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Law, Language and Lenity Lawrence Solan Brooklyn Law School BrooklynWorks Faculty Scholarship 1998 Law, Language and Lenity Lawrence Solan Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Criminal Law Commons, and the Other Law Commons Recommended Citation 40 Wm. & Mary L. Rev. 57 (1998) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. LAW, LANGUAGE, AND LENITY LAWRENCE M. SOLAN ° TABLE OF CONTENTS INTRODUCTION ................................ 58 I. A LINGUISTIC APPROACH TO PROBLEMS IN STATUTORY INTERPRETATION ................................ 62 A. Ambiguity ............................... 62 B. Conceptual Problems ....................... 65 1. The Psychology of Conceptualization ....... 65 2. What is a Security?: A Legal Example ...... 75 3. Conceptual Problems in Statutory Construction .......................... 78 a. Vagueness and Overinclusion ......... 79 b. Underinclusionand the Linguistic Wall . 83 C. Summary ............................... 86 II. THREE APPROACHES TO INTERPRETING CRIMINAL STATUTES: A COGNITIVELY DRIVEN HISTORY ......... 86 A. Naked Lenity ............................. 87 B. The American Tradition of Strict Construction ... 89 1. Chief Justice Marshalland Legislative Primacy ............................. 89 2. Justice Story and the Meaning of Words ..... 94 C. Narrowing the Rule of Lenity ................ 97 1. A Shift in the Interpretive Culture ......... 97 * Associate Professor of Law, Brooklyn Law School. This work was supported in part by a summer research stipend from Brooklyn Law School. I wish to thank my research assistants, Nicholas Moyne, Harold Olsen, and Robyn Schneider, for their extremely valuable contributions to this project. I also am grateful to Ursula Bentele, Susan Herman, Roberta Karmel, Gary Minda, Tony Sebok, Steve Siegel, Peter Tiersma, Spencer Waller, and Steve Winter for their discussion of many of the issues that I address in this article. WILLIAM AND MARY LAW REVIEW [Vol. 40:57 2. Justice Frankfurterand the Narrow Rule of Lenity ............................ 102 III. LENITY IN THE REHNQUIST COURT ................ 108 A. Lenity and the Debate Over Textual.ism ........ 109 B. Vagueness and Ambiguity in the Rehnquist Court 115 IV. MUST CRIMINAL STATUTES BE INTERPRETED NARROWLY?. 122 A. FailedEfforts to Eliminate Lenity ............ 123 B. Should the Chevron Doctrine Trump Lenity? . 128 C. Lenity's Values .......................... 134 1. N otice .............................. 134 2. Legislative Primacy ................... 141 CONCLUSION .................................. 143 INTRODUCTION The traditional rule for construing criminal statutes is the rule of lenity, a name given to a common law principle that "pe- nal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed."1 The motivating purpose of the rule is to provide adequate notice to defendants (due process), and to reinforce the notion that only the legislature has the power to define what conduct is criminal and what conduct is not (separation of powers).2 Although widely accepted, the rule is by no means adhered to universally. The legislatures of many states, frustrated by what seemed to be unnaturally narrow judicial readings of criminal statutes, have eliminated the rule of lenity. New York and Cali- fornia did so more than a century ago.3 Recent academic litera- l. NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 59.03 (5th ed. 1992). 2. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 704 n.18 (1995) (mentioning the rationales). 3. See CAL. PENAL CODE § 4 (West 1988) ("The rule of the common law, that pe- nal statutes are to be strictly construed, has no application to this Code. All its pro- visions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice."); N.Y. PENAL LAW § 5 (McKinney 1998) ("The general rule that a penal statute is to be strictly construed does not apply to 1998] LAW, LANGUAGE, AND LENITY ture has been critical as well. Professors Jeffries and Kahan crit- icize the principle on the grounds that its application does not further its stated rationales-legislative primacy and fair no- tice.4 Other commentators object to lenity as inappropriate in particular situations, such as RICO,5 civil bankruptcy,6 govern- ment corruption cases,' and environmental crimes.' Moreover, not even lenity's strongest supporters can believe in it without qualification. Courts have good reason not to want every in- stance in which statutory language underdetermines meaning to require acquittal. This Article takes issue with lenity's critics, new and old. Crit- ics either assume lenity