Introduction
Professor Abbe Gluck and Judge Richard Posner rightly point to the federal courts of appeals as the locus of most statutory interpretation,1 even though the Supreme Court usually gets the attention.2 One major finding of their recent survey concerns appellate courts’ interpretive relationship to the Supreme Court’s use of the increasingly relevant canons of construction.3 Unsurprisingly, the rule of lenity takes on special significance.4
Lenity’s prominence is unsurprising for a few reasons. First, as an ancient principle directing judges to construe ambiguous criminal statutes narrowly,5 the rule is — as the authors underline — “special.”6 Of the appellate judges surveyed,
[t]hirteen judges . . . singled out lenity and/or constitutional avoidance as “actual rules” and distinguished them from the other canons, in terms of their mandatory application. They told us that those presumptions are “not canons” but rather are “substantive law.” Some judges seemed to believe these doctrines derived their special status simply because the Supreme Court said they did. . . . A few judges did not see these canons as deriving their power from the Supreme Court, but rather from the Constitution (for example, that lenity derives from the constitutional concept that federal judges cannot create crimes).7
It helps that most younger judges learned the legal canons in law school8 — where they invariably examined the rule of lenity in legislation classes like the one I teach. Additionally, Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.9 Second, the rule of lenity carries authoritative weight. Almost one-third (13) of the 42 appellate judges surveyed considered lenity and/or constitutional avoidance “actual rules” of “mandatory application.”10 For some respondents, the Supreme Court designated these rules as binding and, for others, the Constitution did so.11 Third, lenity is generally valid on a spectrum of interpretive approaches, regardless of ideological commitments. Most appellate judges who participated in the survey signaled a willingness to consider the canons of construction, and all judges actually used them even when they said they did not.12 Most explained that they consider as much information and as many canons as possible to make the most informed decision about a case of statutory construction.13 This “interpretive eclecticism”14 suggests that appellate judges would consider lenity to be relevant to their review of challenged criminal statutes.15
Given the rule’s special status, broad authority, and widespread validity, it stands to reason that lenity would feature prominently in the criminal law interpretation of appellate judges. These features of lenity combine with important features of criminal law that mark this field as different, and the rule of lenity as worthy of particular regard as interpretive precedent. Not only does criminal law entail levying the harshest of punishments on our own citizens, thus urging extreme caution, but experiences over the last half century lead to the inescapable conclusion that the criminal justice system is broken and in need of reform.16 The collapse of the criminal justice system makes it imperative to devise an approach to criminal law that can correct the overcriminalization, overprosecution, and oversentencing now rampant in the United States.17 Fair punishment requires corrective measures to better ensure that — alongside legislative supremacy justifications for criminal law definitions and enforcement — constitutional values of equality, liberty, and due process are also met in interpretive questions of criminal law.18 Lenity lies at the heart of interpretive questions in the criminal justice arena, the state of which adds urgency and cause for greater consider-ation of the framework and application of the rule.19
To be sure, Professor Gluck and Judge Posner stress that — except in rare cases, such as Chevron deference,20 which every judge in their study deemed as binding21 — there is “no ‘methodological stare decisis’ in the federal courts.”22 Yet if there were any exception to that norm, lenity would be a strong candidate. Indeed, some of the appellate judges who rejected a general notion of methodological stare decisis made exceptions for lenity among a limited set of canons that they saw as binding, based on certain “constitutional principles” or “rules” to which judges must defer.23
More pointedly, there is additional reason for courts to treat the lenity regime for criminal law as interpretive precedent — that is, a lighter version of methodological stare decisis that refers to regular consider-ation of an interpretive framework that nonetheless preserves judicial discretion in applying the associated rule when certain conditions are met. Consideration of the lenity framework occurs when judges consider whether the rule of lenity is relevant, typically by determining that they are facing a challenge to the application or meaning of a criminal law statute or regulation. Judges who consider the framework may ultimately reject the rule in favor of a higher-priority canon, a claim of statutory clarity reached through reading the text and applying other interpretive tools, or a competing constitutional concern. Application of the lenity rule occurs only when judges narrowly construe a criminal or sentencing provision, typically by also citing “lenity” or the “rule of narrow construction for criminal statutes” — even if they do so as a supplementary tool of persuasion that accompanies other rationales on which the decision purportedly turns.24
The distinction between consideration of the lenity framework and application of the lenity rule is key. On it turns an accurate appraisal of lenity, which can perhaps best be analogized to the Chevron two-step framework and its accompanying rule of agency deference.25 As the most cited administrative law case,26 Chevron directs courts to uphold agency interpretations of certain regulatory statutes so long as they are reasonable.27 The Supreme Court has invoked its framework so consistently that it has become interpretive precedent, with methodological stare decisis effect; most commentators see it as the only legal canon to enjoy that status.28 Moreover, even though Justice Thomas questioned whether agency deference precedents should, in normative terms, be “entitled to stare decisis effect,”29 most courts have ostensibly regarded the doctrine as such. Yet the consistent consideration of the agency deference framework differs from less regular application of the rule: a 2006 empirical appraisal of the 1014 cases in which the Supreme Court invoked Chevron since the decision was handed down in 1984 revealed that deference applied only 8.3% of the time.30
Once the framework consideration/rule application distinction is made, lenity seems to mirror the interpretive precedent of the type that Chevron exemplifies — as a matter of kind rather than degree. The claim here is not that Chevron or lenity are subject to the “super-strong presumption of correctness” stare decisis regime that the Court applies to its own statutory interpretation decisions.31 That sort of precedent is about substantive decisions, not interpretive frameworks. Nor is the claim that the number of times the Supreme Court considered the lenity framework rivals that of Chevron. Administrative agency challenges are much more numerous than criminal law statutory interpretation questions; accordingly, invocations of the Chevron framework are much more numerous as well. Instead, the claim is that the Court’s approach to lenity corresponds to that of Chevron in that the Court considers both frameworks consistently (in almost all relevant cases in criminal and administrative law challenges, respectively), and it applies the rule at a lower, but non-negligible, rate when compared to its consideration of the framework. Thus both arenas represent a type of interpretive precedent that calls on courts to consistently consider an interpretive framework for certain types of cases even when judges exercise discretion in deciding whether to apply the associated rule.
