The Rule of Lenity as a Rule of Structure 72 Fordham Law Review 2003-2004

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72 Fordham L. Rev. 885 (2003-2004)
The Rule of Lenity as a Rule of Structure

handle is hein.journals/flr72 and id is 903 raw text is: THE RULE OF LENITY AS A RULE OF
STRUCTURE
Zachary Price*
Statutory construction is an area of notorious incoherence and flux.'
While courts have veered toward a literalist focus on the dictionary
meaning of terms,2 they have failed to overrule the older conventions
of interpretation, leaving a grab-bag of techniques available to
support ad hoc departures from literal readings in uncomfortable
cases.' One such technique is the rule of lenity-the common law
doctrine, also known as strict construction, that directs courts to
construe statutory ambiguities in favor of criminal defendants.4
Though long accepted and venerated in American jurisprudence as a
guarantor of notice and legislative supremacy in criminal law, the rule
has lately fallen out of favor with both courts and commentators.
* Law Clerk, Hon. Catherine C. Blake, U.S. District Court for the District of
Maryland; J.D., Harvard Law School, 2003; A.B., Stanford University, 1998. This
Article was prepared prior to the clerkship with Judge Blake. My deepest thanks go
to Professor William Stuntz for thoughtful comments and advising.
1. See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of
Penal Statutes, 71 Va. L. Rev. 189, 199-200 (1985) ([T]he construction of penal
statutes no longer seems guided by any distinct policy of interpretation; it is
essentially ad hoc.); Bradley C. Karkkainen, Plain Meaning: Justice Scalia's
Jurisprudence of Strict Statutory Construction, 17 Harv. J.L. & Pub. Pol'y 401, 477
(1994) (The jurisprudence of statutory interpretation remains seriously
underdeveloped.); William D. Popkin, Law-Making Responsibility and Statutory
Interpretation, 68 Ind. L.J. 865, 865 (1993) (The explosion of commentary about
statutory interpretation in the 1980s has left judges without a common method for
interpreting statutes.).
2. See, e.g., Smith v. United States, 508 U.S. 223, 228-29 (1993) (relying on
dictionary definition of use to hold that a ban on use of a firearm in the context of a
narcotics trafficking offense covered uses of the firearm other than as a weapon);
Chapman v. United States, 500 U.S. 453, 461-62 (1991) (citing dictionary definition of
mixture to interpret sentencing guideline based on the weight of a mixture
containing the drug LSD to include the weight of the blotter paper on which LSD
doses are congealed); see generally Richard H. Fallon et al., Hart & Wechsler's The
Federal Courts and the Federal System 708 (5th ed. 2003).
3. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994)
(rejecting the most natural grammatical reading of the statute); Bifulco v. United
States, 447 U.S. 381 (1980) (interpreting statutory reference to imprisonment to
include the possibility of parole based on an analysis of the statute's policy and
legislative history); see generally Nicholas S. Zeppos, The Use of Authority in Statutory
Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1120 (1992) (describing
the Supreme Court's current approach as eclectic).
4. See United States v. Bass, 404 U.S. 336, 347 (1971).