in a strong version not now used by the courts, or have too much confidence in how well we can construe statutes without some overriding principle to resolve ambigu- ities. The rule of lenity has been narrowed dramatically over time in response to changes in the ways that courts generally interpret statutes. In seventeenth century England, a very broad rule of lenity was developed to thwart the will of a legislature bent on seeing statutory violators hanged.9 American courts, notably through Chief Justice Marshall and Justice Story, adopt- ed the rule early on, but with qualifications that gave additional this chapter, but the provisions herein must be construed according to the fair im- port of their terms to promote justice and effect the objects of the law."). 4. See John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Pe- nal Statutes, 71 VA. L. REV. 189, 198-200 (1985); Dan M. Kahan, Lenity and Federal Law Crimes, 1994 SUP. CT. REV. 345, 345-46; see also the benchmark article by Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 HARV. L. REV. 748 (1935) (discussing the factors that control judges' interpretation of penal stat- utes). 5. See Bryan T. Camp, Dual Construction of RICO: The Road Not Taken in Reves, 51 WAsH. & LEE L. REv. 61, 61-62 (1994). 6. See Bruce A. Markell, Bankruptcy, Lenity, and the Statutory Interpretation of Cognate Civil and Criminal Statutes, 69 IND. L.J. 335, 336-37 (1994). 7. See Ross E. Davies, Comment, A Public Trust Exception to the Rule of Lenity, 63 U. CH. L. REV. 1175, 1175 (1996). 8. See David E. Filippi, Note, Unleashing the Rule of Lenity: Environmental En- forcers Beware!, 26 ENVTL. L. 923, 924-27, 944-48 (1996); Patrick W. Ward, Com- ment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judicia- ry and the Resulting Response from the Legislature, 5 DICK. J. ENVIL. L. & POL. 399 (1996). 9. See infra notes 123-28 and accompanying text. WILLIAM AND MARY LAW REVIEW [Vol. 40:57 deference to the intent of the legislature."0 In the early part of the twentieth century, American courts began looking seriously at legislative history and at other extratextual materials as a routine aspect of the interpretation of statutes. Fueled largely by a series of opinions by Justice Frankfurter, the rule of lenity subsequently was narrowed further, relegating it to a tie break- er only after courts exhausted all other interpretive aids." Using advances from linguistics and cognitive psychology, this Article argues that the narrow, Frankfurter approach to lenity best approximates the way we use language and form concepts. Early attempts to impose a more mechanical rule of lenity gave inadequate recognition to the flexibility of our conceptual struc- ture at the price of undermining legislative intent. The Frank- furter approach best serves the dual purposes of deference to legislative will and adequate notice to defendants. Attempts to dispense with the rule altogether also come at great expense to widely held jurisprudential values. Language is sometimes vague and sometimes ambiguous. When we do not know how a legislature intended a statute to apply even after careful study, we have to look outside the statutory language for an answer. This Article argues that the narrow rule of lenity embodies important values with which we are unwilling to dis- pense. For this reason, courts in jurisdictions that have elimi- nated lenity legislatively continue to apply it anyway. For this same reason, we should not accept academic proposals to elimi- nate lenity, such as Professor Kahan's proposal to replace lenity with definitive interpretations by the Department of Justice. 2 Section I of this Article explores the problem that the rule of lenity is intended to solve: What is it about the way we write criminal laws that leads to such uncertainty in our understand- ing of them? Coming to grips with this issue is a prerequisite for evaluating approaches to the interpretation of criminal statutes. The relevant literature on criminal statutes rarely addresses this problem, however, and the courts virtually never do, apart 10. See infra notes 135-78 and accompanying text. 11. See infra notes 179-228 and accompanying text. 12. See Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REv. 469, 488-89 (1996). 19981 LAW, LANGUAGE, AND LENITY from general remarks about the indeterminacies of language. This Article begins by describing the interpretive problems in cognitive and linguistic terms, an analysis that serves as a framework for the remainder of the Article. Section II describes in more detail
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