I. Introduction
The rule that penal statutes are to be interpreted strictly, also known as the rule of lenity (“the rule”), has been said to be as old as the task of statutory interpretation itself. 1 It has also been labelled “the subject of more constant controversy than perhaps of any in the whole circle of the Law.” 2 All agree 3 that the rule found early expression in the practice of 17th century English courts strictly construing statutes that purported to displace the “benefit of clergy” (a common law doctrine that provided exceptions to the death penalty for certain eligible defendants and crimes). 4 Some even seek to trace the origins of the rule to Byzantine times. 5 Despite its shared ancestry, the rule has evolved in different ways in most common law jurisdictions. This article will explore some of these differences by tracing the origins and evolution of the rule in two illustrative contexts – Australia and the United States.
A comparison between Australian and the United States has at least three reasons to recommend it. First, both the Australian and United States’ rules share the same source, namely, the common law of England. Secondly, apart from both being common law systems, Australia and the United States share a number of relevant constitutional features, notably: a written constitution; a separation of legislative, judicial and executive power; and a federal structure. The third reason to believe that a comparison between the two jurisdictions might prove informative is that that Australian judges discussing the rule regularly draw upon decisions of the United States Supreme Court. 6
This article will proceed in four parts. First, some terminological clarifications and a statement of the scope of the rule for the purposes of this article. Secondly, a discussion of the rule's origin and development in Australia. Thirdly, a discussion of the United States context. Finally, an effort to explain the similarities and divergences in the evolution of the rule in Australia and the United States.
II. Some Terminological Ground-Clearing
Before launching into the discussion proper it is necessary to clarify some of the terms used in this article. The first point of clarification pertains to the rule's title, or shorthand label. In Australia, the rule is rarely referred to as the rule of lenity, 7 and is more commonly described as the rule that “where there is doubt about the meaning of a penal statute it should be resolved in favour of the subject”. 8 In the United States, the rule is now most commonly referred to as “the rule of lenity”. 9 The American phraseology remains a modern phenomenon, dating back only to 1958. 10 Prior to that time, the rule was generally called the rule of strict construction or, in the fuller sense, “[t]he rule that penal laws are to be construed strictly”. 11 The modern move away from the language of “strict construction” is a welcome development, as that label was apt to confuse. This is because, according to a holistic conception of the rule, while ambiguous provisions creating criminal liability will be construed strictly (against the State), ambiguous provisions excusing a defendant from liability – for example, statutory defences or excuses – will be interpreted liberally (in favor of the subject). 12 In any event, the Supreme Court has described the rule of lenity and the rule of strict construction as “identical twins” 13 and most of the academic literature treats them as such. 14 Accordingly, for the remainder of this article, no distinction is drawn between them. 15
Unfortunately, titular matters are not the only aspects of the rule requiring clarification; courts in Australia and the United States tend to be somewhat undecided on two further questions:
what is meant by “penal” laws – i.e. what type of statutes engage the rule?; and
what is meant by “ambiguity” – i.e. what degree of statutory ambiguity is required before the rule is engaged?
In Australia, there does not appear to be consensus as to the sort of statute that will engage the rule. 16 In general, invocations of the rule refer simply to “penal” statutes. 17 More specific articulations of the rule sometimes refer to “statutes creating offences”, 18 or statutes that have “enlarged” an offence or that might be read as “extending any penal category”. 19 Nevertheless, the rule has also been applied to non-criminal statutes, for example, legislation pertaining to government powers of property confiscation 20 and deportation. 21 Further difficulties arise when a statute contains an amalgam of penal and remedial provisions. 22
In the United States, the position appears to be no clearer. Although the courts agree that the rule is engaged by all “criminal statutes”, 23 there is uncertainty as to the application of the rule to hybrid statutes incorporating both criminal and civil provisions. 24 This uncertainty has been compounded by the ill-defined interaction of Chevron25 deference and the rule. 26 To resolve these debates is beyond the scope of this article. As such, it is convenient to proceed by reference to the uncontroversial core of the rule, namely, its application to legislative provisions that create or extend criminal liability.