Appellate statutory criminal cases that were granted certiorari during the Roberts Court era so far have not borne out this intuition. Upon examination of these criminal law statutory interpretation cases, the Supreme Court’s approach to lenity stands in relief from the practice of appellate courts. For its part, in those cases, the Supreme Court almost always considers the lenity framework. Moreover, the Supreme Court applies the rule of lenity in about one-third of those cases, thereby modeling the discretion judges have to apply or reject the rule after consideration of the framework. By contrast, it turns out that appellate courts considered in this data set did neither. They hardly ever invoked the framework or applied the rule. This contrast may well point to a larger trend (still to be empirically examined).
If this sample of appellate court practice does indeed reflect a broader trend, this Response argues that many courts and commentators have gotten lenity wrong by equating the Supreme Court’s spotty consideration of the lenity rule with its more regular application of the lenity framework. The lower courts’ and commentators’ blunt appraisals of lenity have led to the false impression that the Supreme Court’s approach to the framework is inconsistent and weakly grounded. Because the lenity rule does not apply to a majority of criminal law statutory interpretation cases, commentators and judges tend to regard lenity as far from being interpretive precedent. Yet empirical examination of the Supreme Court’s treatment of lenity in the Roberts Court reveals fairly consistent consideration of the framework,32 and it reveals applications of the lenity rule almost four times the rate of application of Chevron deference for the period covered in Professor William Eskridge’s and Lauren Baer’s longitudinal study of that canon.33 In other words, a review of its treatment of the framework rather than the rule reveals that, especially when compared to Chevron, the Supreme Court indeed tends to treat lenity as interpretive precedent.34 This Response thus challenges the notion that the Supreme Court’s treatment of lenity justifies the stingy view of it prevalent in appellate courts and elsewhere. It also suggests a more historically based and constitutionally grounded approach to the rule.
The approach to lenity in the Supreme Court and appellate courts during the Roberts Court era illustrates the recent practice. From 2005 to 2017, the Supreme Court considered criminal law statutory interpretation questions in 47 cases. The Justices considered the lenity framework in almost all of these cases (44); it applied the lenity rule to narrow construction in about one-third of them (13 of 44 cases);35 and it considered some of these statutory provisions on constitutional grounds of void-for-vagueness (3 cases).36 In the lenity cases, the Court usually justified its decisions on familiar grounds of legislative supremacy and fair warning, both constitutional mandates. The Court also revived older justifications for lenity, occasionally citing the liberty interests of defendants and common law practice, the latter another term for interpretive precedent. This revival comes against the backdrop of the ailing criminal justice system, whose widespread abuses resulting in mass incarceration that disproportionately affect black men call for greater regard for defendants’ liberty interests and other constitutional rights.37 Most notable in the Roberts Court’s approach to lenity is the consistency with which it considered the lenity framework and — at 33% — the non-negligible rate at which it applied the rule, especially relative to appellate courts below (or to applications of Chevron deference).
By contrast, appellate judges who decided these same cases before they reached the Supreme Court considered the lenity framework in approximately only one-fifth of the cases (12 of 49, which were consolidated into 44) and applied the rule in 4.38 When applying the rule, the appellate courts gave the lenity rule none of the rationales used by the Supreme Court. Granted, there is no way to correlate the judges who wrote the appellate opinions reviewed in the Roberts Court lenity cases with the judges interviewed in the Gluck and Posner survey.39 It is likewise senseless to argue that the sample of appellate cases later heard by the Supreme Court is representative of the broader universe of appellate cases. After all, given the responses to the Gluck and Posner survey signaling that at least some appellate judges consider lenity special or binding as a rule,40 we might expect to see higher rates of lenity applications in appellate cases deemed difficult. The fact that we did not may be an indication that the appellate judges in these cases thought that the interpretive questions presented to them were easier than the Supreme Court found them to be. Or, put differently, it may indicate that the Supreme Court granted certiorari only in the difficult cases as it defined it, perhaps sometimes to settle a longstanding dispute that only the highest court could resolve.41 Finally, it may indicate a divergence between interpretive theory, where the Gluck and Posner survey shows that judges regarded lenity to be special, and interpretive practice on appellate courts, where this review shows that judges did not apply lenity as a special rule — a reversal of Professor Gluck and Judge Posner’s observation that all judges routinely used canons even when some said they did not.42 Despite these open questions and the fact that the judges’ survey responses and written opinions do not entirely line up, this comparison of the appellate court and Supreme Court treatments of criminal law statutory interpretation cases that were granted certiorari in the Roberts Court is useful because it offers rich insight into attitudes toward lenity among a significant set of federal judges. The comparison also sheds light on the utility of disaggregating lenity in terms of judicial consideration of the framework versus applications of the rule, and the extent to which judges do or should consider lenity to be interpretive precedent. This Response explores those questions.
