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
1
Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420 (2006).
John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statues, 71 Va. L. Rev. 189
(1985).
3
Jeffries, supra note 2, at 190.
4
Jeffries, supra note 2, at 190.
2
1
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
5
Sarah Newland, Note, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 Harv. C.R.C.L. L. Rev. 197 (1994)
6
Note, supra note 1, at 2424.
7
Note, supra note 1, at 2425.
8
Note, supra note 1, at 2425.
2
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.
9
Note, supra note 1, at 2426, 2427.
Note, supra note 1, at 2427.
11
Note, supra note 1, at 2427.
10
3
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
12
Rogers v. Tennessee, 532 U.S. 451, 467-468, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001) (Scalia, J.,
dissenting) (quoting J. Hall, General Principles of Criminal Law 59 (2d ed. 1960)).
13
Jeffries, supra note 2, at 198.
14
Jeffries, supra note 2, at 198.
15
United States v. Wiltberger, 18 U.S. 76, 95, 5 L. Ed. 37 (1820).
16
Id.
4
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
17
18
Id.
MyBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816 (1931).
5
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
19
Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed.2d 905 (1955)
Callanan v. Unites States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1958)
21
Id. (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S. Ct. 227, 97 L. Ed. 260
(1952); Bell v. United States, 349 U.S. 81; Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d
199 (1958); Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957); Heflin v. United
States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959)).
22
Id.
23
Id.
24
See e.g., Albernaz v.United States, 450 U.S. 333, 342, 343, 101 S.Ct. 1137, 767 L.Ed.2d 275 (1981).
25
Moskal v. United States, 498 U.S. 103, 111 S. Ct. 461, 112 L. Ed. 2d 449 (1990) (Scalia, J., diss.) (citing
United States v. Gradwell, 243 U.S. 476, 485, 61 L.Ed. 857, 37 S.Ct. 407 (1917)).
20
6
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
26
Id. (citing United States v. Wiltberger, 18 U.S. 76, 5 L. Ed. 37 (1820)).
Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 891 (2004)
28
Price, supra note 27, at 891, 892.
29
Price, supra note 27, at 892, 893.
30
Rev. Stats. 1901, Penal Code, sec. 5 and sec. 7, subd. 16; Rev. Stats. 1928, Penal Code, sec. 4477; Rev.
Stats. 1939, Penal Code, sec. 43-102; Rev. Stats. 1952, Penal Code, sec. 43-102; A.R.S. § 13-104 (1955).
31
Miller v. Territory, 9 Ariz. 123, 126, 80 P. 321 (1905).
32
Williams v. Territory, 13 Ariz. 27, 29, 108 P. 243 (1910).
27
7
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
33
McCall v. State, 18 Ariz. 408, 426, 161 P. 893 (1916).
Rev. Stats. 1939, Penal Code, sec. 43-102
35
A.R.S. § 13-104 (1956).
36
Phoenix v. Lane, 76 Ariz. 240, 243, 263 P.2d 302 (1953)
37
Id. (citing 50 Am.Jur., Statutes, sections 14, 15, 16, 407, 408, and 409; Tavegia v. Bromley, 67 Wyo. 93,
214 P.2d 975 (1950)).
38
67 Wyo. at 108 (citing 50 Am. Jur. 430-431, Section 407).
39
Id.; 76 Ariz. at 243.
34
8
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.
For the next two decades, Arizona courts cited Lane for the proposition that “it is
the law of this jurisdiction that penal statutes are to be strictly construed.”42 However, in
1977 the Arizona Legislature extensively revised the penal code and enacted a statute
providing “the general rule that a penal statute is to be strictly construed does not apply to
this title, but the provisions herein must be construed according to the fair meaning of
their terms to promote justice and effect the objects of the law, including the purposes
stated in section 13-101.”43 Among those purposes in section 13-101 is the need to give
“fair warning of the nature of the conduct proscribed and of the sentences authorized
upon conviction.”44 Although the canon of statutory interpretation known as the rule of
strict construction had again been overruled by the Arizona legislature, at least one
rationale underlying the rule still influenced statutory interpretation in Arizona.
40
50 Am.Jur., Statutes, sections 407, 408, and 409.
50 Am.Jur., Statutes, section 407.
42
See e.g. State v. Wayman, 104 Ariz. 125, 449 P.2d 296 (1969) (citing Phoenix v. Lane, 76 Ariz. 240).
