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July 15, 2004

Does the "Rule of Lenity" matter in answering severability questions?

Food for thought for all of those struggling --- and who isn't? --- with tough severability questions and other challengeing issues in the aftermath of declaring at least portions of the federal (or state) guidelines unconstitutional:

Does the "Rule of Lenity" come into play when a federal court is deciding which of the "Croxford choices" to adopt after a conclusion of unconstitutionality? Does it come into play in other on-going debates over how to make sense of the post-Blakely world?

The Supreme Court in Staples v. United States, 511 U.S. 600, 619, n. 17 (1994) described the "rule of lenity" as a doctrine which provides that an "ambiguous criminal statute is to be construed in favor of the accused." Isn't the Sentencing Reform Act "ambiguous" on the question of severability?

Am I crazy here? Please use the comments to tell me if so. Thanks

July 15, 2004 at 04:52 PM | Permalink


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Won't it depend on the impact on a particular defendant? Some defendants will benefit from a holding of non-severability, and thus complete unconstitutionality, when they are before judges who would like nothing better than to be able to impose a lesser sentence. I don't have any of those cases on my docket. In mine, a finding of severability will benefit the client. The rule of lenity wouldn't seem to apply to a statute where the "benefit" to a particular defendant arises or doesn't arise on a case by case basis.

Posted by: Gail Ivens | Jul 15, 2004 5:33:19 PM

Although I acknowledge most courts apply the rule of lenity at sentencing - when applicable - there is some authority (albeit a distinct minority), and a plausible argument, that the rule of lenity should not apply to sentencing questions. As we all know, the purpose of the "rule" is to provide fair notice to the public of what the law defines as criminal and to encourage Congress to speak clearly so the legislature, not the courts, define criminal activity. But by the time of sentencing, aren't we past these issues (what is a crime and who should define criminal offenses)?

Posted by: Wayne | Jul 15, 2004 5:57:41 PM

The body of case law on severability of federal statutes following a holding of (partial) unconstitutionality seems to exist as its own line of authority. However, this wouldn't be the first time that resolving a statutory construction question in a federal criminal law context would have the rule of lenity point in opposite directions depending on what the defendant wanted in the particular case: look at the cases on the question whether a statute defines a "continuing offense." If you are asking how many counts can be brought, it's better for the defendant if you say yes, the offense is a continuing one. If the question is whether the statute of limitations has run, or whether ex post facto bars application of an adverse change, it is better for the defendant, usually, if the answer is No, not continuing.
As for Wayne's comment, the Supreme Court in Ladner and Bifulco held that the rule of lenity does apply to questions of statutory construction concerning sentencing.

Posted by: Peter G | Jul 15, 2004 6:52:15 PM

In addition to Peter's points, keep in mind that Scalia's opinion in Blakely (and in other cases in the Apprendi line) often references "fair notice" in the context of sentencing enhancement. Thus, if we are more likely to apply the rule of lenity in "fair notice" situations, Scalia's opinions suggest this is one of those situations.

Thanks for the fascinating dialogue folks. Have people been arguing "rule of lenity" out there?

Posted by: Doug B. | Jul 15, 2004 7:46:44 PM

There are some very important issues in declaring the entire guidelines unconstitutional, that I don't see discussed in the opinions that have done that. I would like to send you a memorandum written by one of my coleagues addressing them. But I do not see how to attach it. Please let me know.

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Posted by: thomas sabo wholesalers | Jun 23, 2011 5:46:25 AM

As for Wayne's comment, the Supreme Court in Ladner and Bifulco held that the rule of lenity does apply to questions of statutory construction concerning sentencing.

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