Volume 110

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

by Lane Shadgett

 The rule of lenity is special. Footnote #1 content: 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).   A canon of statutory interpretation that calls for the strict construction of criminal statutes, lenity Footnote #2 content: 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.  is ancient, “perhaps not much less old than construction itself.” Footnote #3 content: 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).   It was first invoked by a United States federal court in 1794 Footnote #4 content: 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.”).   and by the Supreme Court in 1820. Footnote #5 content: See Wiltberger, 18 U.S. (5 Wheat.) at 76.   It has been cited hundreds of times, throughout the history of the republic, by judges and Justices across ideological divides. Footnote #6 content: 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).   In a recent survey of forty-two federal appellate judges, even those most skeptical of canons in general tended to single out lenity as authoritative, deriving its power not only from its frequent use but from the Constitution itself. Footnote #7 content: 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.”).   

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