43
See A.R.S. § 13-104; 1977 Ariz. Sess. Laws Ch. 142 § 39, eff. October 1, 1978.
44
A.R.S. § 13-101(2).
41
9
Despite no clear distinction between the “rule of lenity” and the “rule of strict
construction” in United States Supreme Court and Supreme Court of Arizona cases, the
Division One of the Arizona Court of Appeals established that the rule of lenity was valid
in Arizona in State v. Pena, only six years after the Arizona legislature appeared to have
abolished the rule of strict construction.45 The court in Pena explained as follows:
A.R.S. § 13-104 abolishes the general rule that penal statutes are to be
strictly construed; nevertheless, where the statute itself is susceptible to
more than one interpretation, the rule of lenity dictates that any doubt
should be resolved in favor of the defendant.46
To support that statement, the court in Pena cited five cases, the first of which was State
v. Herrera.47 The court in Herrera did not mention the word lenity at all, let alone the
rule of lenity, but rather cited Wayman for the proposition that “where penal statutes are
fairly susceptible of more than one interpretation, we construe them in favor of the
defendant to the extent necessary to eliminate the ambiguity.”48
Herrera was approved in part and vacated in part by the second citation in Pena,
an opinion that looked at A.R.S. §§ 1-211(c) and 13-104 and the language in Wayman in
greater depth.49 In that opinion the court considered the State’s argument that Wayman
was supplanted by A.R.S. § 1-211(c), which provided “the rule of the common law that
penal statutes shall be strictly construed has no application to these revised statutes. .
.[p]enal statutes shall be construed according to the fair import of their terms, with a view
to effect their object and to promote justice,” and A.R.S. § 13-104, which provided “the
general rule that a penal statute is to be strictly construed does not apply to this title, but
45
State v. Pena, 140 Ariz. 545, 683 P.2d 744 (App. 1983).
Id. at 549-550 (citing
47
Id. (citing State v. Herrera, 131 Ariz. 59, 638 P.2d 726 (App. 1981)).
48
131 Ariz. 60 (citing State v. Wayman, 104 Ariz. 125, 449 P.2d 296).
49
State v. Herrera, 131 Ariz. 35, 37, 638 P.2d 702 (1981).
46
10
the provisions herein must be construed according to the fair meaning of their terms to
promote justice and effect the objects of the law, including the purposes stated in § 13101.”50 Without deciding if Wayman and its rule “that penal statutes shall be strictly
construed” were still applicable in Arizona, the court in Herrera stated as follows:
We do not believe that the application of these statutes to the facts of this
case serves the State's position. We may not read into the attempt statute
the requirements of a consecutive sentence where no such requirement
exists. Construing the statute according to the “fair meaning” or “fair
import” to promote justice and effect the object of justice, does not require
or allow this court to provide a penalty in the statute where one does not
exist.51
The court in Herrera sidestepped the issue of whether or not Wayman was made
inapplicable by statute, opting instead to merely explain that the statutes did not support
the State’s argument. The court stressed aspects of A.R.S. § 13-101 and A.R.S. § 13-104
that embodied policies the rule of lenity was meant to serve and were likely inconsistent
with the abolition of the rule.
After citing the two Herrera opinions, the court in Pena cited Johnson v.
Johnson.52 Johnson dealt with community property and did not involve a penal statute at
all.53 The Johnson opinion almost certainly had nothing to do with the proposition for
which it was cited in Pena, as it never mentioned anything that could be interpreted as
relating to strict construction, lenity, or even ambiguity, at least as it affected the criminal
laws.54 The court in Pena must have made some mistake, unless it intended to make up
authority and hoped no one would notice.
50
Id.
Id.
52
140 Ariz. at 549-550 (citing Johnson v. Johnson, 131 Ariz. 38, 638 P.2d 705 (1981)).
53
131 Ariz. 38
54
Id.
51
11
In addition to the three Arizona opinions, the court in Pena cited Simpson v.