The final terminological issue warranting mention is the “ambiguity” precondition to the rule's application. 27 How much ambiguity is required before a statute will be deemed ambiguous for the purposes of the rule? 28 In Australia, the threshold requirement for ambiguity has found varied expression. For instance, the High Court has suggested that all that is needed to engage the rule is “doubt about the meaning of a penal statute”. 29 Earlier case law required “a fair and reasonable doubt” about the meaning of statutory language before the rule would be engaged. 30 The most recent pronouncement of the High Court on the topic suggests that what is needed is “real” ambiguity. 31 In America, Justice Scalia, writing extra-judicially with Bryan Garner, called for a similar threshold test: “The criterion we favour is this: whether, after all the legitimate tools of interpretation have been applied, ‘a reasonable doubt persists’.” 32 Others in the United States have said that “grievous ambiguity” is required before the rule can be engaged. 33 Yet others have said that the rule is engaged “only when the equipoise of competing reasons cannot otherwise be resolved.” 34 For present purposes, it is sufficient to acknowledge the controversy over the meaning of “ambiguity” rather than attempt to resolve it.
III. The Australian Story 35
A. Early Case Law from the High Court
A number of early decisions of the High Court make reference to the rule. An illuminating example is the case of Scott v Cawsey, 36 which is commonly cited as the earliest authoritative Australian statement of the rule. 37 In that case, the Court had to determine whether Mr Cawsey had been properly penalized as “keeper of a disorderly house” within the meaning of an offence provision in the Sunday Observance Act 1780. 38 Of the five Justices on the bench, four 39 explicitly discussed the rule. While the remaining Justice only engaged with the topic implicitly, 40 his views on the rule can be gleaned from a decision delivered later in the same year, in which he outlined his interpretative approach to penal statues. 41
Of the majority, Chief Justice Griffith did not find the statute to be ambiguous and, accordingly, held that the rule was not engaged. Nevertheless, in obiter dicta, his Honour noted that in “a case of ambiguity … the construction in favour of liberty should be adopted.” 42 Justice Barton engaged more substantively with the rule, referring to Blackstone 43 and three separate English authorities. 44 The burden of Justice Barton's observations was that the rule required that the court not “strain” the words of a penal statute to extend it beyond those acts “distinctly” or “strictly” within the “plain meaning of the words used”. 45 Importantly, for Justice Barton, where statutory words permit of two equally plausible interpretations, the courts must prefer that which favors the defendant. 46 Justice O’Connor reached the same conclusion as the majority without explicitly referring to the rule. Instead, his Honour invoked the separation of powers concerns animating the rule:
Of the minority, Justice Higgins only engaged with the rule in passing, expressing agreement with the idea that a person ought only be found to have violated a penal statue where their acts fall within “the letter and spirit of the law”. 48 Justice Isaacs, the other dissenting Justice, engaged extensively with English case law and commentary on the rule. Departing from the statements of Chief Justice Griffiths and Justice Barton, Justice Isaacs expressed the view that, where two constructions are left open by the words of the statute, courts ought to prefer that which best gives effect to the intent of the legislature— even where that intent may disfavor the defendant. 49 His Honour was prepared to go even further, holding that a court would be permitted to employ the full flexibility of the statutory words to effectuate the intention of the legislature, even where doing so would involve the court departing from an alternative, plausible, literal interpretation. 50 Importantly for present purposes, Justice Isaacs went on to refer to three decisions of the Supreme Court of the United States, 51 which he considered to mirror his own views. (It is perhaps possible to read these cases as standing for a narrower proposition than that which Justice Isaacs advances, but there is no doubt that they do emphasize the statutory purpose in a way that the traditional rule does not.)“where a Statute constitutes the committing of certain acts a criminal offence … [it is not] the duty of a Court to so add to the language of a Statute as to make it include the committing of acts of the same kind which lead to the same result, but which the legislature has not constituted an offence. To do so would be to make laws, not to interpret them.” 47
