A Unified Approach to Lenity: Reconnecting Strict Construction with Its Underlying Values

• Author: Lane Shadgett
• Position: Georgetown Law, J.D. 2021; Harvard University, A.B. 2000
• Pages: 685-714

A Unified Approach to Lenity: Reconnecting Strict

Construction with Its Underlying Values

LANE SHADGETT*

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685

I. LENITY’S UNDERLYING VALUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687

A. LEGISLATIVE SUPREMACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689

B. FAIR NOTICE & DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693

C. DEMOCRATIC ACCOUNTABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697

II. SHORTCOMINGS OF THE MODERN APPROACH. . . . . . . . . . . . . . . . . . . . . . . . 698

A. THE AMBIGUITY OF AMBIGUITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699

B. LENITY AS TIEBREAKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701

III. THREE POTENTIAL IDEAS FOR REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703

A. JUSTICE SCALIA & SHON HOPWOOD: CLEAR STATEMENT LENITY . . . . 704

B. JUSTICE KAVANAUGH: AVOIDING THE AMBIGUITY THRESHOLD . . . . . 707

C. ANITA KRISHNAKUMAR: A METARULE FOR LENITY . . . . . . . . . . . . . . . 709

IV. A UNIFIED RULE OF LENITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714

INTRODUCTION

The rule of lenity is special.

1

A canon of statutory interpretation that calls for

the strict construction of criminal statutes, lenity

2

is ancient, “perhaps not much

* Georgetown Law, J.D. 2021; Harvard University, A.B. 2000. © 2022, Lane Shadgett. Many thanks

to Professor Victoria Nourse for her invaluable mentorship and guidance, as well as her challenging

comments and suggestions. Thank you also to Wynne Leahy, Nicholas Fuenzalida, Darren James,

Nicholas Yacoubian, Patrick O’Neil, and all the editors of The Georgetown Law Journal for their hard

work and remarkable dedication. And to Wendy and Oscar for everything else.

1. Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-

Two Judges on the Federal Courts of Appeals, 131 HARV. L. REV. 1298, 1331 (2018).

2. The rule of lenity has not always gone by the same name. For much of its history, it was known as

the “strict construction of penal statutes.” John F. Stinneford, Dividing Crime, Multiplying Punishments,

48 U.C. DAVIS L. REV. 1955, 1995 (2015). Lenity was first referred to by its modern name in Gore v.

United States. Id. at 1995 n.233; see Gore v. United States, 357 U.S. 386, 391 (1958). For the sake of

readability and consistency, this Note will refer to “lenity” throughout.

685

less old than construction itself.”

3

It was first invoked by a United States federal

court in 1794

4

and by the Supreme Court in 1820.

5

It has been cited hundreds of

times, throughout the history of the republic, by judges and Justices across ideo-

logical divides.

6

In a recent survey of forty-two federal appellate judges, even

those most skeptical of canons in general tended to single out lenity as authorita-

tive, deriving its power not only from its frequent use but from the Constitution

itself.

7

But lenity is broken. As a substantive canon of interpretation, lenity’s legiti-

macy depends on its association with two constitutional values—legislative su-

premacy (only Congress has the power to define crimes)

8

and fair notice.

9

Regrettably, as operationalized by modern courts, lenity has become painfully

disaggregated from those underlying values—a phenomenon that has both weak-

ened its utility and undermined its legitimacy.

Since the mid-twentieth century, lenity has been invoked solely as the second

step in a rigid, two-step process.

10

In step one, the court determines, as an abstract

matter, whether the meaning of a criminal statute is ambiguous.

11

Only once that

question is answered in the affirmative does the court proceed to step two, in

which lenity directs the interpreter to resolve the ambiguity by selecting the nar-

rower reading.

12

This two-step approach to lenity (which I refer to as the “mod-

ern” approach) has two unfortunate characteristics. First, the modern approach

3. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). Scholars have traced lenity as far

back as thirteenth-century England. See Shon Hopwood, Restoring the Historical Rule of Lenity as a

Canon, 95 N.Y.U. L. REV. 918, 924–25 (2020) (drawing a connection between lenity and an early

doctrine called benefit of clergy, which “allowed courts to mitigate what they viewed as overly punitive

sanctions”); see also Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV.

109, 128–29 (2010) (discussing lenity’s historical roots).

4. See Bray v. Atalanta, 4 F. Cas. 37, 38 (D.S.C. 1794) (No. 1819) (“[I]t is a penal law and must be

construed strictly.”).

5. See Wiltberger, 18 U.S. (5 Wheat.) at 76.

6. See Hopwood, supra note 3, at 940–41, 943–44; see also Zachary Price, The Rule of Lenity as a

Rule of Structure, 72 FORDHAM L. REV. 885, 901–06 (2004) (surveying the extensive invocation of

lenity by state courts).

7. Gluck & Posner, supra note 1, at 1331–32; see also John O. McGinnis & Michael B. Rappaport,

Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103

Nw. U. L. REV. 751, 764 (2009) (“If one asked the enactors whether a legal interpretive rule that was

widely accepted as applying to the Constitution—say, perhaps, ejusdem generis or the rule of lenity—we

have no doubt that the enactors would have regarded it as binding.”).

8. Concededly, “legislative supremacy” is an imprecise term given that, in practice, the strict

construction of criminal statutes might actually go against the wishes of Congress. See infra notes 47–55

and accompanying text. However, legislative supremacy is the term used most frequently in the

literature, and so I will use it here as well.

9. See, e.g., United States v. Davis, 139 S. Ct. 2319, 2333 (2019); see also ANTONIN SCALIA &

BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 296 (1st prtg. 2012) (“Some

authorities consider the rule to be based on constitutional requirements of fair notice . . . .”); Lawrence

M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV. 57, 58 (1998) (“The motivating

purpose of the rule is to provide adequate notice to defendants (due process) . . . .”).

10. See, e.g., Chapman v. United States, 500 U.S. 453, 463 (1991).

11. See, e.g., id.

12. See Muscarello v. United States, 524 U.S. 125, 138–39 (1998) (stating lenity is only applicable

after a court has seized “everything from which aid can be derived” and yet there remains “grievous

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