United States and Ladner v. United States.55 In Simpson, the United States Supreme
Court relied on Ladner in explaining the “policy of lenity means that the Court will not
interpret a federal criminal statute so as to increase the penalty that it places on an
individual when such an interpretation can be based on no more than a guess as to what
Congress intended.”56 In both Simpson and Ladner, the Court uses the term “lenity” but
cites cases from the group of cases explained above that seemed to start with Bell.57 The
Court’s explanation of the rule of lenity in Bell was summed up in the following quote:
“it may fairly be said to be a presupposition of our law to resolve doubts in the
enforcement of a penal code against the imposition of a harsher punishment.”58
In short, Pena may be questionable authority. When the court in Pena decided to
follow the rule of lenity, it relied on a case that was taken on review by the Arizona
Supreme Court and vacated in part and a case that had nothing to do with the concept for
which it was cited.59 The court in Pena also cited two federal cases citing Bell that were
almost certainly superior sources of authority for the rule compared to the Arizona
authorities, but it is important to note there was no federal law abolishing strict
construction.
Regardless, Pena has been followed extensively. Most notably, the Supreme
Court of Arizona adopted the rule of lenity as explained in Pena when it said in State v.
Tarango that “when a statute is ‘susceptible to more than one interpretation, the rule of
55
140 Ariz. at 549-550 (citing Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978);
Ladner v. United States, 358 U.S. 169).
56
435 U.S. at 15 (quoting Ladner, 358 U.S. at 178).
57
435 U.S. at 15; 358 U.S. at 178.
58
349 U.S. at 83.
59
140 Ariz. at 549.
12
lenity dictates that any doubt should be resolved in favor of the defendant.’”60 However,
there is another line of cases in Arizona suggesting at least the first of the two Herrera
cases, which was fundamental to Pena, was specifically overruled. In State v. Tramble,
the Supreme Court of Arizona explained as follows:
The Arizona Legislature has expressly stated that the general rule of strict
construction of penal statutes does not apply to our Criminal Code, and
that its provisions must be construed, instead, according to the fair
meaning of their terms, with the purpose of promoting justice and
effecting the object of the law.61
The court in Tramble refused to apply the rule of strict construction, which was utilized
in an analogous California case cited by the defendant, as it was not consistent with
Arizona’s legislative policy.62
Shortly after Tramble, the Supreme Court of Arizona again emphasized in State v.
Rodriguez that “courts are to construe criminal statutes according to ‘the fair meaning of
their terms to promote justice and effect the objects of the law.’”63 In State v. Lammie,
the court relied on Rodriguez in order to explain that the Herrera cases had been
overruled:
[T]his court in Herrera found the statute in question to be susceptible of
more than one interpretation. It therefore concluded that it had to construe
that penal statute in favor of defendant to the extent necessary to eliminate
the ambiguity. This rule of construction was overruled in State v.
Rodriguez.64
The court in Lammie went on to explain that because “a basic premise in Herrera has
been overruled by the subsequent case of Rodriguez . . . [w]e decline to follow Herrera
60
State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300 (1996) (quoting Pena, 140 Ariz. at 549-550).
State v. Tramble, 144 Ariz. 48, 51, 695 P.2d 737 (1985) (citing A.R.S. § 13-104).
62
Id.
63
State v. Rodriguez, 153 Ariz. 182, 186, 735 P.2d 792 (1987) (citing A.R.S. § 13-104; Tramble, 144 Ariz.
at 51).
64
State v. Lammie, 164 Ariz. 377, 380, 793 P.2d 134 (App.1990).
61
13
to the extent, if any, that it may be contrary to our ruling in this case.”65 The court then
acknowledged the rule from Lane that “if a criminal statute was susceptible of different
interpretations, we adopted the construction most favorable to the defendant,” but
ultimately determined that “[n]ow, however, courts are to construe criminal statutes
according to ‘the fair meaning of their terms to promote justice and effect the objects of
the law.’”66
There is clearly a serious conflict in Arizona with regard to the rule of lenity. On
one side there is a very large group of cases, all directly relying on Pena or on cases
citing Pena, explaining that when a statute is “susceptible to more than one interpretation,
the rule of lenity dictates that any doubt should be resolved in favor of the defendant.”67
On the other side there is a group of cases, all directly relying on Tramble or on cases
citing Tramble, that explain the rule of strict construction is against Arizona’s legislative
policy and make absolutely no mention of lenity.68
There are two cases where the conflicting lines of authority are both mentioned,
but they shed very little light on the apparent discrepancy. The first case was State v.
