rule of lenity

{{see|Separation of powers}}

Today, determining legislative intent is a critical job that arises from the distinct and separate roles played by the judiciary and the legislature in administering justice. Judges are routinely required to apply the relevant laws and rules passed by the legislature to the decisions they make. There are reasons this can be difficult.

For one, laws are intended to apply generally and it would be impossible for the legislature to foresee all the possible situations to which they might apply after their enactment.

For the purpose of resolving this issue, courts have developed canons of interpretation. The rule of lenity is one such canon. Implicit in its provisions is the additional burden placed on the prosecution in a criminal case and the protection of individual rights against the powers of the state. It also furthers the fundamental principle of requiring notice in criminal law. Individuals should not be punished for their acts when the law fails to communicate to the public that such acts are forbidden.

It is intended to apply only to those instances where the court recognizes the existence of more than one interpretation and where the decision that the court reaches harms or benefits the defendant to some greater or lesser degree. In that case, the rule requires the court to select the interpretation most beneficial (or least detrimental) to the defendant.

The traditional rule, also called the rule of strict construction, arose in the English common law for a purpose very different from those cited in U.S. law.

Originally, the rule was conceived by English judges trying to limit Parliament's use of the death penalty. When the facts of a case were not expressly described by a law, the court would "strictly construe" it so as to exclude its application to the case in question.

A 1547, a law passed that denied a lesser sentence to first-time offenders convicted of "felonious stealing of Horses, Geldings or Mares" among other offenses.1 Edw. VIII, c. 12, § (X)(3) (1547), {{cite book |last1=Ruffhead |first1=Owen |last2=Adams |first2=John |author-link1=Owen Ruffhead |author-link2=John Adams |date=1763 |title=The statutes at large: from Magna Charta, to the end of the last parliament, 1761. In eight volumes |url=https://archive.org/stream/statutesatlargef02grea#page/394/mode/1up |page=395 |volume=2 |location=London |publisher=Mark Basket and his assigns, Mark Woodfall, and William Strahan | access-date=28 September 2017}} The courts interpreted the law as applying to only those convicted of stealing two or more horses and allowed first-offenders who stole one horse to continue to avail themselves of the lesser penalty. The following year, Parliament explicitly addressed the rule's use with the passage of a new law, solely dedicated to horse thievery. They pointed to the prior law's "ambiguous" wording and its construction by the courts. The new law explicitly stated that those convicted of stealing "any Horse, Gelding, or Mare" shall be treated the same as those charged with "stealing two Horses, two Geldings, or two Mares, or any other".2 & 3 Edw. VIII, c. 37, § X(3) (1547), {{cite book|last1=Ruffhead|first1=Owen|last2=Adams|first2=John|date=1763|title=The statutes at large: from Magna Charta, to the end of the last parliament, 1761. In eight volumes|url=https://archive.org/stream/statutesatlargef02grea#page/426/ |page=426|volume=2|location=London|publisher=Mark Basket and his assigns, Mark Woodfall, and William Strahan|access-date=18 July 2024}}{{cite book|first=John Hamilton |last= Baker|title=The Oxford History of the Laws of England: 1483-1558|chapter-url=https://archive.org/details/oxfordhistoryofl00john|chapter-url-access=registration |accessdate=28 September 2017|year=2003|publisher=Oxford University Press|location=London|isbn=978-0-19-825817-9|page=[https://archive.org/details/oxfordhistoryofl00john/page/540 540]|chapter=Ch. 6: Criminal Law and Procedure}}{{cite book|first= William |last= Blackstone|author-link=William Blackstone |title=Commentaries on the Laws of England|chapter-url=https://archive.org/details/commentariesonl00jonegoog|edition=William Carey Jones|year=1915|publisher=Bancroft-Whitney Company|location=San Francisco|page=[https://archive.org/details/commentariesonl00jonegoog/page/n285 154]|chapter=Pt.3 Sec.118 (I): Construction of Penal Statutes}}

Under the reign of George II, another law concerning first-offenders and livestock was similarly limited by the courts. This time, the act ambiguously referred to “Sheep, or other Cattle.”14 Geo. II, c. 6, § I (1741), {{cite book|last1=Ruffhead|first1=Owen|last2=Adams|first2=John|date=1765|title=The statutes at large: from Magna Charta, to the end of the last parliament, 1761. In eight volumes|url=https://archive.org/stream/statutesatlargef06grea/page/410/ |page=410|volume=6|location=London|publisher=Mark Basket and his assigns, Mark Woodfall, and William Strahan|access-date=18 July 2024}} The following year, Parliament passed a new “Act to Explain An Act” in which they expressly spelled out that the statute should apply to “any Bull, Cow, Ox, Steer, Bullock, Heifer, Calf [or] Lamb, [or] Sheep, and to no other Cattle whatsoever.”15 Geo. II, c. 34 (1742), {{cite book|last1=Ruffhead|first1=Owen|last2=Adams|first2=John|date=1765|title=The statutes at large: from Magna Charta, to the end of the last parliament, 1761. In eight volumes|url=https://archive.org/stream/statutesatlarge06grea#page/477/ |page=477|volume=6|location=London|publisher=Mark Basket and his assigns, Mark Woodfall, and William Strahan|access-date=18 July 2024}}

Laying out the rule's application in the American courts, it was first cited in 1820 by Chief Justice John Marshall in United States v. Wiltberger:

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.

...

[T]hough penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute... in their ordinary acceptation, or in which the legislature has obviously used them.... The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in *the words, there is no room for construction.[https://scholar.google.com/scholar_case?case=15837139254241140507&q=united+states+v.+wiltberger&hl=en&as_sdt=6,39&as_vis=1 18 US 76, 95 (Supreme Court 1820)].

