike those of other controlled substances, did not include the term “mixture”;18 instead, cocaine was defined strictly as “a salt, compound, derivative, or preparation of coca leaves.”19 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
Recognizing an appellate split,21 the Supreme Court of Ohio accepted an appeal by the State and affirmed.22 Writing for a three-justice plurality, Justice Lanzinger23 first recited the rule of lenity,24 but then proceeded to find the statutory language unambiguous: the term “cocaine” did not include cocaine mixtures and referred solely to pure cocaine.25 The plurality thus rejected the dissent’s argument that the statutory term “compound” included mixtures26 and viewed the term “compound” as referring only to “[t]he chemical makeup.”27 Further, the plurality was unpersuaded by the State’s assertions that the interpretation urged by Gonzales would run counter to legislative intent.28 Not only was the legislative intent irrelevant where the statute was unambiguous,29 but the State also misunderstood the legislative aim — which was, when the statute was last amended by an omnibus criminal justice reform bill,30 to reduce criminal sentences overall.31 A pure-weight standard would result, on average, in reduced prison terms for defendants and advance the statutory purpose.32
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 Ambiguity allowed Justice Kennedy to consider legislative history in order to assign meaning consonant with the legislative intent.34 And echoing the plurality, she reasoned that the legislative intent militated toward the statutory interpretation that reduced sentences overall.35
Three justices disagreed. In dissent, Chief Justice O’Connor36 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 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 The statute, then, was unambiguous and did not include a pure-weight standard.39
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 The State simultaneously filed a motion for reconsideration, arguing that the court misunderstood and misapplied the rule of lenity.41 The Ohio Supreme Court voted 4–3 to reconsider the case.42 Authoring a new majority opinion — and preempting the legislative effort to supersede Gonzales I by statute — Chief Justice O’Connor43 vacated the prior decision and reversed the intermediate court judgment.44 She adopted in substantial part her own reasoning in Gonzales I. By its plain meaning, the word “compound” included fillers.45 Any contrary conclusion would “insert the words ‘actual’ or ‘pure’” into the statute.46
Justices DeWine and Fischer — who both joined the Ohio Supreme Court after Gonzales I was decided47 — wrote brief separate opinions but agreed with the majority on the merits of the case.48 Justice DeWine emphasized his belief that reconsideration was proper because Gonzales I was “fundamentally flawed.”49 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
Justice Kennedy dissented. The majority, she suggested, was underhandedly overruling court precedent and slyly subverting core constitutional values.51 Reconsideration should be limited to cases suffering from “obvious error.”52 Yet the court now willfully accepted the State’s fictive “assert[ions] that the court misapplied the rule of lenity,”53 despite the “stark[] absen[ce]” in Gonzales I of any consideration of lenity.54 Reiterating her concurrence in Gonzales I, Justice Kennedy stressed that the cocaine possession statute was ambiguous.55 Ambiguity necessitated the use of legislative history for interpretation, and the legislative history clearly supported a pure-weight standard.56 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 The statute had not clearly set out a sentencing enhancement for possession of 100 grams of cocaine “mixture”; lenity thus favored Gonzales.58 According to settled principles of statutory interpretation, the State had to lose.59
Likewise, in a separate dissent, Justice O’Neill inveighed against the assertion that “Gonzales I misapplied any canon of statutory construction.”60 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
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 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 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 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 with substantial disparities evident in the average purities across geographic regions66 and fiscal quarters.67 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 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
However, another justification — mercy — may be particularly well suited. As framed by Professor Claudia Card,70 mercy involves the mitigation of “punishment to insure that the legally permissible punishment does not exceed the amount of suffering the wrongdoer deserves.”71 Mercy, then, requires consideration of personal deserts.72 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 The driver would have “already served part of what we consider a morally just punishment.”74 Mercy thus does not violate “the basic rule of justice” that like cases be treated alike;75 mercy must “rest upon some good reason — some morally relevant feature.”76
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 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 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
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 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 — 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 Early English commentators explicitly labeled the rule as an exercise of mercy.83 Fair notice and other justifications were invented at least after the creation of the U.S. Constitution.84
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 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 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 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 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 The present limitations on judicial discretion may be significantly worse than any increase in sentencing leeway.90
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 The court, however, missed its opportunity to reinvigorate the rule.