#11539 - Lenity - Legislation and Regulation (Admin Law)

LENITY

1. Canon of last resort.

2. Sometimes does very little work.

3. Requires a special level of ambiguity—requires the exercise of all other mechanisms of statutory construction first.

4. JUSTIFICATIONS

   1. Notice—Fair warning should be given in language that the common world will understand.

   2. Responsibility—Seriousness of criminal coupled with the fact that punishments represent the moral condemnations of the community require that legislatures, and not the courts, should define criminal activity.

5. United States v. Bass (Lenity + Federalism Canon)

   1. Facts: Bass, who had previously been convicted of a felony, was convicted of violation of the Omnibus Crime Control and Safe Streets Act, when he was found to be in possession of a gun. There were no allegations that the firearm had been possessed “in commerce or affecting commerce” and the prosecution proceeded on the assumption that the Act banned the possession and receipt of firearms by convicted felons and that no connection with interstate commerce had to be demonstrated.

   2. Applicable Statutory Language: “Any person who has been convicted…of a felony…and who receives, possesses, or transports in commerce or affecting commerce…any firearm shall be fined…or imprisoned…”

   3. Issue: Whether “in commerce” modifies “receives, possesses” as it does “transports.”

   4. Holding: The Act is ambiguous—Congress has not plainly and unmistakably made it a federal crime for a convicted felon to simply possess a gun, absent some demonstrated nexus with interstate commerce. This ambiguity, coupled with the fact that the broad reading urged by the government would mark a major inroad into a domain traditionally left to the states, makes lenity applicable.

   5. Plain Text

      1. A strict textualist reading would mean that “in commerce” only modifies “transports.”

         1. Court says it will not attach significance to the fact that there is no comma after “transports,” which the government contends is evidence that Congress intended the phrase to modify “transports” only, because leading grammarians concede that its use is discretionary.

      2. The Court said that it was not overwhelmingly clear whether “in commerce” should modify “transports” or all three antecedents, which leads to enough ambiguity to get you to extrinsic canons.

   6. Legislative History

      1. Court said that LH did not clarify purpose.

         1. Marshall suggests that only after LH has failed to clarify statute may one invoke lenity—lenity is not triggered by pure textual ambiguity (which is consistent with Hayes).

      2. However, dissent said that congressional findings indicate that Congress was attempting to prohibit every possession and all receipts of a firearm by a felon, not just those with a nexus to interstate commerce.

   7. Canon

      1. At this point in history the Court was still purposivist so Marshall didn’t apply the textual canons of punctuation and last antecedent, which would have eliminated “ambiguity” and foreclosed extrinsic canons.

      2. Court said anti-redundancy argument (that the narrow construction of this statute would render Title IV of the same Act redundant) did not apply because Title IV punished a broader class of behavior and because some redundancy was unavoidable.

      3. Court said federalism/clear statement rule meant that unless Congress conveyed its purpose to displace the states in an area of traditional police powers, it would not be deemed to have significantly changed the federal-state balance.

      4. Rule of Lenity: Court said that ambiguity meant adopting narrow interpretation.

6. Smith v. United States (Lenity without Federalism Canon)

   1. Facts: Smith attempted to trade a MAC-10 to an undercover officer in exchange for 2 ounces of cocaine and was prosecuted under 18 U.S.C. §924(c)(1)(A).

   2. Applicable Statutory Language: §924(c)(1)(A) reads, “…any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, shall, in addition to the punishment for the [underlying crime] be sentenced…”

   3. Issue: Whether the exchange of a gun for narcotics constituted “use” within the meaning of the statute.

   4. Holding: A criminal who trades his firearm for drugs “uses” it during and in relation to a drug trafficking offense within the meaning of the statute.

   5. Plain Meaning

      1. O’Connor said that the ordinary and natural meaning of “to use” included “to use for the purpose of barter or exchange”—Webster’s defines “to use” as “to convert to one’s service” or “to employ.”

         1. Court said “firearm” did not reduce the scope of “use” because “while it is true that language cannot be interpreted apart from context, the dictionary definition and experience make clear one can use a firearm in a number of ways.”

      2. O’Connor referenced another section of the same statute that listed offenses in which the firearm is used as an item for barter.

      3. In dissent, Scalia said that to speak of using a firearm is to speak of use as a firearm (context matters—General Dynamics v. Cline)—“firearm” narrows “use.”

         1. Difference between how a word can be used and how a word ordinarily is used.

   6. Purpose

      1. O’Connor said that adopting the narrow reading would violate the purpose (comes before lenity) of the statute—to deter crimes that marry guns and drugs—a violent combination.

         1. That a gun is treated as an item of commerce does not render it inert or deprive it of destructive capacity.

   7. Canon

      1. The Court said...