Flores, where the court cited the pertinent statutes and Tramble to show that strict
construction did not apply in Arizona.69 However, the court in Flores proceeded to quote
Pena in the very next sentence for the idea that “[w]here a statute is susceptible to more
than one interpretation, the rule of lenity dictates any doubt should be resolved in favor of
65
Id.
Id. (citing Lane, 76 Ariz. at 243; A.R.S. § 13-104; Tramble, 144 Ariz. at 51).
67
See e.g. State v. Tarango, 185 Ariz. at 210; State v. Christian, 202 Ariz. 462, 467, 47 P.3d 666 (App.
2002); State v. Sanchez, 209 Ariz. 66, 68, 97 P.3d 891 (App. 2004).
68
See e.g. State v. Gallegos, 178 Ariz. 1, 14, 870 P.2d 1097 (1994).
69
State v. Flores, 160 Ariz. 235, 240, 772 P.2d 589 (App. 1989) (citing A.R.S. § 13-104; Tramble, 144
Ariz. at 51).
66
14
the defendant.”70 In the second case, Vo v. Superior Court, the court began by explaining
“the legislature has abolished the common law rule of strict construction of criminal laws,
and has provided that criminal laws ‘must be construed according to the fair meaning of
their terms to promote justice and effect the objects of the law.’”71 The court then went
on to explain that the legislature established the public policy of the state was to “give
fair warning of the nature of the conduct proscribed and of the sentences authorized upon
conviction.”72 However, like in Flores, the court in Vo explained in the very next
sentence that “although the rule of strict construction of criminal statutes no longer
applies, where the meaning of a statute is unclear, the ‘rule of lenity’ requires us to
resolve any doubt in a defendant's favor.”73
As evidenced by Flores and Vo, at some point Arizona courts began treating the
“rule of strict construction” and the “rule of lenity” as two distinct rules. However, no
case in Arizona prior to Pena ever used the term “rule of lenity,” and the term was not
mentioned by the United States Supreme Court until 1958. The line between the rule of
lenity and the rule of strict construction blurs considering the foundation of the rules.
Lane, the very first Arizona case approving of strict construction, understood it to require
penal statutes be “interpreted strictly against the state and liberally in favor of the
citizen.”74 If the rule of lenity is given its most common definition and understood to
mean that “when a statute is ‘susceptible to more than one interpretation . . . any doubt
should be resolved in favor of the defendant,’” the distinction between those two rules
70
Id. (citing Pena, 140 Ariz. at 549).
Vo v. Superior Court, 172 Ariz. 195, 200, 836 P.2d 408 (App. 1992) (citing A.R.S. § 13-104; Tramble,
144 Ariz. 48).
72
Id. (citing A.R.S. § 13-101(2)).
73
Id. (citing Pena, 140 Ariz. 545).
74
76 Ariz. at 243.
71
15
seems to rest on the requirement there be ambiguity before applying the rule of lenity.75
However, American Jurisprudence sections on which Lane relied included the following
explanation under the heading “Application of Strict Construction:”
If the statutes contains a patent ambiguity, and admits of two reasonable
and contradictory constructions, that which operates in favor of a party
accused under its provisions is to be preferred, and where there is any
well-founded doubt as to any act being a public offense, it should not be
declared such, but should rather be construed in favor of the liberty of the
citizen.76
Considering that passage and the fact nearly every case invoking the rule of strict
construction involves ambiguity, an ambiguity requirement likely does not distinguish the
rule of lenity. Furthermore, the distinction between the two rules diminishes even more
considering the American Jurisprudence sections cited by Lane explaining “strict
construction” cite early cases, like Wiltberger and McBoyle, that are commonly
considered important rule of lenity cases.77
If there is any distinction between the rules, it is certainly not reflected in their
most common sources. The maze of overlapping cases and shared roots suggest the rules
are one and the same. Moreover, even if the rule of lenity and the rule of strict
construction are not the same, the line of cases involving Lammie eliminated the rule that
courts should construe a penal statute in favor of defendant to the extent necessary to
eliminate ambiguity, which is identical to the rule of lenity. The only possible way to
make sense of the discrepancies in Arizona cases might be to say that while the rule of
strict construction was abolished, the similar but distinguishable rule of lenity remained
because, although it achieved the same underlying objectives, those objectives were
75
State v. Tarango, 185 Ariz. at 210.
