Photo by JOSHUA COLEMAN on Unsplash
Ben Martin, Associate Member, University of Cincinnati Law Review
I. Introduction
Ignorance of the law is not an excuse for violating it.[1] Though ignorance of a statute is not normally a defense, the ambiguity of that statute may be. Since the founding, American courts have applied the rule of lenity to interpret ambiguous statutes against the government and grant freedom to a defendant charged under it. The United States Supreme Court recently ruled unanimously that the William Dale Wooden’s act of tunneling through the walls of ten storage unites did not constitute ten separate “occasions” for the purposes of sentencing under the Armed Career Criminal Act. Though all Justice agreed on this, Justice Gorsuch argued against the majorities approach and advocated for a different resolution of the case: one based on lenity.
II. Background
A. The Rule of Lenity
The “rule of lenity” dates back to English common law and provides that “penal laws should be construed strictly” against the state.[2] The rule is often viewed as a rule of statutory construction, and a rule “not much less old than construction itself.”[3] Many states have codified the rule of lenity into their statutory provisions.[4] In his concurrence in Wooden, Justice Gorsuch argued that the rule of lenity took on “distinctively American functions” in early American cases by securing the protection of due process rights and the separation of powers.[5] Both of these considerations were also offered by Chief Justice John Marshall, a fairly reliable source for early American jurisprudence, in United States v. Wiltberger. Justice Marshall explained that the rule “is founded on the tenderness of the law of the rights of individuals; and on the plain principal that the power of punishment is vested in the legislative, not in the judicial department.”[6]
Justice Marshall’s language demonstrates, first, that the law is concerned with protecting the “right of every person to suffer only those punishments dictated ‘by the plain meaning of words.’”[7] This concept runs alongside the Fifth Amendment due process guarantees which require that people be provided with notice of what conduct the law will penalize.[8]
The second part of Justice Marshall’s explanation of the rule of lenity clearly links itself to the separation of powers. The legislature is tasked with declaring what conduct is or is not punishable. The rule of lenity works to ensure that the judiciary does not criminalize conduct that was not meant to be, or does not appear to be, covered by an ambiguous legislative enactment.[9]
Though the rule of lenity dictates that penal statutes should be construed strictly, early cases make it clear that statutes should not be construed so strictly that it defeats clear legislative intent.[10] The rule therefore should not be used to create ambiguity when the words of a statute, as “the legislature has obviously used them,” would apply to a given case.[11]
The rule of lenity plays an important role especially in criminal law, where a person’s liberty, or even life, are at stake subject to the interpretation of a statute with multiple interpretations. In Wooden v. United States, though the majority did not rely on the rule, Justice Gorsuch believed that the rule was called upon to ensure that “the law give[] way to liberty.”[12]
B. Wooden v US
William Dale Wooden was arrested and charged in 1997 for ten counts of burglary.[13] After illegally entering a storage facility, Wooden and three others tunneled through the walls of ten adjacent storage units and stole property from each.[14] Wooden was indicted for all ten burglaries and ultimately pleaded guilty.[15] Wooden was sentenced to eight years for each of the ten counts, to be served concurrently.[16]
Years later, on a November morning in 2014, Wooden, now a free man, let a visiting police officer into his home.[17] Inside, the officer saw multiple guns and arrested Wooden for being a felon in possession of a firearm.[18] Wooden was later convicted by a jury.[19] The main point of contention during his sentencing was whether the Armed Career Criminal Act (“ACCA”) applied.[20] ACCA includes sentencing enhancements for unlawful gun possession in cases where a person has “three previous convictions…for a violent felony…committed on occasions different from one another.”[21] Considering these people to be dangerous “career criminals,” ACCA imposes an extremely severe sentence of fifteen years minimum.[22] The trial court found that each time Wooden broke into a storage unit back in 1997, he committed a felony on a different occasion than when he entered the next unit. In other words, Wooden had committed ten prior felonies on ten different occasions, causing the ACCA to apply.[23] Affirming the near sixteen-year sentence imposed by the trial court, the Sixth Circuit Court of Appeals agreed that Wooden had committed each of the past felonies on different occasions.[24]
C. Majority Opinion