Part I outlines the lenity framework and the constitutional bases for the rule. Part II discusses the widespread Roberts Court consideration of the framework and its differing approaches to applications of the rule. Part III discusses the appellate courts’ much more limited application of both. The Response concludes with reflections about the significance of the framework-rule distinction in lenity jurisprudence, and argues that this more informed understanding can offer courts a more historically grounded and constitutionally mandated approach to the rule of lenity.
I. The Lenity Framework
Lenity operates as both an interpretive framework and a constitutional rule. This Part defines the lenity framework, and shows how the Court’s choice of one or two constitutional bases for lenity in lieu of all three often drives the application of the rule in ways that correspond to the test that the Court laid out in Chevron — with ambiguity at Step Zero being a trigger for application of the rule at Steps One or Two. This Part then considers the application of the rule — determining whether lenity enters into the interpretive process early or virtually not at all: lenity first or lenity last. The Court’s conflicting approaches to lenity, now coupled with the dire straits of the criminal justice system, demand resolution. Fortunately, the Court’s own historical practice provides one. A close examination of past judicial practice reveals early and deliberate emphasis on lenity first, which is now experiencing a late-onset displacement that is decidedly at odds with the full range of lenity’s constitutional underpinnings. When combined with the Court’s regular consideration of the framework, the lenity-first approach best follows historical precedent and constitutional mandates. Moreover, this combined approach allows judges to provide an institutional check on the political excesses that permit unclear laws, prosecutorial overreach, and infringements on liberty that have resulted in the discriminatory mass incarceration, overcriminalization, and overpunishment that characterize the American criminal justice system today.
Determining whether to construe criminal statutes with lenity is a two-step process that, like Chevron, involves a threshold inquiry as to whether ambiguity exists, importantly, in the relevant area of law — administrative for Chevron, criminal for lenity.43 At Step Zero of the lenity framework, courts make an initial determination whether they must construe a challenged provision of a criminal statute or a civil statute with criminal consequences.44 If not, lenity is not triggered and the plain import of the statute prevails45 — typically in a way that disfavors the defendant challenging the applicability of the statute in the first place.46 If so, courts are to identify all plausible interpretations based on the usual interpretive considerations (Step One).47 If the statutory construction yields more than one plausible reading, lenity would apply to require selection of the narrowest such reading (Step Two).48
The above formulation of the test may be called lenity first. It represents early versions of the rule, as advanced by Chief Justice Marshall and Justice Holmes.49 Applying it, courts consider the lenity framework relevant from the outset for all criminal statutes. If they make an initial determination of ambiguity, they narrow constructions where, for example, the text was written broadly but the legislative history suggests a narrower purpose for a particular provision at issue, or where the text was written narrowly but the political context suggests a broader purpose.50 This approach was common on the Supreme Court when lenity was first incorporated into American law, and continued to be in use until relatively recently.51
A contrasting approach may be called lenity last, and it is the more popular approach in today’s Court. Here, too, the inquiry begins with a question at Step Zero as to whether the lenity framework applies: Is there a criminal statute challenged for ambiguous construction? To determine the answer, courts pursue a robust Step One — identifying all plausible interpretations through their preferred methods of statutory construction.52 Courts may stop the inquiry there and, at Step Two, apply what they deem to be the most plausible or fair reading — including broad constructions based on a purpose gleaned from the overall policy or legislative history that they read as informing the text.53 On this approach, courts only resort to lenity if, after considering every other interpretive tool available, they still cannot make sense of the statute and “grievous ambiguity” persists.54 Only on the rare occasion when they find such grievous ambiguity would courts narrow the construction at Step Two. On this approach, once “a sort of ‘junior version of the vagueness doctrine,’”55 lenity on these terms merges into vagueness, with neither doctrine applying unless there is no fair or consistent application of the challenged provision over time.56 This stingy approach puts lenity “dead last,” replacing the Court’s once-dominant lenity-first approach.57
Justice Scalia sought to modify both of these approaches with a textualist rule of lenity — one that substantively took lenity back to its origins as conceived by Chief Justice Marshall.58 Justice Scalia’s version advocates considering lenity as a part of an overarching framework for approaching challenges to criminal statutes (Step Zero), but cutting off the Step One inquiry to exclude all but textual tools of interpretation — including statutory texts, some canons of construction, and the common law — from the determination of whether plausible readings exist. This formulation would counsel applying a narrow construction at Step Two based on a smaller set of plausible interpretations from the lenity-first approach. The idea is that a clearer and more limited set of interpretive tools used at Step One would better guide judges in making lenity determinations. It would spare them from having to simply conclude that a statute could have multiple meanings to trigger application of the lenity rule, on the lenity-first approach (even if far from a defendant’s understanding of the law);59 or from concluding that a statute was either clear enough that lenity should not apply or else so hopelessly vague that it should, on the lenity-last approach (also without regard for a defen-dant’s asserted understanding of the law).60 With this modified approach to lenity, Justice Scalia became lenity’s most unexpectedly ardent advocate.61 As had earlier Justices, he argued that the rule was the best means of respecting three important values: legislative supremacy, fair warning (with prosecutorial restraint), and defendants’ rights — all of which bolstered norms of judicial restraint and interpretive consistency in criminal law.62
These various tests fall within what I call the “lenity framework”: consideration of possible ambiguity in all criminal law statutory interpretation cases as a separate prerequisite from the inquiry of whether to apply the rule. Like the Chevron two-step test (with its own “Step Zero”),63 the lenity framework is a meta-rule meant to direct judges on the appropriate use of lenity in a hierarchy of various interpretive tools.64 Differences about the place of lenity in that hierarchy, and thus differences in approaches to the test, reflect disputes about the appropriate judicial role in statutory interpretation.
