State Anti-Lenity Statutes and Judicial Resistance: “What A Long Strange Trip It’s Been”

Samuel A. Thumma
Volume 28
,  Issue 1

Introduction

Courts have many interpretive tools to help construe statutory text that is found to be less than clear. One such tool is the rule of lenity. A typical formulation for the rule of lenity is that an ambiguous criminal statute should be strictly construed in favor of the criminal defendant and against the government.

The rule of lenity is a common law concept with deep historical roots. In England, it has existed for centuries.1See Sarah Newland, Note, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 Harv. C.R.-C.L. L. Rev. 197, 200–01 (1994); see also Johnson v. United States, 135 S. Ct. 2551, 2567 (2015) (Thomas, J., concurring in the judgment) (noting the rule of lenity “first emerged in 16th-century England”). In this country, the US Supreme Court wrote in 1820 that the rule “is perhaps not much less old than construction itself,” and reflects the “plain principle” that “[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment.”2United States v. Wiltberger, 18 U.S. 76, 95 (1820) (emphasis omitted). Supporters state the rule of lenity furthers due process notice and fairness requirements, ensures that criminal laws are the product of the political process, encourages statutory clarity, and advances the rule of law, federalism, and states’ rights concepts, along with other noble goals.3See, e.g., United States v. Kozminski, 487 U.S. 931, 952 (1988); 3 Sutherland on Statutory Construction § 59:4 (7th ed. 2017); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2094 (2002); Jeffrey A. Love, Comment, Fair Notice about Fair Notice, 121 Yale L.J. 2395, 2401 (2012).

The rule of lenity also has its detractors. It has been criticized as negating legislation, being uncertain and arbitrary in application and scope, unnecessary, not justified, and undercutting the rule of law. In 1776, the rule of lenity was described as “the subject of more constant controversy than perhaps of any in the whole circle of the Law.”4Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 296 n.3 (2012) (quoting Jeremy Bentham, A Comment on the Commentaries: A Criticism of William Blackstone’s Commentaries on the Laws of England 141 (Charles Warren Everett, ed., 1928)).

Despite its critics, the rule of lenity has been a part of the US legal system for more than two centuries. The rule of lenity is deeply embedded in federal courts and is broadly adopted in state courts. Notwithstanding this deep and broad acceptance, however, several state legislatures have enacted statutes negating the rule of lenity.

This state statutory anti-lenity effort started in the early 1800s and came in phases. By the mid-1800s, as a product of codification efforts in Texas and then New York, state anti-lenity statutes became more focused and uniform. In 1864, Oregon enacted what would become the prototype anti-lenity statute:

The rule of the common law that penal statutes are to be strictly construed, has no application to [the criminal code], but all [the criminal code’s] provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.5Or. Crim. Code tit. 2, ch. 14, § 787 (1864).

Other states followed. By the early 1900s, ten states or territories, mostly in the western part of the United States, had enacted nearly identical anti-lenity statutes. These statutes: (1) state strict construction does not apply to the state’s criminal code; and (2) provide direction about how the state’s criminal code should be construed. The legislative pace slowed in the twentieth century, with four states enacting anti-lenity statutes, two states repealing anti-lenity statutes, and one state considering—but not enacting—such a statute.

Currently, a dozen states have virtually identical anti-lenity statutes that prototypically state: “The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”6Tex. Penal Code Ann. § 1.05(a) (West, Westlaw through 2019 Sess.). States that currently have anti-lenity statutes and their text are listed in Appendix 2. This Article refers to these statutes as “anti-lenity statutes,” consistent with prior usage. See, e.g., People v. Morrison, 191 Cal. App. 4th 1551, 1556–57 (Cal. Ct. App. 2011); Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 108 n.58 (2016); Love, supra note 3, at 2398–99. This anti-lenity effort is uniquely a state law undertaking; there has never been a generally applicable federal anti-lenity statute. This Article examines these state anti-lenity statutes—their origin, history, application, and implications—in the context of the rule of lenity, states’ rights, federalism, due process, separation of powers, and other concepts.

This Article begins with an overview of the common-law rule of lenity by discussing its origins in England and then early and widespread adoption in the United States, both in federal and state courts.7See infra Section I. This Article next highlights the justifications for, and criticisms of, the rule of lenity and how model laws have addressed the rule of lenity.8See infra Section II.

This Article then turns to the adoption of state anti-lenity statutes, starting with precursor legislation coming in three phases in the first part of the 1800s.9See infra Section III.A. Next, this Article discusses codification efforts in Texas and New York in the mid-1800s, where the state anti-lenity statute began in earnest.10See infra Section III.B(1)–(2). These efforts resulted in ten anti-lenity enactments through the early 1900s.11See infra Section III.B(3). This Article then addresses enactments, repeals, and an attempted enactment in the 1900s, with particular emphasis on efforts in the 1960s and early 1970s as a part of broader state criminal code reform effort.12See infra Section III.B(4).

This Article then discusses how state courts have applied these provisions in the dozen states that currently have such anti-lenity statutes. This discussion highlights opinions: (1) where application of the anti-lenity statute is outcome determinative; (2) where application of the statute is used to distinguish statutory construction efforts in jurisdictions without such a statute; (3) attempting to reconcile the rule of lenity with the anti-lenity statute; and (4) raising due process and separation of powers concerns about anti-lenity statutes.13See infra Section IV.A(1)–(5). This Article then provides an overview of the far larger number of opinions that simply mention anti-lenity statutes without any significant analysis, including those that ignore (either literally or substantively) the statutory directive prohibiting strict construction of criminal statutes.14See infra Section IV.A(6). This Article follows with a discussion of the extremely small number of federal court opinions citing state anti-lenity statutes.15See infra Section IV.B.

The analysis then shows that state anti-lenity statutes should be applied as written, as properly enacted statutes that can, at times, be outcome determinative. Concluding that the common law rule of lenity cannot be squared with state anti-lenity statutes prohibiting criminal statutes from being strictly construed, the analysis rejects as unpersuasive the small number of opinions attempting to reconcile the two concepts. Discussing the due process and separation of powers concerns sometimes noted in opinions discussing state anti-lenity statutes, this Article rejects the thought that state anti-lenity statutes violate those constitutional provisions. Moreover, until a state anti-lenity statute is declared unconstitutional—and none have been to date—state anti-lenity statutes should be applied as written. Even if an anti-lenity statute could somehow be reconciled with the rule of lenity, or is deemed to violate a constitutional provision, a court reaching that conclusion should do so expressly with supporting analysis and rationale, and not simply ignore the applicable state anti-lenity statute.16See infra Section V.

A critical, core function of the state judicial system in the United States is the application of state criminal law. In recent years, nearly twenty million new criminal cases have been filed each year in state courts.17See Total Incoming Criminal Caseloads Reported by State Courts, All States, 2007-2016, Court Statistics Project, https://perma.cc/3DAZ-86FL. Given this volume, it is curious that state anti-lenity statutes—currently in place in a dozen states and the law in some for more than 150 years—broadly addressing the construction of criminal statutes have virtually been ignored. How and where this long, strange trip for these state anti-lenity statutes ends is unknown. What is clear, however, is that state anti-lenity statutes can and should have force, should be applied by the courts where applicable, and should not be ignored.

I.     Evolution of the Rule of Lenity

A.     The Rule of Lenity in England

The strange trip leading to state anti-lenity statutes starts with the evolution of the rule of lenity in England centuries ago. In fourteenth century England, “the death penalty was imposed on a multitude of crimes without regard to their severity, mitigating or aggravating circumstances, or the defendant’s character.”18Newland, supra note 1, at 199. A possible defense, however, was “the doctrine of the benefit of clergy,” which was “based on a literacy test.”19Id. at 199–200 & n.12 (citing Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749 (1935)). This “‘benefit of the clergy,’ granted immunity to prosecution to those who could read portions of the Bible.”20Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998).

As the literacy rate in England increased, criminal defendants more frequently were able to invoke the benefit of clergy defense.21See Hall, supra note 19, at 749; see also Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 358; Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004). By the end of the fifteenth century, the increase in the number of defendants successfully invoking the benefit of clergy defense prompted legislation that eliminated the defense for certain offenses.22See Hall, supra note 19, at 749. Over time, legislation excluded more and more offenses from the benefit of clergy defense, “resulting in a ‘march to the gallows.’”23Newland, supra note 1, at 200. By the seventeenth century, crimes subject to the death penalty ranged from the predictable (murdering the King), to the trivial (pick-pocketing), to those forgotten to time (“being in the company of gypsies”).24Id.

In response, courts in England began to strictly construe criminal statutes in favor of criminal defendants.25See id. Strict construction

did not become a general rule of conscious application until the growing humanitarianism of 17th century England came into serious conflict with the older laws of the preceding century. . . . [As a result of eliminating the benefit of clergy for various forms of theft] a conflict ensued between the legislature on the one hand and courts, juries, and even prosecutors on the other. The former was committed by inertia, or pressure from property owners, to a policy of deterrence through severity, while the latter tempered this severity with strict construction carried to its most absurd limits, verdicts contrary to the evidence, and waiver of the non-clergyable charge in return for a plea of guilty to a lesser offense. It was from cases and text writers in the England of this period that the doctrine of strict construction was brought to [the United States].26Hall, supra note 19, at 750–51.

B.     The Rule of Lenity in United States Federal Courts

In the United States, the rule of lenity took hold almost immediately. In 1820, the US Supreme Court first applied the rule of lenity in United States v. Wiltberger.2718 U.S. 76 (1820). Wiltberger involved the first Crimes Act of the United States, enacted in 1790, which made it a crime to “commit manslaughter on the high seas.”28Id. at 93; see alsoUnited States v. Rodgers, 150 U.S. 249, 267 (1893) (discussing Wiltberger); Kahan, supra note 21, at 357 (“Wiltberger involved a defective statute. Section 8 of the Crimes Act of 1790 (the very first piece of criminal legislation enacted by Congress).”). The issue was whether the defendant, who was found guilty of killing a seaman on board a ship in the Tigris river in China “about 100 yards from the shore, in four and a half fathoms [about 27 feet of] water,” had done so on “the high seas.”29Wiltberger, 18 U.S. at 77, 94.

Chief Justice John Marshall, writing for a unanimous court, adopted the “well-known rule” of lenity, declaring “[t]he rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”30Id. at 94–95. Wiltberger explained that the rule of lenity

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.31Id. at 95.

Wiltberger then limited the application of the rule: “[w]here there is no ambiguity in the words, there is no room for construction,” adding that although “penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.”32Id. at 95–96. On the facts presented, Wiltberger found the offense was not committed “on the high seas,” and vacated the conviction.33See id. at 103, 105.

The US Supreme Court has applied this rule of lenity many times in the two centuries that followed.34For a thoughtful discussion of the US Supreme Court’s varied use of the rule of lenity over time, see generally Solan, supra note 20, at 58–61. The Court’s use of the term “lenity,” however, did not start in earnest until the mid-1950s.35See Bell v. United States, 349 U.S. 81, 83 (1955) (noting, in a case turning on the appropriate “unit of prosecution” for criminal acts that could be considered one or more than one offense, “[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity”). In fact, of the one hundred and fifty-three decisions where the Court has used the term “lenity,” one hundred and nineteen were decided since 1980.36A June 20, 2020 “U.S. Supreme Court” Westlaw database search for “lenity” limited to the full text of opinions revealed one hundred and fifty-three cases, with Bell containing the first use of the term “lenity” as relevant here.

Along with this early adoption by the US Supreme Court, other federal courts widely adopted the rule of lenity.37Other federal courts had recognized the rule of lenity by 1810, a decade before Wiltberger. See The Enterprise, 8 F. Cas. 732, 734 (Cir. Ct. D. N.Y. 1810) (“The act, and particularly that part of it under which a forfeiture is claimed, is highly penal, and must therefore be construed as such laws always have been and ever should be. But while it is said that penal statutes are to receive a strict construction, nothing more is meant than that they shall not, by what may be thought their spirit or equity, be extended to offences other than those which are specially and clearly described and provided for.”); see also United States v. Hare, 26 F. Cas. 148, 156 (Cir. Ct. D. Md. 1818) (“It is admitted that penal statutes should be construed strictly; that is, they shall be construed according to the strict letter in favor of the person accused, if there be any ambiguity in the language of the statute.”); United States v. Clark, 25 F. Cas. 441, 443 (Cir. Ct. D. Mass. 1813) (“I have already stated the general rule, as to penal statutes, that their construction is strict; a rule that, in cases of doubtful meaning, always inclines the court to that, which is most favorable to the defendant, unless it be repelled by the context.”). All US Circuit Courts of Appeal have done so,38See Appendix 1 at 1–2 (listing recent cases from all federal circuit courts of appeal doing so). and US District Court decisions citing the rule of lenity number in the thousands.39A June 20, 2020 “Federal District Court” Westlaw database search for “lenity” limited to the full text revealed 3,153 cases, 983 of which were reported opinions. The rule of lenity is stated in a variety of ways, including, for example, differences in comparatively recent US Supreme Court decisions about what type of ambiguity is required. See, e.g., Voisine v. United States, 136 S. Ct. 2272, 2282 n.6 (2016) (citing Abramski v. United States, 134 S. Ct. 2259, 2272 n.10 (2014) for the proposition “genuine ambiguity” is required (emphasis added)); Muscarello v. United States, 524 U.S. 125, 138 (1998) (“somestatutory ambiguity” is not sufficient (emphasis added)); Chapman v. United States, 500 U.S. 453, 463 (1991) (“grievousambiguity or uncertainty in the language and structure of the Act” is required (emphasis added)); Crandon v. United States, 494 U.S. 152, 158 (1990) (noting that “any ambiguity in the ambit of the statute’s coverage” is sufficient (emphasis added)). The precise phraseology used for the rule of lenity (including differences in how the rule is characterized) is not the focus of this Article. Rather, the focus here is the enactment and application of state anti-lenity statutes to negate the rule of lenity.

C.     The Rule of Lenity in State Courts

State courts recognized the rule of lenity decades before the US Supreme Court did so in Wiltberger. In 1790, New Jersey’s Supreme Court of Judicature did so in a slander case.40See Smith v. Minor, 1 N.J.L. 16, 16 (N.J. Sup. Ct. of Judicature 1790). In affirming a judgment for the plaintiff, the court addressed whether fornication was indictable as a crime, noting “by the rules of construction [criminal law] cannot . . . be extended to cases which do not come within its express words.”41Id. at 22. The quoted language erroneously contains an extra “not”—stating “by the rules of construction cannot not be extended to cases”—and the quoted language in the text corrects for that error. Ultimately, the court concluded that fornication “when unproductive” was not an indictable offense, concluding:It would lead to inquiries too indecent to be brought before the public; it would subject behavior perhaps at worst merely imprudent, to critical investigation; and leave the actions and behavior of innocent persons exposed to idle conjecture, to unwarrantable construction, and impertinent curiosity; and the indecency of the inquiries would produce more harm than prosecutions would do good.”Id. By the time Wiltberger was decided in 1820, courts in at least seven of the twenty-two states had recognized the rule of lenity.42See Fairbanks v. Town of Antrim, 2 N.H. 105, 107 (N.H. Super. Ct. of Judicature 1819) (“[I]t is urged, and the argument is a truism in the books, that the construction of penal statutes should be strict.”); State v. Jernigan, 3 Mur. 12, 15 (N.C. 1819) (considering, but rejecting on facts presented, argument “that the act being highly penal, ought to receive a strict construction, and on the side of lenity”); Commonwealth v. Duane, 1 Binn. 601, 609 (Pa. 1809) (“In nothing is the common law, which we have inherited from our ancestors, more conspicuous, than in its mild and merciful intendments towards those who are the objects of punishment.”); Jones v. Estis, 2 Johns. 379, 380 (N.Y. Sup. Ct. of Judicature 1807) (“[A] penalty cannot be raised by implication, but must be expressly created and imposed.”); Elliott v. Richards, 1 Del. Cas. 87, 88 (Del. Ct. C.P. 1796) (“The rule that a penal statute ought to be construed strictly, and the letter must be attended to, and that it cannot extend to crimes not mentioned in it, is a good rule and cited in many books.”); Oldum v. Allerton & Pope, 2 Va. Col. Dec. B331, 1739 WL 12, at *7 (Gen. Ct. Va. 1739) (noting “the Justice here was resolved to stop the Fountain of the Kings Lenity & effectually to ruin the [plaintiff]”); Smith v. Minor, 1 N.J.L. 16, 22 (N.J. Sup. Ct. of Judicature 1790). Over time, courts in all fifty states and the District of Columbia acknowledged the rule of lenity.43See Appendix 1 at 3–10 (listing cases).

II.     Justifications for, and Criticisms of, the Rule of Lenity

As “one of the oldest tools of statutory construction,”44Elliot Greenfield, A Lenity Exception to Chevron Deference, 58 Baylor L. Rev. 1, 11 (2006) (citing Solan, supra note 20). many justifications for, and criticisms of, the rule of lenity have been offered. Stated broadly, summaries of the various rationale offered for those justifications and criticisms include the following.

A.     Justifications for the Rule of Lenity

Fair Notice and Fairness. The rule of lenity is said to further the thought that it is essential to provide fair notice of what criminal laws prohibit.45See, e.g., John L. Diamond, Reviving Lenity and Honest Belief at the Boundaries of Criminal Law, 44 U. Mich. J.L. Reform, 1, 32 (2010) (citing William N. Eskridge, Jr. et al., Legislation: Statutes and the Creation of Public Policy 851–54 (3d ed. 2001)); Greenfield, supra note 44, at 12; Solan, supra note 20, at 134–41. In this respect, the rule of lenity reflects and protects due process concepts of fair notice of what is considered criminal, with commentators suggesting “that the due process principles of notice require courts to construe ambiguities in favor of accused criminals.”46See Alan R. Romero, Note, Interpretive Directions in Statutes, 31 Harv. J. on Legis. 211, 230 (1994); see also Richard H. Fallon, The Statutory Interpretation Muddle, 114 NW. U. L. Rev. 269, 321 (2019) (“Considerations of justice and fairness undergird the rule of lenity.”); Greenfield, supra note 44, at 14 (citing William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 600 (1992)); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1549 n.211 (2019) (“Lenity’s concern for notice and fairness—and, therefore, for predictability—sits alongside other legally recognized goals.”).

Separation of Powers: Legislative-Judicial. “[T]he 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.”47United States v. Wiltberger, 18 U.S. 76, 43 (1820); see also United States v. Bass, 404 U.S. 336, 348 (1971) (“[B]ecause 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.”); accord Diamond, supra note 45, at 32. Furthermore, [i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. Lisa K. Sachs, Strict Construction of the Rule of Lenity in the Interpretation of Environmental Crimes, 5 N.Y.U. Envtl. L.J.600, 603 (1996) (quoting United States v. Reese, 92 U.S. 214, 221 (1875)). Lenity is said to have a “role in advancing the democratic accountability of criminal justice,” given that broad (liberal) construction of criminal statutes runs “a risk of interpretations that conform to the letter of the statute but not to the understanding of the crime that an informed voter would have had at the time it was passed.”48Price, supra note 21, at 887. The rule of lenity also is said to prevent legislators “from passing off the details of criminal lawmaking to courts.”49Id. at 909.

Separation of Powers: Legislative-Executive. The rule of lenity is said to ensure “that the legislature, and not the executive acting through its agent-prosecutor, proscribes and determines the threshold of criminal behavior.”50Diamond, supra note 45, at 32. Lenity may limit “novel theories [of prosecution] without a democratic mandate;” could “permit juries to impose beneficial discipline on prosecutors,”51Price, supra note 21, at 919–20. and prevent “arbitrary law enforcement.”52Kahan, supra note 21, at 405 (also noting that this rationale “is as uncompelling (descriptively and normatively) as the fair warning rationale”).

Separation of Powers: Legislative-Executive-Judicial. Lenity is said to require legislators to “agree on legislative details; they may not delegate the fine-tuning to the executive or judiciary.”53Price, supra note 21, at 915. More generally, the US Supreme Court has found a purpose for lenity is “to maintain the proper balance between Congress, prosecutors, and courts.”54United States v. Kozminski, 487 U.S. 931, 952 (1988) (also stating the purpose underlying lenity is “to promote fair notice to those subject to the criminal laws, [and] to minimize the risk of selective or arbitrary enforcement”).

Political Realism And Accountability. Without the rule of lenity it is said that judicial interpretation of criminal statutes would be broad and no constituency would be able to secure passage of corrective (narrowing) legislation, while with the rule of lenity, corrective legislation is more likely.55See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2194 (2002). In addition, the rule of lenity may be read as furthering the liberty interest of criminal defendants to the extent that interest “requires that all doubts be resolved in their favor,” or to “lean in favor of criminal defendants because they are ‘under-represented’ in the legislative process.” Id. at 2197. The rule of lenity also is said to lead to more transparency from legislators in passing laws and in executive action in enforcing them.56See Price, supra note 21, at 888 (“[T]he best justification for the rule of lenity may be its service to governmental transparency and accountability. The rule guarantees explicit notification of the meaning of criminal legislation, and it makes prosecutors’ charging policies more transparent to voters and juries. Given that criminal law otherwise tends to surpass popular expectations about what conduct is seriously wrongful, these disclosure effects are vital to the moral and political legitimacy of criminal law.”).

Legislative Clarity. The rule of lenity encourages more specificity in legislation that, in turn, may encounter more political resistance,57See id. at 916–17. which “forces the legislature to define just how anti-criminal they wish to be, and how far to go with the interest in punishing crime when it runs up against other societal interests.”58Elhauge,supra note 55, at 2194.

Judicial Restraint. The rule of lenity is said to reflect “judicial restraint, ensuring that the court did not extend the scope of a statute beyond clear legislative intent.”59Sachs, supra note 47, at 604.

Presumption in Favor of the Defendant. The rule of lenity “requires courts to construe ambiguous statutes in favor of criminal defendants and so effectively creates a presumption in favor of the defendant, shifting the burden to the government to prove the statute should not be so construed.”60Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1978–79 (2011).

Federalism And States’ Rights. The rule of lenity can promote federalism, particularly when focusing on the interplay between federal and state criminal law.61See Kahan, supra note 21, at 421. In addition, a federal court holding that a state criminal statute is unconstitutional is a blow to federalism and states’ rights, with resulting doctrinal confusion, uncertainty, and worse.62See Stuart Buck & Mark Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes, 2002 Utah L. Rev. 381, 381. The rule of lenity helps avoid such an outcome and, along the way, furthers federalism and states’ rights.63Although outside of the scope of this Article, the rule of lenity applicable to federal criminal statutes similarly may be seen as furthering federalism interests. See Royce de R. Barondes, Contumacious Responses to Firearms Legislation (LEOSA) Balancing Federalism Concerns, 56 Hous. L. Rev. 1, 21 n.100 (2018) (citing Justice Scalia’s concurrence in Fowler v. United States, 563 U.S. 668, 684–85 (2001), as “identifying a federalism interest supporting lenity in rejecting an interpretation that would federally criminalize local criminal conduct.”); accord Julian R. Murphy, Lenity and the Constitution: Could Congress Abrogate the Rule of Lenity?, 56 Harv. J. on Legis. 423, 437–38, n. 87 (2019) (citing authority discussing the rule of lenity applicable to federal criminal statutes).

