“Codifying the Rule of Lenity”

Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

Vikrant Reddy (footnotes omitted):

Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults. These “business crimes” (which include such things as harvesting oysters at the wrong time of day, improperly thrashing pecan trees, or even mislabeling citrus fruit) are increasingly exempt from the ordinary application of the rule of lenity in the minds of many judges and prosecutors.

Tim Lynch of the Cato Institute has even argued that the ordinary application of the rule of lenity “has been turned on its head.” He has observed that “When an ordinary criminal statute is ambiguous, the courts give the benefit of the doubt to the accused, but when a regulatory provision is ambiguous, the benefit of the doubt is given to the prosecutor.”11 What is troubling is that while defendants found guilty of these business crimes are subject to criminal sanctions—including prison—they increasingly do not enjoy the fundamental due process protections that are supposed to be guaranteed by the rule of lenity.

His paper for the Texas Public Policy Foundation recommends:

• Texas should formally codify the rule of lenity in the state code.
• The rule of lenity is a partial solution to a larger problem — the overall trend towards overcriminalization in American life.
• Fewer “business crimes” would mean fewer crimes for whichthe rule of lenity is disregarded.

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