Essentially, the main approaches to lenity — lenity first versus lenity last — map onto the general distinction between presumptions and tiebreakers. The conventional wisdom about substantive legal canons is that judges who use them do so in three core ways: as presumptions, tiebreakers, or clear statement rules.65 Lenity first functions as a “front-end presumption effectively shaping the interpretive process” when judges use it to adopt a (plausible) narrow construction of a criminal statute.66 Lenity last works more like a tiebreaker when judges invoke it only “at the back end of that process” to adopt a narrow construction only when there is no other means of resolving the meaning of a disputed provision of a criminal statute.67 Justice Scalia’s textualist rule of lenity works more like a clear statement rule when, at the slightest hint of ambiguity, he advocates for lenity as a way of requiring Congress to clearly speak to the issue at hand in lieu of declaring criminal liability.68
The “canon drift” characterizing lenity jurisprudence — with shifts in meaning over time — is a regular feature of substantive canons that often precludes judges from using them in neutral or predictable ways.69 This drift matters in the criminal justice arena because the Justices’ disagreement about approaches to lenity reflects and affects their approach to the criminal justice system at a crucial juncture that lacks predict-ability or fairness. Resolution likely requires looking beyond the fact of the drift to interrogate larger questions of the Court’s institutional and constitutional role in this arena.70 Accordingly, the next section details the constitutional rationales that Justices variously use to inform the Court’s varied approaches to lenity.
Judges regularly appeal to lenity’s constitutional foundations. When the Supreme Court interpreted the first U.S. federal criminal statute, the Crimes Act of 1790,71 Chief Justice Marshall in United States v. Wiltberger72 formally incorporated lenity into American law, calling it a rule of “strict construction.”73 He justified the rule on grounds of constitutional rights (liberty) and structure (legislative supremacy):
The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.74
To these principles, Justice Holmes added a third constitutional principle a century later: a due process requirement that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.”75
Since, the tendency has been to narrow the ambit of lenity’s constitutional foundations. Courts tend to ignore the first rationale, of defendants’ rights.76 And most courts and commentators conceive of lenity as a doctrine lodged only on the constitutional values of legislative supremacy and/or fair warning.77 Some appellate judges responding to Professor Gluck and Judge Posner’s survey deemed lenity to be a binding rule justified on the basis of legislative supremacy alone.78
The Supreme Court’s turn away from the full ambit of lenity’s original constitutional foundations fueled its transformation from lenity first to lenity last.79 No doubt noting this trend and that the dual rationales typically used to support his textualist rule of lenity failed to hold sway with the majority of the Court, Justice Scalia advocated in United States v. Santos80 for a return to an originalist conception: applications of lenity founded on structural constitutional requirements of legislative supremacy and fair notice as well as on rights-based constitutional mandates protecting liberty and defendants’ rights.81
It remains to be seen whether the Court will reconsider the full range of the rule’s constitutional foundations. Without reconsideration of its past precedents and its constitutional mandate, a turn seems unlikely, as the Court reverted to lenity last on the dual rationales of legislative supremacy and fair warning as recently as 2015.82
By shedding light on past precedent and constitutional mandates for lenity, the aim here is to highlight the imperative for that reconsideration of lenity, with respect to the liberty and defendants’ rights rationale that first animated the rule. That rationale, which supported a lenity-first approach, mandates broader application of the rule. That approach would in turn enable a judicial corrective to institutional imbalances that have resulted in the excessive legislative ambiguity and prosecutorial discretion in federal criminal law that underlie our current landscape of overcriminalization and overpunishment.83 In short, the rule gains authority when grounded in the full range of constitutional principles that first animated it; and the consideration of the framework with the lenity-first approach best accords with early practice and with constitutional mandates to guard not only the values of legislative supremacy and fair warning, but also in the current criminal law climate, the liberty interests and defendants’ rights mandates that are more urgently relevant today.
II. Roberts’s Rules of Lenity
In the Roberts Court’s criminal law statutory construction cases between 2005 and 2017, lenity was potentially at play in 45 cases. The Justices mentioned the rule in almost all of these cases, and they either applied lenity by name or otherwise construed statutes narrowly in 13 cases. They usually justified their decisions on familiar grounds of legislative supremacy and fair notice. But they also revisited the substantive rights justification for lenity and signaled that they viewed the rule as interpretive precedent.