All members of the Supreme Court joined Justice Kagan’s opinion reversing the Sixth Circuit.[25] The majority rejected the “temporal-distinctiveness test” relied on by the lower courts and held that the ordinary meaning of “occasion” did not support a test that found that offenses occur on different occasions simply if the elements of each offense are satisfied at different points in time.[26] In a series of colorful illustrations spanning from weddings to bar fights, Justice Kagan demonstrated how the word “occasion” is ordinarily used to refer to a span of time in which many unique and discrete actions occur—but still qualifies as one occasion.[27] For example, a person who hits three others during a barroom brawl has not committed three different assaults on three different occasions; the person has committed three different assaults, back-to-back, on a single occasion.[28]
In replacing the temporal-distinctiveness test, the Court established every lawyer’s favorite test: a multi-factor balancing test.[29] The Court noted many different circumstances that would be relevant to the “one occasion” consideration including the timing of the offenses, the proximity of location of the offenses, and the “character and relationship” of the offenses.[30] Though the Court noted that “there will be some hard cases” in which the balancing test might be strained, the Court believed the test would be generally straightforward.[31] Applying its test to Wooden’s case, the Court found that, because Wooden committed the ten burglaries on the same night, in the same building, and as part of an uninterrupted course of conduct, he had committed the burglaries on a single occasion and ACCA therefore did not apply to him.[32]
D. Gorsuch Concurrence
Concurring in the judgment, Justice Gorsuch criticized the Majority’s reliance on a multi-factor balancing test.[33] Justice Gorsuch raised the often-raised challenge to balancing tests: balancing tests are unpredictable and hard to apply to the “almost infinite number of factual permutations these cases can present.”[34] While Justice Gorsuch admitted that multiple factors could provide a “clear answer in some cases,” he did not believe that the majority provided enough guidance for the hard cases.[35] Rather than rely on a “multiplicity of factors” to resolve these hard cases, Justice Gorsuch offered another answer: the rule of lenity.[36] Justice Gorsuch argued that in those close cases, when there is a doubt about the applicability of ACCA, the rule of lenity should step in to resolve that doubt in favor of the defendant.[37]
Justice Gorsuch took issue with the Court’s recent approach to lenity jurisprudence limiting the use of the rule of lenity to cases of “grievous statutory ambiguity.”[38] In his concurrence discussed below, Justice Kavanaugh advocated for this limitation to the rule’s application.[39] Justice Gorsuch traced the use of this “grievous ambiguity” standard to Huddleston v. United States, a 1974 case that used the phrase in dicta and without any analysis.[40] Justice Gorsuch argued that this standard did not comport with the early usage of the rule and failed to effectively serve its intended purpose.[41] Gorsuch argued that the Court should affirm the standard from early cases which provided that “all reasonable doubts concerning [a statute’s] meaning ought to operate in favor of [the defendant].”[42]
E. Kavanaugh Concurrence
Unlike Justice Gorsuch, Justice Kavanaugh argued that the rule of lenity is properly limited to cases of “grievous ambiguity.”[43] Justice Kavanaugh stated that the “rule does not apply when a law contains some ambiguity;” instead the rule should only come into play when, “after seizing everything from which aid can be derived,” there is still ambiguity.[44] The rule would essentially never be applied, and only ever at the end of a court’s reasoning.[45] Arguing against “upsetting [the Court’s] rule of lenity case law, Justice Kavanaugh believed the Court should not lower the ambiguity threshold required for the rule to come into play.[46]
Rather than a rigorous rule of lenity, Justice Kavanaugh instead offered that the presumption of mens rea was a better tool to address the concern for notice in criminal law.[47] He stated that the requirement that the government prove a defendant’s mens rea for every element of a crime would be sufficient to protect defendants from vague or arbitrary laws.[48] Justice Kavanaugh suggested that a requirement of “willfulness”—where a person knows that their conduct is unlawful—could be sufficient to protect defendants.[49]
III. Discussion
The rule of lenity has been a fundamental part of both the common law, and American Constitutional law since its founding. Its connection to due process protections can be traced back to the core concerns of the framers themselves who worried about the criminalization of acts that were either legal or not clearly illegal.[50] Subjecting people to the possibility of prison based on a statute that could be reasonably read to not criminalize the conduct at issue violates the basic notion that the law should be fair.
