LSAT Practice Test 10

The Rule of Lenity

Among the canons that courts use to interpret statutes, few are invoked as often, or applied as grudgingly, as the rule of lenity. The rule directs that when a criminal statute is genuinely ambiguous, the ambiguity is to be resolved in the defendant’s favor. Yet courts in many jurisdictions now treat lenity as a tiebreaker of last resort, to be consulted only after every other interpretive tool—text, structure, legislative history, statutory purpose—has failed to yield an answer. Since those tools almost always yield some answer, the rule survives largely as a ceremonial phrase.

Part of the reason for this decline lies in the justification most often offered for the rule. Lenity, it is said, ensures fair warning: no one should be punished for conduct that the law did not clearly prohibit when the conduct occurred. But as the legal scholar Mirela Okafor has observed, this rationale rests on a fiction. Few people consult a criminal code before acting, and fewer still could follow the interpretive disputes in which lenity is raised. A person who embezzles funds through an unusual accounting device does not typically lose sleep over whether the device falls within the statutory definition of “transfer.”

Okafor argues, however, that the rule’s real foundation is institutional rather than personal. Defining crimes, she contends, is among the gravest acts a government can perform, because it authorizes the state to deprive people of their liberty, and in a democracy that power belongs to the body most directly accountable to voters. When a court resolves a criminal ambiguity against a defendant, it in effect creates a crime that the legislature did not clearly enact, and it does so in a setting—a single prosecution—where the political costs of the decision are borne by no one who answers to the electorate. Lenity places the burden of clarity on the legislature, the party best able to bear it: a legislature that wants broader coverage can simply amend the statute.

Okafor draws two consequences from this reframing. First, if lenity protects the allocation of lawmaking power rather than the expectations of individual defendants, then it applies even when a defendant plainly knew that his conduct was wrongful; the defendant’s state of mind is beside the point. Second, the rule should not wait until all other interpretive resources are exhausted. Legislative history, for example, consists largely of committee reports and floor statements that were never themselves voted upon, so using it to expand criminal liability reintroduces precisely the unaccountable lawmaking that lenity exists to prevent. Lenity, on this view, belongs near the beginning of the interpretive inquiry, not at its end.

Critics object that so robust a rule would let culpable defendants escape on technicalities and would encourage legislatures to draft sprawling, overinclusive statutes. These concerns are not trivial. But they amount to an argument that the costs of clear lawmaking are high, and that is a reason for legislatures to pay those costs, not for courts to absorb them.