Appeals to the lenity framework were generally not limited by ideology. Almost every single Justice on the Roberts Court has considered the lenity framework when addressing criminal law questions of statutory interpretation.84 Most Justices — that is, of the thirteen who have served on the Roberts Court — have been on both sides of the lenity equation.85
There is one exception. Justice Anthony Kennedy has tended to reject lenity applications or sign onto only majority opinions that did not name the rule when narrowly construing criminal statutes. He has never authored an opinion applying lenity, and he has instead authored two opinions rejecting it or dissenting from its application.86 To be sure, this pattern is not conclusive evidence of a categorical stance against lenity as opposed to being a coincidental byproduct of opinions to which he was assigned. After all, Justice Kennedy has signed onto a few majority opinions applying lenity.87 Yet those opinions were near-unanimous and, more often than not, he signed onto majority opinions that narrowly construed an ambiguous criminal statute without naming the lenity rule.88 At the very least, this pattern signals that he has not viewed lenity as always key.
Justice Kagan at first seems to follow a similar trajectory, putting into question her acceptance of the lenity framework or the rule. She has authored no majority opinion applying lenity and tends to join majority opinions with narrow constructions of criminal statutes only when they do not mention lenity by name;89 she has rejected lenity in majority opinions to which it might have applied;90 and she once wrote a dissent specifically to reject the application of lenity to a highly contested case.91 But she dispelled any questions about her support for lenity when, in her dissent to Lockhart v. United States,92 she took up Justice Scalia’s position not long after his death.93 There, she complained that:
This Court has a rule for how to resolve genuine ambiguity in criminal statutes: in favor of the criminal defendant. As the majority puts the point, the rule of lenity insists that courts side with the defendant “when the ordinary canons of statutory construction have revealed no satisfactory construction.” At the very least, that principle should tip the scales in Lockhart’s favor, because nothing the majority has said shows that the modifying clause . . . unambiguously applies . . . .94
In other words, she questioned the majority’s failure to consider the lenity framework even if they were to adopt a lenity-last approach.95 For Justice Kagan, the lenity framework should have applied, and the defendant should have prevailed even on a lenity-last approach.
In the end, Justice Kennedy is the lone outlier in his apparent opposition to lenity. If he is indeed opposed to the rule, his opposition has not affected the Court’s regular consideration of the lenity framework. To the contrary, lenity was considered in almost every case by almost every Justice, typically for one of the traditional constitutional ratio-nales. Taken in the aggregate, the Court has been consistent in considering the lenity framework in its construction of ambiguous criminal statutes, and thus successful at forming another interpretive precedent.
The Supreme Court considered the lenity framework in almost all of its criminal law statutory construction cases and applied the lenity rule in a relatively significant number of those cases (though not a majority). Specifically, the Court applied narrow constructions to challenged provisions of criminal statutes in about one-third of the cases (13 of 44) considered by the Roberts Court so far. In half (7 of 13), the Court invoked lenity by name, and typically justified it by appeal to the now-familiar rationales of legislative supremacy and sometimes fair notice.96 In the other half, the Court applied narrow constructions without mentioning lenity by name. Sometimes it did so on grounds of interpretive precedent — that criminal statutes or “crimmigration” provisions not directly confronting an agency interpretation required narrow construction.97 At other times the Court did so on grounds of “plain meaning,” the fair reading arrived at after applying a limited set of interpretive tools, or the need for constitutional avoidance of federalism questions raised with broad applications of a federal criminal statute.98
On the flip side, the Roberts Court rejected lenity in favor of broad constructions in 31 of its 44 lenity-eligible cases. In the vast majority of these cases (all but 6), the Court asserted that its readings were dictated by the texts’ “plain meaning[s]” or the meanings arrived at after prioritizing an expansive array of interpretive tools — that is, lenity last. Where the Court rejected lenity, its authoring Justices typically did not cite constitutional reasons for doing so.99 Instead, they construed the statute’s meaning to be plain — despite concurrences or dissents raising alternative plausible meanings and sometimes arguing for lenity.100
The six cases in which the Court rejected lenity for other substantive reasons involved subject-specific areas of immigration or organized crime, two areas to which the Court has concluded categorically that lenity does not apply.101 In the immigration context, the Court reasoned that the rationales behind Chevron deference outweighed applications of lenity,102 reversing its previous stance to the contrary.103 For organized crime, the Court has long determined that the plain meaning of the Racketeer Influenced and Corrupt Organizations Act’s (RICO) unique liberal construction clause excludes lenity.104 By contrast, many appellate judges have narrowed constructions of that statute in racke-teering cases.105 And at least one appellate judge has advocated for lenity over severity in such cases, on grounds that ambiguities abound in RICO that trigger constitutional commitments to the legislative supremacy and due process requirements undergirding lenity.106 But this same judge acknowledged that he was bound to follow the Supreme Court’s explicit RICO jurisprudence to the contrary.107 In short, the cases where lenity lost generally fell into two categories wherein the Court explicitly determined that a greater-priority canon, Chevron deference, or an anti-lenity clause of broad construction was in the plain text of the statute. These cases are thus exceptions that in some measure prove the rule.
The extent to which appellate judges diverge from their usual stingy applications of lenity in these same cases suggests that they substantively disagree with the Supreme Court’s hierarchy of canons and decisions about plain meaning. The judge above noted as much even as he felt bound to follow the high court rulings on RICO; and the appellate judge in Sessions v. Esquivel-Quintana108 noted as much too, even though he felt bound to follow the high court’s rulings elevating Chevron above lenity in crimmigration contexts.109 The divergence further suggests that the precise contours of the lenity framework are not well understood — a lack this Response aims to remedy.
