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January 30, 2008

More great SCOTUS briefing on the rule of lenity

As noted in this prior post, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed a merits brief last week that included an interesting discussion of the "rule of lenity."   This week now brings an amicus brief in Burgess which is focused on the history and modern application of the lenity canon of construction.  This amicus brief can be download below, and here are just a few of the many highlights from its interesting arguments:

The rule of lenity derives from the practice of the English courts in the seventeenth and eighteenth centuries of strictly construing penal statutes.... [H]istorical precedents show an emerging understanding that a restrained judicial reading of sentencing laws appropriately observes the line between the legislature’s prerogative in enacting criminal statutes and the more limited judicial role of interpreting and applying them.

The rule of lenity likewise has deep roots in American law.  Chief Justice Marshall’s opinion in United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820), detached the rule from any particular association with capital sentencing and located it firmly in the understanding that it is the role of the legislature, not the courts, to define crimes and their punishments. By the time of McBoyle v. United States, 283 U.S. 25 (1931), it was clear that the rule of lenity was a structural safeguard requiring that criminal punishment be clearly authorized by a statute — not so much for the benefit of the individual defendant, who Justice Holmes’s opinion acknowledged was unlikely to “carefully consider the text of the law,” id. at 27, but rather to protect the broader principle that prospective statutes, not retrospective judicial decisions, should define the criminal law.  The rule of lenity is by now an established part of our legal system and a background principle against which Congress presumptively legislates, and so has acquired precedential significance that reinforces its original justification.

Application of the rule of lenity is particularly appropriate with respect to mandatory minimum sentencing provisions, such as § 841(b)(1)(A). Like the English statutes removing benefit of clergy, mandatory minimums require a harsher punishment than might otherwise be imposed after judicial consideration of the circumstances of a particular case.  Mandatory minimums are thus contrary to the usual rule permitting discretion in sentencing. Applying the rule of lenity to mandatory minimums also vindicates the underlying bases of the rule — the separation of powers and the principle of legality.  A mandatory minimum sentence, with its serious consequences for individual liberty, should be imposed only when Congress has spoken clearly. In addition, the certainty offered by the rule of lenity enhances the smooth operation of the criminal justice system.

Download nacdl_famm_lenity_brief.pdf

January 30, 2008 at 08:04 AM | Permalink


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