The rule’s support for the separation of powers also demonstrates the rule’s importance. As many justices have noted, subjecting the liberty of a person to a judge’s interpretation of an ambiguous statute removes the power to declare conduct criminal from the legislature and gives it to the judiciary.[51] The rule of lenity’s protection from this should make it indispensable when interpreting a penal statute.
Unlike Justice Gorsuch, Justice Kavanaugh argued that the rule of lenity should play a minor role in statutory interpretation. When looking at both the weight of authority and the policies behind the rule of lenity, it seems clear that Justice Kavanaugh’s grievous ambiguity standard should be rejected. The cases cited by Justice Gorsuch that applied the rule of lenity stretch back to Justice John Marshall and the early days of the nation.[52] The “grievous ambiguity” standard arose in 1974, close to one-hundred-and-eighty years after the earliest case cited by Justice Gorsuch.[53] Additionally, the phrase was merely used in dicta and cited to no case establishing that phrase.[54] Though the relative age of a standard or doctrine should not necessarily limit its validity, the standard’s origin in dicta and lack of support in prior case law should at least cast doubt on it.
The “grievous ambiguity” standard also fails to effectively address the constitutional policy issues that the rule of lenity serves. An ambiguous statute is just as susceptible as a grievously ambiguous statute to being used by judges to “intentionally or inadvertently exploit[] ‘doubtful’ statutory ‘expressions’ to enforce their own sensibilities.”[55] These “merely” ambiguous statutes also fail to provide notice to persons that their conduct may be criminal. It is not clear how someone could be provided notice by something that is ambiguous. The rule from earlier cases that “all reasonable doubts” as to the meaning of a statute should be resolved in favor of the defendant more effectively addressed the rules important policy considerations.[56]
Justice Kavanaugh’s proposed presumption of mens rea would also not effectively protect citizens from ambiguous laws or arbitrary enforcement. Though a “willfulness” requirement in a statute would protect those charged under it who did not know that their act was unlawful, not all statutes contain this mens rea requirement. Additionally, a statute that is silent as to mens rea is often read to require only recklessness in state cases,[57] and in the federal case “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”[58] The presumption of mens rea in states with a recklessness baseline would never protect citizens from ambiguity in the way the rule of lenity does or protect citizens from ambiguous statutes that impose strict liability.[59] These shortcomings suggest that the rule of lenity should be read so as to resolve any reasonable doubt as the meaning of a statute against the government.[60]
IV. Conclusion
The rule of lenity rests on policy concerns that are fundamental to American constitutional law. Lenity, a rule as old as construction itself, reflects the inherited wisdom of the common law that punishment under an ambiguous statute violates basic notions of how the law should work.[61] Rather than restricting the rule, the Court should continue to apply it as it has been applied historically, ensuring that “where uncertainty exists, the law gives way to liberty.”[62]
[1] Elonis v. United States, 575 U.S. 723, 735 (2015).
[2] Wooden v. United States, 142 S. Ct. 1063, 1082 (2022) (Gorsuch J., concurring).
[3] United States v. Wiltberger, 18 U.S. 76, 95 (1820).
[4] See Ohio Rev. Code Ann. § 2901.04(A) (West 2022).
