This is the third in a series of posts reviewing last term’s criminal cases in the Supreme Court and previewing the new term.
Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s. The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy. In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.
The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron). A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009). I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”
In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums. Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.”
The argument appeared in Breyer’s dissenting opinion in Dean v. United States, 129 S. Ct. 1849 (2009). The gist of his position is that an overly aggressive application of lenity is less harmful in the mandatory minimum context than elsewhere. Here is the argument:
[A]n interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not legislatively required. . . .
On the other hand, an interpretation [of the statute at issue in Dean] that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. . . [S]uch an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended.
Breyer’s point seems to me a good one. And, although it appears in a dissent, the argument was not addressed, much less rejected, by the majority. This should, in other words, be a viable argument for advocates to advance in other mandatory minimum cases.
Earlier posts in this series: