"The Rule of Lenity and Affirmative Defenses"

The title of this post is the title of this new article authored by Steffen Seitz now available via SSRN. Here is its abstract:

The rule of lenity is undergoing a renaissance.  Lenity requires courts to construct ambiguous penal statutes narrowly. In recent years, scholars have sought to reinvigorate lenity as an important tool for combatting the American crisis in overcriminalization.  At the same time, the Supreme Court has issued a series of decisions debating the breadth and importance of lenity.  This Article contributes a new and unexplored dimension to the growing scholarship on lenity by considering lenity’s implications for affirmative defenses.

Affirmative defenses negate criminal liability, and they fall into three categories: justifications, excuses, and public policy defenses.  Justifications, like self-defense, render conduct non-criminal; justified conduct is permissible conduct.  Excuses, like insanity, render an actor non-punishable, despite their criminal conduct, because the actor is not an appropriate subject for blame.  Excused conduct is thus impermissible yet also unpunishable.  Finally, public policy defenses preclude punishment for justification-like or excuse-like reasons; they either vitiate an act’s wrongfulness (justification-like) or prevent punishment even though the act was wrongful (excuse-like).  Along with criminal statutes, affirmative defenses define the boundaries of what the state can punish.

This Article advances a novel claim: lenity applies to justifications and justification-like public policy defenses but not excuses or excuse-like public policy defenses.  Because justificatory defenses render conduct non-criminal, they effectively narrow the scope of a penal statute — the broader the justification, the narrower the penal statute.  Excusatory defenses, however, do not alter the scope of the criminal law.  They preclude punishment despite an act’s criminal character, so they do not affect the breadth or narrowness of penal statutes and do not implicate lenity. Lenity thus applies to justificatory defenses but not excusatory ones.

The consequences of applying lenity to justificatory defenses are profound. As a practical matter, it helps ordinary criminal defendants raise uncertain defenses and provides courts with an interpretative guide for recently enacted justifications like stand-your-ground laws and affirmative defenses to anti-abortion laws.  This expanded role for lenity also creates new possibilities for environmental and animal activists aiming to exploit ambiguous justifications to advance their causes, thus laying the groundwork for potentially transformative legal change.  Further, the Article’s claims about the ambit of lenity have important implications for related scholarly debates.  For example, the Article argues for the first time that some public policy defenses may be justification-like in their function, and it proposes a staunchly textualist — or “empirical” — approach to drawing the distinction between justifications and excuses.  These novel arguments have implications for foundational questions regarding culpability and interpretative methodology in criminal cases.