The Rule of Law. By encouraging clear statutes and reducing the possibility of prosecutorial abuse, the rule of lenity is said to promote the rule of law.64See Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2426 (2006); see also Murphy, supra note 63, at 435–37, n. 76 (citing and discussing, but apparently dismissing, various suggestions that the rule of law provides a constitutional foundation for the rule of lenity).

Other Justifications. Other justifications for the rule of lenity include serving a function akin to constitutional avoidance;65See Greenfield, supra note 44, at 14. “ensur[ing] that the legislative will is vindicated”; “protect[ing] against overcriminalization”; and “ensur[ing] that the politically powerless are given a fair shake.”66Love, supra note 3, at 2401; see also Diamond, supra note 45, at 32 (pointing to “humanitarian considerations, most particularly in the context of capital punishment”) (citing Eskridge, supra note 45, at 851–54).

B.     Criticisms of the Rule of Lenity

The Fallacy Of Notice. The thought that notice concerns justify lenity is said to be “flawed because criminals do not read statutes, and because even if they did it would not be clear that the legal system should reward their efforts to skirt the law’s borders.”67Price, supra note 21, at 886.

Negating Legislation. The rule of lenity requires courts to select a strict interpretation of a statute, even though that may negate the purpose of the legislation68See id. and “conduct that can reasonably be considered criminal is hardly politically popular.”69Elhauge, supra note 55, at 2193; see also id. (noting that, “if one had to make an educated estimate (and given the premise of ambiguity, one must), one might perhaps even conclude that in ambiguous cases the legislature would likely prefer a ‘rule of severity’—the greater punishment for the criminal defendant”).

Uncertainty In Application. The rule of lenity is criticized as leading to uncertain outcomes, particularly because ambiguity may be in the eye of the beholder.70See Greenfield, supra note 44, at 14. Moreover, the US Supreme Court has stated there must be a “grievous ambiguity or uncertainty”71Muscarello v. United States, 524 U.S. 125, 138–39 (1998). before lenity applies, adding a qualitative component (what is “grievous”) to an already often subjective inquiry (what is “ambiguous”).72Greenfield, supra note 44, at 14–15 (noting there must be an actual ambiguity for lenity to apply and, even then, “[l]enity may only be applied if the statutory ambiguity is substantial”).

The analytical point at which a court should invoke the rule of lenity also can add uncertainty.73See Sachs, supranote 47, at 618. Although the issue of whether a statute is ambiguous could focus on the statutory language written as applied to the facts presented, at times, the rule of lenity has been said to apply only “at the end of the process of construing”74Callanan v. United States, 364 U.S. 587, 596 (1961). statutory language—when “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.”75Moskal v. United States, 498 U.S. 103, 108 (1990); see also United States v. Wells, 519 U.S. 482, 499 (1997) (“The rule of lenity applies only if, ‘after seizing everything from which aid can be derived,’ we can make ‘no more than a guess as to what Congress intended.’”). This, in turn, implicates debate about the proper use of legislative history in undertaking the inquiry.76See Greenfield, supra note 44, at 15–16.

Arbitrary Application. Application of the rule of lenity has been characterized as a “complex and slippery doctrine”;77Price, supra note 21, at 888. “‘notoriously sporadic and unpredictable’ or ‘bizarre’”;78Note, supra note 64, at 2423. “dubious”;79Elhauge, supra note 55, at 2196. “open to manipulation”;80Price, supra note 21, at 888–89. inconsistent; and random.81See Note, supra note 64, at 2420 (“Observers argue that courts apply the rule inconsistently, or even randomly. Many go further and claim that courts have stopped applying it altogether. These critics explain the routine invocations of the rule of lenity as mere lip service: courts may nominally acknowledge the rule, but they find statutes to be unambiguous and therefore decline to apply it unless they would have found for the defendant on other grounds anyway.”. Others assert that application of the rule of lenity turns on a judicial officer’s philosophy of statutory construction or interpretation, or general judicial philosophy.82See Kahan, supra note 21, at 393 (discussing Moskal and stating “[t]he Justices who comprise the ‘pro-lenity’ contingent include those who are typically counted as the Court’s most ‘conservative’ members, while the ‘anti-lenity’ group includes those typically described as its most ‘liberal’”). Critics claim the rule of lenity has been applied when it should not be and “overlooked when it ought to apply.”83Scalia & Garner, supra note 4, at 298–300.

Uncertain Scope. Although classically applicable only to criminal statutes, the US Supreme Court has applied the rule of lenity to criminal statutes implicated in civil cases,84See Greenfield, supra note 44, at 16. and in cases where the statute at issue might have any criminal application.85See id. at 17. In these additional ways, the precise scope of the rule is claimed to be ill defined.

Result Oriented. The rule of lenity has been criticized as a result-oriented tool “and criticized by judicial realists as an interpretative shortcut.”86Newland, supra note 1, at 197 n.4.

Unnecessary. When prosecutorial discretion is exercised properly, it is said there is no need for the rule of lenity.87See Diamond, supra note 45, at 32–33.

Not Justified. Some critics of the rule of lenity assert it should be abolished because “it cannot be justified by any of its traditional rationales and therefore [these critics] conclude that the courts would do well to make their abandonment of the rule official.”88Note, supra note 64, at 2420.

Undercutting The Rule Of Law. Given the lack of consistent application—which undercuts the notice justification for the rule of lenity—one commentator concludes that “[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.”89Love, supra note 3, at 2400.

Other Criticisms. The rule has variously been called a “makeweight,” “capricious,” and “random [in] invocation.”90Note, supra note 64, at 2423 n.26.

C.     Model Law Responses to the Rule of Lenity

These divergent views of the rule of lenity are reflected in state statutory law, including how the rule is addressed in model acts. The Model Penal Code, promulgated in 1962 by the American Law Institute after more than thirty years of work,91See Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097, 1097 & n.1 (1952) (noting “a proposal to prepare a model penal code” effort “was first advanced in 1931”). broadly influenced state criminal law.92See Sanford H. Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev. 943, 948 (1999) (“The success of the [Model Penal] Code in stimulating American jurisdictions to codify or recodify their criminal law was unprecedented.”). The Model Penal Code rejected the rule of lenity,93See Diamond, supra note 45, at 35–36 (discussing Model Penal Code rejecting lenity); see also Darryl K. Brown, Plain Meaning, Practical Reasons, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes, 96 Mich. L. Rev. 1199, 1246 n.218 (1998) (“The Model Penal Code replaces the lenity rule with one requiring that statutory terms be given their ‘fair import.’”). using instead a statutory directive that “[t]he provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section and the special purposes of the particular provision involved.”94Model Penal Code § 1.02(3) (Am. L. Inst. 1962). The Explanatory Note made plain that this provision displaced the rule of lenity, stating it

replaces the rule that penal statutes should be “strictly construed” with the command that criminal statutes should be construed according to their fair import, and that ambiguities should be resolved by an interpretation that will further the general principles stated in this Section, including specifically the fair warning provisions, and the special purposes of the statute involved.95Id. § 1.02 Explanatory Note on Subsection (3).

The related Comment expressed concern with the rule of lenity more broadly:

The ancient rule that penal law must be strictly construed, found in many American penal codes, is not preserved as such because it unduly emphasized only one aspect of the problem that the courts must face. . . . Construction of ambiguous statutes in terms that strike an accommodation of the general principles here set forth, including the fair warning concept, is a far more desirable charge.96Id. § 1.02 Cmt. 4.

The Model Penal Code was not alone in rejecting the rule of lenity. The Model State Statute and Rule Construction Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1995, was even more pointed in doing so.97Originally approved as a Uniform Act, in 2003, the Uniform Law Commission changed the designation to a Model Act. See Uniform Statute and Rule Construction Act n.* (Nat’l Conf. Comm’rs Unif. State Laws 1995). Although not nearly as widely adopted as the Model Penal Code,98See, e.g., N.M. Stat. Ann. § 12-2A-18 (West 2020). the Model State Statute and Rule Construction Act did not include a provision on how criminal statutes should be construed.99See Model Statute and Rule Construction Act § 18 (Nat’l Conf. Comm’rs Unif. State Laws 1995). The related Comment cites authority “demonstrat[ing] that courts do not consistently apply the presumption,” adds that the US Supreme Court “has not applied the presumption consistently,” and states: “The presumption that penal statutes shall be strictly construed is not included in this Act. Like the presumption about statutes in derogation of the common law, this presumption has been expressly rejected in a number of States.”100Id. § 18 Cmt. on The Construction Process (citing, inter alia, Hall, supra note 19, at 748). The Comment continued that “a State that recognizes the presumption that a penal statute shall be strictly construed, and desires to retain that presumption, will need to add an appropriate subsection to this section.” Id.

The concerns expressed about the rule of lenity in these Model acts reflect age-old debates about the rule. Consistent with these debates, state and territorial legislatures enacted statutory responses to the rule of lenity starting at about the same time US courts began recognizing the rule of lenity. Although starting in different places and appearing in different forms, these efforts led to the adoption of today’s quite consistent state anti-lenity statutes.

III.     Adoption of State Anti-Lenity Statutes

A.     Precursor State Legislation in the Early 1800s

Frustration in state legislatures with the rule’s application—at the same time it was being recognized by US courts—“led to direct action by the legislatures of many states to overthrow, in whole or in part,” the rule of lenity.101Hall,supra note 19, at 752.

Starting with Arkansas in 1838, statutes modifying the common-law rule [of lenity] as to all penal laws became more and more common as commissioners appointed to revise the penal codes of the older states, or draft new ones for territories on their admission to statehood, came to feel that their labors might be more or less undone by judges applying the old rules. . . . The movement occurred chiefly in the West; [as of 1935,] sixteen of the twenty-two states west of the Mississippi have such statutes, while in the rest of the country they are found only in New York, Illinois, and Kentucky.102Id. at 753–54 (footnotes omitted).

But this “movement” was not monolithic; instead, it was a long, strange trip, coming at different times and in different forms that defy concise summary. Stated simply, however, the effort came in three phases, the first of which began in the early 1800s. Listed chronologically, these three phases are:

(1) Statutes directing the broad (or liberal) construction of the criminal code. These statutes direct broad (or liberal) construction of the criminal code, either tacitly or by expressly providing that the rule of lenity (strict construction) does not apply. These statutes moved statutory construction dramatically, by rejecting lenity and replacing it with broad construction, but with no further guidance.

(2) Statutes rejecting the concept that statutes in derogation of the common law should be strictly construed.Although perhaps appearing similar to anti-lenity statutes, these statutes are really quite different. The US Supreme Court recognized the concept of strictly construing statutes in derogation of the common law decades before Wiltbergerrecognized the rule of lenity,103See Brown v. Barry, 3 U.S. 365, 367 (1797) (“And the act of 1789, being in derogation of the common law, is to be taken strictly.”). and has made clear that the two concepts are different.104See Johnson v. Southern Pac. Co., 196 U.S. 1, 17–18 (1904) (applying separate analysis in finding circuit court erred in concluding a statute should have been strictly construed both “because the common-law rule . . . was changed by the act, and because the act was penal” (emphasis added)). Among other things, strictly construing statutes in derogation of the common law: (a) “only amounts to the recognition of a presumption against an intention to change existing law”;105Id. at 17. (b) applies to all statutes (not just criminal statutes); and (c) limits the scope of a statute regardless of whether doing so favors a criminal defendant or is against the government. Although quite different than anti-lenity statutes, these state statutes rejecting the concept that statutes in derogation of the common law should be strictly construed are referenced here for context and completeness, particularly given they have been discussed elsewhere in addressing state anti-lenity statutes.106See Hall, supra note 19, at 753 n.25 & 754.

(3) Statutes rejecting lenity and directing the criminal code is to be construed according to the fair import of its terms and to promote justice (and, at times, referencing specific purposes). These statutes—true state anti-lenity statutes—are more express alternatives to the first phase statutes in that they negate lenity but add that construction should be guided by specific directives (not generic “broadly” or “liberally” directives). The statutes in this third phase are the state anti-lenity statutes analyzed in this Article.

The phase one effort—statutory provisions directing that statutes should be liberally construed—started by first targeting specific statutory provisions. In 1802, for example, Virginia enacted a statute providing “for ‘remedial’ (i.e., liberal) construction of statutes against gaming,” with Tennessee enacting similar legislation in 1824.107Id. at 752 n.22 (citing 1802 Va. Acts, c. 35, § 9 and 1824 Tenn. Acts, c. 5, § 5). The reason for these enactments appear lost to time. The general concept of lenity in Virginia’s courts, however, appears to trace back to colonial days. See Oldum v. Alterton & Pope, 2 Va. Col. Dec. B331 (Gen. Ct. Va. 1739) (discussing, in language that does not readily translate to today’s opinions, whether a Justice of the Peace exceeded his authority in securing a witness, and stating the following: “This is exceeding [sic] Power with a witness It is not at [sic] unlikely the Legislature designed in not appropriating the Penalty to leave Room for an Application to the Crown where a Justice was too severe or partial[.] It might be thought a proper Security ag’t arbitrary & violent Proceedings[.] But the Justice here was resolved to stop the Fountain of the Kings Lenity & effectually to ruin the” plaintiff). No similar case from Tennessee predating the 1824 enactment was located. Some states expanded this legislative effort by requiring liberal construction of statutory enactments more broadly.

In 1838, Arkansas enacted a statute providing that “[a]ll general provisions, terms, phrases, and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the General Assembly may be fully carried out.”108Ark. Rev. Stat., ch. 129, § 22 (1838); see also Hall, supra note 19, at 753 n.24. This directive applied to civil and criminal statutes alike unless context or an express provision provided otherwise.109See Ark. Rev. Stat., ch. 129, § 23 (1838); see also Hall, supra note 19, at 753 n.24. Other states followed with similar legislation: Illinois (1845);110See Ill. Rev. Stat., ch. 90, § 36 (1845). Colorado (1861);111See Colo. Rev. Stat., ch. 79, § 3 (1861) (“All general provisions, terms, phrases and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the general assembly may be fully carried out.”). and Washington state (1891).112See 1891 Wash. Laws, p. 40, § 1, cited in Code of Procedure and Penal Code of the State of Washington tit. VI, ch. 58, § 702 (1893) (“The provisions of this code shall be liberally construed and shall not be limited by any rule of strict construction.”).

The phase two effort (rejecting the notion that statutes in derogation of the common law should be strictly construed) emerged in 1851, when Iowa enacted a statute directing that “[t]he rule that laws in derogation of the common law are to be strictly construed has no application to this statute, but shall receive a liberal construction in order to carry out its general purpose and objects.”113See Iowa Code tit. 22, ch. 134, § 2503 (1851). Nearly identical statutes followed in Kentucky (1852);114See Ky. Rev. Stat., ch. 21, § 16 (1852) (“The rule of the common law, that statutes in derogation thereof are to be strictly construed, is not to apply to this revision; on the contrary, its provisions are to be liberally construed, with a view to promote its objects.”). The proceeding section directed that “[t]here shall be no distinction in the construction of statutes, between criminal or civil and penal enactments. All statutes shall be construed with a view to carry out the intention of the legislature.” Id. § 15. Dakota Territory (1862);115See Dakota Terr. Code of Civ. Pro.,ch. 8, § 2 (1862) (“The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice.”). Nebraska Territory (1866);116See Neb. Terr. Rev. Stat., Part II, § 1 (1866) (“The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice.”). Wyoming (1876);117See Wyo. Comp. Laws, ch. 13, tit. 1, § 2 (1876) (“The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice.”). Arizona Territory (1887);118See Ariz. Terr. Rev. Stat. tit. 60, ch. 5, § 2931 (1887) (“The rule of common law that statutes in derogation thereof are to be strictly construed shall not apply to the statutes of this territory, but such statutes and all proceedings under them shall be liberally construed with a view to effect their objects and to promote justice.”). Idaho Territory (1887);119See Idaho Terr. Rev. Stat. § 4 (1887) (“The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to these Revised Statutes. The Revised Statutes establish the law of this Territory respecting the subjections to which they relate, and their provisions and all proceedings under them are to be liberally construed, with a view to effect their objects and promote justice.”). Utah Territory (1887);120See Utah Terr. Comp. Laws tit. 21, § 4 (1876) (“The rule of the common law that penal statutes are to be strictly construed 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.”). and South Dakota (1903).121See S.D. Rev. Code § 2472 (1903) (“The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to this code. This code establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.”); S.D. Code of Civ. Pro. § 3 (The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice.”). Nevada may have done so as well. See Hall, supra note 19, at 753–54, 754 n.29 (citing “Nevada (1912)” for the proposition that “liberal construction statutes . . . have been passed . . . since 1890”).

B.     State Anti-Lenity Statutes

State anti-lenity statutes—the phase three effort in this long, strange trip—came after these two other phases had begun in earnest. The precise origin of state anti-lenity statutes currently in place in a dozen states is murky. There are, however, glimpses that provide some insight, starting with mid-1800s codification efforts in Texas and, in particular, in New York.

1.     Texas Codification in the Early 1850s

In 1854, less than a decade after it became a state, Texas began an effort to codify its criminal law and procedure.122See Joseph H. Pool, Bulk Revision of Texas Statutes, 39 Tex. L. Rev. 469, 470 (1961); see also Keith Carter, The Texas Court of Criminal Appeals, 11 Tex. L. Rev. 185, 185 (1933). The effort also included a code of civil law, which was not enacted. See id.; accord Pool, supra, at 470. The result of that effort is the Texas Penal Code of 1856, and a corresponding criminal procedural code, adopted effective January 1, 1857.123See Carter, supra note 122, at 185–86, 186 n.4. The Texas Penal Code included the following provision:

This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offence which is not made penal by the plain import of the words of a law, upon the pretence that he has offended against its spirit.124Texas Penal Code tit. 1, art. 9 (1856). Although beyond the scope of this Article, the provision was amended at least twice within a few years after enactment. See Carter, supra note 122, at 187 (“The original article as adopted added the words, ‘upon the pretence that he has offended against its spirit’; but this clause was dropped in later revisions” [in Texas Penal Code Title 1, Ch. 1, Art. 9 (1879)]. In a further effort to restrict references to other laws it was provided in Article 4 that ‘When the definition of an offence made penal by the law of the state is merely defective, the rules of the common law shall apply and be resorted to, for the purpose of aiding in the interpretation of such penal enactment.’ But this seems to have been too great a restriction on the use of the common law to be satisfactory. In 1858 the article was changed to read: ‘The principles of the common law shall be the rule of construction when not in conflict with this code or the Code of Criminal Procedure or some other written statute of the State.’ In this form the article [as of 1933] has been retained.”).

The precise source of this text, and the rationale for it, is lost to time.125See Carter, supra note 122, at 186 n.124 (noting that “[t]he codes are said to have been mainly the work of James Willie,” who served as a Texas legislator and then as Texas Attorney General); id. at 186 (noting the early 1850s codification effort in Texas “was much influenced by the work of Edward Livingston,” who had crafted similar codes for Louisiana, although they were not enacted in Louisiana, and that “[t]he [Texas] codifiers acknowledged their indebtedness to Livingston, but failed to give detailed credit for their borrowings”); see also A. E. Wilkinson, Edward Livingston and the Penal Codes, 1 Tex. L. Rev. 25, 37–38, 38 n.13 (1923) (noting Willie supervised the publication of the codes, providing information about him and stating “[t]hese codes will remain a monument to [Willie’s] industry and fine legal capacity”). Although Nebraska enacted a nearly identical statute in 1873 that remains today,126See Neb. Rev. Stat. Ann. § 29-106 (West 2020) (requiring construction according to plain import of the language). no other state has a provision tracking this Texas statute. Texas courts construed this statute as negating the rule of lenity;127See, e.g., State v. Elliot, 34 Tex. 148, 150 (Tex. 1871) (after quoting this provision, noting that, in enacting it, “the law-making power wisely determined to reverse the rule” of lenity and stating that it and other statutory provisions “have greatly modified many of the harsh and reasonless special rules of the common law” and that the statute is “one of the most important modifications”); Murray v. State, 2 S.W. 757, 760–61 (Tex. Ct. App. 1886) (“We are aware that the rule of the common law which requires that penal statutes should be strictly construed is abrogated in this state, and that there is now no distinction recognized with us in construing statutes between those that are criminal or penal and those that are civil, but all are required to be construed alike liberally, with a view to carry out the intention of the legislature,” adding that “[a] general rule of construction is expressly provided” in this Texas Penal Code section), quoted with approval in Slack v. State, 136 S.W. 1073, 1078 (Tex. Crim. App. 1911). Nebraska courts, however, do not construe that state’s nearly identical statute as negating the rule of lenity.128See State v. Douglas, 388 N.W.2d 801, 803–04 (Neb. 1986) (quoting Neb. Rev. Stat. § 29-106 and stating “[i]t is a fundamental principle of statutory construction that a penal statute is to be strictly construed”). Although Texas retained this text for more than a century,129See, e.g., Vernon’s Tex. Penal Code tit. 1, ch. 1, art. 7 (1948); Vernon’s Tex. Penal Code tit. 1, ch. 1, art. 7 (1936); Tex. Penal Code tit. 1, ch. 1, art. 7 (1925); Tex. Penal Code tit. 1, ch. 1, art. 9 (1911); Tex. Penal Code tit. 1, ch. 1, art. 9 (1895). as discussed below, it repealed this provision in favor of a prototype anti-lenity statute effective in 1974.130See infra text accompanying notes 182–185.

