In Abramski v. United States, which considers whether a federal statute controls deems certain gun purchases as illegal straw purchases, the dissent by Justice Scalia would have relied on the rule of lenity to construe the statute to the benefit of the defendant.
Even if the statute were wrongly thought to be ambigu- ous on this point, the rule of lenity would defeat the Gov- ernment’s construction. It is a “familiar principle” that “‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’” Skilling v. United States, 561 U. S. 358, 410 (2010). That principle prevents us from giving the words of a criminal statute “a meaning that is different from [their] ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 12). And it means that when a criminal statute has two possible readings, we do not “‘choose the harsher alternative’” unless Congress has “‘spoken in language that is clear and definite.’ ” United States v. Bass, 404 U. S. 336, 347–349 (1971). For the reasons given above, it cannot be said that the statute unambiguously commands the Government’s current reading. It is especially contrary to sound practice to give this criminal statute a meaning that the Govern- ment itself rejected for years.
In a footnote, Justice Kagan, rejects the rule of lenity.
Nor do we agree with the dissent’s argument (not urged by Abramski himself) that the rule of lenity defeats our construction. See post, at 12–14. That rule, as we have repeatedly emphasized, applies only if, “after considering text, structure, history and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” Maracich v. Spears, 570 U. S ___, ___ (2013) (slip op. at 26) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). We are not in that position here: Although the text creates some ambiguity, the context, structure, history, and purpose resolve it. The dissent would apply the rule of lenity here because the statute’s text, taken alone, permits a narrower construction, but we have repeatedly emphasized that is not the appro- priate test. See, e.g., Muscarello v. United States, 524 U. S. 125, 138 (1998); Smith v. United States, 508 U. S. 223, 239 (1993).
Scalia offers a reply to the majority’s footnote:
The majority does not mention the rule of lenity apart from a footnote, ante, at 18, n. 10, responding to this dis-
sent. The footnote concedes that “the text creates some ambiguity” but says that “context, structure, history, and purpose resolve it.” Ibid. But for the reasons given above, context and structure do not support the majority’s inter- pretation, history refutes it by showing that the Govern- ment itself interpreted the statute more leniently for many years, and “purpose” supports it only if one imputes to the statute a crime-fighting purpose broader than the text discloses (a practice that would nullify the rule of lenity in all cases). See Part I–B, supra.5
5 The majority is thus entirely wrong to charge that I would apply the rule of lenity “because the statute’s text, taken alone, permits a nar- rower construction,” ante, at 18, n. 10.
Scalia adds an important point–if the rule of lenity doesn’t apply here, we should stop pretending it is real.
If lenity has no role to play in a clear case such as this one, we ought to stop pretending it is a genuine part of our jurisprudence.
As I noted in an earlier post, does the rule still even exist?
When should the rule of lenity apply?
Contrary to the majority’s miserly approach, the rule of lenity applies whenever, after all legitimate tools of inter- pretation have been exhausted, “a reasonable doubt per- sists” regarding whether Congress has made the defend- ant’s conduct a federal crime, Moskal v. United States, 498 U. S. 103, 108 (1990)—in other words, whenever those tools do not decisively dispel the statute’s ambiguity. Skilling, supra, at 410; see, e.g., Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 409 (2003); Cleveland v. United States, 531 U. S. 12, 25 (2000); Cran- don v. United States, 494 U. S. 152, 158 (1990). “[W]here text, structure, and history fail to establish that the Gov- ernment’s position is unambiguously correct . . . we apply the rule of lenity and resolve the ambiguity in [the de- fendant]’s favor.” United States v. Granderson, 511 U. S. 39, 54 (1994). It cannot honestly be said that the text, structure, and history of the Gun Control Act establish as “unambiguously correct” that the Act makes Abramski’s conduct a federal crime.
Scalia refers to the rule as a “liberty-protecting and democracy-promoting rule”
By refusing to apply lenity here, the majority turns its back on a liberty-protecting and democracy-promoting rule that is “perhaps not much less old than construction it- self.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.); see, e.g., 1 W. Blackstone, Commentaries on the Laws of England 88 (1765) (“Penal statutes must be construed strictly”). As Chief Justice Marshall wrote, the rule 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.” Wiltberger, supra, at 95. It forbids a court to criminalize an act simply because the court deems that act “of equal atrocity, or of kindred character, with those which are enumerated.” Id., at 96. Today’s majority disregards that foundational principle.
This is an interesting federalism-inspired vision of the rule of lenity. It promotes democracy by narrowing the scope of federal laws when Congress does not act clearly.
My previous posts on the rule of lenity are here, here, here, here, here, and here.
Update: Mike Dorf weighs in, cynically, on the rule of lenity in this case:
Thus, with the exception of Justice Kennedy, the result exactly tracks the justices’ respective views about the Second Amendment. That would be unremarkable if the dissenters thought that the law needed to be construed narrowly to avoid raising a constitutional issue under the Second Amendment, but they didn’t. The disagreement between the majority and the dissent purports to be simply about statutory construction. (The dissenters do say that the law should be construed in favor of the defendant to reflect the rule of lenity, but that’s not an explanation for the ideological divide, because in non-firearms contexts, liberals are at least as likely to favor the rule of lenity as are conservatives.)
The application of the Rule of Lenity has not been so clear on a left-right divide. In fact, Scalia is the current Justice who cites the rule most often. A 2009 post on CoOps explores the Roberts Court and the Rule of Lenity:
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.
The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four1 of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three2 of the cases; Justice Souter invoked or joined an opinion invoking the rule in two3 of the cases, while Justices Breyer, Roberts, and Thomas did so only once.4 Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.
I’ve also chronicled a number of opinions applying the rule here. Ginsburg, Breyer, and Sotomayor would not apply it in DePierre v. US. RBG did apply it in Skilling: