The Rule of Lenity in Arizona Statutes and Case Law
The rule of lenity is basically the idea that any ambiguity in a criminal statute should be interpreted in favor of a defendant.[1] While it may seem simple, its purposes and justifications can be complicated. It can serve to further the principle of legality, or nulla poena sine lege, and help to avoid the judicial creation of crimes.[2] The idea of nulla poena sine lege, that one should not be punished for doing something that is not prohibited by law, is likely so fundamental it is taken for granted. However, if courts are allowed to read penal statutes too broadly, they may be punishing acts whose illegality the law does not make clear. They would essentially be creating common law crimes. By ensuring the interpretation of penal statutes favors lenity, the rule plays a vital role in ensuring the substantive criminal law is not created by courts, institutions “not recognized as politically competent to define crime.” [3]
Furthermore, the rule of lenity serves to prevent the retroactive definition of criminal offenses.[4] This is also a fundamental purpose, as it is clearly wrong to later make innocent conduct illegal and punish it. All of those purposes may be related to the idea that fairness requires that people have proper warning about what is and is not illegal. “Once incorporated into United States common law, the rule of lenity came to represent the principles that individuals should have fair warning of what constitutes criminal conduct and that courts should not extend the reach of a statute beyond what the legislature clearly enacted.”[5]
Although modern justifications for the rule of lenity vary, they are all based on courts’ need to solve certain closely related problems that occur when a statute does not speak with proper clarity. It is most commonly justified by the need to provide fair warning of the scope of criminal liability, a justification that is often criticized because the notice strict construction guarantees is essentially fictional.[6] Of course, it would not be particularly fair to eliminate warnings because it seems most people will not notice them anyway. If that criticism was extended and statutory readings broader than what the text could bear were deemed acceptable because no one read the laws, it would cross an important line and become retroactive definition of crimes.
The rule of lenity is also commonly justified by the Separation of Powers doctrine and the idea that it is the role of the legislature, not the courts, to define crimes and their punishments.[7] That justification may be somewhat weak considering there are a number of broad criminal statutes that are largely defined by judicial precedent.[8] However, that criticism seems inadequate too, as a justification is not made illegitimate because it is not followed consistently. The problem is more likely with the broad statutes that must be defined by judicial precedent, and not with the justification that the rule of lenity can avoid judicial creation of crimes. Broad statutes, like unclear statutes, can cause the problems the rule of lenity is intended to remedy. The rule of lenity is no less justified because the problem it tries to solve exists in contexts other than the lack of clarity it specifically addresses.
The rule of lenity can also be justified by its ability to reduce the potential for prosecutorial abuse and encourage clear statutes, but that justification is criticized for confusing ambiguity and breadth.[9] Those critics argue that broad statutes cause over criminalization and prosecutorial abuse, and that the rule of lenity does very little to constrain prosecutorial discretion, as there are very broad statutes that are mostly unambiguous.[10] That criticism likely fails because an ambiguous statute, if given a broad interpretation by courts, may facilitate over criminalization and prosecutorial abuse every bit as much as a broad statute would. Furthermore, even if that was not the case, the rule of lenity would still be justified if it only served to reign in abuse at the point where extremely broad statutes become ambiguous. It might not be as useful, but it would serve a valid purpose nonetheless.
Some critics who claim the rule does not prevent over criminalization and prosecutorial abuse also argue the rule might in fact cause over criminalization by giving legislators incentives to pass broader statutes.[11] Ironically, that criticism may confuse ambiguity and breadth as far as current use of the rule is concerned, as the rule is not used to limit broad statutes that are clear. Because breadth and ambiguity are distinct concepts that only overlap in some ways, it is unlikely legislators would pass broader statutes to avoid the rule when they could just as easily avoid the rule by passing unambiguous statutes with the breadth they wanted.
Unlike the purposes and justifications of the rule, which are frequently disputed, the history of the rule seems well settled. Justice Scalia explained the concept of nulla poena sine lege “‘dates from the ancient Greeks’ and has been described as one of the most ‘widely held value-judgments in the entire history of human thought.’”[12] Although the concept of nulla poena sine lege can be furthered by the rule of lenity, it is much broader than the rule itself. The use of the rule of lenity as a tool for modern courts likely came about as a response to extensive legislative use of the death penalty in eighteenth century England.[13] The rule of lenity, which was often referred to as the rule of strict construction, combated overuse of the death penalty by strictly construing statues in favor of leniency and remained in place after excessive use of the capital punishment by the legislature ended.[14] The rule of lenity not only persisted in England, but also became part of the common law in the United States.