2.     New York Codification Efforts in the Mid-1800s

Although the Texas effort in the early 1850s was not broadly followed, the same cannot be said about the New York codification effort David Dudley Field II led at about this same time. Field championed state law reform through the codification of procedure and substantive law.131See, e.g., 1 Speeches, Arguments and Miscellaneous Papers of David Dudley Field 219 (A.P. Sprague ed., 1884) (containing letters, papers, codes, and addresses by Field on these topics from approximately forty years, beginning with a December 26, 1839, letter from Field to New York State Senator Gulian C. Verplank noting judicial reform would be would be the most important issue the legislature would consider in its next session). The effort initially focused on procedural codes, with the New York Commission on Practice and Pleadings submitting criminal and procedural codes to the New York Legislature in 1849.132See David Dudley Field, Introduction to the Completed Civil Code, in Field, supra note 131, at 324; see generally N.Y. Comm’rs on Practice and Pleadings, Report of a Code of Criminal Procedure (1849); N.Y. Comm’rs on Practice and Pleadings, Report of a Code of Civil Procedure (1849). Three substantive codes, sometimes referred to as the “codification of the common law,”133See David Dudley Field, Law Reform Tract No. 3: Codification of the Common Law, in Field, supra note 131, at 307–09; see generally Field, supra note 131 (starting with an 1847 essay, “What Shall Be Done With The Practice Of The Courts,” advocating codification of procedural rules, followed by various commission reports addressing codes of procedure from the late 1840s, and then reports and codes of common substantive law from 1852 to 1879). followed the procedural codes: (1) a political code (addressing state government “and the political rights and duties of its citizens”); (2) a civil code; and (3) a penal code.134See Field, Law Reform Tract No. 3, supra note 133, at 307–09 (setting forth this approach); David Dudley Field, First Report of the [New York] Code Commission, in Field, supra note 131, 309–14 (using this same approach); David Dudley Field, Second Report of the [New York] Code Commission, in Field, supra note 131, 315–16 (referencing political and penal codes); David Dudley Field, Final Report of the [New York] Code Commission, in Field, supra note 131, at 317 (“This body of substantive law [as distinguished from “[t]he Codes of Civil and Criminal Procedure”], the Legislature, by the Act of 1857, declared should be contained in the three codes—Political, Civil, and Penal—and to them the Commissioners of the Code have ever since devoted themselves.”); Field, Law Reform Tract No. 3, supra note 133, at 307, 308, 309 & n.* (proposing an act establishing a New York Commission to draft such codifications of the common law, which was then enacted in April 1857).

The New York Code Commission worked from 1857 to 1865 in developing these substantive codes.135See Field, Final Report, supra note 134, at 317. The Political Code (completed in 1859) and the Civil Code (completed in 1865) each contained “phase two” provisions, stating that statutes in derogation of the common law should not be strictly construed.136See N.Y. Comm’rs on Practice and Pleadings, Report of a Political Code § 1124 (1859) (“The rule that statutes in derogation of the common law are to be strictly construed, has no application to this Code.”); N.Y. Comm’rs on Practice and Pleadings, Report of a Civil Code § 2032 (1865) (“The rule that statutes in derogation of the common law are to be strictly construed has no application to this Code.”). A March 1864 draft of New York Penal Code, however, contained what would become the prototype state anti-lenity statute:

The rule of the common law that penal statutes are to be strictly construed, 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.137N.Y. Comm’rs on Practice and Pleadings, Draft of a Penal Code for the State of New York§ 10 (1864), quoted in Hall, supra note 19, at 753 n.25. This March 1864 draft was circulated “for the purpose of obtaining suggestions which may aid the [Code] Commissioners in completing and perfecting the Code, for submission to the Legislature.” N.Y. Comm’rs on Practice and Pleadings, Draft of a Penal Code for the State of New York Preliminary Note (1864).

But why? What prompted the use of this text that sought to negate the rule of lenity? There is no clear answer. There are, however, some hints, both in the specific text used as well as in the commentary associated with the New York codification effort.

Although not identical, the text used is remarkably similar to how Wiltberger characterized the rule of lenity:

Wiltberger 1864 Draft New York Penal Code
“The rule that penal laws are to be construed strictly, is perhaps not . . .”138United States v. Wiltberger, 18 U.S. 76, 95 (1820). “The rule of the common law that penal statutes are to be strictly construed, has no . . .”139N.Y. Comm’rs on Practice and Pleadings, Draft of a Penal Code for the State of New York §10 (1864), quoted in Hall, supra note 19, at 753 n.25.

Adding the phrases “of the common law,” and using “penal statutes” (as opposed to “penal laws”) in the Draft New York Penal Code section is unsurprising, given that the codification effort sought to displace the common law in favor of a penal code.140Hall, supra note 19, at 753. And the code section, compared to Wiltberger, transposes “construed strictly” to “strictly construed.”141Id. at 753 n.25. But in other respects, the text is identical, including the oddly placed comma (or, perhaps, a comma missing after “The rule” at the beginning of the sentence). This textual similarity between Wiltberger and the Draft New York Penal Code section can be read to suggest that the codification effort was to negate the rule of lenity recognized in Wiltberger.

Additional insight comes from the limited, then-contemporaneous commentary contained in the New York Code Commission’s February 1865 “Introduction to the Completed Civil Code.”142Field, Introduction to the Completed Civil Code, supra note 132, at 323. This Introduction to the Civil Code had no reason to address the rule of lenity or the anti-lenity provision, which were applicable only to the Penal Code. The Introduction did, however, note the debate about the wisdom of codification of the law by the legislature, described as the “department of the government which alone has the prerogative of making and promulgating the laws, and law not so promulgated.”143Id. at 325. In noting, but dismissing, an objection that it was impossible for a code to anticipate all cases, the Introduction advocates for the supremacy of legislative enactment of a penal code when compared to the case-based common law:

There are certain departments of the law, of which we may affirm with perfect confidence, either that we have provided for every possible case, or that, when a new case arises, it is better that it should be provided for by new legislation, than by judicial decision. Thus, in respect to the Penal Code, it may be affirmed that every act for which punishment may be inflicted ought to be designated beforehand; that no man ought to be punished for an act not thus designated, and that if any act should be committed, for which society has prescribed no punishment, it may go for once unpunished, and a new law be made against other like acts in the future.144Id. at 327.

Rejecting an argument that codified law could not adapt to the future, the Introduction first negates the premise for the argument: “to say that a law is expansive, elastic, or accommodating, is as much as to say that it is no law at all.”145Id. at 331.

The Introduction then squarely addressed the argument “that it is better to let the Judges make the law as they go along, than to have the lawgiver make it beforehand.”146Id. The Introduction “affirmed with confidence, that a code, upon the theory on which this is framed, not only adapts itself to the present wants of society better than the existing common law, but that it contains within itself, in a greater degree, the elements of future progress.”147Id. at 333–34. The Introduction condemned the judiciary for being “unable, or, if able, unwilling, to make necessary amendments of the law” and being responsible for a “disjointed and comparatively inaccessible” common law.148Field, Introduction to the Completed Civil Code, supra note 132, at 334. Codification of the law, the Introduction added, would provide the legislature and the public a single, accessible, and condensed source of law, providing ready analysis to identify and fix any perceived defects or changes needed.149See id. The anti-strict-construction concept included in the proposed codes (here, the “phase two” Civil Code prohibition against strictly construing statutes in derogation of the common law) would prohibit courts from negating legislative enactments.150See id.; see also supra note 136 (quoting Civil and Political Code provisions).

Far more pointedly, the Introduction advocated a clear preference for codified law, not the common law, as the best vehicle for law reform and improvement:

In almost every instance where an improvement has been made in the laws, it has come from the Legislature. Had society been left to the discipline of the common law, whether it be called flexible or inflexible, the most cruel and bloody of criminal systems would still have shamed us; feudal tenures with all their burdensome incidents would have remained; land would have been inalienable without livery of seizin, and wives would have had only the rights which a barbarous age conceded them. . . . So far as the choice lies between law to be made by the Legislature and law to be made by the judiciary, there cannot be a doubt that, whatever may be the determination elsewhere, the people of this State prefer that theirs shall be made by those whom they elect as legislators, rather than by those whose function it is, according to the theory of the Constitution, to administer the laws as they find them. Hence, the idea of a code has taken such hold of our people that they have made provision for it by their organic law.151Field, Introduction to the Completed Civil Code, supra note 132, at 335, 337–38.

This Introduction makes plain that the New York effort in the mid-1800s included a strong preference for codification of the law by legislative enactments, not the common law identified in judicial decisions. It also reflects a profound concern about changes in the law coming from judicial decisions (based on the proposition that courts are to apply the law as they find it), preferring instead the legislative process of codification and amendment. And the Introduction advocates that the codification effort should prevent courts from negating legislation. Although it is unknown whether this rationale in New York prompted the state anti-lenity statutes enacted in other states, the anti-lenity text in this draft 1864 New York Penal Code would become the prototype anti-lenity statute.

3.     State Anti-Lenity Enactments in the 1800s

Despite this New York codification effort, including the development of what would become the prototype state anti-lenity statute, Oregon was the first state to enact an anti-lenity statute using this text. In 1864, Oregon enacted a Criminal Code that included the following anti-lenity statute:

The rule of the common law that penal statutes are to be strictly construed, has no application to this code, but 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.152Or. Crim. Code tit. 2, ch. 14, § 787 (1864).

This enactment is substantively identical, including the oddly placed comma, to the anti-lenity provision in the March 1864 New York Draft Penal Code.153The differences, when compared to the draft 1864 New York Penal Code, are that New York capitalized “Code” and broke the provision into two sentences (meaning the “but” is removed and “All” is capitalized). Compare id. with Hall, supra note 19, at 753 n.25. Nearly identical state anti-lenity enactments followed in California (1872);154See Cal. Penal Code § 4 (1872) (“The rule of the common law, that penal statutes are to be strictly construed, 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.”). Dakota Territory (1875 in a different form,155See Dakota Terr. Code of Crim. Proc. Tit. 11, ch. 13, § 602 (1875) (“The rule of the common law that penal statutes are to be strictly construed, has no application to this Code. This Code establishes the law of this territory respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view a view to promote its objects, and in furtherance of justice.”). and then nearly identically in 1877);156See Dakota Terr. Penal Code, ch. 1, § 10 (1877) (“The rule of the common law that penal statutes are to be strictly construed, 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.”). Utah Territory (1876);157See Utah Terr. Comp. Laws tit. 21, § 4 (1876) (“The rule of the common law that penal statutes are to be strictly construed 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.”). New York (1881);158See N.Y. Penal Code, ch. 676, § 11 (1881) (“The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.”). Minnesota (1889);159See Minn. Penal Code § 9 (1889) (“The rule that a penal statute is to be strictly construed does not apply to this code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.”). The Minnesota enactment was part of a criminal codification that “consisted largely of adaptations of New York’s 1881 Penal Code.” Bradford Colbert & Frances Kern, A Brief History of the Development of Minnesota’s Criminal Law, 39 WM. Mitchell L. Rev. 1441, 1445 (2013). Arizona Territory (1887);160See Ariz. Terr. Penal Code § 5 (1887) (“The rule of the common law, that penal statutes are to be strictly construed, 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 object and to promote justice.”). Oklahoma (1890);161See Okla. Stat., ch. 25, art. 1, § 10 (1890) (“The rule of the common law that penal statutes are to be strictly construed, 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.”). Montana (1895);162See Mont. Pol. Code § 4 (1895) (“The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and promote justice.”). Montana’s 1895 codification originated with the New York Field Codes. See Angelica Gonzalez, Comment, The Rule of Lenity in the State of Montana: Is There Lenity?, 79 Mont. L. Rev. 205, 209 & n.31 (2018) (citing Andrew P. Morriss, “This State Will Soon Have Plenty of Laws”—Lessons from One Hundred Years of Codification in Montana, 56 Mont. L. Rev. 359, 366 (1995)). North Dakota (1895)163See N.D. Penal Code, ch. 1, § 10 (1895) (“The rule of the common law that penal statutes are to be strictly construed, 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.”). and South Dakota (1903).164See S.D. Penal Code, ch. 1, § 10 (1903) (“The rule of the common law that penal statutes are to be strictly construed, 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 promote justice.”); Id. at ch. 15, § 636 (“The rule of the common law that penal statutes are to be strictly construed, has no application to this code. This code establishes the law of this state respecting the subjects to which it relates, and its provision and all its proceedings under it are to be liberally construed according to the fair import of their terms, with a view to effect its objects, and in furtherance of justice.”). By 1903, there were ten states or territories with nearly identical anti-lenity statutes. Although the reasons for the enactment of these provisions is lost to time, some information is available for more recent state anti-lenity legislation.

4.     State Anti-Lenity Legislation in the 1900s

State anti-lenity legislation efforts continued in the twentieth century: (1) four states (Michigan,165See Mich. Penal Code § 17115-2 (1931) (“The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.”). Delaware,166See Del. Crim. Code, ch. 2, § 203 (1973) (“The general rule that a penal statute is to be strictly construed does not apply to this Criminal Code, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in section 201 of this Criminal Code.”). New Hampshire,167See N.H. Rev. Stat. Ann. Tit. 62, ch. 625, § 625:3 (1973) (“The rule that penal statutes are to be strictly construed does not apply to this code. All provisions of this code shall be construed according to the fair import of their terms and to promote justice.”). and Texas168See Tex. Penal Code Ann., tit. 1, ch. 1, § 1.05(a) (West 1973) (“The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”).

Although beyond the scope of this Article, by 1978 the country of Liberia had adopted this same anti-lenity statute. See Penal Code of Liber., tit. 26, pt. 1, ch.1, § 1.2 (“The rule that a penal statute is to be strictly construed does not apply to this title, but the provisions herein shall be construed according to the fair import of their terms and when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in Section 1.1 and the special purposes of the particular provisions involved.”). The statute was a product of the Liberian Codification Project, which began in 1952. See Liber. Code of Laws Revised, vol. 1, xiii (1973) (Forward by James A. A. Pierre, Chief Justice, Supreme Court of Liberia). Guam also adopted a statute that, although using different text, incorporates an anti-lenity directive. See 1 Guam Code Ann., ch. 7, § 700 (2018) (“Use of Common Law Rules of Construction”) (“Unless a different intent appears in law, or in applicable court decisions, or in this Code, the common law rules of construction shall apply to the interpretation of this Code and to all other laws of Guam; provided, that, common law rules that statutes in derogation of the common law, and penal statutes shall be strictly construed shall not apply.”).) enacted anti-lenity statutes; (2) Oklahoma and Minnesota repealed their anti-lenity statutes; and (3) Hawaii considered (but did not enact) an anti-lenity statute. The more recent of these efforts coincided with criminal code revisions in the late 1960s and early 1970s. Given their recency, available legislative materials provide some insight into the enactment of these state anti-lenity statutes.

a.     Enactments

No relevant legislative history was located for Michigan’s anti-lenity statute enacted in 1931. The Delaware enactment was part of a recodification effort undertaken following the promulgation of the Model Penal Code in 1962.169See Del. Crim. Code, pg. iii (1973) (introductory comment). This legislative history for Delaware’s enactment was made possible only with the able, prompt, and incredibly thorough information provided by Galen Wilson, Senior Law Librarian & Self-Help Center Coordinator, State Law Library, Wilmington, DE; John F. Brady, Esq., Law Librarian, Sussex County Law Library, Georgetown, DE, and Sara Zimmerman, Delaware Legislative Librarian & Research Analyst. Within a very short time, Mr. Wilson responded to a “cold” email inquiry by the author by providing information, including much of the information cited here, and an introduction to Ms. Zimmerman, and Mr. Brady called the author with additional information and background (including correcting an error about the date for Delaware’s efforts discussed here). Ms. Zimmerman, again in lightning speed, provided the relevant excerpt from the 1967 Governor’s Committee for Revision of the Criminal Code. Their doing so was above and beyond the call of duty and is much appreciated by the author. By late 1967, a criminal code revision committee submitted a draft Delaware Criminal Code to that state’s legislature.170Id. at iv. That draft included a prototype anti-lenity statute, which was then enacted.171See Del. Crim. Code § 6 (Governor’s Comm. for Revision of the Crim. L., Proposed Code 1967) (“Principles of construction”) (“The general rule that a penal statute is to be strictly construed does not apply to this Criminal Code, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in section 5 of this Criminal Code.”). The Committee’s commentary for the provision stated:

Section 6 [the anti-lenity statute] is to be read in conjunction with § 5 [statement of purpose] to assure that this Criminal Code will be construed by the Courts in such a way as to effectuate the declared purposes of the law. For that reason, the purposes are spelled out in some detail, following the practice of the Model Penal Code and the New York Penal Law. The rule of strict construction, formerly adhered to in criminal cases, is abolished. This required, for the protection of the innocent, that all penal statutes be strictly construed. It does provide a safeguard, but a construction which tends to effectuate the true purposes of the law will provide an equal safeguard, particularly where, as here, the purposes of the law are made clear in the Commentary. Moreover, substantial procedural safeguards and codified defenses are made available in this Code, and they are to be given a liberal construction. Thus the net result, in terms of civil liberties, should not materially differ from the present state of the law, but we do hope that judicial ingenuity will be exerted to make the Code work as it is intended to work.172Id. at cmt. § 6 (emphasis added).

The Commentary for the anti-lenity section of the Delaware Criminal Code, enacted effective July 1, 1973,173Del. Crim. Code, at iv–v (1973) (introductory comment; Section 102 Cross-Reference) (discussing Del. Code Ann. tit. 11, pt. I, ch. 1, § 102 (1973)). nearly repeats the committee’s commentary, also making plain that “[t]his section abolishes the rule of strict construction, formerly adhered to in criminal cases” and that: “Abolition of the rule of strict construction is primarily intended to prevent hypertechnical construction of the provisions of this Criminal Code. It does not mean, of course, that new offenses can be created by court decision, or that constitutional objections based on ambiguity or the like are eliminated.”174Id. at cmt. § 203.

Thus, Delaware appears to have believed that construing the Criminal Code to carry out its purposes would “provide an equal safeguard” to the rule of lenity and that abolishing lenity would prevent overly technical interpretations while leaving intact constitutional objections.

New Hampshire’s revision effort began in 1967,175See N.H. Laws, ch. 451 (1967) (“An Act Establishing A Commission To Recommend A Codification Of The Criminal Laws”). This legislative history for New Hampshire’s enactment was made possible only with the able, prompt, and incredibly thorough information provided by Mary S. Searles, Law Librarian, The John W. King New Hampshire Law Library, Supreme Court Building, Concord, New Hampshire. Within hours, Ms. Searles responded to a “cold” email inquiry by the author by providing the information cited here. Her doing so was above and beyond the call of her duties and is much appreciated by the author. and a commission report from 1969 includes an anti-lenity statute nearly identical to what was enacted.176N.H. Comm’n to Recommend Codification of Crim. L., Report, § 570:3 (April 1969) (“The rule that penal statutes are to be strictly construed does not apply to this Code. All provisions of this Code shall be construed according to the fair import of their terms and to promote justice.”). Noting that it was “not perfectly clear” from case law whether New Hampshire followed the rule of lenity, the supporting comment states “[t]his section settles that there is no rule of strict construction, following the position of the Model Penal Code, § 1.02(3), and others, e.g., Michigan Revised Criminal Code, Final Draft, § 115; Pennsylvania Proposed Crimes Code, § 106.”177Id. Pennsylvania’s enactment in 1972 ultimately used somewhat different language that does not contain an anti-lenity provision. See 18 PA. Stat. and Cons. Stat. C.S.A. § 105 (2020) (“The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved. The discretionary powers conferred by this title shall be exercised in accordance with the criteria stated in this title and, in so far as such criteria are not decisive, to further the general purposes stated in this title.”). Thus, New Hampshire’s enactment, effective November 1, 1973, may have viewed the anti-lenity statute as resolving a conflict, or perhaps uncertainty, in case law.178See N.H. Rev. Stat. Ann. § 625:3 (2020).

The Texas Penal Code revision effort started in earnest in 1965,179See Timeline of the Revision Process, Legis. Reference Libr. of Tx., https://perma.cc/99KW-NKCB. The information provided for this effort in Texas was greatly furthered by the substantial effort in that state to make historical information available electronically. Sources include the Portal to Texas History Online (https://perma.cc/A64X-93EC) as well as resources below. In addition, valuable assistance and guidance was made possible by the able, prompt, and incredibly thorough information (and follow up) provided by Alexandra Dzienkowski, Reference/Electronic Services Librarian, Texas Legislative Reference Library. Her doing so was above and beyond the call of her duties and is much appreciated by the author. and by 1966 a draft contained “General Rules of Construction and Application” including an anti-lenity statute that changed somewhat during the legislative process.180Preliminary Memorandum from Fred Cohen, Reporter—General Part, to Committee on Revision of the Penal Code and Advisory Committee—General Part 15 (Oct. 6, 1966), https://perma.cc/AY62-GZ6W (“The general rule that a penal statute is to be strictly construed does not apply to this Code. The provisions herein shall be interpreted to further the general purposes stated in [Chapter 1] and the special purposes of the particular provision involved. The discretionary powers conferred by the Code shall be exercised in accordance with the criteria stated in the Code.”). The comment to this 1966 draft stated that the text was to restate and clarify current law, adding:

It should be recalled that historically strict construction is a product of the humanitarian ideology of the eighteenth century. Statutes that were perfectly clear were completely distorted to save minor or deserving offenders from the capital penalty. We need not belabor the obvious point that with the dramatic reduction in the number of capital offenses the rationale for strict, or more appropriate distorted, interpretation disappeared.

A principle of liberal construction is not intended to rehabilitate unconstitutionally vague statutes nor is it intended to permit the development of crimes by analogy. The standard of interpretation intended to flow from this section requires the judge to remain true to the authoritatively established and the ordinary meaning of words and to resolve doubts in favor of the accused.181Id. at 16 (emphasis in original). The report also stated the provision “is derived in part” from the Model Penal Code and New York Law. Id. at 17.

After considering competing suggestions,182See Minutes of the Texas State Bar Committee on Revision of the Penal Code 4 (Oct. 14, 1966), https://perma.cc/SQ8D-2LA7 (“The provisions of the Code shall be construed according to their fair import and ordinary meaning. Where the language is susceptible of different constructions it shall be construed so as to carry out the special purposes of the provision involved, and the general purposes of the Code, as enumerated in Section 1.02. Provided, however, that interpretations based on determinations of legislative purpose should remain consistent with the requirement that potential offenders be given fair warning of proscribed conduct and shall respect the principle precluding judicial law-making in our representative government. . . . [T]he construction section should include the notion that in the interpretation of the Code that strict construction shall be controlling when necessary to give fair warning to the accused.”). and much discussion,183See, e.g., id.; Tex. Penal Code § 1.05 (State Bar Comm. on Revision of the Penal Code, Final Draft 1972). See also Timeline of the Revision Process, supra note 179. the Texas legislature adopted a prototype anti-lenity statute effective January 1, 1974.184See Tex. Penal Code § 1.05(a)(1974); see also Tex. Penal Code § 1.05 (State Bar Comm. on Revision of the Penal Code, Final Draft 1970), https://perma.cc/6NER-76LA (“The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”). Related documents state that the Texas enactment was modelled after New York law, adding:

Texas has required that penal laws be construed “according to the plain import” of their terms, “without regard to the distinction usually made between the construction of penal laws and laws upon other subjects,” since 1856, see Penal Code art. 7, but has never expressly abolished the common law rule that penal laws be construed strictly. Subsection (a) restates present art. 7 and expressly abolished the rule of strict construction, a rule seldom cited and then only to support a decision already reached on other grounds.185Tex. Penal Code § 1.05 cmt. (State Bar Comm. on Revision of the Penal Code, Final Draft 1970), https://perma.cc/9J3Z-C723.

