Fair notice about fair notice.

• Author: Love, Jeffrey A.

The rule of lenity requires the courts to construe ambiguous criminal statutes in favor of the defendant. (1) The rule is intended, among other things, to guarantee that no criminal defendant will be caught off guard by a broader reading of a statute than he anticipated; it reflects our collective "instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." (2) At the same time, the lenity canon serves to ensure that a statute will not be interpreted more broadly than the legislature intended. (3) But what would happen if a legislature passed a statute telling courts that they could not rely on the rule of lenity any longer, thereby limiting the courts' ability to preserve the fair-notice values that underpin the canon?

As it turns out, most state legislatures appear to have done just that. (4) Eleven have explicitly barred the courts from using the rule of lenity, enacting laws requiring, for example, that the courts construe a criminal statute "according to the fair meaning of [its] terms" or "to promote justice and effect the objects of the law" rather than reading the statute in favor of the defendant. (5) Others have been more circumspect, directing the courts to construe criminal statutes "liberally" (6) or to "depart[] from literal construction" when doing so would better promote the intent of the legislature. (7) Still others have enacted general rules of interpretation that could be read to bar the use of the lenity canon. (8)

Nonetheless, state courts have not always followed these lenity-displacing statutes. Rather, most state supreme courts seem to be invoking lenity when it suits their fancy. (9) In doing so, though, they have not been clear about why they should be allowed to reject the legislature's will, why they are choosing to invoke lenity, or even whether they are relying on the lenity canon at all.

To be sure, the state courts' reluctance to follow these legislated rules is understandable. One might think that individuals have a right to know what conduct is and is not criminal--a right that the legislature cannot take away. It is also understandable that state judges might be reluctant to say outright that they will disregard the legislature's will; for one thing, judges who directly challenge the political branches and whose decisions can be construed as "pro-criminal" are vulnerable to backlash. (10) But as this Comment shows, state judges cannot have it both ways. If judges try to construe laws to be consistent with the lenity canon's notice-giving values while avoiding an outright clash with the state legislature, they undermine the very same values that they seek to preserve. (11)

1. STATE COURT PRACTICE

   Although the U.S. Supreme Court has cited the rule of lenity relatively infrequently of late, (12) the question of legislative override of lenity is a live one in the states. In fact, several state displacement statutes have been cited--not always approvingly--more than ten times per year over the past two decades. (13) Indeed, while some state supreme courts have chosen to follow their legislatures' interpretive rules, most have instead limited the force of those requirements. (14) Some courts have explicitly employed the rule of lenity despite clear legislation barring such a move, (15) but others have come down somewhere in between--neither disclaiming the rule of lenity entirely nor employing it explicitly. (16) Often, though, the courts have been either vague or contradictory in their reasoning. (17) As a result, the case law provides neither a clear rationale for following or dismissing a legislated rule, nor even any guidance about whether the courts are following or dismissing the rule in the first place.

   Consider the experience of California. The state's code includes a provision barring use of the lenity canon: "The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." (18) The case of Keeler v. Superior Court (19) forced the state supreme court to confront the legislature's anti-lenity mandate, although the high court did its best to dodge the question. In Keeler, the court had to decide whether the state's murder statute, which prohibited the "killing of a human being," covered the intentional killing of a viable fetus that the mother wished to carry to term. (20) The defendant, a divorce who learned that his ex-wife was pregnant by another man, responded to the news by attacking her violently. In particular, he said he would "stomp [the fetus] out" of her and then kneed her in the stomach, ultimately fracturing the fetus's skull. (21) The statutory text did not resolve the case: no court had interpreted the term "human being" either to include or to exclude a viable fetus that the mother wished to carry to term, and the common law was of no help. Moreover, while the salience of the abortion issue made it unclear what the legislature would have done if faced with precisely this question, it seems unlikely--given the horrific nature of the crime--that it would have intended to create a law that would let the defendant off on the lesser charge of assault. (22)

   And yet, ultimately, the Keeler court interpreted the ambiguous murder statute to exclude the defendant's actions. In doing so, the court seemed to rely on the California anti-lenity statute while simultaneously invoking lenity-like concerns to acquit the defendant of murder. First, the majority took notice of the anti-lenity statute, observing that "the Penal Code commands us to construe its provisions 'according to the fair import of their terms, with a view to effect its objects and to promote justice.'" (23) Next, the majority swore allegiance to the plain meaning rule, promising to follow all of the typical textualist methods of statutory interpretation. (24) The court nevertheless concluded by invoking concerns of notice and due...