Fair notice about Fair notice

Yale Law Journal

Volumn 121, Issue 8, 2012, Pages 2395-2403

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EID: 84861858602     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (70)

1. See McNally v. United States, 483 U.S. 350, 359-60 (1987) ("The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language. ").
2. United States v. Bass, 404 U.S. 336, 348 (1971) (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, reprinted in Henry J. Friendly, Benchmarks 196, 209 (1967).
3. see also McBoyle v. United States, 283 U.S. 25, 27 (1931) (noting that the rule of lenity ensures that "a fair warning... [is] given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed").
4. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2094 (2002) ("The rule of lenity ensures that criminal statutes are sufficiently clear to satisfy due-process notice. ").
5. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
6. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203 (2002).
7. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
8. Del. Code Ann. tit. 11, § 203 (2007).
9. Mich. Comp. Laws § 750.2 (2004).
10. Mont. Code Ann. § 45-1-102(2) (2011).
11. N.H. Rev. Stat. Ann. § 625:3 (2007).
12. Or. Rev. Stat. § 161.025(2) (2011).
13. S.D. Codified Laws § 22-1-1 (2006).
14. Tex. Penal Code Ann. § 1.05(a) (West 2011).
15. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
16. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
17. Ky. Rev. Stat. Ann. § 500.030 (LexisNexis 2008).
18. and N.D. Cent. Code § 1-02-01 (2008).
19. N.Y. Stat. Law § 111 (McKinney 2011).
20. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
21. see also Ala. Code § 13A-1-6 cmt. (noting that "[t]he original draft expressly abolished the common law rule that penal laws are to be strictly construed, " but that "the old rule of strict construction is practically meaningless as it is seldom cited [by Alabama courts] and then only to support a conclusion already reached by reference to the fair meaning of the words and phrases used in the statute and a consideration of the legislature's intent").
22. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
23. The decision of California voters to remove state supreme court Chief Justice Rose Bird, at least in part because of her opposition to the death penalty, provides perhaps the best example of this phenomenon. See Robert Lindsey, Deukmejian and Cranston Win as 3 Judges Are Ousted, N.Y. Times, Nov. 6, 1986, http://www.nytimes.com/1986/11/06/us/elections-story-some-key-states-deukmejian-cranston-win-3-judges-are-ousted.html (describing a high-profile campaign to oust Bird that focused on her opposition to the death penalty).
24. The decision of California voters to remove state supreme court Chief Justice Rose Bird, at least in part because of her opposition to the death penalty, provides perhaps the best example of this phenomenon. See Robert Lindsey, Deukmejian and Cranston Win as 3 Judges Are Ousted, N.Y. Times, Nov. 6, 1986, http://www.nytimes.com/1986/11/06/us/elections-story-some-key-states-deukmejian-cranston-win-3-judges-are-ousted.html (describing a high-profile campaign to oust Bird that focused on her opposition to the death penalty).
25. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
26. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 348 ("The time has come... formally to dispatch the [rule of lenity].... ").
27. For example, a search of the "Citing References" tab on the Westlaw Next page for California's liberal construction statute, Cal. Penal Code § 4 (West 2012), returned 213 citations in federal and state opinions between January 1, 1992 and January 1, 2012.
28. Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine, 120 Yale L.J. 1898, 1919-20 (2011) (citing Hayes v. Cont'l Ins. Co., 872 P.2d 668, 676-78 (Ariz. 1994).
29. Brodie v. Workers' Comp. Appeals Bd., 156 P.3d 1100, 1107 (Cal. 2007).
30. Thomson v. City of Lewiston, 50 P.3d 488, 493 (Idaho 2002).
31. State v. Dullard, 668 N.W.2d 585, 595 (Iowa 2003).
32. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079, 1091 (Mont. 2007).
33. Burke v. Webb Boats, Inc., 37 P.3d 811, 814 (Okla. 2001).
34. Everhart v. PMA Ins. Grp., 938 A.2d 301, 307 (Pa. 2007).
35. See, e.g., State v. Pena, 683 P.2d 744, 748-49 (Ariz. Ct. App. 1983) ("A.R.S. § 13-104 abolishes the general rule that penal statutes are to be strictly construed.
36. nevertheless, where the statute itself is susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant. "), aff'd, 683 P.2d 743 (Ariz. 1984).
37. see also Reinesto v. Superior Court, 894 P.2d 733, 735 (Ariz. Ct. App. 1995).
38. State v. Barnes, 859 P.2d 1387, 1388 (Idaho 1993).
39. State v. Richard, 786 A.2d 876, 879 (N.H. 2001).
40. State v. Laib, 644 N.W.2d 878, 882-83 (N.D. 2002).
41. For example, in State v. Legg, 9 S.W.3d 111, 116 (Tenn. 1999), the Tennessee Supreme Court cites the state law requiring interpretation "according to the fair import of [the substantive criminal statute's] terms, " Tenn. Code Ann. § 39-11-104 (1997), but holds open the possibility of strict construction in certain (poorly articulated) circumstances.
42. For example, in State v. Legg, 9 S.W.3d 111, 116 (Tenn. 1999), the Tennessee Supreme Court cites the state law requiring interpretation "according to the fair import of [the substantive criminal statute's] terms, " Tenn. Code Ann. § 39-11-104 (1997), but holds open the possibility of strict construction in certain (poorly articulated) circumstances.
43. Cal. Penal Code § 4 (West 2012).