The constitutional rationales behind the Court’s current treatment of lenity are revealing. When applying lenity, the Court often relies on legislative supremacy, sometimes in the guise of plain meaning, as noted above, or a clear statement rule.110 It less often relies on fair warning.111 And it hardly ever relies on defendants’ rights, as discussed below. When rejecting lenity, the Court typically announces its results on grounds of plain meaning, as another implicit invocation of legislative supremacy, and it often displays lenity-last reasoning.112 The Court thereby oscillates between an implicit legislative supremacy rationale for the former and an assertion of its discretion to interpret laws for the latter. That the Court appeals to legislative supremacy to both apply and reject lenity is consistent with a longstanding practice of privileging that value as a strong constitutional norm in criminal law.113 Thus even when the Court has invoked plain meaning but rejected lenity, it was rejecting the rule while still respecting the rationale of legislative supremacy. Put differently, legislative supremacy has been used to both support and undermine lenity applications. That part is logical, because the Court is meaningfully deciding cases and disagreements over a solid constitutional foundation for lenity. The problem with all of this lenity jurisprudence, though, lies in the fact that, when the Court rejects lenity on legislative supremacy grounds alone, it ignores the other key constitutional mandates to protect a defendant’s liberty and other substantive rights.
Perhaps realizing the pattern, and that the two sides of lenity were talking past each other in ways at odds with the full range of its constitutional foundations, Justice Scalia sought to clarify the rule in his first prevailing lenity opinion after Chief Justice Roberts’s elevation to the bench. In United States v. Santos, he considered both lenity’s origins and its constitutional rationales.114
Efrain Santos headed an illegal lottery operation in Indiana, and Benedicto Diaz helped process the payments.115 For almost two decades, a group of runners gained commissions from bets they gathered, and portions of the remaining money from those bets were used to pay salaries for Diaz and other collectors, as well as to pay winning gamblers.116 Based on these payments and on Diaz’s guilty plea to conspiracy to launder money, a federal district court convicted Santos and Diaz of violating the federal money laundering statute,117 which prohibits the use of the “proceeds” of criminal activities for various purposes, including engaging in, and conspiring to engage in, transactions intended to promote the carrying on of unlawful activity.118
The Seventh Circuit affirmed the convictions.119 On collateral review, the District Court concluded that the defendants could benefit from what was then a new Seventh Circuit ruling — decided after Santos’s direct appeal — that the word “proceeds” in the federal money laundering statute applies only to transactions involving criminal profits, not criminal receipts.120 Because it found no evidence that the money laundering convictions involved lottery profits, the Court vacated the money laundering convictions.121 The Seventh Circuit again affirmed, this time upholding the reversal of the convictions.122
The Government then asked the Supreme Court to review the question. The Solicitor General asked the Court to determine whether the term “proceeds” from the federal money laundering statute, criminalizing transactions designed to promote criminal activity, means only “profits” or also “receipts.”123
In a plurality opinion, the Supreme Court agreed with the Seventh Circuit on a narrow reading of the term.124 If use of the prohibited “proceeds” referred unambiguously to profits and receipts, the convictions would have been upheld.125 But if the term plausibly referred only to profits, the convictions could not be sustained.126 In this case, the Court chose the narrower of the two readings: “proceeds,” which would refer only to profits, not receipts, for a prosecution involving a standalone illegal gambling operation.127 More generally, the Court ultimately concluded that the statutory term “proceeds” was ambiguous, thus triggering the rule of lenity.128
Justices on all sides strongly debated the relevant applications and rationales for the lenity rule. At Step One, Justice Scalia noted the “inherent ambiguity” of the word “proceeds,” commenting that Congress had defined the term differently in various criminal provisions, sometimes to mean profits and sometimes to mean receipts.129 Also noting that the statute cohered if “proceeds” were read to carry either meaning, he concluded at Step Two that lenity must break the tie.130 Significantly, in explaining why, Justice Scalia justified the rule on all three of the rule’s constitutional rationales:
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain [the due process / fair notice rationale], or subjected to punishment that is not clearly prescribed [the liberty / defendants’ rights rationale]. It 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 [the nondelegation / legislative supremacy rationale]. Because the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition, the rule of lenity dictates that it should be adopted.131
In other words, Justice Scalia not only regarded lenity as a venerable rule sometimes justified by “sheer antiquity,”132 but he also insisted that constitutional principles of legislative supremacy in criminal lawmaking, due-process fair warning, and substantive rights to life and liberty also require application of the rule. He underscored the interest of defendants’ rights in criminal proceedings this way:
The Government also argues for the “receipts” interpretation because — quite frankly — it is easier to prosecute. . . . Essentially, the Government asks us to resolve the statutory ambiguity in light of Congress’s presumptive intent to facilitate money-laundering prosecutions. That position turns the rule of lenity upside down. We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.133
In a concurrence, Justice Stevens questioned the application of lenity, disagreeing with the textualist reading that Justice Scalia had presented. That is, Justice Stevens would not have stopped the inquiry at consideration of the text and other provisions of criminal statutes to define the term, as did Justice Scalia. He would, and did, also consult legislative history. Finding nothing in the legislative history, Justice Stevens agreed with a narrow construction in this case, but reserved space for rejecting lenity where the legislative history clarified the import of a criminal statute.134 In short, he maintained, ambiguous criminal statutes do not always require narrow construction; instead, they amount to a delegation of interpretive authority to the courts to give meaning to the statutes — whether by assessing statutory purpose in the legislative history or through other means.135