These documents, created over the course of nearly a decade, suggest that the anti-lenity statute enacted in Texas reflected the thought that lenity was no longer necessary or appropriate, given the “dramatic reduction” in the number of capital offenses, a desire that courts use ordinary meaning in construing statutes, and a skepticism about whether lenity served any legitimate purpose.

b.     Repeals

No relevant legislative history was located for Oklahoma’s repeal of its anti-lenity statute (circa 1931).186See Gravitt v. State, 279 P. 968, 970 (Okla. Crim. App. 1929) (“Section 6487, Snyder’s Comp. Laws Okl. 1909, is as follows: ‘The rule of common law that penal statutes are to be strictly construed has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.’”); see also Ex parte Daniels, 273 P. 1010, 1011 (Ok. Crim. App. 1929) (citing “Section 2027, Snyder’s Comp. Laws Okla.” as stating: “The rule of the common law that penal statutes are to be strictly construed 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”). These provisions do not appear in the 1932 Oklahoma Statutes. See Okla. Stat., ch. 15, art. 1 § 1760 (1932). Oklahoma cases decided before 1932 acknowledged, at least at times, that the rule of lenity did not apply. See Gravitt, 279 P. at 970 (“[I]t is plain that the common-law doctrine of a strict construction of penal statutes has no application to the criminal laws of Oklahoma and, indeed, should have none.” (quoting State v. Pollock, 113 P. 207 (Okla. Crim. App. 1911))). But see First Nat’l Bank v. Nat’l Live Stock Bank, 76 P. 130, 132 (Okla. 1904) (“[P]enal statutes are always strictly construed.”). Oklahoma cases decided after 1931 have recognized the rule of lenity. See, e.g., State v. Tran, 172 P.3d 199, 200 ¶ 8 (Okla. Crim. App. 2007) (“This Court is committed to the rule of strict construction in the application of criminal statutes.”); State v. Barnett, 69 P.2d 77, 85 (Okla. Crim. App. 1936) (“It is a well-settled rule that a penal statute must be construed with such strictness as to carefully guard the rights of the accused, and at the same time preserve the obvious intention of the Legislature . . . .”). Minnesota’s repeal in 1963 was a part of the adoption of a new criminal code in light of the Model Penal Code.187See Minn. Crim. Code introductory cmt. 7 (Advisory Comm. on the Revision of the Crim. L. 1962), https://perma.cc/V5XJ-HZW3; see also Ted Sampsell-Jones, Mens Rea in Minnesota and the Model Penal Code, 39 Wm. Mitchell L. Rev. 1457, 1463 (2013). Until that time, the provision had been codified in Minn. Stat. Ann. § 610.03 (1961). See State v. Finn, 100 N.W.2d 508, 512 (Minn. 1960) (quoting Minn. Stat. Ann. § 610.03). For a history of this recodification effort, see Bradford Colbert & Francis Kern, A Brief History of the Development of Minnesota’s Criminal Law, 39 Wm. Mitchell L. Rev. 1441, 1445–47 (2013). Before 1963, Minnesota had a prototype anti-lenity statute.188See Finn, 100 N.W.2d at 512 (“The rule that a penal statute is to be strictly construed does not apply to any provision of Part V of the Minnesota Statutes, but every such provision shall be construed according to the fair import of its terms, to promote justice and effect the purpose of the law.” (quoting Minn. Stat. Ann. § 610.03)). The 1963 recodification replaced this provision with a different code section189Minn. State. Ann § 610.03 (1961) became Section 609.01 when the 1963 changes were enacted, but with different text, and remains the same today. See Minn. Stat. Ann. § 609.01 (West 2020); see also Minn. Crim. Code app. D (Advisory Comm. on the Revision of the Crim. L. 1962), https://perma.cc/KJ4V-4HC5. that removed the strict construction prohibition but retained the directive that the code “shall be construed according to the fair import of its terms, to promote justice, and to effect its purposes.”190Minn. Criminal Code § 609.01 (Advisory Comm. on the Revision of the Crim. L. 1962), https://perma.cc/ULH9-WBKJ. The related commentary, however, does not discuss or mention the change.191See id. at § 609.01 cmt. (stating simply the revision is “an expansion” of the prior law, adding “[i]t is believed desirable to have a general statement of purposes as some guide to the courts in their approach to the code,” but not discussing or mentioning the removal of the anti-lenity directive). Similarly, the next section, 609.015—titled “Scope and Effect”—abolished common law crimes, but added “this does not prevent the use of common law rules in the construction or interpretation of the provisions of this chapter or other statute.” Id. at § 609.015. Although no stated rationale was located for the change, Minnesota cases from both before and after the 1963 amendment viewed the change as repealing Minnesota’s anti-lenity statute, with recent opinions recognizing the rule of lenity.192At least one pre-1963 Minnesota case stated the anti-lenity statute “was intended to abolish the common-law rule that penal statutes must be strictly construed in favor of an accused.” State v. Finn, 100 N.W.2d 508, 512 (Minn. 1960). But see State v. Moseng, 95 N.W.2d 6, 11 (Minn. 1959) (“[T]his court has held that an authority to impose penalties is to be strictly construed.”). Minnesota cases decided after 1963 have recognized the rule of lenity. See, e.g., State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011) (“When the court is faced with an ambiguous criminal statute, the ambiguity should be resolved in favor of the criminal defendant in the interest of lenity.” (citing State v. Niska, 514 N.W.2d 260, 265 (Minn. 1994))); see also State v. McKown, 461 N.W.2d 720, 725 (Minn. Ct. App. 1990) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” (citing U.S. v. Bass, 404 U.S. 336, 347 (1971))).

c.     An Attempted Enactment

In 1972, Hawaii considered but did not enact, a prototype anti-lenity statute.193See Hawaii Rev. Stat. Ann. § 701-104, editors’ supplemental cmt. (West 2020) (“The rule that a penal statute is to be strictly construed does not apply to this Code, but the provisions herein must be construed according to the fair import of their terms.”. An editors’ note in the Hawaii Revised Statutes states the legislature “found that such broad wording would subject the Code to unwarranted argument,” adding the legislature intended, instead, “that definitions of crimes are to be strictly construed.”194Id.; see also State v. Smith, 583 P.2d 337, 341–42 (Haw. 1978) (discussing legislative history of enactment of statute stating “the principles of construction for the Hawaii Penal Code”). This terse note suggests that, as a policy matter, the Hawaii legislature elected not to displace the rule of lenity.

What, then, do these comparatively recent anti-lenity legislative efforts show? Perhaps not a great deal, but there are some common themes. Materials from Delaware and Texas suggest a perception that the rule of lenity was not needed, also noting a healthy skepticism about the application of the rule of lenity by the courts. Materials from New Hampshire are more benign—suggesting the anti-lenity state was a policy preference that resolved a conflict or uncertainty in case law. The materials from Hawaii suggest that rejecting an anti-lenity statute was, at the core, a policy preference in favor of lenity.

IV.     Cases Considering Anti-Lenity Statutes

This long, strange legislative trip resulted in, currently, a dozen states195See infra Appendix 2 (quoting the dozen state anti-lenity statutes currently in place). Prior statements about the number of states with anti-lenity statutes has ranged from a small minority to a near majority, a disparity that may be attributed to how an author defines an anti-lenity statute. See, e.g., Elhauge, supra note 55, at 2204 n.132. (“By 1985, nineteen states had enacted such legislation without causing courts to abandon the rule of lenity.”); Gonzalez, supra note 162, at 208 (noting “36 states codified” a statute “forbidding the strict construction of penal laws,” but “as of 2013, 28 of those 36 states have abolished or reversed their rule”); Hall, supra note 19, at 753–54 (noting, as of 1935, nineteen states had such statutes); Love, supra note 3, at 2395 (“Eleven [states] have explicitly barred the courts from using the rule of lenity.”). having virtually identical anti-lenity statutes that require the following:

The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.196Tex. Penal Code Ann. § 1.05(a) (West 2019); see also infra Appendix 2 (quoting the dozen state anti-lenity statutes currently in place).

The end of this legislative trip marked the beginning of the long, strange trip for the judiciary, in cases considering these dozen state anti-lenity statutes.

A.     State Court Cases Citing Anti-Lenity Statutes

Broad searches of state court opinions citing state anti-lenity statutes in these twelve jurisdictions yield about 1,800 published opinions.197See infra Appendix 4 (identifying search methodology used to locate cases citing, construing, or quoting state anti-lenity statutes). Given the breadth of the search methodology used, the number of opinions actually addressing anti-lenity statutes is smaller. Far smaller still is the number of opinions discussing the provisions in a significant way. And even smaller yet is the number of opinions where application of an anti-lenity statute appears to have been outcome determinative.

1.     Occasionally Outcome Determinative

Although small in number, some opinions make clear that application of an anti-lenity statute can be outcome determinative, at least for some judges. These opinions are typically evidenced by either a majority with a dissent or a separate opinion focusing on the anti-lenity statute.

Perhaps the most prominent example is Keeler v. Superior Court,198470 P.2d 617 (Cal. 1970); see also Solan, supra note 20, at 126. a 1970 California Supreme Court decision where the majority held an unborn but viable fetus was not a “human being” under California’s murder statute.199Keeler, 470 P.2d at 618. Keeler is discussed with some frequency in addressing interpretation of criminal statutes generally, and the rule of lenity more specifically. See Elhauge, supra note 55, at 2194–95 (discussing Keeler); Love, supra note 3, at 2398–99 (same); Solan, supra note 20, at 126 (“Probably the most famous case in which California courts have refused to construe a criminal statute liberally is Keeler.”). The majority, without citing California’s anti-lenity statute, wrote that “[i]t is the policy of this state to construe a penal statute as favorably to the defendant” as text and circumstances “reasonably permit,” with the defendant being “entitled to the benefit of every reasonable doubt as to the true interpretation of the words or the construction of language used in a statute.”200Keeler, 470 P.2d at 624.

The dissent, criticizing the majority for relying on “common law concepts,” quoted California’s anti-lenity statute, stating it “abolishes the common law principle of the strict construction of penal statutes,” adding that “[i]nstead, we must construe penal statutes in accordance with the ‘fair import’ of their terms, rather than restrict those statutes to common law principles.”201Id. at 631–32 (Burke, J., dissenting). Applying that approach, the dissent concluded “[t]here is no good reason why a fully viable fetus should not be considered a ‘human being’ under those statutes.”202Id. at 634 (Burke, J., dissenting). From the perspective of the Keeler dissent, application of California’s anti-lenity statute leads to a different result than that of the majority, which did not cite the statute. At times, both before and after Keeler, California opinions have appeared to apply the state’s anti-lenity statute with rigor, including criticizing a prior opinion for failing to do so.203See People v. Le, 200 Cal. Rptr. 839, 845, n.10 (Cal. Ct. App. 1984) (stating that People v. Reed, 185 Cal. Rptr. 169 (Cal. Ct. App. 1982), “incorrectly construes the statute to require a specific legislative directive in order to impose derivative liability,” adding that Reed’s reliance on the rule of lenity “is inconsistent with Penal Code section 4” [California’s anti-lenity statute]); see also People v. Troche, 273 P. 767, 770 (Cal. 1928) (noting California “became a ‘Code state’” in 1872, which included the anti-lenity statute, meaning “[s]o far as the common law is concerned, it has no application to this particular question [the constitutionality of not guilty by reason of insanity statutes] except in so far as it has been incorporated into our law by statutory enactment and judicial decision”); People v. Fields, 164 Cal. Rptr. 336, 337–38 (Cal. Ct. App. 1980) (“In California, there is no rule of strict construction of penal statutes.” (citing Cal. Penal Code § 4)); People v. Dudley, 58 Cal. Rptr. 557, 558 (Cal. App. Dep’t Super. Ct. 1967) (“[T]he court is not bound by the old common law rule of strict construction of a criminal statute.” (citing Cal. Penal Code § 4)); In re Smith, 47 Cal. Rptr. 117, 122 (Cal. Ct. App. 1965) (Friedman, J., dissenting) (noting that the majority “mentions” the rule of lenity and then noting the inconsistency between the rule of lenity and Cal. Penal Code § 4, concluding that “[g]iven a free choice between Penal Code section 4 and the rule favoring the accused, we should prefer to follow section 4”); Downing v. Municipal Court, 198 P.2d 923, 925 (Cal. Ct. App. 1948) (rejecting the lenity argument, holding “[t]hat rule does not have application in this state” (quoting Cal. Penal Code § 4)).

Other opinions applying state anti-lenity statutes in an outcome determinative way are rare. In the 1930 case State v. Malusky,204230 N.W. 735 (N.D. 1930). a majority of the North Dakota Supreme Court rejected the defendant’s argument that engaging in trafficking in liquor as a second offense was not “an offense involving moral turpitude,” thereby affirming the possibility of an enhanced sentence.205Id. at 737–39. Although affirming the possible enhanced sentence, the court remanded for resentencing, given the sentencing court found the enhanced sentence was mandatory when, instead, it was discretionary. Id. at 741. The majority wrote: “[W]e are not subject to the common-law rule which requires that penal statutes shall be strictly construed. This rule is abrogated by our statute.”206Id. at 739. When Malusky was decided, North Dakota’s anti-lenity statute read somewhat differently than it does currently. Compare infra Appendix 2, with Malusky, 230 N.W. at 739 (“[T]he rule of the common law that penal statutes are to be strictly construed 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 promote justice.” (quoting N.D. Rev. Codes § 8538 (1905); Section 9201, C.L. 1913)). Applying North Dakota’s anti-lenity statute, the majority concluded that “the weight of authority, as well as the weight of reason, favors the view that . . . violations of the prohibition acts, state or national, involve moral turpitude.”207Malusky, 230 N.W. at 738.

Along with the majority, Malusky had a concurrence and two dissents.208Id. at 741–48. One dissent applied the rule of lenity in criticizing the majority’s approach:

Surely it will not be contended that this legislative declaration [North Dakota’s anti-lenity statute] was intended to confer upon the courts any authority to supply deficiencies in statutes that create or define criminal offenses, or that it was intended to give to the courts license to enter into the realms of conjecture or speculation, and as a result bring persons or acts within such statutes which otherwise would be outside of their letter and spirit.209Id. at 749 (Christianson, J., dissenting).

This dissent then quoted an earlier North Dakota Supreme Court opinion stating that, despite the state’s anti-lenity statute, where a penal statute has “a patent ambiguity” allowing for “two reasonable and contradictory constructions,” the one favoring the accused “is to be preferred.”210Id. at 749–50 (Christianson, J., dissenting) (quoting State v. Fargo Bottling Works, 124 N.W. 387, 390 (N.D. 1910)). In doing so, the dissent indicated North Dakota’s anti-lenity statute did not displace the rule of lenity.

In 1956, the Utah Supreme Court in State v. Ledkins211303 P.2d 1099 (1956). relied on that state’s anti-lenity statute in rejecting a severability claim arising out of a charge that a state prison guard attempted to supply drugs to a prisoner.212Id. at 1100–1102. After discussing different severability approaches for a statutory enactment with no savings clause, the court added that:

[W]hen we remember that the rule of strict construction of penal statutes does not apply in this state but that the provisions of our revised statutes “are to be construed according to the fair import of their terms with a view to effect the objects of the statutes and to promote justice,” the reason for a makeweight [supporting a lack of severability argument] in favor of a penal statute would seem to disappear.213Id. at 1102.

Ledkins then concluded that the constitutionally questionable portion of the statute could be severed from the rest of the statute.214Id.

Two South Dakota Supreme Court opinions provide additional examples of where applying an anti-lenity statute appears to be outcome determinative. In 1999, State v. Cameron215596 N.W.2d 49 (S.D. 1999). found that an offense for a hit and run resulting in death or injury could arise out of a single-car accident, finding “[t]he trial court erred in construing a penal statute strictly [as] ‘[A]ll penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.’”216Id. at 54; cf. State v. Nuwi Nini, 262 N.W.2d 758, 763 (S.D. 1978) (Wollman, J., dissenting) (dissenting from the dismissal of a criminal appeal for lack of jurisdiction, stating there was “no reason why we are any more limited in construing [the appellate jurisdiction statute] than we are in construing penal statutes, which are to be ‘construed according to the fair import of their terms, with a view to effect their objects and promote justice’”). In 1979, State v. Ripperger217284 N.W.2d 877 (S.D. 1979). cited South Dakota’s anti-lenity statute in affirming an order that a convicted defendant pay witness costs for travel from Arizona to South Dakota, rejecting an argument that only costs for travel within South Dakota could be imposed:

We believe defendant’s argument implicitly rests upon the theory that a penal law should be strictly construed. South Dakota, however, has statutorily rejected the strict construction of penal statutes under the common law. See SDCL 22-1-1. Legislative intent must be determined by consideration of all pertinent statutes and cannot be a mechanistic application of only one statute.218Id. at 878.

In 1986, the Delaware Supreme Court in Spielberg v. State219558 A.2d 291 (Del. 1989). answered certified questions from a trial court involving amendments to sexual offense statutes.220See id. at 292. In doing so, the court noted Delaware’s anti-lenity statute “enjoined” it “from adopting a strict construction to the detriment of the fair import of the statute.”221Id. at 293. After quoting the anti-lenity statute, including the “fair import of [the statute’s] terms” directive, Spielberg rejected the defendant’s “hypertechnical attempt at strict construction” as contradicting the anti-lenity statute’s stated purposes.222Id. at 293–96.

Finally, one justice on the Montana Supreme Court, writing separately in State v. Stevens,22353 P.3d 356 (Mont. 2002). a 2002 sexual assault case, summarized the majority as concluding that sexual intercourse with a sleeping victim was without consent, but sexual intercourse “with a victim in a ‘sleep-like’ state is not ‘without consent.’”224Id. at 366–67 (Rice, J., concurring in part and dissenting in part). Paraphrasing Montana’s anti-lenity statute, the justice wrote he “would reject the ‘how deep must sleep be?’ quagmire adopted by the Court and allow juries to determine the victim’s consciousness in accordance with the terms of the statute,” adding that he would have affirmed the convictions vacated by the majority.225Id. at 367 (Rice, J., concurring in part and dissenting in part).

These cases represent a tiny portion of the hundreds of opinions citing such statutes in a dozen states tracing back to the 1860s, so are not an overwhelming showing of the impact of state anti-lenity statutes. But they do show that, at least at times, application of a state anti-lenity statute can be outcome determinative.

2.     Distinguishing Cases From Jurisdictions Without an Anti-Lenity Statute

How criminal statutes are construed should turn on whether the relevant jurisdiction has an anti-lenity statute.Evidence that anti-lenity statutes have meaning would include opinions in jurisdictions with such statutes that distinguish opinions from other jurisdictions, construing similar or identical statutory language, that do not have anti-lenity statutes. Although small in number, such opinions do exist and involve distinguishing decisions by courts in other states and by federal courts.

In 2008, the Delaware Supreme Court in Newman v. State226942 A.2d 588 (Del. 2008). affirmed a resisting arrest conviction and, in doing so, cited Delaware’s anti-lenity statute to distinguish a Florida decision.227Id. at 592. In concluding that knowledge of a law enforcement officer’s status was not a required element for the offense under Delaware law, the court rejected a Florida Supreme Court decision reaching a contrary conclusion, given different statutory language and that Florida did not have an anti-lenity statute.228Id. at 592, 592 n.18 (“The Florida Supreme Court also noted that it was required to apply a standard of strict construction to criminal statutes. [Polite v. Florida, 973 So.2d 1107, 1112 (Fla. 2007)]. Conversely, section 203 of the Delaware Criminal Code expressly rejects strict construction and requires that ‘the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in § 201 of this Criminal Code.’” (quoting Del. Code Ann. tit. 11, § 203)).

In 2001, the Utah Supreme Court in State v. Christensen22920 P.3d 329 (Utah 2001). addressed whether a sexual assault statute requiring that the victim be “not older than 17” meant the victim had to be (1) not yet 18 years old; or (2) not yet 17 years and at least one day old.230Id. at 329. Quoting Utah’s anti-lenity statute and concluding the statute required the victim to not yet be 18 years old, Christensen distinguished cases from Ohio and North Carolina, noting: those “courts relied in part on the rule that criminal statutes are to be construed strictly against the state and liberally in favor of the defendant. As we have pointed out, that rule does not obtain in Utah.”231Id. at 330 (distinguishing State v. McGaha, 295 S.E.2d 449, 451 (N.C. 1982) (“Our decision today is grounded on precedent and the rule [in North Carolina] that criminal statutes are to be construed strictly against the state and liberally in favor of the defendant.”) and State v. Maxson, 375 N.E.2d 781, 782 (Ohio 1978) (noting Ohio’s “legislative mandate that criminal statutes be construed liberally in favor of the defendant”)). In 1964, in a case involving a claim that the proof impermissibly varied from the indictment, the Oregon Supreme Court in State v. Gilmore232388 P.2d 451 (Or. 1964). took a similar approach, quoting Oregon’s anti-lenity statute and distinguishing opinions from Kansas, Missouri, and Iowa because those courts “applied the rule that a criminal statute must be strictly construed in favor of the accused. That rule does not prevail in this state.”233See id. at 453 (quoting Or. Rev. Stat. § 161-050, the statutory predecessor to Or. Rev. Stat. § 161.025(2)) (distinguishing State v. King, 87 N.W. 282 (Iowa 1901); State v. Chapman, 5 P. 768 (Kan. 1885); State v. Betterton, 295 S.W. 545 (Mo. 1927); and State v. Owens, 187 S.W. 1189 (Mo. 1916)).

Opinions from Arizona and South Dakota took similar approaches in distinguishing California opinions. In 1985, the Arizona Supreme Court in State v. Tramble234695 P.2d 737 (Ariz. 1985). construed the phrase “from the person of another” and, in doing so, distinguished a California opinion construing similar statutory language.235Id. at 737, 740. Citing Arizona’s anti-lenity statute, Tramble found “the rule of strict construction followed by the California case of People v. McElroy23648 P. 718 (Cal. 1897). is not consistent with the legislative policy of our state.”237Tramble,695 P.2d at 740 (citing McElroy, 48 P. 718). Similarly, in 1978, the South Dakota Supreme Court in State v. Cummings238262 N.W.2d 56 (S.D. 1978). distinguished a California opinion in a case involving the possession of slot machines, stating the California “court followed a rule of strict construction.”239Id. at 59 (quoting Chapman v. Aggeler, 119 P.2d 204, 207 (Cal. Ct. App. 1941)). Cummings rejected “the mechanistic manner followed by the California court” as being “at odds” with South Dakota’s anti-lenity statute.240Id. These cases are additional examples showing that courts in states with anti-lenity statutes sometimes distinguish opinions from jurisdictions that do not have anti-lenity statutes. The irony of Tramble and Cummings distinguishing California opinions on that basis, however, is that California has had an anti-lenity statute continuously since 1874.241See infra Appendix 4.