An early United States Supreme Court case involving the rule of lenity was United States v. Wiltberger. In that opinion, Justice Marshall explained, “the rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[15] Justice Marshall went on to state that the rule “is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”[16] It seems that from the very beginning the court understood the rule as having an important role in Separation of Powers. Moreover, it seems the Court understood the rule from the very beginning to be secondary to the intent of the legislature, as Justice Marshall went on to state “though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.”[17]
The Court has at times stressed the importance of strict construction in providing fair warning as well. Over a century after Wiltberger, in an opinion by Justice Holmes in McBoyle v. United States, the Court explained as follows:
Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be 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. To make the warning fair, so far as possible the line should be clear.[18]
Like the court in Wiltberger, the court in McBoyle seems concerned with the law’s tenderness for the rights of individuals. However, the court in McBoyle seems primarily concerned with that tenderness in the context of statutes providing fair warning rather than in the context of preserving Separation of Powers. Although those purposes may be related in that judicial crime creation arguably does not provide fair warning, avoiding judicial crime creation has a more dominant Separation of Powers element. The Court in McBoyle specifically discussed warning and noted the common objection that the warning the rule of lenity provides is fictional, but strictly construed the statute anyway.
Interestingly, the Court used the “rule of strict construction” until the middle of the twentieth century before ever mentioning the “rule of lenity.” In Bell v. United States in 1955, the Court stated “when Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.”[19] The Court seemed to view the rule of strict construction as being one of lenity, but did not use the actual term “rule of lenity” until Callanan v. United States in 1958.[20] Citing Bell and other cases not mentioning any specific rule of lenity but where the ambiguity in unclear statutes was resolved in favor of defendants, the Court in Callanan first used the term “the rule of lenity.”[21] The Court in Callanan noted that the rule of lenity “only serves as an aid for resolving an ambiguity; it is not to be used to beget one.”[22] The court went on to explain the rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.”[23]
For the most part, the United States Supreme Court has used the rule of lenity as a rule of last resort.[24] However, Justice Scalia seems to support a slightly different version of the rule, which he explained in Moskal v. United States. In Moskal, Justice Scalia wrote that the rule of lenity requires that “before a man can be punished as a criminal under the federal law his case must be plainly and unmistakably within the provisions of some statute.”[25] He goes on to say as follows:
The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.[26]
The version of the rule of lenity Scalia proposes has been interpreted as cutting off “broad reading based on policy, legislative history, or other extra-textual sources whenever the text standing alone supports a narrower view.”[27] Scalia’s rule of lenity may rank second behind only the plain text in his interpretive hierarchy.[28] However, at least one commentator has proposed that Scalia’s view of the rule of lenity may have more to do with his distrust of legislative history than it does with the importance of the rule of lenity itself.[29]
In Arizona, the role of the rule of lenity may arguably be clearer than in federal cases, but its foundation is far less obvious. From well before Arizona became a state until 1955, the traditional common law rule of strict construction was abrogated by statute.[30] In Miller v. Territory in 1905, the Supreme Court of Arizona first explained the Penal Code’s prohibition against strict construction.[31] Several years later, in Williams v. Territory, the Supreme Court of Arizona again acknowledged the rule of strict construction as well as the Arizona statutes preventing it, citing the Code and explaining that “in this territory the rule of strict construction of penal statutes does not obtain.”[32] A few years after Williams, the Supreme Court of Arizona yet again acknowledged that “the Code . . . forbids a strict construction of penal statutes.”[33] Arizona’s rule against strict construction remained intact while extensive changes were made to the rest of the Penal Code, and even when the Code was moved into chapter 43.[34]
It was after 1955, when the Arizona legislature moved its criminal code from chapter 43 to chapter 13, when the statutory prohibition against strict construction of statutes in Arizona finally ended.[35] Strangely, the Supreme Court of Arizona in Phoenix v. Lane applied the rule of strict construction shortly before the statute abrogating it was repealed.[36] The court in Lane explained that because a statute carried “penalties for its violation it is penal in character in the aspect here presented and not remedial . . . [s]uch a law is to be interpreted strictly against the state and liberally in favor of the citizen.”[37] The court appeared to completely ignore Arizona’s strict construction prohibition. The court in Lane instead cited various American Jurisprudence sections and Tavegia v. Bromley, a Wyoming case that explained as follows:
It has long been a well settled general rule that penal statutes are subject to a strict construction. More accurately, it may be said that such laws are to be interpreted strictly against the state and liberally in favor of the accused. The rule is founded on the tenderness of the law for the rights of individuals; its object is to establish a certain rule, by conformity to which mankind would be safe, and the discretion of the court limited.[38]
Tavegia cited some of the same American Jurisprudence sections as Lane in its discussion of strict construction.[39] Those American Jurisprudence sections cited numerous cases from nearly every state, including two United States Supreme Court cases, one of which was Wiltberger.[40] Although one of those sections explained it was “a long settled rule that penal statutes are subject to a strict construction” and went on to say “such laws are to be interpreted strictly against the state and liberally in favor of the accused,” it acknowledged “the rule of strict construction of penal statutes is not, however, of universal application” and explained that under certain statutory provisions, “the rule of strict construction of penal statutes is regarded as abrogated.”[41] As explained above, at the time of the Lane opinion, Arizona still abrogated the rule of strict construction. The court in Lane seemed to ignore that fact, even though it was explained in the sources on which the court relied.