44. 470 P.2d 617 (Cal. 1970). While California's large population makes it an important case study for any discussion of lenity, other state courts have issued similar decisions. See, e.g., State v. Alford, 970 S.W.2d 944, 947 (Tenn. 1998) (applying "the rule of statutory construction which requires that criminal statutes be strictly construed in favor of the defendant, " despite the fact that Tennessee has passed a lenity-displacing statute).
45. Keeler, 470 P.2d at 618-19.
46. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203 (2002).
47. Keeler, 470 P.2d at 618.
48. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203 (2002).
49. Keeler, 470 P.2d at 625 (quoting Cal. Penal Code § 4 (West 2012).
50. Keeler, 470 P.2d at 625 (quoting Cal. Penal Code § 4 (West 2012).
51. Keeler, 470 P.2d at 625 (quoting Cal. Penal Code § 4 (West 2012).
52. Keeler, 470 P.2d at 625 (quoting Cal. Penal Code § 4 (West 2012).
53. Keeler, 470 P.2d at 625 (quoting Cal. Penal Code § 4 (West 2012).
54. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 348 ("The time has come... formally to dispatch the [rule of lenity].... ").
55. This argument will certainly have particular force in situations in which the crime alleged was of a regulatory nature-malum prohibitum, rather than malum in se. Thus, while Keeler's treatment of California's section 4 provides a particularly stark example of a court whose approach to lenity was inscrutable, there are no doubt other examples that may be more appropriate substantively.
56. U.S. Const. amend. XIV, § 1 ("No state shall... deprive any person of life, liberty, or property without due process of law. ").
57. For a representative example of a state constitutional due process provision, see Cal. Const. art. I, § 7, which provides that "[a] person may not be deprived of life, liberty, or property without due process of law. "
58. One might argue that the "promote justice" formulation of statutes like California's allows courts enough leeway to read statutes as they like without actually invoking the rule of lenity. But this argument confuses first-order clarity with the second-order concerns I have identified here. For while a statute requiring the courts to interpret statutes to promote justice might be clear on its face, muddled judicial opinions addressing the statute could still cause confusion among potential criminal defendants.
59. See United States v. Bass, 404 U.S. 336, 348 (1971).
60. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
61. See Stephen F. Smith, Proportionality and Federalization, 91 Va. L. Rev. 879, 939 (2005).
62. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 600 (1992).
63. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 357 (2d ed. 2006) (suggesting that the rule of lenity "might reflect a commonsense notion that potential criminal defendants are virtually impossible to organize" against an adverse legal decision, whereas "prosecutors are easily organized to propose such an amendment and have great legitimacy in making such a case to a legislature").
64. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 357 (2d ed. 2006) (suggesting that the rule of lenity "might reflect a commonsense notion that potential criminal defendants are virtually impossible to organize" against an adverse legal decision, whereas "prosecutors are easily organized to propose such an amendment and have great legitimacy in making such a case to a legislature").
65. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203 (2002).
66. and Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341, 344 (2010), which argues that "[b]ecause the canons are nothing more than common law, legislative enactments that repudiate or ratify canons should not only be included in any conversation about the canons, but should be considered important and controlling. "
67. See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 887 (2004).
68. ("[A] court should avoid interpretations that threaten unfair surprise. This concern should not be measured by the hypothetical construct of 'lawyer's notice,' which applies, albeit artificially, to a vast range of cases, but by the narrower and more focused inquiry...: Would an ordinarily law-abiding person in the actor's situation have had reason to behave differently? In the unusual case where that question would be answered 'no,' imposition of penal sanctions threatens genuine unfairness and must be avoided. ").
69. The force of this argument suggests that the case for lenity, and thus the argument for second-order clarity, is strongest for criminal statutes that create offenses that are malum prohibitum, rather than malum in se. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 886 (4th ed. 2007). In this sense, my argument mirrors the case for the similar void-for-vagueness doctrine. See generally Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). But cf. [Anthony G. Amsterdam], Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 73-74 (1960) (arguing that the void-for-vagueness doctrine is applied "inconsistently with the 'warning' rationale, " and that the doctrine "has been used by the Supreme Court almost invariably for the creation of an insulating buffer zone of protection at the peripheries of several of the Bill of Rights freedoms").
70. Cf. Furman v. Georgia, 408 U.S. 238, 241-43 (1972) (Douglas, J., concurring) (concluding that the death penalty had been imposed arbitrarily, even where the baseline was death and certain defendants were given more lenient sentences).