The Appellate Rule of Lenity

Abstract

The Appellate Rule of Lenity, 131 Harv. L. Rev. F. (2018) responds Abbe Gluck & Richard Posner’s recent article, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018). My piece argues that Professor Gluck and Judge Posner are right to point to appellate courts as the locus of most statutory interpretation, and notes that in their survey of appellate judges, lenity takes on special prominence. But in my review of the actual practice of appellate judges in all the criminal law statutory interpretation cases in the Roberts Court so far and in the appellate courts below, lenity does not fare well. The Supreme Court has elevated the rule of lenity into an interpretive precedent (on par with Chevron deference), I argue, showing that the Justices consider the framework to almost every question of criminal law statutory interpretation and applies the rule to the benefit of the defendant almost a third of the time. By contrast, appellate judges – despite their statements that lenity is special and binding – almost never consider the framework or the rule. If my survey of appellate court practice reflects a broader trend, this Response argues that many courts and commentators have gotten lenity wrong by failing to distinguish between regular consideration of the lenity framework and constitutionally driven application of the rule. Lower courts’ and commentators’ appraisals of lenity have led to the false impression that the Supreme Court’s approach to the framework is inconsistent and weakly grounded. In fact, until the recent misunderstandings that accompanied harsh punishment, mass incarceration, and the breakdown of the criminal justice system the Supreme Court has historically and constitutionally required application of lenity for three distinct rationales: legislative supremacy, due process/fair warning, and defendants’ rights. In the end, I argue for a return to the “constitutional rule of lenity,” as not only a desirable but arguably required approach to criminal law statutes, which is particularly timely as a guide for appellate and other judges to respond appropriately to the increasingly urgent need for more cautionary approaches to criminal law statutory interpretation in view of the collapse of the American criminal justice system.