Brian G. Slocum (Florida State University – College of Law) has posted The Normative Canons of Criminal Law (79 Vanderbilt Law Review (forthcoming)) on SSRN. Here is the abstract:
The rule of lenity is an ancient maxim directing that ambiguities in criminal statutes be interpreted in favor of defendants. Courts rarely rely on the rule of lenity though, and its future is currently being debated. Justice Kavanaugh argues for its elimination, even as Justice Gorsuch argues for it to be strengthened. Most commentators agree with Justice Gorsuch, typically advocating that the rule of lenity be made more powerful. This Article argues for a different approach: The rule of lenity can be strengthened by limiting it to resolving linguistic ambiguity.
This Article explains why the rule of lenity plays an insignificant role in the interpretation of criminal statutes. The problem is that narrow criminal law interpretations are overdetermined, and lenity is last in the judicial ordering of interpretive principles. The rule of lenity also conflicts with the Supreme Court’s recent insistence that a statute’s single “best meaning” can always be determined, even in the face of ambiguity. Additionally, the Court’s broad conception of “ambiguity,” and thereby the rule of lenity, has made the canon too general and diffuse, further marginalizing it.
The rule of lenity can serve an important role in criminal law interpretation, but only if its role is clarified. The canon can resolve bivalent, meaning-identification issues (linguistic ambiguity) and ultimate questions of guilt, but not multivalent, meaning-building issues (vagueness). If statutory terms are too vague, the void-for-vagueness doctrine should be invoked. By more precisely defining ambiguity, the rule of lenity’s role in guaranteeing fair notice can be realized.
Highly recommended.