What the various opinions in Cawsey helpfully illustrate is that, even in the High Court's early days, the scope of the rule was hotly contested. The issue that separated the Justices in Cawsey, at least with respect to the rule, was the degree to which legislative intent could be relied upon to save a penal statute from ambiguity (and the application of the rule). On the one hand, most of the Justices conceived of the rule as coming into play whenever the legislature fails to bring conduct within the “plain meaning” 52 or “distinct[ words]” 53 of the statute. One might label this strong version of the rule a “textualist” approach to strict construction, because of the primacy it affords the statutory language. Such an approach can be seen in other early High Court authorities. For example, a year after Cawsey, Justice Barton referred back to that case before restating the Court's “duty … not to give greater force to the language of the legislature than it will clearly bear”. 54
On the other side of the conceptual divide, Justice Isaacs conceived of a less powerful rule, which would only come into play if legislative intent could not be relied upon to clarify ambiguous words. This view found support in the extended treatment of the rule by Justice O’Connor in Chandler & Co v Collector of Customs, a judgment handed down just two weeks after Cawsey. O’Connor wrote that the rule was engaged in cases where there was “a fair and reasonable doubt” about the meaning of statutory language. 55 His Honour then went on to make clear that such a doubt would not arise merely from textual ambiguity:
The tension between the strong, textualist version of the rule championed by Justice Barton and the more qualified version of the rule expressed by Justice Isaacs, makes Cawsey an important early consideration of the rule. Unsurprisingly, that case has been cited by the High Court on a number of subsequent occasions, both in reliance on the words of the majority Justices and for the remarks of Justice Isaacs in dissent. 57 This article will now turn to the manner in which this early tension has finally been resolved in modern and contemporary High Court case law.“The existence of an ambiguity in the words to be construed does not necessarily create a doubt. It is a reason for an examination of the context, the scope and object of the enactment. But that examination may satisfy the Court beyond all doubt as to the meaning to be placed on an expression which is on its face ambiguous. I take it, therefore, that in the interpretation of a penal or taxing Statute mere ambiguity of expression or loose or inaccurate language will not prevent a Court from giving effect to the meaning of the legislature if, by the application of the ordinary rules of construction applicable to all other Statutes, that meaning can be ascertained. If, notwithstanding a careful examination … a doubt still remains … the Court is not at liberty to resolve the doubt against the accused” 56
(emphasis added)
B. Modern and Contemporary Case Law: The “Last Resort” Rule
In the years since Cawsey, Justice Isaacs’ qualified version of the rule has ultimately prevailed. 58 The slow dilution of the rule's originally potent concentrate is exemplified in the case of Beckwith v The Queen, 59 which one scholar has described as marking the “low ebb” of the rule in modern Australian jurisprudence. 60 In Beckwith, Justice Gibbs did much to entrench the qualified version of the rule, asserting:
After Gibbs assumed the Chief Justice's chair, the above passage was subsequently quoted with approval by a majority of the High Court in Waugh v Kippen, where it was said to reflect “the modern approach in construing penal statutes”. 62 In addition to Waugh, Beckwith has been cited in over twenty High Court decisions for its statement of the rule. 63 In light of this tidal wave of High Court authority, there can be little doubt that the rule is now confined to its limited version. On this version, the rule is only engaged if ambiguity remains after all of “the ordinary rules of construction [have been] applied”. 64 This means that a court will only apply the rule of lenity after it has had regard to text, context (including legislative history), purpose and any applicable provisions of an interpretation statute.“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.” 61
Nevertheless, before leaving these cases it is worth noting that, in the final result in Beckwith, Justice Gibbs in fact applied the rule in favor of the defendant, writing: “The effect of the [statutory] provisions at least remains doubtful and that doubt should be resolved in favour of the liberty of the subject.” 65 Furthermore, while there is no room left to doubt the reasoning in Waugh, it should be remembered that the statute in that case contained both penal and remedial provisions and, as such, does not provide a perfect analog for cases raising the application of the rule to purely penal statutes.
