In Yates v. United States–the fish case–Justice Scalia hooked the Solicitor General into a series of questions about prosecutorial discretion. In particular, he suggested that if the government would not exercise (what Scalia views) as prosecutorial discretion, then the Justices, through some sort of rule of lenity, would make the impact of the statute less severe.
But Justice Scalia framed the issue in a very odd manner–in the first person.
MR. MARTINEZ: Your Honor, the my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge once the decision is made to bring a criminal prosecution, the prosecutor should charge the the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle. In this case that was Section 1519.
JUSTICE SCALIA: Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.
Scalia recently noted in a concurral in Whitman v. United States that it is the Court that construes criminal statutes, not the prosecutor.
A court owes no deference to the prosecution’s interpre- tation of a criminal law. Criminal statutes “are for the courts, not for the Government, to construe.” Abramski v. United States, 573 U. S. ___, ___ (2014) (slip op., at 21).
I–not the Court–will be careful about how I–not the court–make the statute less severe. What an strange way of phrasing the rule of lenity. After the Solicitor General intervened, Scalia repeated that formulation:
MR. MARTINEZ: Your Honor, that’s —
JUSTICE SCALIA: Or or how much coverage I give to severe statutes.
So not only will Scalia (“I) make the statute less severe, he will decrease the “coverage” (presumably what it covers, excluding fish).
Scalia discusses more about the rule of lenity in his concurral in Whitman v. United States:
The Government’s theory that was accepted here would, in addition, upend ordinary principles of interpretation. The rule of lenity requires interpreters to resolve ambi- guity in criminal laws in favor of defendants. Deferring to the prosecuting branch’s expansive views of these statutes “would turn [their] normal construction . . . upside-down, replacing the doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 178 (1990) (SCALIA, J., concurring in judgment).
The best that one can say for the Government’s position is that in Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 (1995), we deferred, with scarcely any explanation, to an agency’s interpretation of a law that carried criminal penalties. We brushed the rule of lenity aside in a footnote, stating that “[w]e have never suggested that the rule of lenity should provide the stand- ard for reviewing facial challenges to administrative regu- lations.” Id., at 704, n. 18. That statement contradicts the many cases before and since holding that, if a law has both criminal and civil applications, the rule of lenity governs its interpretation in both settings. See, e.g., Leocal v. Ashcroft, 543 U. S. 1, 11–12, n. 8 (2004); United States v. Thompson/Center Arms Co., 504 U. S. 505, 518, n. 10 (1992) (plurality opinion); id., at 519 (SCALIA, J., concur- ring in judgment). The footnote in Babbitt added that the regulation at issue was clear enough to fulfill the rule of lenity’s purpose of providing “fair warning” to would-be violators. 515 U. S., at 704, n. 18. But that is not the only function performed by the rule of lenity; equally im- portant, it vindicates the principle that only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy. See United States v. Wiltberger, 5 Wheat. 76, 95 (1820). Bab- bitt’s drive-by ruling, in short, deserves little weight.