50 Am.Jur., section 409.
77
50 Am.Jur., sections 407, 408, and 409.
76
16
expressly retained in A.R.S. § 13-101 and A.R.S. § 13-104 and the rule of lenity only
comes into play only after courts first use a wider range of interpretive tools. That theory
is put forth in various law review articles discussing how states have enacted laws
directing courts to give a fair construction rather than a narrow construction of their
criminal statutes.78 Those articles also note laws did not prove to be much of an obstacle
for courts that wanted to continue applying the rule of lenity.79 The theory behind why
the rule of lenity’s methodology allowed it to survive after the rule of strict construction
was abolished is explained in the following passage:
In part this is because what these statutes arguably meant to overturn was
something far broader than the rule of lenity: a rule of construction that
would narrowly interpret any statute whose text was less than crystal clear
even if the ambiguity seemed strained or resolvable through extra textual
sources. This strict construction doctrine was based on substantive
opposition to what courts considered legislatures' excessive willingness to
use capital punishment. The rule of lenity, in contrast, does not come into
play unless a genuine ambiguity exists, and (properly understood) aims to
produce an ultimate set of statutory results that maximize the satisfaction
of legislative preferences.80
Although a rule favoring lenity may be broader idea than a rule of strict construction in
theory, the term “rule of lenity” has only been used by Arizona courts to describe a
particular rule of construction applicable in limited circumstances. If the term “rule of
lenity” means the rule as it is used by Arizona courts, it could logically be seen as
narrower than the old rule of strict construction, though lenity itself is a far broader
concept. Such an understanding would harmonize most of the seemingly contradictory
Arizona opinions, but it would still leave a serious problem with regard to Lammie. After
all, Lammie explained that a case fundamental to Arizona’s rule of lenity was overruled
78
See e.g. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2203
(2002).
79
See e.g. Elhauge, supra note 75, at 2203.
80
See e.g. Elhauge, supra note 75, at 2204.
17
and explicitly eliminated a rule identical to what Arizona courts call the rule of lenity, not
the rule of strict construction. Regardless, even in the face of other secondary sources
suggesting the two rules are the same, the view suggested in the passage above seems to
be the only option if the Arizona cases are to be viewed as any kind of coherent whole.
Looking back to the early history of the rule of lenity, its history is Arizona seems
fitting. It is not surprising that a rule that was developed as a judicial response to
legislative overreaching, specifically excessive use of capital punishment, would be
revived by courts with a new name after an attempted abrogation by the legislature that
might be viewed as overreaching.
Fortunately, the application of the rule of lenity in Arizona is far clearer than its
history. A recent Arizona case considering the rule of lenity explained that “because the
statute is not ambiguous, the rule of lenity . . . does not apply.”81 The rule alone does not
say whether the statute need only be ambiguous on its face, and it is not clear whether the
statute must remain susceptible to more than one interpretation after considering all
sources of legislative intent or purpose in order to apply the rule. Although the common
statement of the rule as applying “when a statute is susceptible to more than one
interpretation,” or “when a statute is ambiguous,” does not show where in the hierarchy
of tools of statutory interpretation the rule of lenity should fall, the cases make its role
clear.
In Flores, the court attempted to determine whether the term “sexual intercourse”
in a statute was “broad enough to encompass persons acting alone.”82 The court began by
looking at the text of the statute, its context, the use of the term “sexual intercourse” in
81
82
Fragoso v. Fell, 210 Ariz. 427, 431, 111 P.3d 1027 (2005).
160 Ariz. 235, 238.
18
other statutes, and then at a case interpreting the term.83 Only after determining the term
was ambiguous did the court feel it was “at liberty to resort to rules of statutory
interpretation”84 The first rule of statutory interpretation the court applied was to “give
the statute a sensible construction which will accomplish legislative interest and purpose,
and which will avoid absurd results.”85 The court did that by examining the development
of the statute.86 There was no prior law to consider, so the court looked to definitions of
“sexual intercourse” in the jurisdictions from whose codes Arizona adopted its statute.87
After considering statutes from those other states, the court considered the common
meaning of the word and consulted a dictionary, explaining that “the words of a statute
are to be given their ordinary meaning, unless it appears from the context a different
meaning should control.”88 Next, the court stated a “strong presumption exists that
legislatures do not create statutes containing provisions which are redundant or trivial”
and found the broader definition of “sexual intercourse” would make the term “sexual
contact” redundant in another Arizona statute.89 Last, the court looked to the statute
requiring provisions “be construed according to the fair meaning of their terms to
promote justice and effect the objects of the law.”90 At the very end of the portion of the
opinion discussing statutory interpretation, the court stated the rule of lenity as explained
by Pena before concluding for the defendant.91 The rule seemed to be one final factor
among the many that tipped the scale in favor of the defendant’s interpretation.
