The Rule of Lenity is that statutory ambiguities are to be resolves in favor of the criminal defendant. It’s a rule honored primarily in the breach, forcing judges to perform amazing gymnastics to avoid the appearance of ambiguity despite having to leap statutory holes in the process. For those disinclined toward judicial law-making, it compels judges to create law rather than cut the defendant a break.
But the Rule of Lenity strikes at the heart of criminal law. In the absence of a law satisfying all the requisites to create a crime and impose punishment, there is no crime. Many may argue there should be, and perhaps there should, but it’s the job of legislators to get it straight, not the rabble and not the judges.
The Supreme Court granted cert in Fuller v. United States, a gap case out of the 6th Circuit addressing the poor schnooks caught in the hole Congress left when partially normalizing the ratio of crack to cocaine by reducing the 100 to 1 ratio to 18 to 1, the factual creation of a camel when a racehorse was needed. The New York Times explains:
The rule of retroactivity is that a change in the law isn’t retroactive unless Congress says it is. After all, the change is a creature of statute, and those enacting the change can decide how it should apply. Congress did not make the reduction retroactive, while asserting that the change was needed because the law was patently unfair.Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.
But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?
For such defendants, Judge Terence T. Evans wrote in one of the pair of cases the Supreme Court agreed to hear, the law “might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive.”
As Judge Evans explained in his decision for a unanimous 7th Circuit panel in United States v. Fisher, the defendant
…had “lost on a temporal roll of the cosmic dice” and was “sentenced under a structure which has now been recognized as unfair.” But Judge Evans added that the courts were powerless to change things. A solution, he said, was up to Congress.
As Louisville Law Dean Jim Chen wrote, “Glaubt, daß nicht Gott sondern Mensch Würfel mit dem Universum spielt,” to which Antonin Pribetic presciently added, “Schlange augen, sie verlieren.” Reason demands that criminal punishment has to be more than a mere roll of the cosmic dice. Even 7th Circuit Judge Richard Posner couldn’t keep his head in the sand:
Judge Richard A. Posner, said that requiring sentencing under the old law after the new one came into force was “perverse” and “gratuitously silly.”
Yet there was no attempt at glorious gymnastics to figure out a way to salvage the lives of human beings sent to prison under a regime that Congress and the court concluded was patently wrong. What a difference a day makes.
As happens more often than we care to admit, the law fails to provide a path that allows a court to get around the holes left behind by Congress. This isn’t about favoring one side or the other, or despising a law so much that a judge wants to ignore or overcome it, but about a situation where there is universal recognition that something is terribly wrong, inexplicable and irrational, and yet Congress left a big hole behind.
Some suggest that Congress, made up of the people who can manage to avoid too much public controversy, kiss enough babies or speak in sufficiently small words to persuade voters that they share a common belief, deliberately leave behind holes because they don’t want to be held accountable for doing the dirty work and much prefer life-tenured judges to do it for them. Others suggest that there aren’t enough people in Congress who realize the sloppiness of their work. Still others chalk it up to the nature of politics.
Compromise is the nature of politics, but not of law. The blind adoration of consensus has served as a ready excuse for plenty of bad decisions, but when it produces a result that is so concededly unfair and irrational, its rote application reduces the legitimacy of the legal system to a joke. We shouldn’t be rubber-stamping absurdities.“Thoughtful people might wonder what sense it makes for Congress, having decided that a 100-to-1 ratio is excessive, to leave the minimum and maximum sentences alone for persons whose crimes predate Aug. 3, 2010,” Chief Judge Frank H. Easterbrook wrote in explaining why the full court declined to rehear four appeals presenting the issue. “It is a good question, to which there is no satisfactory answer other than the observation that legislation is an exercise in compromise.”
The Supreme Court has an opportunity to change this. The expectation is that they will exercise modesty, dealing at most with the particulars of the case before them rather than the crafting a broader rule that addresses the true wrong of the case. Indeed, chances are good that they will chastise Congress for doing half a job, but concluding that it’s not up to the courts to legislate. Of course, that means that the rule it announces is that it is the job of the courts to enforce the absurd and irrational, but it’s unlikely that they’ll say it quite that way.
There is an alternative, however. Under the ambit of equal protection, the Supremes could hold that the Constitution precludes a court from imposing a criminal sentence that Congress has specifically determined to be wrong and unfair. While Congress may have left a gaping hole in its legislation, that doesn’t require courts to drop bodies into it. When such a hole exists, the Supremes could expand the Rule of Lenity to bridge it, to serve as the basis for filling the hole of absurdity as well as ambiguity Congress left behind.
This isn’t a paean to judicial arrogance or lawmaking, but judicial rationalizing, or perhaps the refusal of the courts to be subject to the execution of legislative absurdity. No branch of government should be compelled to act irrationally, and equal protection of law demands that every defendant be subject to a fair and reasoned application of law. Unless you think thoroughbreds need humps.
There are more people who may have been unfairly sentenced than the “poor schnooks caught in the hole,” namely those who were sentenced before the legislative change. Are there sentences less unjust?
Potter Stewart’s characterization of the Connecticut law forbidding condoms to the unmarried comes to mind.
This is interesting. Here on the European continent, the rule of leniency is usually considered to include “the rule of most lenient law”, meaning that if the law changes multiple times between the commission of the crime and sentencing, the most lenient legislation that has been in force during this period is used to determine the sentence.
As a practical application: a person was charged with committing a 2nd degree murder in 1962. At that time, the crime carried life sentence. In 1981, the maximum sentence was reduced to 12 years. From 1991 on, the crime in question would be considered, due to its excessively brutal nature, a 1st degree murder, carrying a mandatory life sentence. The court ruled that the crime was a 2nd degree murder, according to the law in force in 1961, and the maximum was 15 years, as per the law of 1981. And the statute of limitations had run out.
It often works out that way as by-product of ambiguity, that differing sentences apply under the Federal Sentencing Guidelines as they are changed from year to year and the lower guidelines is used. But when it’s a statutory change, as here, it’s up to the legislation to make state it’s degree of retroactivity. It makes no sense, but that’s the rule.