C. A Constitutional Dimension?
Unlike the United States – to be discussed below – Australian courts very rarely suggest that the rule might have a constitutional dimension. It will be recalled, however, that in the earliest High Court case to authoritatively apply the rule, Cawsey, Justice O’Connor invoked the separation of powers to rationalize the strict construction of the penal provision under consideration. Similarly, in the early case of Lyons v Smart (No 1), Justice Barton quoted from American authority 66 to describe the different institutional functions of the legislative and the judicial branches of government, concluding that: “[the] duty [of the judiciary is] … not to give greater force to the language of the legislature than it will clearly bear”. 67 Nevertheless, Justices Barton and O’Connor's attempts to ground the rule in Australia's constitutional structure remains an exception and, accordingly, it is unlikely that the rule will be found to have a constitutional basis in Australia any time soon.
D. Statutory Modification
An important aspect of Australian statutory interpretation is the role played by what this article will call “interpretation statutes”, which statutes contain legislative directives as to how courts should engage in the task of statutory interpretation. Each jurisdiction in Australia has enacted such a statute, 68 and each includes a purposive interpretation provision. 69 Broadly speaking, there are two varieties of purposive interpretation provisions. 70 For present purposes, the more prescriptive variety of provision needs to be considered, because if the rule can be squared with such a provision then it will certainly be reconcilable with the less prescriptive provision.
An example of the more prescriptive provision can be seen in §15AA of the federal Acts Interpretation Act 1901:
At first blush, this might appear to create a potential for inconsistency with the rule. 72 The courts, however, have held that there is no contradiction between purposive interpretation provisions like s 15AA and the rule. 73 Commentators have agreed. 74 To avoid any doubt, two states – Queensland 75 and South Australia 76 – have explicitly qualified their liberal construction provisions to avoid any interference with the rule of strict construction. 77 The South Australia provision, for instance, provides:“In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.” 71
“Construction that would promote purpose or object of an Act to be preferred
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purposes or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.”
E. Summary of the Current Australian Approach
In summary, the Australian rule of lenity is a common law creature (albeit with ill-defined constitutional roots) that has been largely unaffected by the legislative enactment of purposive interpretation provisions. Nevertheless, the Australian rule is one of “last resort”, only applied after other interpretative methods have been exhausted and “ambiguity or doubt” remains. 78 The rule has been understood and applied in this way in recent years. 79
IV. The American Story 80
A. Early Case Law from the Supreme Court
The rule first entered the federal law reports of the Supreme Court of the United States in 1820 via Chief Justice John Marshall's judgment in Wiltberger v United States. 81 In that case the Court was called upon to interpret a suite of provisions in the Crimes Act of 1790, the first criminal statute passed by the United States Congress. More specifically, the Court had to determine whether the manslaughter prohibition contained in §12, which prohibited homicides occurring “on the high seas”, ought to be read to encompass a homicide on a river. Notwithstanding strong textual indications from other provisions suggesting that Congress had intended §12 to be read to encompass acts done on rivers, the Court viewed the rule as commanding a strict construction of the penal provision to exclude coverage of rivers. Importantly, the Court reached this conclusion while acknowledging that it might have been contrary to “the obvious intent of the legislature” 82 and conceding that Mr Wiltberger's case was probably “within the reason or mischief of [the] statute”. 83 In this reasoning one can see that the early statement of the rule in the American context was close to the strong textualist version that found early support in Australia.
The strong, textualist version of the rule articulated in Wiltberger was justified on two bases: the rule's august common law heritage and the constitutional values underpinning it. In relation to the first rationale, Chief Justice Marshall wrote: “The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.” 84 The Chief Justice's rhetorical strategy is unmistakeable, the authority of the Court's decision is being bolstered by reference to a higher order rule. This was an approach that the Marshall Court adopted not just in respect of the rule of lenity, but in respect of statutory interpretation more generally, to which Chief Justice Marshall sought to bring systems and certainty. 85 Since Wiltberger, courts applying the rule have followed suit, invoking the rule's deep historical roots, presumably to provide additional justification for results that are often advantageous to a defendant and thus less palatable to the general public. 86 For example, the Court has described the rule as “venerable” 87, “time-honored” 88, “long-established”, 89 “well-recognized” 90, “traditional” 91, “familiar” 92, an “ancient requirement” 93, and a “long-standing principle[]” 94.