Along with these cases, at least one concurrence has undertaken the reverse analysis—when applying the law of a state that does not have an anti-lenity statute, distinguishing opinions from states with anti-lenity statutes.242See Flink v. State, 683 P.2d 725, 733 n.7 (Alaska Ct. App. 1984) (Singleton, J., concurring in part and dissenting in part).

Courts in states with anti-lenity statutes occasionally distinguish federal court opinions based on the widespread use of the rule of lenity in federal courts, and the lack of any generally applicable federal anti-lenity statute. In affirming a conviction for delivery of a controlled substance within one thousand feet of a school, the Oregon Court of Appeals in State v. Rodriguez-Barrera,243159 P.3d 1201 (Or. Ct. App. 2007). decided in 2007, distinguished federal opinions construing a similar statute.244See id. at 1207. After noting textual differences between the statutes, Rodriguez-Barrera added that the federal opinions “relied on the rule of lenity, which, although venerable, does not apply to the construction of the Oregon Criminal Code.”245Id. (citing Or. Rev. Stat. § 161.025(2) (“The rule that a penal statute is to be strictly construed shall not apply” to the Oregon Criminal Code.”) and Bailey v. Lampert, 153 P.3d 95, 98 (2007) (“[T]he legislature has eliminated the availability of any ‘rule of lenity’ by statute.”)); accord State v. Milburn, 134 P.3d 969, 975 n.1 (Or. Ct. App. 2006) (Rosenblum, J., dissenting) (“[T]he principle of lenity appears to have been overruled by statute.” (citing Or. Rev. Stat. § 161.025(2))).

In 1926, the South Dakota Supreme Court in State v. Johnson246210 N.W. 353 (S.D. 1926). quoted that state’s anti-lenity statute to distinguish federal decisions construing similar statutory terms:

We have carefully considered the authorities cited by respondent in which the federal courts have held statutes similar to our [statute] . . . should be strictly construed, but such authorities are not applicable in this state, because our Legislature has provided different rules of construction and interpretation which are binding on this court.247Id. at 355.

Although small in number, these opinions recognize the potential impact of anti-lenity statutes in determining whether precedent from other jurisdictions is persuasive. These cases also show that, at least at times, application of a state anti-lenity statute can impact the analysis used in deciding a case.

3.     Efforts to Reconcile with the Rule of Lenity

On even rarer occasions, opinions try to reconcile a state anti-lenity statute with the rule of lenity. Perhaps the most noteworthy example is the 2002 California Supreme Court opinion in People v. Avery.24838 P.3d 1, 6 (Cal. 2002). In addressing the required intent to “feloniously steal,” Avery decided the following issue: “Does the intent to deprive the owner of property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfy the California requirement of intent to deprive the owner of the property permanently?”249Id. at 3, 4.

Avery noted the applicable statute did not define the required intent or “expressly require an intent to permanently deprive.”250Id. at 4. Discussing opinions tracing back more than a century, Avery concluded: “The reference to the intent to permanently deprive is merely a shorthand way of describing the common law requirement and is not intended literally. Thus, to determine the exact nature of California’s intent requirement, we must turn to the common law.”251Id.

Repeating that previous opinions requiring an intent to permanently deprive are “not to be taken literally” and “did not mean it absolutely,”252Id. at 4, 5. Avery agreed with a recent decision “that ‘the intent to deprive an owner of the main value of his property is equivalent to the intent to permanently deprive an owner of property.’”253Id. at 5. Avery then addressed defendant’s argument that the rule of lenity required a different result.254See Avery, 38 P.3d at 5.

Avery noted “[t]wo separate strands of interpretive guidelines”: (1) the rule of lenity, which the court found had “constitutional underpinnings” to provide fair warning and “strikes the appropriate balance between the legislature, the prosecutor and the courts in defining criminal liability”; and (2) California’s anti-lenity statute, set forth in California Penal Code § 4, which “courts have often invoked . . . as a reason not to interpret a statute strictly in favor of a criminal defendant.”255Id. at 5, 6.

Although some tension exists between these two lines of authority, we believe they can be reconciled. As Witkin explains, “The rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.” In People v. Jones . . . we described the rule of lenity in a way fully consistent with section 4: “The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.”256Id. at 6. Other reconciliation attempts can be found in California Court of Appeal opinions. See, e.g., People v. Gonzalez, 247 Cal. Rptr. 501, 503 (Cal. Ct. App. 1988) (quoting Cal. Penal Code § 4 in its entirety and stating “[s]ince statutes are always to be read in a way that will lead to a wise policy rather than to mischief or absurdity, this commandment is not at war with the proposition that when a penal statute is susceptible to two reasonable constructions, the one which is more favorable to the offender will be adopted”); People v. Woods, 169 Cal. Rptr. 179, 181 (Cal. Ct. App. 1980) (“Furthermore, pursuant to Penal Code section 4 (set forth below) the California Supreme Court has clearly stated that ‘It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.’”); People v. Moreland, 146 Cal. Rptr. 118, 128 (Cal. Ct. App. 1978) (Brown, J., dissenting) (“On its face this principle [the rule of lenity as stated in Keeler v. Superior Court, 470 P.2d 617, 624 (Cal. 1970)] seems to be in conflict with the statutory rule set forth in Penal Code section 4, to the effect that the rule of the common law that penal statutes are to be strictly construed, has no application and that all provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. Upon closer analysis, however, there is no conflict as applied to this case. By its terms, the principle of Keeler applies to the interpretation of the words and phrases in a statute when the ‘language and the circumstances of its application . . . reasonably permit.’” (citation omitted)). See also Lawrence M. Solan, supra note 20, at 125–26 (describing a comparable reconciliation attempt in People v. Showalter, 14 P.2d 1034 (Cal. Ct. App. 1932) as “double-talk [where t]he court was trying, unsuccessfully, to reconcile its common law handling of this case with the dictates of a statute that demanded the contrary”).

Avery’s attempted reconciliation came in a single sentence that followed: “Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.”257Avery, 38 P.3d at 6. Concluding that the required intent to deprive for the offense “is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment,” Avery added “[t]he rule of lenity does not compel a different result.”258Id. at 6.

In 1993, nearly a decade before Avery, three dissenting members of the Montana Supreme Court sought to reconcile that state’s anti-lenity statute with the rule of lenity in State v. Turner,259864 P.2d 235 (Mont. 1993). a capital murder case. Turner followed a 1991 unanimous Montana Supreme Court decision in State v. Goodwin,260813 P.2d 953 (Mont. 1991). which recognized the rule of lenity as articulated by the US Supreme Court—“ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity”—without citing Montana’s anti-lenity statute.261See id. at 966–67. The Turner majority rejected defendant’s reliance on Goodwin’s rule of lenity, relying instead on Montana’s anti-lenity statute.262See Turner, 864 P.2d at 241. Goodwin stated [i]f the statute contains 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. Moreover, penal statutes are not to be extended in their operation to persons, things, or acts not within their descriptive terms, or the fair and clear import of the language used. Nothing can be read into penal statutes by implication.” Goodwin, 813 P.2d at 966 (quoting 73 Am. Jur. 2d Statutes § 295); see also id. (agreeing with rule of lenity “articulated by the United States Supreme Court over the years”). The Turner majority stated that “[t]he Montana Legislature has statutorily abrogated the common law of strict construction so far as the penal code is concerned,” quoting Montana’s anti-lenity statute and citing a prior decision.263See Turner, 864 P.2d at 241. Noting Goodwin “did not address” Montana’s anti-lenity statute, the Turner majority added that, to the extent Goodwin conflicted with Montana’s anti-lenity statute, “it is overruled.”264Id. The Turner majority went on to state that the Goodwin approach would not apply in any event because there was no ambiguity and defendant’s argument contradicted the legislative purpose of the statutes.265See id.

The Turner dissent viewed things quite differently, seeing “no conflict” between Montana’s anti-lenity statute and Goodwin’s rule of lenity: “Both require this Court to construe penal statutes ‘according to the fair import of their terms.’ Goodwin merely prohibits extending penal statutes beyond ‘[the statute’s] descriptive terms, or the fair and clear import of the language used.’”266Id. at 248 (Gray, J., dissenting). The Turner dissent criticized the majority’s references to Goodwin as being “at best, confusing” and “[w]ithout much analysis,” adding that the majority “overrules some unspecified portion of [Goodwin] ‘to the extent’ it” conflicts with Montana’s anti-lenity statute without “tell[ing] us precisely how the conflict arises.”267Id. at 248–49 (Gray, J., dissenting).

Nor does the Court explain how the statute, in effect at the time our decision in Goodwin was issued, can now—a short two years later—require this Court to retreat from the strong language it utilized in Goodwin that we “are compelled to follow the classic rule of construction of criminal statutes” regarding lenity cited therein.

If this case represents the death knell of the rule of lenity in Montana, I am saddened. More importantly, however, if this is so, the Court ought to at least say so clearly so that the district courts, the members of the practicing bar, and this Court in future cases will know the answer.268Id. at 249 (Gray, J., dissenting).

In 2002, the Montana Supreme Court again addressed the issue in State v. Liefert,26943 P.3d 329 (Mont. 2002). an unlawful possession of firearms case involving both federal and state statutes.270See id. at 331. After noting the rule of lenity recognized by the US Supreme Court, Liefert cited Turner for the proposition that Montana’s anti-lenity statute “provides penal statutes are not strictly construed, leniency only applies when statutes create an ambiguity”—ultimately finding there was no ambiguity.271Id. at 336.

A dissenting justice in Liefert closely paraphrased Montana’s anti-lenity statute, and noted the majority “acknowledges that ambiguous statutes are to be interpreted in favor of a defendant.”272Id. at 339 (Leaphart, J. dissenting). Applying that standard, the Liefert dissent found ambiguity “even if we assume Liefert was aware of state and federal law, we have merely attributed to him a state of confusion,” and ultimately concluding Liefert was denied due process fair warning rights.273Id. (Leaphart, J. dissenting). One commentator has suggested that, notwithstanding this debate, the Turner majority is the one proclamation by the Montana Supreme Court that the rule of lenity does not apply in in that state. See Gonzalez, supra note 162, at 224 (providing a comprehensive overview of Montana’s anti-lenity statute and the rule of lenity in that state, concluding that “[t]he rule of lenity has not been the law in Montana since 1895,” but “[w]ith the exception of [State v. Turner, 864 P.2d 235, 241 (Mont. 2002) (4–3 decision)], the [Montana Supreme] Court [has] failed to state that the rule of lenity was not the law in Montana” when addressing the issue).

Apart from Avery and the Montana experience, on rare occasions, other opinions have tacitly indicated lenity can coexist with an anti-lenity statute. For example, in a 1997 opinion in State v. Garcia,274943 P.2d 870 (Ariz. Ct. App. 1997). the Arizona Court of Appeals stated that it was guided by the rule of lenity,275See id. at 873. and then, in a footnote, rejected an argument that Arizona’s anti-lenity statute displaced the rule of lenity:

As this court held in [State v. Pena], notwithstanding [Arizona’s anti-lenity statute], the rule of lenity continues to require that if a criminal statute is susceptible to more than one interpretation, we resolve any doubt in favor of the defendant.276Id. at 873 n.2.

State v. Pena277683 P.2d 744 (Ariz. Ct. App. 1983), approved 683 P.2d 743 (Ariz. 1984). stated that Arizona’s anti-lenity statute “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.”278Id. at 748–49 (citing A.R.S. § 13-104). No further analysis was offered.279Other opinions have taken a similar approach, both stating lenity or strict construction is potentially applicable and also citing the jurisdiction’s anti-lenity statute. See, e.g., State v. Sirny, 772 P.2d 1145, 1148 (Ariz. Ct. App. 1989) (“Although section 13-104 abolishes the general rule that penal statutes in this state are to be strictly construed, the rule of lenity still dictates that where a penal statute is susceptible of more than one interpretation, any doubt should be resolved in favor of the defendant.”); People v. Jackson, 440 N.W.2d 39, 42, n.2 (Mich. Ct. App. 1989) (including, after a sentence ending “in general, criminal statutes are to be strictly construed,” a footnote that quotes the entirety of Michigan’s anti-lenity statute [Mich. Comp. Laws Ann. § 750.2]); Reyes v. State, 465 S.W.3d 801, 807 (Tex. Ct. App. 2015) (“Criminal statutes within the Penal Code do not require strict construction. Penal [Code] § 1.05(a). . . . The rule of lenity ensures fair warning of what activities are criminally punishable by resolving ambiguity in a criminal statute to apply only to conduct clearly covered.”).

4.     Due Process Concerns

A few opinions, typically in dicta, have suggested that a state’s anti-lenity statute may conflict with a defendant’s due process rights. In 2015, the Utah Supreme Court in State v. Rasabout280356 P.3d 1258 (Utah 2015). affirmed twelve convictions for unlawful discharge of a firearm when the defendant “fired twelve shots at a house in a gang-related drive-by shooting.”281Id. at 1260–61. Finding the statute was not ambiguous, the court rejected the defendant’s rule of lenity argument.282See id. at 1266.

After rejecting lenity, Rasabout then agreed with the defendant that the rule of lenity “cannot be abrogated by statute because it is based in due process.”283Id. at 1267. Citing US Supreme Court decisions stating that lenity “is rooted in” due process notice principles under the US Constitution, and stating that the Utah Constitution “provides an alternative basis for the same protection,” Rasabout concluded that: “Thus, the rule of lenity is dictated by the notice protection afforded by both federal and state due process. Accordingly, insofar as the strict construction statute purports to abolish the rule of lenity, we hold that it does not.”284Id.

In 1996, the California Supreme Court in People ex rel. Lungren v. Superior Court285926 P.2d 1042 (Cal. 1996.addressed the relationship between the rule of lenity and California’s anti-lenity statute where the government sought penalties and injunctive relief against manufacturers and distributors of allegedly tainted water faucets.286See id. at 1044. After finding no ambiguity, Lungren rejected the argument that the statute was penal.287See id. at 1053. In doing so, Lungren quoted a criminal case for the proposition that

the rule of the common law that penal statutes are to be strictly construed has been abrogated by [Penal Code § 4] . . . it is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.288Id. at 1053–54(citation omitted).

After quoting US Supreme Court authority for the rule of lenity,289Id. at 1054 (citation omitted). Lungrenconcluded that that criminal penalties “merit heightened due process protections for those in jeopardy of being subject to them, including the strict construction of criminal statutes.”290Id.; see also People v. Morrison, 120 Cal. Rptr. 3d 502, 506 (Cal. Ct. App. 2011) (“California’s anti-lenity statute provides that ‘[t]he rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.’ Nevertheless, constitutional guarantees of due process require that true ambiguities in a penal statute are resolved in a defendant’s favor.”); People v. Quattrone, 260 Cal. Rptr. 44, 45 (Cal. Ct. App. 1989) (although finding the substantive statute involved imposed civil, not criminal, penalties, adding that if after review a “statute is susceptible of two reasonable constructions, the one that is more favorable to the defendant will be adopted. Contrary to the People’s contention, this rule does not conflict with the commandment in Penal Code section 4 not to apply the common law rule that penal statutes are to be strictly construed. Although defendant is faced with civil and not criminal penalties, fundamental due process concerns of notice and fairness require us to interpret the statute in an identical manner”).

In 2004, a dissenting Michigan Supreme Court justice in People v. Moore291679 N.W.2d 41 (Mich. 2004). wrote that due process notice requirements under the US Constitution represent “an exercise of the rule of lenity, which should control the resolution of this case.”292Id. at 56. (Taylor, J., dissenting). After acknowledging Michigan’s anti-lenity statute, the dissent added in a footnote “that the requirements of the Constitution prevail over a statute in the event of a conflict.”293Id. at 56 n.23 (Taylor, J., dissenting).

Although expressing due process concerns, no opinion located has ever struck down an anti-lenity statute on due process grounds. Rasabout came the closest by stating, after concluding the rule of lenity was inapplicable, that the rule of lenity “is dictated by” due process notice concerns, adding that “insofar as” Utah’s anti-lenity statute “purports to abolish the rule of lenity, we hold that it does not.”294State v. Rasabout, 356 P.3d 1258, 1267 (Utah 2015).

5.     Separation of Powers Concerns

A small number of opinions have addressed separation of powers issues when considering state anti-lenity statutes, both in a general sense—that the legislature, not the court, defines what is criminal—and in a specific sense—whether an anti-lenity statute properly may define how a court interprets statutory text.

One case addressing separation of powers issues in a general sense, Dixon v. State,295673 A.2d 1220 (Del. 1996). a 1997 decision by the Supreme Court of Delaware, addressed “whether the use of force in attempting to escape, after abandoning the property and without originally using force to obtain the property, satisfies the statutory definition of robbery.”296Id. at 1225. After quoting Delaware’s anti-lenity statute, Dixon stated: “It is also important to remember that ‘[n]o conduct constitutes a criminal offense unless it is made a criminal offense by [the Delaware] . . . Criminal Code or by another law.’”297See id. at 1225–26 (quoting 11 Del. C. § 202(a)). In vacating the robbery conviction because the use of force had no causal connection with the theft, Dixon concluded that: “It is for the General Assembly, not the courts, to define the elements of a criminal offense.”298Id. at 1227 (citing 11 Del. C. § 202(a)).

In addressing separation of powers issues in a specific sense, a dissenting justice in People v. Ream,299750 N.W.2d 536 (Mich. 2008). a Michigan Supreme Court felony-murder case decided in 2018, asked whether the legislature properly could enact an anti-lenity statute.300See id. at 559 (Kelly, J., dissenting). After noting the state’s argument that Michigan’s anti-lenity statute meant “the rule of lenity must be abandoned,” the dissent added “[i]t is not clear that the Legislature can dictate a rule of statutory construction to this Court,” but then found no need to resolve the issue.301See id. (Kelly, J., dissenting). Fifteen years earlier, this same justice had raised the same issue in a dissent, noting that Michigan’s anti-lenity statute “raises an interesting question of the authority of the Legislature to dictate to this Court rules of statutory construction,” but finding no need to resolve the issue.302People v. Jackson, 655 N.W.2d 229, 231 (Mich. 2003) (Kelly, J., dissenting).

Contrary to these dissents, the Oregon Supreme Court has tacitly recognized legislative authority to enact Oregon’s anti-lenity statute, although without discussing separation of powers concepts. In Bailey v. Lampert,303153 P.3d 95 (Or. 2007). a case about a felon in possession of a firearm decided in 2007, the Oregon Supreme Court concluded the legislature had eliminated the rule of lenity by enacting an anti-lenity statute:

The rule of lenity—to the extent that such a rule exists—presumes that any ambiguities in a criminal statute that imposes multiple punishments for a crime should be resolved in favor of lenity at sentencing. Assuming that the rule ever truly existed, ORS 161.025(2) requires that we construe penal statutes “according to the fair import of [their] terms,” rather than construing them “strictly.” In other words, the legislature has eliminated the availability of any “rule of lenity” by statute.304Id. at 98 (citations omitted).

Previously, a 1984 Oregon Supreme Court opinion recognized without elaboration that the legislature had eliminated Oregon’s rule of lenity: “We note that the common law rule that a criminal statute must be strictly construed in favor of an accused has been abolished in this state.”305State v. Maney, 688 P.2d 63, 66 n.5 (Or. 1984) (citing Or. Rev. Stat.§ 161.025(2) and State v. Gilmore, 388 P.2d 451 (Or. 1964)). One commentator has suggested that Portland General Electronic Co. v. Bureau of Labor and Industries, 859 P. 2d 1143 (Or. 1993) announced “a three-step methodology to control all future statutory interpretation questions . . . has caused the near-elimination of the rule of lenity and the canon of constitutional avoidance from Oregon Supreme Court cases.” Abbe R. Gluck, The States As Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1775, 1778 & n.90 (2010); see also id. at 1778 n.90 (“The Oregon Supreme Court has not applied the rule of lenity in a statutory construction case since [Portland General Electronic] was decided” and noting Bailey “cast doubt on whether it ever existed, and broadly read” Oregon’s anti-lenity statute “to eliminate it entirely”). In 1910, the South Dakota Supreme Court similarly showed deference to the legislature in affirming a conviction for the “crime against nature” (what, today, would be called sexual assault of a minor), noting the phrase “as used in our statute was so used intending to include therein every unnatural carnal copulation” and, after quoting the anti-lenity statute in its entirety, stated: “It would be an insult to the Legislature which enacted our statute to hold that from the words of our statute it appears it intended to allow the most heinous form of the crime against nature to go unpunished simply because it was an unusual form of such crime.” State v. Whitmarsh, 128 N.W 580, 583 (S.D. 1910).

As with the due process concerns sometimes expressed, no opinion located has ever struck down an anti-lenity statute on separation of powers grounds.

