The rule of lenity is an ancient canon of statutory construction that requires courts to find in favor of criminal defendants charged under ambiguous statutes. Traditionally, lenity endorses important constitutional concerns regarding due notice, consistent enforcement of law, and legislative supremacy. In modern courts, if lenity were regularly—and properly—applied, it could combat important social problems that plague our criminal justice system. Ambiguous laws allow government actors to arbitrarily target disfavored groups. And more generally, ambiguity within criminal law contributes to overcriminalization, wanton punishment, and capricious enforcement. As the volume of federal criminal law continues to expand, this overcriminalization leads to extreme mass incarceration in the United States. Lenity, if applied more potently in the federal courts, could help combat these serious social issues by supplying a safety valve against the multitude of ambiguous statutes written by Congress.
The problem with lenity today, however, is that courts are rarely clear where lenity should fit within criminal statutory interpretation. Federal courts, including the Supreme Court, alter how they apply lenity case by case. This Note argues that lenity should be codified federally as a clear statement rule, as several states have already done. Specifically, to achieve a consistent and strong application of lenity in the federal courts, Congress should direct the federal courts to apply lenity immediately after an initial textual analysis fails to clarify an ambiguous statute. Codified lenity would guide courts in lenity’s application and underscore its fundamental importance to the criminal justice system.
Maisie A. Wilson, The Law of Lenity: Enacting a Codified Federal Rule of Lenity, 70 Duke L.J. 1663-1702 (2021)
Available at: https://scholarship.law.duke.edu/dlj/vol70/iss7/4