Rule of lenity

The rule of lenity a legal tradition intended to allow leniency for defendants when a statute is unclear. The rule of lenity states an important rule of construction that should be widely accepted, yet only two Justices were willing to apply it in the recent case of Bittner v. United States (only Justices Gorsuch and Jackson joined this part of the majority decision in favor of the defendant). Though the rule is cited often, it is "a custom more honor'd in the breach" and thus rarely actually followed by tyrannical tendencies of courts. Hamlet Act I, scene 4.

The "rule of lenity" has been cited by federal courts 5,364 times as of March 3, 2023, including 131 times by Supreme Court Justices (not necessarily by a court majority).

Its confusing legal standard seems nearly impossible to satisfy, as explained in early 2023 by the Fifth Circuit:

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Turning to the rule of lenity, and assuming arguendo that the relevant statute is ambiguous, we now consider whether that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971) (citation omitted). We conclude that the rule of lenity applies if the statute is ambiguous. We recognize that courts have considered two standards for whether a statute is sufficiently ambiguous to trigger the rule of lenity. One standard asks whether there is a "reasonable doubt" as to the statute's meaning. See Reading Law at 299 (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S. Ct. 461, 112 L. Ed. 2d 449 (1990)). The other inquires whether there is a "grievous ambiguity" in the statute. See, e.g., Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831, 94 S. Ct. 1262, 39 L. Ed. 2d 782 (1974)). The Supreme Court does not appear to have decided which of these standards governs the rule of lenity. See Wooden v. United States, 142 S. Ct. 1063, 1075, 212 L. Ed. 2d 187 (2022) (Kavanaugh, J., concurring) (arguing in favor of the grievous-ambiguity standard); id. at 142 S. Ct. at 1084 (Gorsuch, J., concurring in the judgment) (arguing in favor of the reasonable-doubt standard).

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Cargill v. Garland, 57 F.4th 447, 469 (5th Cir. 2023) (Elrod, J., en banc).