[5] Wooden at 1082.
[6] Wiltberger at 95.
[7] Wooden at 1082. (quoting WIltberger at 95-96).
[8] Id. This rule is one of “those settled usages and modes of proceeding” that the government was required to adhere to before taking a person’s liberty or property under common law in order to satisfy due process. Id. (citing Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277, 15 L.Ed. 372 (1856).
[9] Wooden at 1083.
[10] Wiltberger at 95; United States v. Morris, 39 U.S. 464, 475, 10 L. Ed. 543 (1840).
[11] Wiltberger at 95.
[12] Wooden at 1082.
[13] Wooden, 142 S. Ct. at 1067.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 1068. Absent ACCA, Wooden would have faced a maximum of ten years in prison; with ACCA he faced a minimum of fifteen.
[21] 18 U.S.C. § 924(e)(1).
[22] Id.
[23] Wooden at 1068.
[24] Id. The Sixth Circuit, like some of the others, analyzed the “Occasions Clause” of ACCA by applying a “timing test” of “temporal distinctiveness test” which determines that looks at whether the “criminal conduct necessary to satisfy the offense elements occurs at different times.” Id. at 1069.
[25] Id. at 1065.
[26] Id. at 1069.
[27] Id. at 1069-70. (“The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing. Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their connections are, indeed, what makes them part of a single event. But they do not occur at the same moment: The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows. That is because an occasion may—and the hypothesized one does—encompass a number of non-simultaneous activities; it need not be confined to a single one.”).
[28] Id. at 1070.
[29] Id.
[30] Id. at 1071.
[31] Id.
[32] Id. The Majority went on to discuss how legislative history and subsequent amendments to ACCA in response to a Supreme Court decision made it clear that the Court had reached the correct decision. Id. at 1072-74. Unsurprisingly, Justices Barrett and Thomas took issue with the Court’s use of legislative history in a concurrence written by Justice Barrett. Id. at 1077 (Barrett J., concurring). That section is not relevant to this discussion and is not discussed further.
[33] Id. at 1079 (Gorsuch J., concurring). Justice Sotomayor joined all of Justice Gorsuch’s concurrence other than the first part criticizing the majority test.
[34] Id. at 1080.
[35] Id.
[36] Id. at 1081.
[37] Id.
[38] Id. at 1084.
[39] Id. at 1075 (Kavanaugh J., concurrence).
[40] Id. at 1085. See Huddleston v. United States, 415 U.S. 814, 831 (1974).
[41] Id. at 1084-85.
[42] Id. at 1084.
[43] Id. at 1075.
[44] Id. (citing Ocasio v. United States, 578 U.S. 282, 295, n. 8 (2016).
[45] Id. (“Properly applied, the rule of lenity therefore rarely if ever plays a role because, as in other contexts, “hard interpretive conundrums, even relating to complex rules, can often be solved”).
[46] Id.
[47] Id. at 1076.
[48] Id.
[49] Id.
[50] Id. at 1083 (quoting The Federalist No. 84, pp. 511-512 (C. Rossiter ed. 1961).
[51] Id.
[52] Wiltberger, 18 U.S. at 95; United States v. Lawrence, 3 U.S. 42, 45, 1 L. Ed. 502 (1795).
[53] Huddleston, 415 U.S. at 831.
[54] Id.
[55] Wooden at 1083.
[56] Id. at 1084 (citing Harrison v. Vose, 50 U.S. 372, 378, 13 L. Ed. 179 (1850)).
[57] Ohio rev. Code Ann. § 2901.21(C)(1) (West 2022).
[58] Elonis, 575 U.S. at 736.
[59] See Ohio Rev. Code Ann. § 2901.04(A) (West 2022).
[60] This does not mean, however, that mens rea requirements should be reduced, or that they should not be expanded.
[61] Wiltberger, 18 U.S. at 95.
[62] Wooden at 1082.