Notwithstanding the fact that, prior to Wiltberger, the rule was already being applied by federal courts, 95 it is Wiltberger that is now the authoritative early American statement of the rule. 96 Nevertheless, as will be seen in the following discussion, the strong, textualist version of the rule expressed in Wiltberger has not survived.
B. Modern and Contemporary Case Law: The “Tiebreaker” Rule
Historians of the rule in America have described how the Wiltberger version of the rule was gradually eroded in the 20th Century. Lawrence Solan has conducted the most comprehensive review of the rule's application during this period. 97 He convincingly divides the rule's 20th Century development into two chapters, both involving a progressive narrowing of the rule. First, one must consider the era of legal interpretation ushered in by the landmark decision in Church of the Holy Trinity. 98 That case, decided in 1892, is generally understood to mark the beginning of a more expansive approach to statutory interpretation at the Supreme Court. From that time onwards, the Court began to more readily consider legislative history and other extra-textual material in its attempts to divine the meaning of statutory text. Solan explains how this approach resulted in a de-prioritization of the rule. Instead of being applied in any case of textual ambiguity–even to override apparent statutory purpose (as appears to have occurred in Wiltberger)—the rule was only applied if the statute remained ambiguous after consideration of legislative history, context and other interpretative aids.
The second chapter in Solan's 20th Century history of the rule is set in the Rehnquist Supreme Court (1986—2005). This period saw the rule have something of a renaissance, largely as a result of the championship of Justice Scalia. 99 Yet the relative frequency of the rule's invocation did not translate into a stronger statement of its place in the interpretative process. In fact, for most members of the Court the rule came “dead last in the interpretative hierarchy.” 100 So, for example, in Moskal v United States the Court explained: “we have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” 101 Others on the Supreme Court during this period, notably Justice Scalia, took a different approach, whereby the rule was applied to resolve any ambiguity that might arise between a purely textualist approach and an approach based on extra-textual indicators. 102 Nevertheless, Justice Scalia's approach did not find favor with other members of the Court and the rule is now generally understood to operate only as a “tiebreaker” 103 after all other interpretative methods have been exhausted. 104
C. Constitutional Foundations 105
As was foreshadowed above, the Court in Wiltberger did not rely solely on the rule's common law roots for its authority. Chief Justice Marshall also grounded the rule in constitutional values, writing:
“The rule that penal laws are to be construed strictly … 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.” 106
(i). Separation of powers
With the words “vested in the legislative”, one sees a clear reliance on the separation of powers doctrine and an unwillingness on the part of the federal judiciary to venture into Congress’ sovereign domain of criminal lawmaking. 107 Astute scholars 108 have noted the sub silentio harmonies between Wiltberger and the Court's seminal decision of eight years earlier, United States v Hudson & Goodwin. 109 In Hudson & Goodwin, it was held that federal courts had no power to develop a body of federal criminal common law. The Court in Hudson & Goodwin recognized that “[t]he legislative authority of the Union must first make an act a crime … [and] affix a punishment to it” before a federal court could enforce that punishment. 110 Dan Kahan has suggested that, in Wiltberger, Chief Justice Marshall's proclamation that “the power of punishment is vested in the legislative … department” 111 was a direct reference to the earlier words used in Hudson & Goodwin. 112 Kahan draws a further link between Wiltberger and Hudson & Goodwin. In Wiltberger, the Court rejected the idea that crimes not clearly caught by the text of a criminal statute can nevertheless be brought within its ambit if they are “of equal atrocity, or of kindred character, with those which are enumerated”. 113 Kahan plausibly sees in this statement a rejection of the “mainstay of common law adjudication”, analogical reasoning. 114
Even without accepting Kahan's claims about the specific connections between Wiltberger and Hudson & Goodwin, it is undeniable that the Court in Wiltberger saw the rule to be giving effect to the constitutional separation of powers. Unsurprisingly, subsequent decisions of the Supreme Court have similarly claimed to be effectuating the separation of powers by application of the rule. 115 For example, in United States v. Bass, the Court wrote:
“because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity … Thus, where there is ambiguity in a criminal statute, doubts are resolved in favour of the defendant.” 116
(ii). Due process
Today, the rule is commonly understood to be grounded in a second constitutional imperative—Due Process. 117 More specifically, the rule is said to arise from the idea inherent in Due Process that a person ought to have sufficient notice, or fair warning, of the acts that a government would criminalize. 118 At least two scholars 119 have suggested that the Due Process foundation of the rule was present in Wiltberger in Chief Justice Marshall's gesture to “the tenderness of the law for the rights of individuals”. Others have pointed to other early decisions, many of them by federal judges riding circuit. 120 It is more convenient, for present purposes, to look one hundred years later to the 1931 decision of McBoyle v United States121 for an explicit invocation of the notice/fair warning language.