After its initial wide acceptance, other canons, such as the clear statement rule and the vagueness doctrine, have encroached on the rule and its use by the courts. In 1961, Justice Frankfurter wrote in Callanan v. United States, that the rule is for expressing the will of Congress, not protecting defendants from it:

The rule of lenity [is] for resolving an ambiguity, not [creating one].... The rule comes into operation at the end of the process of interpreting what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.{{Cite web|url=https://scholar.google.com/scholar_case?case=10261023883092961366&q=callanan+v+united+states&hl=en&as_sdt=6,39|title=Callanan v. United States, 364 US 587 – Supreme Court 1961 |via= Google Scholar}}

Islamic law has a similar tenet which allows the imposition of punishments only in the absence of "doubt or ambiguity".{{sfnp|Rabb|2011|page=1316-1317}}{{cite magazine |first=Intisar A.|last=Rabb |author-link=Intisar Rabb |title=Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt |journal=Islamic Law and Society |volume= 17 |pages= 63–125 at 66 |date=2010 |url=http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1484&context=lsfp |accessdate=3 October 2017}}

The rule is today seen as an expression of legislative supremacy.{{sfnp|Rabb|2011|page=1305}} It is infrequently cited in contemporary{{clarify|contemporary with what?|date=September 2018}} opinions.{{sfn|Price|2004|page=902}}

During oral arguments for the 2016 case, Lockhart v. United States,{{Cite web|url=https://scholar.google.com/scholar?scidkt=18180785990255627732&as_sdt=2&hl=en|title=Google Scholar|website=scholar.google.com}} Justice Antonin Scalia sua sponte raised the question of the rule's application:

"...what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!"{{cite news| title=Scalia Sticks Up for a Child Pornography Convict | author-link = Mark Joseph Stern | last = Stern |first=Mark Joseph |work=Slate |date=3 November 2015 |access-date=3 October 2017|url=http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/11/supreme_court_lockhart_case_scalia_argues_for_lenity.html}}

In the end, he joined the majority in refusing to apply the rule.136 S. Ct. 958 at 968See the dissent by Justices Elena Kagan and Stephen Breyer. They expressly support the rule and its use in the case before them (136 S. Ct. at 977).

In State v. Thonesavanh, The Minnesota Supreme Court expressly rejected the position that the rule "allows a defendant to prevail in every instance in which a criminal statute is ambiguous."{{Cite web|url=https://scholar.google.com/scholar_case?case=18215598182342264352&hl=en&as_sdt=6,39|title=State v. Thonesvanh, Minn: Supreme Court 2017 |via= Google Scholar}} At issue was the question of whether the word "take," as used in the state's law against auto theft,{{Cite web|url=https://www.revisor.mn.gov/statutes/cite/609.52|title=Sec. 609.52 MN Statutes|website=www.revisor.mn.gov}} required the accused to actually move the vehicle, or, as in this case, merely to enter it and lock the doors. The court relied on the doctrine of in pari materia in holding that the mere "temporary control" of the car was enough under the statue.{{cite news |last=Jones |first=Barbara L. |title=Supreme Court reverses ruling in auto theft that went nowhere |url=http://minnlawyer.com/2017/09/08/supreme-court-reverses-ruling-in-auto-theft-that-went-nowhere/ |date=8 September 2017 |work=Minnesota Lawyer |access-date=3 October 2017}}

On the other hand, the Massachusetts Supreme Judicial Court cited the rule in Commonwealth v. Dayton{{Cite web|url=https://scholar.google.com/scholar?scidkt=10722638148962002824&as_sdt=2&hl=en|title=Google Scholar|website=scholar.google.com}} in ruling that the ambiguous language in the state's OUI law did not permit suspects to be held without bail unless they had been convicted three times under the statute, as opposed to being arrested three times.{{cite news |last=Dunn |first=Bob |title=Massachusetts Supreme Judicial Court finds OUI law ambiguous |url=http://www.berkshireeagle.com/stories/court-finds-oui-law-ambiguous,510169 |date=11 June 2017 |work=The Berkshire Eagle |access-date=3 October 2017}}

The states of Florida and Ohio have codified the rule.{{sfn|Price|2004|page=902}} The Florida statute states that the code "shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."{{cite web|work= Florida Stat. Ann. |title = Sec. 775.021 |url=http://leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.021.html|access-date=3 October 2017 |date=}}{{sfn|Price|2004|page=902}} The Ohio law states simply that offenses and penalties shall be "strictly construed against the state and liberally construed in favor of the accused."{{cite web |work= Ohio Rev. Code |title= Sec. 2901.04 |url=http://codes.ohio.gov/orc/2901.04v1 |access-date=3 October 2017}}

More states,{{quantify|date=February 2021}} however, have eliminated the rule by statute.{{sfn|Price|2004|page=903}}

• Ex post facto law
• Vagueness doctrine

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• {{cite magazine |first=Intisar A.|last=Rabb |author-link=Intisar Rabb |title=The Islamic Rule of Lenity |journal=Vanderbilt Journal of Transnational Law |volume=44 |issue=5 |date=2011 |pages=1299–1351 |url=http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1484&context=lsfp |accessdate=3 October 2017}}
• {{cite magazine |first=Zachary|last=Price |title=The Rule of Lenity as a Rule of Structure |journal=Fordham Law Review |volume=72 |date=2004 |ssrn=2359691 }}

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Category:Common law

Category:Statutory law

Category:English criminal law

Category:Criminal law