Justice Stevens’s statement was controversial and highlighted the dispute between lenity proponents and critics based on the interpretive scope afforded by the constitutional rationale adopted. In one way, Justice Stevens had simply made a robust argument for a lenity-last approach to criminal law. But in another way, his statement was shocking, as his call for giving more leeway to legislative history might be read as explicitly favoring judicial authority, rather than legislative authority, to clearly define criminal law, as Professor Dan Kahan has suggested courts regularly do, implicitly.136 On this understanding of Justice Stevens’s argument, the creation of statutory ambiguity is an attempt by the legislature to impose legislative direction without sufficient clarity — meaning that judges are “implicitly authorized” to specify the statute’s meaning. In response, Justice Scalia attempted to clarify the line between interpretation and law making:
Justice Stevens’ position is original with him; neither the United States nor any amicus suggested it; it has no precedent in our cases. . . . Our obligation to maintain the consistent meaning of words in statutory text does not disappear when the rule of lenity is involved. . . . If anything, the rule of lenity is an additional reason to remain consistent, lest those subject to the criminal law be misled. And even if, as Justice Stevens contends, statutory ambiguity “effectively” licenses us to write a brand-new law, we cannot accept that power in a criminal case, where the law must be written by Congress.137
Santos is important for the tripartite constitutional foundations it insists upon for lenity. Namely, it draws upon the original concepts animating lenity in the founding era — defendants’ rights alongside legislative supremacy and fair warning; and it calls on courts to help police the institutional boundaries required to maintain each. This treatment of lenity contrasts sharply with the appellate courts’ treatment of lenity.
III. The Appellate Rule of Lenity
Finally, we come to the courts of appeals’ applications of lenity, where the analysis will be necessarily shorter. Here, I examined all of the appellate cases that gave rise to the Roberts Court lenity cases, to see when, how, and why appellate judges considered the lenity framework, and whether they applied or rejected the rule. This exercise provides a concrete test of the extent to which these courts accord with the Supreme Court’s lenity jurisprudence.
Appellate judges considered the lenity framework in a dramatically smaller set of cases than did the Supreme Court. The Supreme Court considered the lenity framework in almost of all lenity-eligible cases (44 of 47 cases, with a vagueness analysis — the “senior” version of lenity — applying to the remaining 3), and applied the rule in 13 cases.138 By contrast, appellate courts considered the framework in only some 12 of 53 lenity-eligible cases (22%),139 and they applied it in only 4 (7%).140
Astonishingly, the reasons behind appellate court applications of lenity accorded with none of the rationales advanced at the Supreme Court. One panel applied lenity, in Santos v. United States, based on interpret-ive precedent in its own Circuit (which the Supreme Court affirmed for reasons that instead combined the three constitutional rationales above).141 The other panel that applied the rule in United States v. Hayes treated lenity like a residual savings clause, perhaps hedging against the Supreme Court finding its construction of the statute flawed (it did, and reversed, rejecting lenity).142
Interestingly, though, where appellate courts explicitly rejected lenity, they often did so citing recent Supreme Court precedent on the rule, or at least their understandings of it. Sessions v. Esquivel-Quintana is illustrative. In that case, the United States Court of Appeals for the Sixth Circuit was tasked with deciding whether a conviction under a state statute criminalizing consensual sexual intercourse between a twenty-one-year-old and a seventeen-year-old qualifies as an “aggravated felony” under the Immigration and Nationality Act (INA), which permits the Attorney General to deport ‘‘[a]ny alien who is convicted of an aggravated felony.”143 The twenty-one-year-old in question was Mexican native and citizen Mr. Esquivel-Quintana, who sought review of a Board of Immigration Appeals decision ordering his removal on a finding that his California conviction for unlawful sexual intercourse with a minor was an aggravated felony under the INA. The Sixth Circuit concluded that it could not overturn the removal order.144
Even though the Supreme Court ultimately disagreed with it, the Sixth Circuit’s reasoning in Esquivel-Quintana is important for the extent to which it treated lenity as interpretive precedent, and to which the judicial panel sought to take guidance from the Supreme Court. When Esquivel-Quintana raised the issue of lenity, arguing for a narrow application of “sexual abuse of a minor” in his favor, the Circuit Court first acknowledged the general applicability of the lenity framework, in line with Supreme Court lenity jurisprudence: “According to the rule of lenity, when a criminal statute is ambiguous, that ambiguity must be resolved in the defendant’s favor.”145 But the Circuit Court doubted whether lenity applies in contexts where, as there, a civil statute carries criminal penalties. Somewhat at odds with regular Supreme Court pre-cedent on this question, which yields a pretty unequivocal “yes,”146 the Circuit Court looked to a recent denial of certiorari memorandum and to its own precedent to arrive at an equivocal view that it did not apply. The Circuit Court suggested that only “[a]n increasingly emergent view asserts that the rule of lenity ought to apply in civil cases involving statutes that have both civil and criminal applications.”147 The reason, the Circuit Court concluded, is that lenity meets the fair notice and legislative supremacy requirements that must apply when there are penal consequences for violation of a law.148 It did not consider the defendants’ rights/liberty rationales. It further mounted a spirited offense against privileging Chevron deference over lenity — arguing that the twin fair notice and nondelegation constitutional rationales for lenity are meant to prevent both courts from criminalizing otherwise permissible acts and agencies from creating “new crimes at will.”149
But in the end, the Circuit Court concluded that its hands were tied. Noting accurately that the Supreme Court’s recent lenity decisions in the crimmigration context placed Chevron above lenity when the two canons faced off in a head-on duel,150 the Circuit Court followed suit reluctantly and rejected lenity in this case.151 Moreover, it presented itself as bound to doing so as part of a lenity jurisprudence that extended to the administrative context more generally — dating back at least to Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,152 the 1995 case construing the Endangered Species Act.153 The Circuit Court also adopted the faithful agent metaphor, except that rather than envisioning a congressional principal as is typical, it named a Supreme Court principal: “As an ‘inferior’ court, our job is to adhere faithfully to the Supreme Court’s precedents.”154 The Circuit Court arguably got its appraisal of the practice wrong. But what is notable is that this appellate court regarded and attempted to treat the Supreme Court consideration of lenity as interpretive precedent.
