This term we already see the Court refusing to apply it in two cases. Today, in DePierre v. United States, Justice Sotomayor would not apply the Rule of Lenity to the construction of a confusing statute defining cocaine base.
Finally, DePierre argues that, because §841(b)(1) is at the very least ambiguous, the rule of lenity requires us to interpret the statute in his favor. See United States v. Santos, 553 U. S. 507, 514 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted infavor of the defendants subjected to them”). As evinced bythe preceding discussion, we cannot say that the statute iscrystalline. The rule, however, is reserved for cases where, “after seizing everything from which aid can be derived, the Court is left with an ambiguous statute.” Smith v. United States, 508 U. S. 223, 239 (1993) (internalquotation marks and alterations omitted). Applying the normal rules of statutory construction in this case, it is clear that Congress used the term “cocaine base” in clause(iii) to penalize more severely not only offenses involving “crack cocaine,” but those involving substances containingchemically basic cocaine more generally. There is no per-suasive justification for reading the statute otherwise.Because the statutory text allows us to make far more than “a guess as to what Congress intended,” Reno v. Koray, 515 U. S. 50, 65 (1995) (internal quotation marksomitted), the rule of lenity does not apply in DePierre’sfavor.
Justice Breyer in Kasten v. Saint-Gobain, also refused to rely on the ever-elusive rule of lenity:
Finally, we note that Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with anambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those whoviolate the antiretaliation provision before us are subject to criminal sanction, 29 U. S. C. §216(a). And we have said that the rule of lenity can apply when a statute withcriminal sanctions is applied in a noncriminal context.See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule oflenity here.
Earlier this term during oral arguments in Abbot v. Gould, there was also a little bit of discussion about the rule of lenity.
JUSTICE GINSBURG: How do you answer Mr. Ryan’s argument that you can read it this way, you can read it that way; therefore, he wins under the rule of lenity?
MR. MCLEESE: Well, this Court’s cases make it clear that the rule of lenity comes into play at the end of the analysis only if there is grievous ambiguity after all the considerations of statutory construction have been considered. We haven’t yet discussed all of them and I think when all of them are discussed, there is no grievous ambiguity. In fact, the reading that we suggest is the only reasonable reading, all factors considered.
However, even Justice Ginsburg for the Court did not apply it:
9Abbott and Gould invoke the rule of lenity as a final reason to con-strue the “except” clause to bar their punishments under §924(c); iftheir proposed limitations are textually possible, they maintain, wemay not choose the Government’s. “[T]he touchstone of the rule of lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381, 387 (1980) (internal quotation marks omitted). “[A]fter consulting traditional canons of statutory construction,” United States v. Shabani, 513 U. S. 10, 17 (1994), we are persuaded that none remains here: The “except” clause covers only conduct offending §924(c). Although theclause might have been more meticulously drafted, the “grammaticalpossibility” of a defendant’s interpretation does not command a resortto the rule of lenity if the interpretation proffered by the defendantreflects “an implausible reading of the congressional purpose.” Caron v. United States, 524 U. S. 308, 316 (1998).
In all three cases, liberal Justices couched their denial of the rule of lenity behind “normal rules of statutory construction” or “traditional methods of statutory interpretation.” This seems to be the way to get around it.
Last term the Court, per Justice Ginsburg, found it appropriate in Skilling.
Further dispelling doubt on this point is the familiar principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland, 531 U. S., at 25 (quoting Rewis v. United States, 401 U. S. 808, 812 (1971)).
It seems the Court applies the Rule of Lenity except when it doesn’t.
In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.
Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.