In McBoyle, the Supreme Court had to determine whether the National Motor Vehicle Theft Act 122 applied to airplanes. The text of the Act limited its application to “motor vehicles”, which it defined as “any … self-propelled vehicle not designed for running on rails.” 123 While conceding that it was “etymologically … possible” to read the definition inclusive of airplanes, Justice Holmes felt that the penal nature of the law required a narrower reading. Writing for the Court, Justice Holmes based this conclusion on the notice rationale:
Since McBoyle, the Supreme Court has become increasingly explicit in espousing the due process basis of the rule. So, for example, in Dunn v United States the Court explained that the rule “reflects not merely a convenient maxim of statutory construction,” but rather “is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited”. 125 Similarly, in United States v Lanier, it was said that the rule “ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” 126“it is reasonable that 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.” 124
(iii). Federalism
The final constitutional dimension to the rule of lenity is, arguably, the effect it gives to values of federalism. On this account, federal criminal laws ought to be interpreted strictly so as to limit the scope of federal legislative incursion into regulatory realms traditionally left to the states. Kahan articulates the values underlying this reasoning in the following terms:
This idea only rarely finds expression in the case law 128 and, accordingly, has not garnered much academic attention. 129 One reason that the federalism rationale for the rule is rarely relied upon independently of its other constitutional bases is that there is little to distinguish a federalism-focused application of the rule of lenity from the distinct interpretative canon of deference to states’ rights. 130 When applied to federal Congress’ criminal lawmaking power the two rules are coextensive – both requiring a narrow reading of federal criminal laws.“What conduct a state chooses to criminalize and how severely it chooses to punish it are matters critical to the experience of deliberative democracy within that state. Because federal criminal law dictates uniform, national answers to such questions, expansive readings of federal criminal law threaten to extinguish the opportunity that states have to use criminal law to express and shape local ideals.” 127
D. Statutory Modification
Just as the rule has arguably been impacted by statutory innovations in Australia so too have legislative enactments in the United States proved troubling for courts applying the rule and scholars theorizing it. At least two states have legislated to codify the rule: Florida and Ohio. 131 The vast majority, however, have done the opposite – attempting to displace the rule by statute. This started in the early 1800s, when Tennessee and Virginia gaming laws required courts to interpret them “remedially”, despite their penal character. 132 The first generally applicable statutory provision purporting to displace the rule came into effect in Arkansas in 1838. 133 In Livingston Hall's invaluable survey of the rule's early legislative modification he describes how other states soon followed suit at the recommendation of “commissioners appointed to revise the penal codes of the older states, or draft new ones for territories on their admission to statehood”. 134 In 1864 such a rule was proposed in New York where Field, Noyes and Bradford's Draft of a Penal Code for the State of New York (1864) included the following at § 10:
Despite legislative prescriptions, the general trend amongst courts in the 19th and early 20th century was to summarily ignore these statutory stipulations. Writing in 1935, Hall claims that in New York “[t]he liberal construction statute has been more honoured in the breach than in the observance”. 135 The position does not appear to be much different today. Jeffrey Love has conducted the most recent review—building on the work of Zachary Price. 136 Love concludes “most state supreme courts seem to be invoking lenity when it suits their fancy.” 137“The rule of the common law that penal statutes are to be strictly construed according to the fair import of their terms, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”
In the federal context, there is no analog to the state purposive interpretation provisions. That is not to say that such a thing has not been contemplated. The American Law Institute's Model Penal Code excludes the Rule, providing: “when the language [of a Code provision] is susceptible of differing constructions it shall be interpreted to further the general purposes [of the Code] and the special purposes of the particular provision involved.” 138 Whether such a wide-reaching prescription could garner sufficient congressional support to pass into law remains to be seen. Furthermore, there would likely be a challenge to the constitutional validity of such a law, given the Due Process and separation of powers concerns that the rule is said to embody. 139