Conclusion
Professor Gluck and Judge Posner’s focus on the federal courts of appeals has appropriately shifted our sights onto statutory interpretation in the arena where it happens most. Their work provides insight into the larger questions of statutory interpretation, and digging even deeper into the way judges approach particular canons is an important next step to understanding fully the interpretive work performed by appellate courts.
Yet, in considering the relationship between appellate courts and the Supreme Court, lenity does not fare well. The Court’s fairly consistent application of the lenity framework for ambiguous criminal statutes arguably mimics its consistent application of Chevron’s framework for agency deference for ambiguous regulatory statutes. The problem is that the Justices do not always agree on the point at which the lenity rule should trigger narrow construction, nor do they always rely on the same constitutional rationales behind lenity when considering its early application (lenity first) against countervailing canons or other constitutional considerations (lenity last). Despite the consistent application of the lenity framework, most commentators and appellate court judges have not treated it as interpretive precedent. To wit: in the appellate courts surveyed whose criminal law opinions were granted certiorari, appellate judges rarely invoked the framework and applied the rule even less.
These features of current lenity jurisprudence reflect an approach to the rule that is at odds with the historical practice and constitutional mandates for the rule. Close examination of each, as provided here, reveals an imperative for regular consideration of the framework informed by the full range of constitutional mandates driving the rule: legislative supremacy, fair notice, and liberty interests by which the court ensures the Constitution’s structural integrity and individual rights. Exercise of that judicial role has never been more important than now, when the tenor of discriminatory and pathological politics has combined with a lack of legislative clarity and prosecutorial restraint to result in a broken criminal justice system in dire need of interpretive attention, among other checks and balances.
Similarly, the appellate courts’ grudging approach to lenity is at odds with that of the Supreme Court. Appellate courts’ frequent failure to even consider the lenity framework confirms the notion gestured at in Professor Gluck and Judge Posner’s Article: that appellate courts often deviate significantly from the Supreme Court in terms of methodological approaches to statutory interpretation. If close scrutiny of the Roberts Court criminal law statutory interpretation cases is a guide, the Supreme Court’s consistent consideration of the lenity framework suggests that some modifications are in order to the common notion of lenity, now prevalent among commentators and represented on appellate courts, as inconsistent and weakly anchored. These modifications would commend increased consideration of the lenity framework in criminal law statutory interpretation cases on appellate courts to better match Supreme Court treatment. Fuller consideration of the constitutional mandates for lenity would also command increased application of the lenity-first approach to the rule. Taken together, this conception of lenity as an interpretive precedent that takes important criminal law questions seriously would give full effect to the constitutional mandates directing judges to help ensure legislative supremacy, fair notice, and liberty in the criminal process, particularly in these times.
A modified rule of lenity that asks judges always to consider the lenity framework for criminal law statutory interpretation challenges and to use their discretion in applying the rule is not only desirable, but it is arguably required if courts are to adhere to lenity’s historical and constitutional foundations. It would better accord with Supreme Court signals and appellate-court sometimes-recognition of the “special” status of lenity in criminal law interpretation without imposing undue constraints on the judicial task of deciding questions of law at the appellate level. And it would guide judges to respond appropriately to the increasingly urgent need for more cautionary approaches to criminal law statutory interpretation in view of the collapse of the American criminal justice system.
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* Professor of Law, Harvard Law School; Professor of History, Harvard University; Susan S. & Kenneth L. Wallach Professor, Radcliffe Institute for Advanced Study at Harvard. This paper benefited from helpful comments and feedback from Ryan Doerfler, Abbe Gluck, Joshua Kleinfeld, Nina Mendelson, Zachary Price, and Jane Schacter. Michael Decker, Marilyn Robb, and Samuel Rubinstein provided excellent research assistance. The author thanks all of them as well as the editors of the Harvard Law Review for their scholarly enthusiasm, as-tute comments, and careful editing.
Recommended Citation: Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179 (2018), https://harvardlawreview.org/2018/06/the-appellate-rule-of-lenity/.