83
Id. at 238, 239.
Id. at 239.
85
Id.
86
Id.
87
Id.
88
Id. at 239, 240.
89
Id. at 240.
90
Id.
91
Id.
84
19
The role of the rule of lenity in Flores is typical in Arizona cases.92 There
appears to be no Arizona case where the rule of lenity is given priority over any other
rule of statutory construction. The rule is essentially a tie-breaker, a role that is evident in
State v. Sanchez.93 In Sanchez, the court looked for the legislature’s intent with regard to
a statute.94 The court considered the plain language, and then the context, history, subject
matter, effects and consequences, spirit, and purpose.95 At the very end, the court held
that because the statute was “equally susceptible to each interpretation the parties have
urged here, we are guided by the rule of lenity to resolve the statute's ambiguity in favor
of the defendant.”96 The rule seemed to have more weight in Sanchez than in Flores, but
that was at least partially based on the fact the court in Sanchez seemed to have nothing
else on which to resolve the conflict.
It appears the role of the rule of lenity in matters of statutory interpretation has
been solidly established by Arizona courts as an absolute last resort. If all other methods
of statutory interpretation fail to resolve an ambiguity, the rule of lenity breaks the tie.
Also, if a court wants to strengthen a decision already supported by other tools of
statutory interpretation, it may invoke the rule of lenity. Using the rule of lenity in that
way serves some of the rule’s primary purposes, while ignoring others. Consider the
following passage:
[W]ords which mark the boundary between criminal and non-criminal
conduct should speak with more than ordinary clearness. This policy
has special force when the conduct on the safe side of the line is not, in
the general understanding of the community, morally blameworthy.97
92
See e.g. State v. Garcia, 189 Ariz. 510, 943 P.2d 870 (App. 1997).
209 Ariz. 66, 97 P.3d 891 (App. 2004).
94
Id. at 68.
95
Id.
96
Id. at 70 (citing Pena, 140 Ariz. at 549).
97
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and
Application of Law 1376, 1377 (The Foundation Press, Inc. 1994).
93
20
That clear statement purpose of the rule of lenity, which blends on its edges with the idea
of fair warning, is likely not served by Arizona’s use of the rule. Using the rule of lenity
as a last resort means there will likely be times that an ambiguous statute is interpreted
broadly because the legislative history or purpose suggests that is the intent of the
legislature. Although the legislature might have spoken without as much as ordinary
clearness, its intent might be clear from other sources and conduct not generally
understood to be morally blameworthy might be criminalized.
Furthermore, using the rule of lenity as a last resort will not provide fair warning
about legality in some cases. Even cases applying the rule suggest the notice justification
might be fictional. If it is unlikely that a criminal would consult the plain language of a
provision before acting, it is all but certain a criminal would not look at context and
legislative intent before acting if a provision was ambiguous. By placing the rule of
lenity at the end of the analysis, there may be times that conduct is criminalized without
any clear warning from a statute.
On the other hand, Arizona’s use of the rule still avoids the judicial creation of
crimes. Most of the factors Arizona courts look at before applying the rule of lenity, like
plain language, context, and legislative intent, restrain courts from defining crimes.
Instead, those tools force courts to follow the will of the legislature, which is the proper
governmental body to say what conduct is illegal and what conduct is not. However, by
looking first to those sources, courts do not encourage the legislature to make clear
statutes, as the legislature’s intent will arguably be followed anyway.
In short, by using the rule of lenity as a last resort, Arizona courts serve at least
one of its purposes but ultimately frustrate some of its primary objectives. Despite a
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potentially shaky foundation in its newest incarnation, the rule of lenity appears to be a
rule of construction that will continue to decide cases where other rules fail to eliminate
ambiguity.
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