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December 7, 2024
"Major-Questions Lenity"
The title of this post is the title of this new paper authored by Joel Johnson now available via SSRN. Here is its abstract:
There is a fundamental connection between the historic rule of lenity and the new major questions doctrine. At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy. In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of federal penal statutes. That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine.
The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes. Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes. The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns. As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.
A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition. It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress. Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.
December 7, 2024 at 10:29 AM | Permalink
Comments
I have to wonder, how much of the perceived "looseness" in the federal criminal code is due to the courts demanding greater specificity than in the past, rather than Congress actually changing the nature of statutory language.
I suspect (though of course have no way to prove) that the Congress that passed ACCA would be amazed at the amount of ink spilled over what would seem a fairly straightforward command.
Posted by: Soronel Haetir | Dec 7, 2024 3:06:40 PM
The major questions doctrine, at least in what I have seen of how it is used, is more of a nondelegation doctrine than a rule of lenity. As I understand it, the major questions doctrine applies when a proposed use of a statutory grant of authority seems both novel and significant to the extent that a judge subjectively believes that (even though by plain meaning it seems to fit within the grant of authority) the people who wrote the statute could not have intended that use.
I think it is problematic in all areas of law, but it is particularly problematic when dealing with the criminal law. Criminal defendants are always finding new ways to commit old crimes. It is hard enough figuring out whether it fits within an existing prohibition, and, often, the prosecution has to conclude that we do not have a charge for this. (In my state, we had that issue about twenty years ago when store owners were secretly taping people in changing rooms.) But to have to argue that a new type of misconduct not only fits within the existing statute but is similar enough to the core offense to not fall afoul of a major questions-type rule of lenity would definitely restrict the ability to respond to new types of misconduct.
Posted by: tmm | Dec 9, 2024 3:43:47 PM
