Centuries ago in England, when most crimes were punishable by death, judges—aware of the unfairness of this system—construed penal statutes narrowly. This was “to stem the march to the gallows” and to protect citizens from this overly harsh regime. From these harsh origins arose the rule of lenity, which instructs that when the scope of a criminal statute is ambiguous, courts should select the less harsh—i.e., more lenient—interpretation of the statute. This principle can serve constitutional functions: lenity safeguards due process by ensuring that the public has fair notice about the reach of criminal laws, and it safeguards separation of powers by limiting the punishment power to the legislature, rather than the judiciary.
But the modern rule of lenity is applied inconsistently and unevenly. In courts, including the Supreme Court, and in the legal academy, the debate about how to apply lenity is a live one, based largely on disagreement about the level of statutory ambiguity required to trigger lenity. Several leading scholars have identified that the Supreme Court has repeatedly applied the rule of lenity to protect white-collar defendants while declining to apply the rule to protect those convicted of blue-collar crimes. This “suggests something of a white-collar/blue-collar class distinction in the [lenity] doctrine as applied.”
This Essay picks up the baton from those scholars to examine how the modern Supreme Court applies—or declines to apply—lenity in cases involving white-collar and blue-collar crimes (sometimes called “street crimes”). In a selection of cases from 1990 to the present, discussed herein, the Supreme Court indeed has been more likely than not to invoke lenity in favor of white-collar defendants and reject arguments for lenity from blue-collar defendants. This Essay argues that the lack of clarity around the rule of lenity permits judicial bias to play an outsized role in its application. This Essay then argues for a shift to a modified version of lenity to guard against this “class distinction” and uphold lenity’s constitutional functions.
