Fair Notice About Fair Notice

The rule of lenity instructs courts to resolve statutory ambiguity in the defendant’s favor. One goal of the rule is to ensure that defendants have fair notice of the scope of criminal prohibitions. While lenity has deep roots in the common law, a majority of state legislatures have passed statutes instructing courts not to follow the rule of lenity in criminal cases. Some state courts abide by the legislature’s lenity-displacing command; others explicitly disregard it; and most have come down somewhere in between — neither disclaiming the rule of lenity entirely nor employing it explicitly. But judges cannot have it both ways. If they try to construe laws to be consistent with the lenity canon’s notice-giving values while avoiding an outright clash with the state legislature, they undermine the very same values that they seek to preserve. After all, if the rule of lenity is meant (at least in part) to ensure that potential criminal defendants are put on notice about the illegality of their actions, then if the courts are not clear about the interpretive method they are using, criminal defendants risk being left in the dark not only about the meaning of a state’s substantive laws, but also about how the courts will decide how to decide what the law means. A rule of lenity whose application is uncertain may be just as problematic from a fair-notice perspective as having no rule of lenity at all.