Although there has not yet been a federal effort to comprehensively displace the rule, there have been attempts at more targeted modification of the rule in particular contexts, such as racketeering and securities fraud. 140 The most notable of these attempts is contained in the Racketeer-Influenced and Corrupt Organizations Act (“RICO”), which provides: “The provisions of this [statute] shall be liberally construed to effectuate its remedial purposes.” 141 Although RICO contains both criminal and civil provisions the liberal construction clause does not, at least on its face, limit its application to the civil provisions of the statute. Nevertheless, some courts have been reluctant to explicitly apply the directive to RICO's penal provisions in a way that would completely override the rule of lenity 142 (although the courts are arguably applying the provision sub silentio, given the expansive interpretations adopted in some RICO decisions). 143 For example, in United States v McClendon a Federal District Court expressed the view that: “Congress’ call for a liberal interpretation in order to effectuate the Act's ‘remedial purposes’ does not outweigh the Court's duty under the ‘rule of lenity’ to construe criminal statues strictly.” 144 Less forcefully, but no less tellingly, the Supreme Court has explicitly disclaimed reliance on the liberal construction clause when interpreting RICO's penal provisions 145 and has suggested that the rule can be accommodated in the statutory scheme. 146 At least one scholar has suggested that for courts to apply RICO's liberal construction clause to its penal provisions would violate constitutional Due Process guarantees. 147
E. Summary of the Current American Approach
Notwithstanding general agreement about the common law and constitutional foundations of the rule there is rarely agreement on the Supreme Court as to its application. One scholar has written that “The rule of lenity today has very little practical effect in decisions interpreting criminal statutes” 148, another claims “Today, strict construction survives more as a makeweight for results that seem right on other grounds than as a consistent policy of statutory interpretation.” 149 Before he was elevated to the Supreme Court, Justice Kavanaugh admitted “I do not have a firm idea about how to handle the rule of lenity. Of course, the Supreme Court seems to be very uncertain about the rule of lenity, too.” 150 Yet the Court continues to refer to the rule and purport to apply it. 151 If application of the rule appears “random” 152 that is likely because of the diversification of interpretative tools and methodologies now in use. 153 This is not a problem unique to the rule. In a thorough survey of the Supreme Court's approach to statutory interpretation, one scholar summarized the approach as “eclectic”. 154 While the rule has been subjected to sustained academic criticism – including some prominent voices calling for its abolishment 155 – there has never been serious doubt in the Supreme Court that the tiebreaker version of the rule is sound. Recent cases suggest as much, with the rule dictating the result for a closely split Court in Yates. 156
V. Similarities, Differences and Attempts at Explanation
A. Early Case Law
As has been seen, early statements of the rule in Australia and the United States both gave it real force as a tool engaged in the face of any textual ambiguity in penal statutes. On both of these accounts, textual ambiguity could not easily be resolved by reference to the overarching purpose of the statute. Instead, both accounts stressed the need for clarity in the words of criminal statutes and thought it proper to apply the rule in the absence of such textual clarity. In Australia, that initial position was complicated by the persuasive reasoning of Justice Isaacs’ dissent in Cawsey (whereas there was no dissent in the American Wiltberger decision). The chronological distinction between Cawsey and Wiltberger is also relevant. Cawsey was decided one hundred years after Wiltberger, by which time the more expansive approach to statutory interpretation that was heralded in America by the Church of the Holy Trinity decision was also starting to make its way into Australian courts. Indeed, it is instructive to note that Justice Isaacs relied on American authority in his dissent in Cawsey – thus demonstrating the influence that the enlightenment in American statutory interpretation eventually came to have on Australia's approach to penal statutes.