6.      Other References

Other state court opinions citing state anti-lenity statutes do so without any real rigor. The state anti-lenity statutes currently in place contain two directives, typically in two sentences: (1) the rule of strict construction (lenity) does not apply; and (2) the criminal code is to be construed according to “the fair import” of its terms, “to promote justice,” and (often) referencing specified purposes found elsewhere in the criminal code.306See infra Appendix 2. The one exception to this generality is North Dakota, which uses unique language for the second directive. See id. Hundreds of opinions from the twelve states with these anti-lenity statutes quote or paraphrase the second sentence or portion of the anti-lenity statute (how criminal statutes should be construed) with no reference to the first sentence or portion (that strict construction does not apply).307See, e.g., Arizona State Democratic Party v. State, 115 P.3d 121, 123 (Ariz. 2005) (“[W]e must construe the statute ‘according to the fair meaning of [its] terms to promote justice and effect the objects of the law.’” (quoting A.R.S. § 13-104)); Behan v. Alexis, 172 Cal. Rptr. 132, 134 (Cal. Ct. App. 1981) (“Provisions of the Penal Code must be construed ‘according to the fair import of their terms, with a view to effect its objects and to promote justice.” (quoting Cal. Penal Code § 4)); People v. Flick, 790 N.W.2d 295, 301 (Mich. 2010) (“When we interpret the Michigan Penal Code, we do so ‘according to the fair import of [the] terms, to promote justice and to effect the objects of the law.’” (quoting Mich. Comp. Laws Ann. § 750.2)); State v. Palmer, 673 P.2d 1234, 1239 (Mont. 1983) (“Section 45-1-102(2) requires provisions of the criminal code “to be construed according to the fair import of their terms with a view to effect [the object of the code] . . . and to promote justice.”); State v. Allain, 194 A.3d 950, 952 (N.H. 2018) (“We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice.” (citing N.H. Rev. Stat. § 625:3)); People v. Respress, 34 N.Y.S.3d 652, 653 (N.Y. App. Div. 2016) (noting N.Y. Penal Law § 5.00 “provid[es] that Penal Law provisions ‘must be construed according to the fair import of their terms to promote justice and effect the objects of the law’”); Timm v. State, 110 N.W.2d 359, 364 (N.D. 1961) (“In adopting this interpretation, we point to Section 29–01–29 of the North Dakota Century Code which provides that our penal statutes are to be given a liberal interpretation with a view of promoting the object of the statute, and in the furtherance of justice.”); Haynes v. State, 854 P.3d 949, 951 (Or. Ct. App. 1993) (“We construe a criminal statute ‘according to the fair import of its terms.’”) (quoting portion of second sentence of Or. Rev. Stat. § 161.025(2)); People ex rel. J.H., 756 N.W.2d 549, 552 (S.D. 2008) (“We construe these statutes ‘according to the fair import of their terms, with a view to effect their objects and promote justice.’”) (quoting S.D. Codified Laws § 22-1-1); Rey v. State, 280 S.W.3d 265, 267 (Tex. Crim. App. 2009) (“Section 1.05(a) of the Penal Code provides that provisions are to be ‘construed according to the fair import of their terms, to promote justice and effect the objectives of the code.’”); State v. Perea, 322 P.3d 624, 650 (Utah 2013) (“Utah Code section 76-1-104 provides that ‘[t]he provisions of [the criminal] code shall be construed . . . [to p]revent arbitrary or oppressive treatment . . . [and to p]rescribe penalties which are proportionate to the seriousness of offenses and which permit recognition o[f] differences in rehabilitation possibilities among individual offenders.’”); see also infra Appendix 4. Many other opinions from these jurisdictions—again, literally hundreds—quote or paraphrase the state’s anti-lenity statute in its entirety, but without further discussion or analysis.308See, e.g., Tracy v. Superior Court, 810 P.2d 1030, 1042 (Ariz. 1991) (quoting A.R.S. § 13-104); People v. Ali, 424 P.2d 932, 934 (Cal. 1967) (quoting Cal. Penal Code § 4); State v. Baker, 679 A.2d 1002, 1007 (Del. Super. Ct. 1996) (quoting 11 Del. Code § 203); People v. Spencer, 909 N.W.2d 17, 20 (Mich. Ct. App. 2017) (quoting Mich. Comp. Laws Ann. § 750.2); State v. Holdren, 387 P.2d 446, 449 (Mont. 1963) (quoting Rev. Code. Mont. § 94-101(1947)); State v. Paige, 169 A.3d 468, 470 (N.H. 2017) (citing N.H. Rev. Stat. § 625:3); People v. Wilson, 684 N.Y.S.2d 718, 722 (N.Y. App. Div. 1998) (citing Penal Law § 5.00). State v. Weigel, 165 N.W.2d 695, 698 (N.D. 1969) (quoting N.D. Century Code § 29-01-29); State v. Isom, 837 P.2d 491, 495 n.6 (Or. 1992) (quoting Or. Rev. Stat. § ORS 161.025(2)); State v. Kaiser, 526 N.W.2d 722, 724 (S.D. 1995) (quoting S.D. Codified Laws § 22-1-1); Timmins v. State, 560 S.W.3d 671, 678 (Tex. Crim. App. 2018) (quoting Tex. Penal Code § 1.05(a)); State v. Knepper, 418 P.2d 780, 782 (Utah 1966) (quoting Utah Code Ann. § 76-1-2); see also infra Appendix 4. Many other opinions from these same jurisdictions recognize the rule of lenity despite the existence of a state anti-lenity statute in the jurisdiction.309From Arizona, see, for example, State v. Wayman, 449 P.2d 296, 299 (Ariz. 1969) (“It is the law of this jurisdiction that penal statutes are to be strictly construed.”); State v. Tarango, 914 P.2d 1300, 1302 (Ariz. 1996) (similar); Cawley v. Arizona Bd. of Pardons & Paroles, 701 P.2d 1195, 1196 n.1 (Ct. App. 1984) (stating, and applying, the rule of lenity, while “not[ing] that A.R.S. §§ 13–104 and 1–211(C) abolish the general rule of strict construction for penal statutes. However, Arizona decisions continue to apply the rule of lenity” (citations omitted)). From California, see, for example, Edwards v. Arthur Anderson LLP, 47 Cal. Rptr. 3d 788, 809 n.10 (Cal. Ct. App. 2006) (“Penal statutes are strictly construed.”); People v. Matthews, 9 Cal. Rptr. 2d 348, 355 (Cal. Ct. App. 1992) (similar); In re Michael D., 264 Cal. Rptr. 476, 478 (Cal. Ct. App. 1989) (similar); Solan, supra note 20, at 125–28 (noting that, in California opinions applying the anti-lenity statute, “the actual record is mixed” and providing examples). From Delaware, see, for example, State v. Barnes, 116 A.3d 883, 892 n.42 (Del. 2015) (citing 3 Sutherland Statutory Construction § 59.03 (stating the general principle that ambiguous penal statutes are strictly construed against the government)); Wicks v. State, 559 A.2d 1194, 1196 (Del. 1989) (similar); State v. Sharon H., 429 A.2d 1321, 1328 (Del. Super Ct. 1981) (similar). In one instance, Delaware did so by simply using a “but see” cite to the state’s anti-lenity statute. See Haskins v. State, 540 A.2d 1088 (Del. 1988). Although the judgment in this case was later reversed on other grounds, the Supreme Court of Delaware cited this analysis approvingly. Wicks, 559 A.2d. at 1196 (citing State v. Haskins, 525 A.2d 573, 576 n.3 (Del. Super. Ct. 1987)). From Michigan, see, for example, People v. Poole, 555 N.W.2d 485, 491 & n.4 (Mich. Ct. App. 2004) (noting both prior Michigan decisions applying the rule of lenity and the Michigan anti-lenity statute and noting in dicta that the Criminal Code “is subject to the rule of lenity” by citing as a “See, however,” Michigan’s anti-lenity statute and subsequently finding that the statute involved was “part of the Public Health Code [not the Criminal Code], which must be liberally construed for the protection of the health, safety, and welfare of the public” (citations and footnotes omitted)); see also People v Krol, 8 N.W.2d 662, 663–64 (Mich. 1943) (Bushnell, J., dissenting) (similar). From Montana, see, for example, Shipman v. Todd. 310 P.2d 300, 302 (Mont. 1957) (“Penalties are not favored, and penal statutes must be strictly construed and will not be extended by construction.”); State v. Bowker, 205 P. 961, 963 (Mont. 1922) (similar). From New Hampshire, see, for example, State v. Labrie, 211 A.3d 1196, 1211–12 (N.H. 2019) (after citing N.H. Rev. Stat. § 625:3, and concluding no statutory ambiguity was presented, acknowledging rule of lenity but stating “[b]ecause we have interpreted the statute according to its plain language, we also do not invoke the rule of lenity, despite the defendant’s urging that we do so”); State v. Lynch, 156 A.3d 1012, 1026 (N.H. 2017) (similar); State v. Lukas, 62 A.3d 883, 885 (N.H. 2013) (similar). From New York, see, for example, People v. Golb, 15 N.E.3d 805, 814 (N.Y. 2014) (“[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity.” (quoting People v. Green, 497 N.E.2d 665, 299 (N.Y. 1986))); People v. Thompson, 47 N.E.3d 425, 431 (N.Y. 2016) (quoting Golb, 15 N.E.3d at 814); Solan, supra note 20, at 125 (“Thus, despite a long history with a Penal Code that rejects lenity, New York courts continue to impose lenity when they have nothing better to say about how a statute should be interpreted.”). From North Dakota, see, for example, State v. Beciraj, 671 N.W.2d 250, 254 (N.D. 2003) (“Criminal statutes are strictly construed in favor of the defendant and against the government.” (citing State v. Rue, 626 N.W. 2d 681, 688 (N.D. 2001))); State v. Corman, 765 N.W.2d 530, 534 (N.D. 2009) (similar); State v. Sheldon, 312 N.W.2d 367, 369 (N.D. 1981) (similar); State v. Wetzel, 756 N.W.2d 775, 778 (N.D. 2008) (similar); State v. Rummel, 326 N.W.2d 64, 66 (N.D. 1982) (similar) (citing State v. Mees, 196 N.W.2d 399, 401 (N.D. 1972)). From Oregon, see, for example, Jack L. Landau, Oregon as a Laboratory of Statutory Interpretation, 47 Willamette L. Rev. 563, 573 (2011) (in addressing Oregon’s comparatively unique statutory construction law, asking “[w]hat, for example, of the rule of lenity-the rule that criminal statutes are to be strictly construed? The Oregon legislature has decreed that there is no such rule as it pertains to the Oregon criminal code. And sometimes the courts heed the statute. But sometimes they do not. Sometimes, notwithstanding the statute, the courts cite the old rule” (footnotes omitted)); see also Jack L. Landau, Oregon Statutory Construction, 97 Or. L. Rev. 583, 726–27 (2019) (discussing Oregon’s anti-lenity statute). From South Dakota, see, for example, State v. Dillon, 632 N.W. 2d 37, 46 (S.D. 2001) (“With no explicit indication of legislative intent to create cumulative punishments and a rule of statutory construction that fails to clarify intent any further, we invoke the rule of lenity and presume that a single act constitutes a single offense.”). From Texas, see, for example, Martin v. Clinical Pathology Laboratories, Inc., 343 S.W.3d 885, 894 (Tex. App. 2011) (“And penal statutes are strictly construed.”); City of Houston v. Hildebrandt, 265 S.W.3d 22, 26 (Tex. App. 2007) (similar) (citing Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004)); City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006) (similar) (citing Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004)); Gluck, supra note 305, at 1790 (noting “the Texas Legislature has abrogated the rule of lenity by statute. The effect of that abrogation appears to be that it has discouraged the Texas courts (most of these cases are heard in the court of criminal appeals) from applying the rule of lenity, but not stopped that practice entirely”). See also infra Appendix 4; Price, supra note 21, at 904 (“Courts in several states—Arizona, Idaho, New Hampshire, North Dakota, South Dakota, and Texas—continue to employ the rule of lenity despite statutes directing them not to.”).

There are some opinions that genuinely explore state anti-lenity statutes, although the number is comparatively small. Even then, it is difficult to reconcile the approaches taken in opinions in the same jurisdiction with an anti-lenity statute.

For example, Arizona has had an anti-lenity statute since 1887.310See infra Appendix 4. In 1985, the Arizona Supreme Court stated that Arizona’s anti-lenity statute “abrogated the common law rule that penal statutes are to be construed strictly,” and concluded: “Rather, these statutes should be interpreted according to the fair meaning of their terms and in furtherance of the policies underlying the law.”311State v. Perkins, 699 P.2d 364, 367 (Ariz. 1985) (citing A.R.S. § 13-104). Consistent with this directive, a 1991 Arizona Court of Appeals opinion rejected a lenity argument because there was no statutory ambiguity, then cited Arizona’s anti-lenity statute for the proposition that “this rule of statutory construction [lenity] is inapplicable in any event; criminal statutes are to be construed according to ‘the fair meaning of their terms to promote justice and effect the objects of the law.’”312State v. Calderon, 827 P.2d 473, 475 (Ariz. Ct. App. 1991); see also State v. Rodriguez, 735 P.2d 792, 796 (Ariz. 1987). In 2002, however, an Arizona Court of Appeals opinion described Arizona’s anti-lenity statute as setting forth a “rule of lenity,” although ultimately found lenity did not apply because there was no ambiguity.313Raney v. Fell, 52 P.3d 218, 219–21 (Ariz. Ct. App. 2002) (“The respondent judge’s reliance on the rule of lenity in § 13–104 [Arizona’s anti-lenity statute], therefore, is misplaced. That rule applies when a statute is ambiguous and dictates that any doubt about statutory construction be resolved in favor of a defendant. Because [the statute at issue] is not ambiguous, the rule of lenity does not apply.” (citations omitted)). It is not clear how these cases, decided within a period of less than twenty years, could be reconciled with each other.

In other jurisdictions, courts have cited to state anti-lenity statutes in an effort to clarify or correct earlier decisions that failed to heed the anti-lenity directive.314See People v. Jackson, 686 N.W.2d 810, 813 (Mich. Ct. App. 2004) (stating People v. Jones, 371 N.W.2d 459 (Mich. Ct. App. 1985) (“[F]ound the meaning of ‘disguise’ ambiguous because it admits of more than one meaning, and then applied the principle that penal statutes should be strictly construed, the doubt as to whether a defendant’s actions are criminal being resolved in his favor. . . . [T]his rule of strict construction is no longer applicable. Rather, “[a]ll provisions of [the penal code] shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” (citing M.C.L. § 750.2)); see also id. at 813 n.4; see also People v. Jackson, 655 N.W.2d 229, 229 (Mich. 2003) (remanding prior appeal in Jackson to Michigan Court of Appeals); id. at 231 (Corrigan, C.J., concurring) (“The Court of Appeals [on remand] should consider the effect of M.C.L. § 750.2 . . . .”); Stajos v. City of Lansing, 561 N.W.2d 116, 120 (Mich. Ct. App. 1997) (citing Michigan’s anti-lenity statute, noting that the substantive statute involved was “a part of the Michigan Penal Code” and “therefore, the rule of lenity that requires ambiguities in penal statutes to be resolved in favor of leniency does not apply to the interpretation of this statute”). In 2010, the Oregon Supreme Court sought to correct confusion by vacating a 1967 opinion, doing so for various reasons including:

For a number of years, the court relied on what it called a “rule of lenity.” That rule, which also was prudential, was used by the court in doubtful cases as a basis for giving criminal statutes a limited reading—i.e., for limiting the sweep of legislative enactments. The “rule” was abrogated by the legislature when it adopted ORS 161.025(2), which directs courts to construe penal statutes “according to the fair import of their terms.” This history further illustrates the legislature’s systematic rejection of the policy and value judgments underlying [the 1967 decision].315State v. Partain, 239 P.3d 232, 234, 239 (Or. 2010) (citing but rejecting the previous rule from State v. Turner, 429 P.2d 565 (Or. 1967)).

In New Hampshire, judicial opinions have varied over time in stating what an unchanged anti-lenity statute means. In 2002, after citing the state’s anti-lenity statute, the New Hampshire Supreme Court, sua sponte, raised and applied the rule of lenity to reduce the defendant’s sentence.316See State v. Dansereau, 956 A.2d 310, 315 (N.H. 2008) (“Although the parties have not discussed the rule of lenity in their briefs, the rule is a well-established tool of statutory construction. In this case, as discussed above, neither the language nor the legislative history of [the substantive criminal statute] clearly establish what the legislature intended by the phrase ‘convicted on sentences in excess of one year.’ Thus, we apply the rule of lenity and resolve the ambiguity in favor of the defendant. The portion of the defendant’s sentence imposing an extended term of imprisonment under [the relevant statute] was therefore unlawful.” (quoting N.H. Rev. Stat. § 625:3)). By contrast, less than a decade before in 1999, the New Hampshire Supreme Court quoted the state’s anti-lenity statute, noting it “represents New Hampshire’s substantial deviation from the common law rule requiring a strict construction of criminal statutes.”317State v. Williams, 729 A.2d 416, 418 (N.H. 1999).

New York appears to have two irreconcilable lines of opinions—one recognizes the state’s anti-lenity statute, while the other recognizes the rule of lenity. An opinion from 1983 emphatically provided a history of New York’s anti-lenity statute, stating: “Strict construction of the New York Penal Law has not been a viable alternative for many years. In conflict with popular opinion, the classic command of the common law for rigid interpretation of criminal statutes has not been the law of this State for, at least, a century!”318People v. Jenkins, 462 N.Y.S.2d 699, 701 (N.Y. Crim. Ct. 1983). Instead, the opinion continued, New York’s anti-lenity statute “has always demanded a statutory construction which was designed to foster justice for the victims of crime, as well as the perpetrators, and to advance the warranted objectives of the law for the benefit of all citizens.”319Id. In 1981, a New York Court of Appeals opinion, frequently cited for the point, made plain that the rule of lenity did not exist in the state:

Initially, it should be emphasized that the common-law policy of strictly construing a penal code no longer obtains in this State. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted “according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). Although this rule obviously does not justify the imposition of criminal sanctions for conduct that falls beyond the scope of the Penal Law, it does authorize a court to dispense with hypertechnical or strained interpretations of the statute. Thus, conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal.320People v. Ditta, 422 N.E.2d 515, 517 (N.Y. 1981).

By contrast, there is a contrary line of opinions recognizing the rule of lenity in New York, as evidenced in a 1973 opinion recognizing the conflict between the state’s anti-lenity statute and judicial opinions: “our highest courts have chosen to ignore this statutory rule in favor of the traditional rule that penal statutes are to be strictly construed against the party seeking their enforcement, and in favor of the person being proceeded against.”321People v. Desthers, 343 N.Y.S.2d 887, 894 (N.Y. Crim. Ct. 1973) (citing People v. Shapiro, 152 N.E.2d 65, 68 (N.Y. 1958); see also Yates v. United States, 354 U.S. 298, 1069 (1957) (citing United States v. Wiltberger, 5 Wheat 76, 95–96 (1820)); People v. Broady, 158 N.E.2d 817, 823 (N.Y. 1959); People v. Nelson, 46 N.E. 1040, 1041 (N.Y. 1897). A 1913 opinion was emphatic that lenity was the law in New York: “The courts of this state have uniformly held that penal statutes must be strictly construed, and that no element unwarranted by the terms of the statute can be imported into it for the purpose of visiting its penal provisions upon an individual.”322Kevand v. New York Tel. Co., 145 N.Y.S. 414, 416 (N.Y. App. Div. 1913). Recent opinions have echoed this thought, stating that New York has, and should apply, a rule of lenity.323See, e.g., People v. Golb, 15 N.E.3d 805, 814 (N.Y. 2014) (“[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity.” (quoting People v. Green, 497 N.E.2d 665, 299 (N.Y. 1986))); see also People v. Thompson, 47 N.E.3d 704, 710 (N.Y. 2016) (quoting Golb, 15 N.E.3d at 814).

Even when an opinion discusses a state anti-lenity statute in some detail, the outcome may appear surprising. A 2008 Utah Supreme Court decision adopted a unique construction of Utah’s anti-lenity statute in vacating drug possession convictions and remanding for a new trial.324State v. Miller, 193 P.3d 92, 93–94 (Utah 2008). After quoting Utah’s anti-lenity statute, the court adopted a definition of “strictly construed” to mean—in substance—“broadly,” “literally,” or, perhaps, “harshly,” stating:

Strictly construing the term “possess” to include every type of possession, whether culpable or innocent, contradicts the legislature’s directive to avoid strictly construing the code, and it is contrary to the policy goals of safeguarding faultless conduct and promoting justice. . . . Because construing the term “possess” to include brief, innocent possession contradicts the legislature’s interpretative guidelines and creates a myriad of absurd prosecutorial possibilities, we hold that the term “possess” . . . excludes transitory possession of a controlled substance for the purpose of returning it to its lawful owner. That is, we hold that the possession statute implicitly includes the defense of innocent possession.325Id. at 96 (footnotes and citations omitted).

Elsewhere, reliance on a state’s anti-lenity statute appears to turn on the interests of a specific judge. Several times in the 1980s and 1990s, South Dakota Supreme Court Justice Henderson would “take judicial notice”326State v. French, 509 N.W.2d 693, 698 (S.D. 1993) (Henderson, J., concurring) (quoting S.D. Codified Laws § 22-1-1). of or “call your attention”327State v. Warren, 462 N.W.2d 195, 205 (S.D. 1990) (Henderson, J., concurring in part and dissenting in part) (quoting S.D. Codified Laws § 22-1-1). to South Dakota’s anti-lenity statute.328State v. Ventling, 452 N.W.2d 123, 127 (S.D. 1990) (Henderson, J., dissenting) (noting “[p]roper judicial construction of a statute requires recognition and implementation of its underlying purpose,” and adding “I would opt that we, in the Judicial Branch, occupy a role as literate Judges or justices in interpreting a statute, not literal Judges or Justices” (citing S.D. Codified Laws § 22-1-1)); see also State v. Crelly, 313 N.W.2d 455, 457 (S.D. 1981) (quoting S.D. Codified Laws § 22-1-1). As another example, in the 1990s, California Court of Appeal Justice Thomas Fulton Crosby, Jr., covered much ground in a dissent, criticizing the majority for not applying the rule of lenity, adding in a footnote “[p]arenthetically, although our Supreme Court continues to recognize it, my view is that the rule of lenity is bogus,” and quoting California’s anti-lenity statute.329See People v. Mejia, 85 Cal. Rptr. 2d 690, 694 n.4 (Cal. Ct. App. 1999) (Crosby, J., dissenting). In a dissent a few years earlier, Justice Crosby could not “resist a comment on the so-called lenity doctrine” that the majority noted but found inapplicable: “A better analysis would conclude the doctrine simply does not exist. Although the appellate reports are replete with new and old Supreme Court recognitions of the notion, it is completely spurious—and has been since 1872.”330See People v. Webb, 42 Cal. Rptr. 2d 215, 221 n.1 (Cal. Ct. App. 1995) (Crosby, J., dissenting) (citing Cal. Penal Code § 4). After quoting California’s anti-lenity statute, the footnote concluded: “The law is probity, not lenity.”331See id. (emphasis omitted).

Other uncertainties evidenced in opinions include disagreements on whether anti-lenity statutes apply to statutes not contained in the criminal code.332State anti-lenity statutes are limited in their scope to construing criminal statutes, referencing “this title,” “this Code,” “this act,” “this chapter,” or “this Criminal Code” in doing so (or, in Oregon’s case, specifically referencing that state’s criminal code). See infra Appendix 2. Although beyond the scope of this Article, opinions have come to different conclusions about whether the relevant anti-lenity statute should apply outside of the criminal code. See, e.g., People v. 850 West End Ave. Corp., 525 N.Y.S.2d 994, 996 (N.Y. Crim. Ct. 1988) (“[P]enal provisions within the New York City Administrative Code should also be construed in accordance with PL § 5.00 [New York’s anti-lenity statute].”); Nelson v. South Dakota State Bd. of Dentistry, 464 N.W.2d 621, 625 (S.D. 1991) (noting in a case involving suspension of a dental license that the court saw “no reason to depart from this statutory standard [the state’s anti-lenity statute] in the construction of administrative rules which may have a penal effect” (quoting S.D. Codified Laws § 22-1-1)); City of Brookings v. Thomsen, 176 N.W.2d 46, 51 (S.D. 1970) (“Penal ordinances like penal statutes should be construed according to the fair import of their terms to effectuate their objects and promote justice.” (citing S.D. Codified Laws § 22-1-1)), rev’d on other grounds, City of Brookings v. Roberts, 226 N.W. 2d 380 (S.D. 1975); State v. Frampton, 737 P.2d 183, 193 & n.45 (Utah 1987) (construing consumer protection statute in a case involving convictions for the attempted sale of counterfeit baseball gloves and citing the anti-lenity statute as support for the proposition that consumer protection statutes “must be construed broadly”); Salina City v. Lewis, 172 P. 286, 288 (Utah 1918) (“While the foregoing rule of construction [stated in the state’s anti-lenity statute] does not in express terms refer to ordinances of a municipality, yet we think it applies with equal force to the provisions of ordinances.”). But see Delay v. State, 465 S.W.3d 232, 251 & n.69 (Tex. Crim. App. 2014) (“[I]n construing penal provisions that appear outside the Penal Code, we have recognized that the rule of lenity applies.”); State v. Rhine, 297 S.W.3d 301, 309 (Tex. Crim. App. 2009) (“Although the common-law rule that a penal statute is to be strictly enforced does not apply to the Penal Code [citing Tex. Penal Code § 1.05(a)], criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.” (quoting State v. Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 2007))); State v. Johnson, 198 S.W.3d 795, 797 (Tex. App. 2006) (“Unless found in the Texas Penal Code, a penal statute must be strictly construed.” (quoting Tex. Penal Code § 1.05(a))). The Oregon Court of Appeals found defendant’s pretrial agreement for release from custody “did not unambiguously require defendant’s personal appearance” at a hearing, meaning defendant’s failure to personally appear could not provide the basis for a criminal failure to appear charge. State v. Lobue, 453 P.3d 929, 933 (Or. Ct. App. 2019). A concurring judge explained “the majority opinion effectively concludes that, to avoid potential constitutional problems, we should view defendant’s release agreement through the lens of a contractual ‘rule of lenity’ (for lack of a better description) and strictly construe it against the state, much as we used to do with criminal statutes before the legislature abolished the rule of lenity.” Id. at 934 (Lagesen, J., concurring). That explanation prompted the following response from a dissenting judge: I respectfully submit that the problems in alluding to a rule of lenity are apparent. First, the rule of lenity was once a rule of statutory construction, not a rule of contract construction. Second, the legislature abolished the rule of lenity in statutory construction. And, third, the abolition of the rule as a matter of statutory construction does not mean that the rule should survive by analogy to be extended to agreements whose violation is a statutory offense. Rather, abolition of the rule should confirm that it is the wrong lens with which to read this agreement. It is the clouded lens of an aged rule. Id. at 938–39 (DeVore, J., dissenting) (footnotes omitted). Opinions citing anti-lenity statutes also show just how much has changed since they were first enacted in the 1860s. An 1880 Utah Territorial Supreme Court decision quotes the Territory’s anti-lenity statute in determining whether “horse” includes both “gelding” and “mare,” with the court finding it did.333People v. Butler, 2 Utah 504, 504–07 (Utah 1880).

B.     Federal Court Cases Citing State Anti-Lenity Statutes

There is no generally applicable federal anti-lenity statute,334There are some specific federal statutes that include types of anti-lenity provisions, most notably the Racketeer Influenced and Corrupt Organizations (RICO) Act. See Romero, supra note 46, at 235 & n.82 (citing a statutory provision stating that RICO “shall be liberally construed to effectuate its remedial purposes,” Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 904(a), 84 Stat. 941, 947 (reproduced following 18 U.S.C. § 1961 (1988)). Others have proposed a general federal anti-lenity provision, but no such proposal has been enacted. See Kahan, supra note 21, at 382–83. meaning there is no federal case law construing such a provision. Broad electronic searches of federal cases citing, construing, or quoting state anti-lenity statutes from the twelve jurisdictions discussed above reveal a tiny number of opinions doing so.335See infra Appendix 4 (identifying search methodology used to locate cases citing, construing, or quoting state anti-lenity statutes).

That there would be far fewer federal opinions, when compared to state opinions, citing state anti-lenity provisions is no surprise. State anti-lenity statutes apply in state criminal cases, where there is no direct, nondiscretionary review by federal courts. Moreover, the volume of criminal cases in state courts far exceeds the volume in federal courts.336See Total Incoming Criminal Caseloads Reported by State Courts, All States, 2007–2016, https://perma.cc/3N8Y-Q9W8 (showing a slight annual decrease from a high of 21.4 million new criminal cases filed in all state courts in 2007 to 17.8 million new cases filed in 2016). By contrast, during the twelve month period ending March 31, 2017, there were 58,618 new criminal cases filed in United States District Courts, down from 60,796 filed the year before. See U.S. District Courts—Criminal Cases Commenced, Terminated, and Pending (Including Transfers), https://perma.cc/WW6T-SXUJ. This yields a rough ratio of more than three hundred criminal cases filed in state court for every single criminal case filed in federal court.

But that is not to say state criminal statutes are never applied by federal courts. Each year, thousands of cases are filed in federal court by or on behalf of individuals convicted under state law seeking habeas corpus relief under 28 U.S.C. § 2254.337See U.S. District Courts—Civil Statistical Tables For The Federal Judiciary (June 30, 2019), https://perma.cc/WDF6-VBVP (recording 14,120 general habeas corpus petitions from state court prisoners and 147 petitions in cases involving the death penalty in the twelve months ending June 30, 2019); see also John Scalia, Prisoner Petitions Filed in U.S. District Courts, 2000, with Trends 1980–2000, U.S. Dep’t of Just. (Jan. 2002), https://perma.cc/36Y2-DXD9 (showing, from 1980 to 2000, a steady increase from around seven thousand to more than twenty-one thousand new federal habeas corpus petitions filed by state prisoners each year). Accordingly, although far less common than criminal cases in state court, cases in federal court involving state criminal law are filed with some regularity. There are, however, a tiny number of federal opinions citing state anti-lenity statutes, and those opinions arise in a limited number of contexts.

Two federal opinions cited state anti-lenity statutes in deciding whether law enforcement had probable cause for an arrest338See United States v. N.Y. State Bd. Of Parole, 416 F. Supp. 823, 826 & n.9 (S.D.N.Y. 1976) (including in a footnote a “see also” cite to New York’s anti-lenity statute for the proposition that, after an officer “observed the container of what appeared to be marijuana and cigarette papers, he clearly had probable cause to arrest the occupants of the car for the misdemeanor of criminal possession of a controlled substance in the seventh degree”). or proper grounds for a traffic stop.339See United States v. Tibbetts, 396 F.3d 1132, 1137–38 (10th Cir. 2005) (reversing and remanding for further consideration the suppression of evidence seized from a car based on a finding the traffic stop was unjustified based on a Utah mud flap regulation because “when evaluating the issue of the reasonableness of the traffic stop under the Fourth Amendment, the district court must determine how the Utah courts would interpret this statute in like circumstances. . . . Utah courts look to the plain language of the statute, and only when the language is ambiguous do they seek guidance from legislative history or policy considerations. . . . criminal statutes are not construed strictly, but according to their fair import ‘to promote justice and to effect the objects of the law and general purposes’”). Two other federal opinions, one later vacated, cited state anti-lenity statutes in determining whether conduct violated state law on which federal law violations were based.340See United States v. Welch, 248 F. Supp. 2d 1048, 1050–51, 1055–57 (D. Utah 2001) (granting motion to dismiss criminal counts alleging violations of the Travel Act by “bribery . . . in violation of the laws of the State in which committed [18 U.S.C § 1952(B)(2)],” in finding a Utah commercial bribery statute relied upon was both an invalid basis for the Travel Act counts and did “not put defendants on notice that their bid-seeking efforts were prohibited,” meaning it was “unconstitutionally vague as applied,” in doing so, among other things, the court noted it is “guided by the legislative directive that provisions of Utah’s penal code ‘shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law and the general purposes of” the penal code), rev’d, 327 F.3d 1081 (10th Cir. 2003) (relying on authority other than Utah’s anti-lenity statute); United States v. Young & Rubicam, Inc., 741 F. Supp. 334, 337–39 (D. Conn. 1990) (denying motion to dismiss count charging defendants “with conducting an enterprise’s affairs through a pattern of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (‘RICO’), 18 U.S.C. § 1962(c),” rejecting the argument that a New York bribery statute “applies only to commercial bribery and not bribery of public officials,” noting the statutory language was “sufficiently broad” and adding New York’s anti-lenity statute “specifically states that provisions of the Penal Law are to be interpreted ‘according to the fair import of their terms to promote justice and effect the objects of the law’”). It would seem that such issues might arise with some regularity. But only four federal court opinions were located that cited state anti-lenity statutes in discussing these issues.

The few other federal opinions located that cite state anti-lenity statutes did so in unique contexts. Two federal opinions decided in 2001, and one later vacated, cite state anti-lenity statutes in addressing gaming on Native American land.341See Texas v. del Sur Pueblo, 220 F. Supp. 2d 668, 688 (W.D. Tex. 2001) (in suit by Texas to enjoin alleged illegal gambling on Ysleta del Sur Pueblo Tribe reservation, the court concluded the Tribe was an “association” under the Texas Penal Code, adding “[t]his interpretation of ‘association’ is reinforced by § 1.05 of the Penal Code which provides that ‘the rule that a penal statute is to be strictly construed does not apply to this Code. The provisions of this Code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the statute’”); see also American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1063, 1066 (D. Ariz. 2001) (concluding that “only charity raffles are permitted under Arizona law” and noting that “the court begins with the language of the criminal statutes. Penal statutes are not strictly construed but rather are construed according to the fair import of their terms, with a view to effect their object and to promote justice” (citing A.R.S. § 13-104)), vacated, 305 F.3d 1015 (9th Cir. 2002) (relying on authority other than Arizona’s anti-lenity statute). And two other federal opinions cite state anti-lenity statutes in addressing constitutional challenges regarding obscenity, one rejecting challenges to amendments to the Texas Penal Code342See Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1024–26 (5th Cir. 1981) (rejecting constitutional challenges to amendments to Texas Penal Code “provisions defining and regulating obscene materials and performances” by citing a portion of Texas’s anti-lenity statute: “Yet, the lack of a definition for the term ‘prurient interest’ does not render the statute constitutionally deficient. Many jurors may find it helpful to learn that ‘prurient interest’ means shameful and morbid, but no conviction has, to our knowledge, been overturned for the trial court’s failure to so instruct a jury. Moreover, Texas courts construing the provision are obliged to apply any ‘technical or particular meaning’ the term has acquired from prior judicial review”). and the other finding that a criminal provision making it a crime to distribute indecent material electronically was overbroad.343See Home Box Office, Inc. v. Wilkinson, 531 F. Supp. 987, 995 (D. Utah 1982) (noting in a civil action seeking declaratory and injunctive relief against enforcement of a Utah statute making it a crime to distribute indecent material by wire or cable that the state’s anti-lenity statute required finding the criminal statute was unconstitutionally overbroad and that it was inappropriate to either adopt a narrowing construction of the statute or to abstain). This latter case might have cited—but did not—the relevant anti-lenity statute for the proposition that the court could not construe the statute narrowly to avoid constitutional issues for a statute claimed to be overbroad.

This tiny number of federal court opinions, in these divergent contexts, makes observations about approaches or trends unhelpful, if not impossible. Clearly, however, federal courts are not considering (or at least not citing) state anti-lenity statutes with any meaningful frequency.

V.     Analysis

The long, strange trip of these state anti-lenity statute shows that the courts have virtually ignored them. More than one hundred and fifty years ago, Oregon enacted the first state anti-lenity statute in 1864. Currently, nearly a quarter of the states (twelve) have anti-lenity statutes. Many of these states have had anti-lenity statutes for more than a century, with the most recent enactments arriving on the scene fifty years ago. Collectively, these anti-lenity statutes have been in place for a total of more than 1,300 years.

Although some states with anti-lenity statutes are sparsely populated, several are not. States with anti-lenity statutes include California, Texas, and New York—collectively, the dozen states with such provisions have more than one hundred million residents.344See State Population Totals and Components of Change: 2010–2019, https://perma.cc/NU3N-3BB5. State anti-lenity statutes direct how criminal statutes should be construed in the nearly twenty million new criminal cases filed each year in America’s state courts. And these state anti-lenity statutes negate the rule of lenity, which has been broadly adopted for more than two hundred years in the United States, both in federal and state courts.

Given all this, it seems surprising that state courts have cited these state anti-lenity statutes in such a comparatively small number of opinions (about 1,800) and discussed them with any rigor a far, far smaller number of times. Trying to explain why something is not happening always involves some degree of conjecture. But what are some of the reasons that might explain this void? Although there may be many, a small number of reasons may explain the absence of cases applying state anti-lenity statutes.

It may be that state courts look to federal courts, particularly the US Supreme Court, for guidance about statutory interpretation methods and how they should be applied. To the extent state courts look to federal courts for statutory interpretation modelling, there is no general federal anti-lenity statute, meaning there are no federal court opinions modelling how such a federal provision should be applied. Instead, because there is no general federal anti-lenity statute, federal courts frequently recognize, discuss, and apply the rule of lenity—a concept antithetical to an anti-lenity statute. Federal courts have done so for more than two centuries, even before the US Supreme Court’s Wiltberger decision in 1820, which described the rule of lenity as “ancient” and “perhaps not much less old than construction itself.”345United States v. Wiltberger, 18 U.S. 76, 95 (1820). Unlike so many other approaches to textual interpretation, federal courts: (1) are not asked to apply a federal anti-lenity statute (because one does not exist); (2) do not model how state courts should apply anti-lenity statutes; and (3) only rarely cite a state anti-lenity statute. That federal courts provide no modelling behavior as examples may be one reason why state courts are not citing state anti-lenity statutes.

Beyond a lack of federal court guidance, perhaps state courts themselves are not being asked to apply state anti-lenity statutes. Given the adversarial system, courts typically refrain from addressing issues, or applying statutes, that are not raised or cited by the parties. In fact, courts are criticized for addressing arguments that are not raised by the parties. Various doctrines (including, particularly, waiver) encourage courts to refrain from sua sponte addressing issues not raised or briefed by the parties. So, unless a party argues for the application of an anti-lenity statute, it is understandable that courts might not apply the provision on its own.

The question then becomes which party to a criminal case has an incentive to cite and argue the application of an anti-lenity statute? Stated differently, when would the interests of the defendant or the state be advanced by citing and relying on a state anti-lenity statute? The answer may be never, or at least not very often. A defendant is perceived as benefitting from the rule of lenity, which calls for strictly construing the law in the defendant’s favor and against the government, not an anti-lenity statute negating that rule. So, it would be a rare case when the defendant cited or relied on a state anti-lenity statute—at least the directive in such a statute that the rule of lenity does not apply—in defending against a criminal charge or pressing an appeal. Similarly, the government likely may have no interest in citing an anti-lenity statute. To do so, even if arguing in the alternative, could be read as conceding that a statute is ambiguous or in need of interpretation. Classically, that is not a primary argument the government would use in pursuing a criminal case or on appeal. Given that it is almost always is the appellee in a criminal case, the government likely would only need to rely on an anti-lenity statute in response to a defendant arguing that the rule of lenity should apply in an opening brief. That circumstance, in turn, typically would be in response to a defendant arguing that, contrary to the law of the state with an anti-lenity statute, the rule of lenity should apply.

Another reason why advocates may not be raising anti-lenity statutes is the uncertainty and lack of rigor in their application in the opinions where they are discussed. Depending on the jurisdiction, it is unclear how such an argument would be received by a court, based on a lack of guidance in prior opinions. This is true in jurisdictions where opinions seek to reconcile the rule of lenity and the state’s anti-lenity statute. It also is true in jurisdictions that appear to have two irreconcilable lines of opinions: one recognizing the anti-lenity statute and another recognizing a rule of lenity. And it is true in jurisdictions where opinions equate the anti-lenity statute with the rule of lenity. Perhaps even more significantly, it is true given the large number of opinions that do not apply the statute with any rigor. These uncertainties may temper the desire of advocates to place any reliance on a state anti-lenity statute. So, perhaps the interests of the parties in a criminal appeal, and the uncertainty and lack of rigor in the application of state anti-lenity statutes, help explain why advocates may not be citing and arguing them and why, in turn, courts are not citing or addressing them.346Although beyond the scope of this Article, a separate effort underway looks at appellate briefs available electronically for state and federal courts in the dozen states with anti-lenity statutes to analyze how citations to anti-lenity statutes and related arguments are being made by the parties on appeal.

There may be, of course, many other reasons why opinions are not citing anti-lenity statutes. For any concern about this lack of reliance on anti-lenity statutes to be significant, however, state anti-lenity statutes would need to have meaning. But do they? Do these state anti-lenity statutes really matter? Or has this long, strange trip been a pointless journey, meandering without purpose or destination and ending in futility? Answering these questions about state anti-lenity statutes starts with looking at whether the rule of lenity itself matters as a tool of statutory construction.

Either the rule of lenity has meaning—in that application of the rule of lenity in interpreting a statutory ambiguity influences the outcome of a case—or it does not. If the rule of lenity lacks meaning, then applying an anti-lenity statute should raise no concern and likely would make no difference in the outcome of a case. But if the rule of lenity does have meaning—and there are thousands of opinions citing and applying the rule of lenity, suggesting it is perceived to have meaning—at least sometimes, application of the rule could make a difference in the outcome of a case. If application of the rule of lenity could make a difference in the outcome of the case, almost by definition, then applying an anti-lenity statute could also make a difference in the outcome of the case.

Consistent with the thought that lenity, and state anti-lenity statutes, do have meaning, opinions show that application of a state’s anti-lenity statute can be outcome determinative. The number of opinions where that has been the case is small, but there are some opinions where application of a state anti-lenity statute is outcome determinative. In addition, opinions in states with an anti-lenity statute do, occasionally, distinguish opinions from other jurisdictions construing similar or identical statutory text that do not have anti-lenity statutes. Both approaches show state anti-lenity statutes can and do have meaning in deciding criminal cases, at least at times.

Given that the application of state anti-lenity statutes appears to have meaning, at least at times, attempts to reconcile state anti-lenity statutes with the rule of lenity merit closer examination. Those reconciliation attempts assume that the rule of lenity can peacefully coexist with a state anti-lenity statute. But is that really possible?

State anti-lenity statutes currently in place use the following text, or close proxies:

The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.347Tex. Penal Code Ann. § 1.05(a) (West 2020); see also infra Appendix 2.

It would not be difficult to reconcile the rule of lenity with the second sentence or portion of a state anti-lenity statute, which directs how criminal provisions should be construed. But to successfully reconcile the rule of lenity with a state anti-lenity statute, the effort would also need to account for the directives in the first sentence or portion of an anti-lenity statute, which directs that strict construction does not apply. Stated simply, do these anti-lenity statutes directing that strict construction does not apply negate or displace the common-law rule of lenity? The answer to that question turns on the proper characterization of the rule of lenity, which has not been monolithic.

If the rule of lenity is properly characterized as directing that a penal statute is to be strictly construed—and there are many, many opinions stating that is precisely what the rule of lenity directs348Numerous state supreme courts have done so this century. See, e.g., George M. v. Commissioner of Correction, 966 A.2d 179, 187 n.5 (Conn. 2009) (“The rule of lenity is a rule of construction under which penal statutes are construed strictly against the state.”); Seagrave v. State, 802 So. 2d 281, 291 (Fla. 2001) (“[W]e acknowledge that the rule of lenity requires that a criminal statute be ‘strictly construed.’”); State v. Shimabukuro, 60 P.3d 274, 277 (Haw. 2002) (“Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.”); State v. Olsen, 386 P.3d 908, 915 (Idaho 2016) (“The rule of lenity states that criminal statutes must be strictly construed in favor of defendants.”); In re Detention of Powell, 839 N.E.2d 1008, 1018 (Ill. 2005) (stating that, under the rule of lenity, “penal statutes, where ambiguous, are to be strictly construed to afford lenity to the accused”); Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005) (stating that the rule of lenity “requires that ‘criminal statutes be strictly construed against the state’”); State v. Richardson, 890 N.W.2d 609, 619 n.7 (Iowa 2017) (stating that “under the rule of lenity, criminal statutes are strictly construed”); State v. Arkell, 672 N.W. 564, 567 (Minn. 2003) (stating that the rule of lenity “require[es] penal statutes to be strictly construed in favor of a criminal defendant”); State v. Salazar, 236 S.W.3d 644, 646 (Mo. 2007) (“[W]hen interpreting a criminal statute . . . the rule of lenity requires the statute is to be strictly construed against the state.”); Commonwealth v. Smith, 221 A.3d 631, 636 (Pa. 2019) (“[U]nder the rule of lenity, penal statutes must be strictly construed in favor of the defendant.”); State v. Fuller, 800 S.E.2d 241, 246 (W. Va. 2017) (“In construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant.”); see also United States v. Lanier, 520 U.S. 259, 266 (1997) (noting the fair warning purpose of “the canon of strict construction of criminal statutes, or rule of lenity”); see also Price, supra note 21, at 901 & n.109.—the answer has to be that state anti-lenity statutes displace the rule of lenity, absent some constitutional infirmity. And if a state anti-lenity statute provides that the rule of lenity “does not apply to [the criminal] code,”349Tex. Penal Code Ann. § 1.05(a) (West 2019); see also infra Appendix 2.—again, absent some constitutional infirmity—courts interpreting that state’s criminal code should not use the rule of lenity in doing so. This is particularly true because the rule of lenity is a common law concept that, classically, would yield to a state anti-lenity statute containing a contrary direction for how the criminal code should be construed.350See, e.g., Daniel A. Farber & Philip P. Frickey, In the Shadow of the Legislature: The Common Law in the Age of the New Public Law, 89 Mich. L. Rev. 875, 888 (1991) (“When a statute is directly applicable, it of course displaces any conflicting common law rules [constitutional limits aside].”); Lynn E. Blais, Takings, Statutes, and the Common Law: Considering Inherent Limitations on Title, 70 S. Cal. L. Rev. 1, 21 (1996) (“And, of course, when a statute is applicable to a legal dispute, it displaces any conflicting common law rules.”). This sounds simple enough. But, as noted above, many opinions apply the rule of lenity in jurisdictions with state anti-lenity statutes, doing so without meaningful discussion or analysis.