B. Constitutional Foundations
Perhaps the starkest difference in the rule's development in Australia and the United States is that only in the latter country has the rule gained a constitutional foothold. The first, and most obvious, reason for this difference is that Australia's Constitution contains no provision comparable to the Due Process clauses contained in the Fifth and Fourteenth Amendments to the United States Constitution. 157 Less easy to explain is the failure of Australian courts to conceive of the rule as an expression of the separation of powers. It is true that Justice O’Connor in Cawsey did use separation of powers language to justify a strict interpretation of the penal provision at issue, but the other Justices of the Court (and most courts since) have seen the rule as a common law interpretative canon rather than a constitutional requirement. Similarly, to this author's knowledge, no Australian court has applied the rule to protect State sovereignty in the Australian federal structure. This is likely due to the attenuated species of federalism that now prevails in Australia's constitutional system; a system characterized by “the High Court's reluctance to develop a constitutional jurisprudence of federalism that might seriously temper” the post-1920 phenomenon of “the steady expansion of the powers of the national government to the diminishment of those of the states”. 158
In contrast, the rule has been expressed in constitutional terms in the United States for close to two centuries—primarily in furtherance of separation of powers and Due Process values, but also, occasionally, for federalism-orientated reasons. Nevertheless, there is no agreement amongst the academy as to whether the rule is merely constitutionally inspired or whether it is in fact a constitutional requirement. So, for example, Ross Davies calls the rule a “quasi-constitutional norm” as distinct from a “truly constitutional standard”. 159 Einer Elhauge describes the constitutional foundations of the rule as “dubious”. 160 This analysis would seem to be borne out by the fact that the rule has been subject to legislative displacement in many of the states. 161
C. Statutory Modification
There is significant diversity of approach to the rule amongst Australia's state and federal legislatures, just as there is in the United States. Two Australian states have legislated to preserve the rule, 162 while at least two American states have enshrined the rule in their own statutory provisions. 163 At the federal level, Australia has an overarching liberal construction clause while the United States Congress has preferred to enact targeted liberal construction clauses within specific pieces of penal legislation, like RICO. It is possible to make two general observations about legislative modification of the rule in Australia and the United States. First, notwithstanding the constitutional foundations of the rule in the United States, the rule appears to be vulnerable to legislative displacement in both countries. Secondly, where legislative enactments purport to erode the rule of lenity, courts will only reluctantly give them that effect. In summary, then, the diversity of approaches as amongst Australian and American courts and legislatures to the legislative displacement of the rule of lenity is an example of what Abbe Gluck has called state “laboratories of statutory interpretation”. 164
D. Contemporary Iterations of the Rule
Finally, it is surprising to note that the current versions of the rule in Australia and the United States share very much in common despite their distinct routes of historical development. Both countries have grappled with the application of the rule to hybrid civil-criminal statutes; both countries have struggled to identify the precise degree of “ambiguity” or “doubt” required to engage the rule; and both countries have placed the rule last in the interpretative hierarchy – as a “last resort” 165 in Australia and a “tiebreaker” in the United States.
VI. Conclusion
This article has sought to survey the genesis and development of the rule of lenity (or the rule that ambiguous penal laws be interpreted in favor of the subject) in Australia and the United States. This descriptive analysis has revealed some significant doctrinal differences in each country's development of the rule, primarily deriving from local constitutional differences. In the knowledge of these differences, it is surprising to see how closely the two countries’ contemporary versions of the rule align—the United States using the language of “tie-breaker” and Australia using the language of “last resort.” These linguistically similar formulations have been arrived at despite very little modern reference to decisions of the other country's case law. The question left unanswered by this analysis is, of course, the most interesting. Why is it that the rule has achieved such a similar state in both countries despite the local differences? The answer to this question is best left for future research.
Acknowledgements
I would like to thank Akhil Amar, Kent Greenawalt, Walter Loughlin and Judge Jed Rakoff for discussions about federalism, criminal law and lenity. All opinions and errors are my own.