Do the opinions that suggest the rule of lenity can be reconciled with an anti-lenity statute resolve the conflict? In order to do so, these opinions must be based on the proposition that lenity is neither the same as strict construction nor included within strict construction concepts that anti-lenity statutes abolish. Although small in number, these reconciliation efforts are not persuasive.

The end result of the California Supreme Court’s reconciliation attempt in People v. Avery was a declaration that “although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.”351People v. Avery, 38 P.3d 1, 6 (Cal. 2002). It is not clear, however, how this declaration accounts for California’s anti-lenity statute. California’s statute does not mention “legislative intent” (contrary or otherwise), directing instead that all of the Penal Code’s “provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”352Cal. Penal Code § 4 (West 2020). But even if statutory construction “with a view to effect its objects” properly involves considering “legislative intent,” why would that be limited to “contrary legislative intent,” as Averydirects, as opposed to “legislative intent” of all types?353Avery, 38 P.3d at 6. And what happens under the Averyformulation when “true ambiguities” are accompanied by “contrary legislative intent”?354Id. These quandaries are further complicated by the fact that Avery does not explain what is meant by “true ambiguities,” “strain to interpret,” or “fairly discern.”355Avery offered several possible alternative definitions for “true ambiguities”—“if the court can do no more than guess what the legislative body intended . . . there must be egregious ambiguity and uncertainty . . . two reasonable alternative definitions of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.” Id. It is not clear that these alternatives can be reconciled, and Avery did not attempt to do so. See id.

Far more significantly, however, Avery’s reconciliation attempt does not account for the directive in the first sentence of California’s anti-lenity statute that “[t]he rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.”356Cal. Penal Code § 4 (West 2020). Accounting for this directive is a necessary requirement for any attempt to reconcile a state’s anti-lenity statute with the rule of lenity. Indeed, it is this directive of state anti-lenity statutes—displacing the rule of lenity—that needs to be addressed head on in any attempt to reconcile anti-lenity statutes with the rule of lenity. For these reasons, the criticism that Avery “failed to fully reconcile these two lines of authority”357Love, supra note 3, at 2399 n. 27 (adding that there is “a vast gap between construing a criminal statute strictly and construing it according to the fair import of its terms but then siding with the defendant when all else fails” and that “Avery failed to resolve the critical question of whether the courts should put a thumb on the scale anytime a statute is susceptible of two reasonable interpretations or only when they can do more than guess as to the statute’s meaning”). seems understated.358More broadly still, Avery turned on what the common law required, not on ambiguous statutory text and, even then, rejected defendant’s argument that the rule of lenity should apply. See People v. Avery, 38 P.3d 1, 6 (Cal. 2002). As such, this attempted reconciliation in Avery was not necessary to resolve the issue presented, meaning it is unclear whether the discussion is anything other than dicta. Indeed, to date, it does not appear that the California Supreme Court has ever followed Avery on the point to reverse a conviction or sentence. See People v. Wade, 369 P.3d 546, 552 (Cal. 2016) (quoting but rejecting the argument of Avery, because “the rule of lenity compels [a] narrow interpretation”); People v. Manzo, 270 P.3d 711, 718 (Cal. 2012) (citing Avery but concluding “[e]xtrinsic aids reveal the legislative intent to criminalize defendant’s conduct . . . making invocation of the rule of lenity unnecessary in this case”); People v. Zambia, 254 P.3d 965, 975 n.7 (Cal. 2011) (citing Avery after concluding “[w]e also reject defendant’s contention that the rule of lenity is applicable”); People v. Medina, 161 P.3d 187, 195 (Cal. 2007) (citing Avery after concluding “we conclude the rule of lenity does not assist defendant”); People v. Anderson, 50 P.3d 368, 376 (Cal. 2002) (“Defendant argues that the rule of lenity compels a different result. We disagree.” (citing Avery)).

Moreover, Avery is the high water mark in the few attempts that have been made to reconcile state anti-lenity statutes with the rule of lenity. The Montana Supreme Court in State v. Turner,359See State v. Turner, 864 P.2d 235, 241 (Mont. 1993). decided in 1993, did not yield a majority opinion attempting reconciliation. The majority in Turner found the state’s anti-lenity statute displaced the rule of lenity, stating: “The Montana Legislature has statutorily abrogated the common law rule of strict construction so far as the penal code is concerned.”360Id. at 241. The Turner dissent found “no conflict” between the Montana’s anti-lenity statute and the rule of lenity, noting that “[b]oth require this Court to construe penal statutes ‘according to the fair import of their terms.’”361Id. at 248 (Gray, J., dissenting) (quoting Mont. Code Ann. § 45-1-102(2) and State v. Goodwin, 813 P.2d 953, 966 (1991)). But as in Avery, the Turner dissent did not address the first sentence of Montana’s anti-lenity statute, directing that strict construction “has no application to this code,”362Mont. Code Ann. § 45-1-102(2). let alone try to reconcile that directive with the rule of lenity.363Turner, 864 P.2d at 248–49 (Gray, J., dissenting).

The Montana Supreme Court’s subsequent attempt in 2002 also failed to reconcile the state’s anti-lenity statute with the rule of lenity. That court’s statement in State v. Liefert—that Montana’s anti-lenity statute “provides penal statutes are not strictly construed, leniency only applies when statutes create an ambiguity”364State v. Liefert, 43 P.3d 329, 336 (Mont. 2002) (citing United States v. Batchelder, 422 U.S. 114, 123 (1979), State v. Turner, 864 P.2d 235, 241 (Mont. 1993), and Mont. Code Ann. § 45-1-102 (2019)).—falls under its own weight. An ambiguity is a prerequisite to the application of both the rule of lenity and an anti-lenity statute. Read literally, however, this Liefert directive would mean that the rule of lenity applies when there is an ambiguity (contrary to Montana’s anti-lenity statute that strict construction has no application to the criminal code) and that the prohibition of strict construction mandated by the anti-lenity statute applies only when there is no ambiguity (meaning, in substance, it would never apply). Liefert did not attempt to reconcile the two concepts, nor has any post-Liefert opinion.

Other cases attempting reconciliation do even less to wrestle with whether the rule of lenity and an anti-lenity statute can peacefully co-exist, particularly the directive that strict construction does not apply. Simply stating the two concepts together does not, somehow, reconcile them.

Apart from these unsuccessful reconciliation attempts, what if the rule of lenity is not the same—either not identical, or not quite the same, or maybe even not the same at all—as the rule that a penal statute is to be strictly construed? There are opinions suggesting that the rule of lenity and strict construction may not be identical concepts.365See, e.g., Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 408 (2003) (noting the Hobbs Act, “being a criminal statute . . . must be strictly construed, and any ambiguity must be resolved in favor of lenity” (quoting United States v. Enmons, 410 U.S. 396, 411 (1973)) (emphasis added)); People v. Wendt, 645 N.E.2d 179, 182 (Ill. 1994) (referring to “rules of lenity and strict construction”); State v. Legassie, 171 A.3d 589, 596 (Me. 2017) (same); Cook v. Patient Edu, LLC, 989 N.E. 847, 853 (Mass. 2013) (same); State v. Ogden, 880 P.2d 845, 853–54 (N.M. 1994) (same). But even if they are not the same concepts, to the extent that the rule of lenity directs a court to strictly construe a criminal statute, such a direction contradicts a state anti-lenity statute mandating that “[t]he rule that a penal statute is to be strictly construed does not apply to this code.”366Tex. Penal Code Ann. § 1.05(a) (West 2019); see also infra Appendix 2.

Perhaps the rule of lenity is but one way a court may strictly construe a criminal statute, a subset of the possible forms of strict construction. But even then, if the rule of lenity requires strict construction in any form, application of that requirement would violate the directive in state anti-lenity statutes prohibiting strict construction. Stated differently, unless the rule of lenity does not direct the strict construction of a criminal statute in any way, a state anti-lenity statute directive prohibiting strict construction displaces the rule of lenity.

Although far from definitive, the evolution of anti-lenity statutes (and what they were designed to prevent and accomplish) suggests that they are, in fact, designed to displace the rule of lenity. The New York codification effort evidenced a clear preference for codified law over the common law, offering various reasons in support.367See supra text accompanying notes 131–151. But at a more granular level, New York’s anti-lenity statute, including the oddly placed comma, suggests that the effort was to negate the rule of lenity as stated in Wiltberger. New York’s anti-lenity statute also was part of an effort rejecting the thought that “it is better to let the Judges make the law as they go along, than to have the lawgiver make it beforehand.”368Field, supra note 132, at 331. And the specific text crafted for New York has served as a prototype for all other state anti-lenity statutes. This background further suggests state anti-lenity statutes are designed to displace the rule of lenity.

Although approaching the issue from a different perspective, more than a century after Wiltberger, the Model Penal Code rejected strict construction reflected in the rule of lenity in favor of the “far more desirable charge” to construe “ambiguous statutes in terms that strike an accommodation of the general principles here set forth, including the fair warning concept.”369Model Penal Code § 1.02 cmt. 4. The Model State Statute and Rule Construction Act did so even more bluntly, noting the rule of lenity “has been expressly rejected in a number of States” and citing commentary that courts applying the rule of lenity failed to do so consistently.370See Model Statute and Rule Construction Act § 18, cmt. on The Construction Process (Nat’l Conf. Comm’rs Unif. State Laws 1995) (citing Hall, supra note 19). The comment continued that “a State that recognizes the presumption that a penal statute shall be strictly construed, and desires to retain that presumption, will need to add an appropriate subsection to this section.” Id.

Statutory enactments from the 1860s on, including those in the 1970s, use text nearly identical to the anti-lenity statute proposed in New York in the 1860s. The reasons offered for those more recent enactments are insightful. Delaware rejected strict construction reflected in the rule of lenity, noting a statutory direction to effectuate the purposes of criminal law would work equally well, would avoid hypertechnical judicial opinions, and would still allow objections claiming unconstitutional ambiguity.371See Del. Crim. Code, ch. 2, cmt. to § 203 (1973). New Hampshire’s enactment followed the Model Penal Code, which rejected strict construction reflected in the rule of lenity, while also resolving a potential conflict in case law.372See N.H. Comm’n to Recommend Codification of Crim. L., Report, at 2 (April 1969) (§ 570:3 “Construction of the Code”). The Texas effort, notwithstanding an early reporter’s comment suggesting lenity survived,373See Preliminary Memorandum from Fred Cohen, Reporter—General Part, to Committee on Revision of the Penal Code and Advisory Committee—General Part 15, at 17 (Oct. 6, 1966), https://perma.cc/8HHY-GNS3. The report also stated the provision “is derived in part” from the Model Penal Code and New York Law. Id. documents the rejection of strict construction reflected in the rule of lenity given concerns about whether it served any legitimate purpose or function.374See Tex. Penal Code § 1.05 cmt. (State Bar Committee on Revision of the Penal Code, Final Draft 1970), https://perma.cc/9FQ5-TK2S.

These materials provide no definitive answer about the breadth of the prohibition of strict construction contemplated by state anti-lenity statutes. But—with the exception of one early comment affiliated with the Texas effort—they also provide no support for the proposition that the rule of lenity was excluded from the strict construction prohibition in state anti-lenity statutes. There is nothing to suggest that the rule of lenity, somehow, was to survive the enactment of state anti-lenity statutes.

If a state anti-lenity statute prohibits application of the rule of lenity, what can a court to do when faced with an ambiguity in a criminal statute under that state’s law? Stated differently, what is a court to do if the rule of lenity is unavailable? Several things. State anti-lenity statutes direct that the criminal code is to be construed according to “the fair import” of its terms and “to promote justice,” and often with reference to specified stated purposes in the criminal code.375See generally infra Appendix 2. The one exception to this generality is North Dakota, which uses unique language for the second component. See id. This directive provides a target and a goal for courts when construing ambiguous criminal statutes without resorting to the rule of lenity. Even absent the rule of lenity, courts have many other interpretive tools available when statutory text is found to be ambiguous.376See, e.g., Sutherland on Statutory Construction (2020) (multi-volume treatise on the topic); Uniform Statute and Rule Construction Act (Nat’l Conf. Comm’rs Unif. State Laws 1995) (providing various interpretive tools, other than the rule of lenity, for construing state statutes); Scalia & Garner, supra note 4, at 298–300. Moreover, constitutional ambiguity arguments, such as due process notice and void for vagueness defenses, would remain and could not be displaced by a state anti-lenity statute. In short, the absence of the rule of lenity does not, somehow, mean a court would lack any interpretive tools to resolve claimed ambiguities in criminal statutes. Indeed, this is evidenced in opinions applying state anti-lenity statutes with rigor and, in particular, in opinions where application of a state anti-lenity statute is outcome determinative.377See Gluck, supra note 305, at 1775, 1778 & n.90 (2010) (noting that, in Oregon, the “three-step” statutory construction methodology set forth in Portland General Electronic Co. v. Bureau of Labor and Industries, 859 P. 2d 1143 (Or. 1993), “has caused the near-elimination of the rule of lenity and the canon of constitutional avoidance from Oregon Supreme Court cases,” and adding that the court “has not applied the rule of lenity in a statutory construction case since [Portland General Electronic] was decided” and that Bailey v. Lampert, 153 P.3d 95 (Or. 2007), “cast doubt on whether [the rule of lenity] ever existed, and broadly read” Oregon’s anti-lenity statute “to eliminate it entirely”).

Despite this criticism of these reconciliation attempts, perhaps a court could reconcile a state anti-lenity statute and the rule of lenity. To do so would require directly confronting the meaning and scope of the first sentence or portion of the applicable anti-lenity statute that strict construction does not apply. But perhaps the first sentence is merely an introduction for the directives in the second sentence or portion of the applicable anti-lenity statute—directing how criminal statutes should be construed378See infra Appendix 2.—rather than an independent directive that the strict construction reflected in the rule of lenity does not apply. Maybe the first sentence is a directive to construe statutes broadly without regard to ambiguity, meaning it focuses on something other than strict construction concepts like the rule of lenity. Or perhaps, given the passage of time since most state anti-lenity statutes were enacted, the words used in the first sentence meant something different when enacted than they appear to mean today.379See, e.g., Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. Pa. L. Rev. 261, 262 (2019) (discussing corpus linguistics); Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788, 788 (2019) (same); Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics, 94 Wash. L. Rev. 1337, 1337–39 (2019) (same); Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 105 (2016) (same); cf. Jeffrey L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77, 79 (2010); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 Green Bag 51, 51 (2001); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 228–29 (1999). Or there might be other ways, based on careful advocacy and analysis, that could properly allow for reconciliation of the two seemingly irreconcilable propositions. If such a reconciliation can and should be done, an opinion doing so should expressly confront and then resolve the textual challenges presented in reconciling a state anti-lenity statute and the rule of lenity. To date, however, that has not happened.

If reconciliation is not possible, what about the constitutionality of state anti-lenity statutes? What can be learned from the occasional indication that there is a constitutional impediment to, or perhaps more correctly a constitutional shadow over, a state anti-lenity statute? The Utah Supreme Court in Rasabout, the California Supreme Court in Lungren,and one dissenting Michigan Supreme Court justice in Moore have written that due process notice concerns instruct the rule of lenity, thereby suggesting an anti-lenity statute might violate due process. One of the justifications offered for the rule of lenity is to ensure notice, thereby avoiding due process notice issues.380See supra text accompanying notes 45–46. But stating that the rule of lenity is designed to avoid due process notice concerns is not the same as stating the rule of lenity is mandated by due process.

Although the rule of lenity may be significantly influenced by due process notice concerns, “the rule of strict construction has never been accorded independent constitutional status” under the US Constitution.381See G. Robert Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L. Rev. 237, 290 n.150 (1982). And although a state constitution can provide for more protection than the US Constitution,382See generally Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018) (discussing how individual states can provide heightened protections in their state constitutions). no case construing a state anti-lenity statute has recognized state constitutional rights for the rule of lenity exceeding those under the US Constitution.383The Utah Supreme Court came closest to doing so in Rasabout, but even then construed the United States and Utah Constitutions as providing “the same protection.” State v. Rasabout, 356 P.3d 1258, 1267 (Utah 2015) (concluding “the rule of lenity is dictated by the notice protection afforded by both federal and state due process,” but noting “[t]he Due Process Clause of the Utah Constitution provides an alternative basis for the same protection” of due process under the United States Constitution). Given that Rasabout found the statute was not ambiguous, meaning the rule of lenity argument was not implicated, the constitutionality of Utah’s anti-lenity statute was not at issue and the force of this discussion of that statute is unclear (be it dicta or otherwise). No case, in Utah or elsewhere, has cited this analysis from Rasabout; the one Utah case decided after Rasabout citing Utah’s anti-lenity statute quoted only the second sentence of that statute (how statutes should be construed), not the first sentence (containing the anti-lenity mandate). See State v. Sanders, 445 P.3d 453, 459 (Utah 2019) (citing Utah Code § 76-1-1-6). One Utah Supreme Court opinion cited the rule of lenity recognized in Rasabout, without citing Utah’s anti-lenity statute, but concluded the relevant statute was not ambiguous, meaning lenity did not apply. See Met v. State, 388 P.3d 447, 458–59 n.10 (Utah 2016) (citing Rasabout); see also State v. Hawker, 374 P.3d 1085, 1090, 1092 (Utah Ct. App. 2016) (Voros, J., concurring in part and concurring in the result) (“I would reverse under the rule of lenity.” (citing Rasabout)). Independently, Rasabout was noteworthy for its discussion about the use of corpus linguistics in statutory interpretation. See Recent Case, State v. Rasabout, 356 P.3d 1258 (Utah 2015), 129 Harv. L. Rev. 1468, 1468 (2016). Instead, cases stop short (perhaps just short, but short nonetheless) of finding that the rule of lenity is constitutionally mandated by due process.384See, e.g., Rosenkranz, supra note 3, at 2092–102, 2102 n.54 (discussing, in significant detail, the concept of the “constitutional status” of interpretative tools, providing examples that stop short of stating a concept is constitutionally required, including being inspired (but not required) by the Constitution, “drawing their inspiration and authority from” the Constitution, “constitutionally oriented . . . traceable to central features of the constitutional structure . . . rooted in notions of due process . . . constitutionally inspired [and] constitutionally derived”); see also Elhauge, supra note 55, at 2199 n.117 (“I would reject the suggestion by some that the rule of lenity might be required by the due process clause. Any due process concerns would be fully vindicated by a judicial decision that adopts a clear evenhanded interpretation for prospective application (and thus provides the requisite notice to future criminals), but holds that the past statutory ambiguity means the statute cannot be applied to past cases under the void-for-vagueness doctrine.”) (citing William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 600 (1992); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2093–94 (2002)); Alan R. Romero, Note, Interpretive Directions in Statutes, 31 Harv. J. on Legis. 211, 230 (1994) (“[T]he federal constitution does not mandate [the rule of lenity].”). Another recent article noted that, “from an originalist standpoint, it would be extremely difficult to make the case that the Fourteenth Amendment compels the rule of lenity, given the number of States that had legislatively abrogated it before and immediately after that Amendment was adopted.” Michael J. Zydney Mannheimer, Vagueness as Impossibility, 98 Tex. L. Rev. 1049, 1083 (2020). There are likely many reasons for this. But comparing the application of the rule of lenity to ambiguous text with interpretation of ambiguous text when no rule of lenity exists strongly indicates the rule of lenity is not mandated by due process.

If when applying the rule of lenity an ambiguous statute is read narrowly, due process notice issues otherwise present are avoided and, therefore, resolved as a practical matter. If, by contrast, there was no rule of lenity—meaning an ambiguous statute could not be read narrowly—that would not avoid or resolve due process notice issues. Instead, the due process notice issues would persist and would need to be addressed and resolved. Without the rule of lenity, if the ambiguous statute failed to provide notice required by due process, it could not be enforced against the defendant. Otherwise, application of the statute would violate due process guarantees and be unconstitutional as applied. Stated differently, if there was no rule of lenity, due process notice issues would persist and, in fact, could not be avoided through application of the rule of lenity. In substance, application of a state anti-lenity statute yields this precise result.

An anti-lenity statute displaces the rule of lenity but does not, and could not properly, displace due process notice guarantees. Instead, application of an anti-lenity statute means due process notice issues cannot be avoided by applying the rule of lenity and, instead, persist. As a result, either an ambiguous statute would provide required due process notice—meaning the due process challenge would fail—or the statute would not provide required due process notice—meaning the due process challenge would succeed and the statute could not be enforced against the defendant. But application of a state anti-lenity statute, precluding the application of the rule of lenity, would not, and could not, deprive a defendant of required due process notice guarantees. For these reasons, it is not surprising that the rule of lenity is generally not said to be mandated by due process notice requirements. And, as a corollary, state anti-lenity statutes are not prohibited by due process notice requirements.

Even if a court found the rule of lenity is constitutionally mandated given due process notice requirements, it is not clear that application of an anti-lenity statute would negate that mandate. If the rule of lenity was found to be constitutionally mandated by due process requirements, either the rule of lenity would be co-extensive with due process requirements or it would be more protective than due process requirements. If the rule of lenity was co-extensive with due process requirements, application of an anti-lenity statute would, in cases on the margin, mean that a criminal statute could not constitutionally be applied consistent with due process notice requirements. But in that case the rule of lenity would not be necessary; even without the rule of lenity, courts would hold the statute to have violated due process notice requirements. Even that possibility, however, does not suggest that an anti-lenity statute would be unconstitutional. Instead, the substantive criminal statute at issue would yield, as all statutes must, to constitutional due process notice requirements. Only if the rule of lenity was more protective than due process notice requirements would applying an anti-lenity statute to negate the rule of lenity alter the outcome. But if the rule of lenity was even more protective than due process, it could not be said to be mandated by due process. Moreover, as noted, no opinion states that the rule of lenity is mandated by due process notice requirements, let alone that the rule of lenity is more protective than due process notice requirements.

Finally, even if the rule of lenity was found to be mandated by due process notice requirements (or found to be even more protective than due process), and even if an anti-lenity statute was found to be unconstitutional as contrary to this due process mandate (or, by the rule of lenity itself, if it was found to be even more protective than due process), a court reaching that conclusion should say so expressly, provide supporting rationale, and declare the anti-lenity statute unconstitutional. To date, no court has done so. And until a properly enacted state anti-lenity statute is declared unconstitutional, it should be applied by the courts construing that state’s criminal law, not ignored.

Constitutional separation of powers concerns occasionally directed toward state anti-lenity statutes fare no better. The most pointed of these are presented as questions by one Michigan Supreme Court justice in two different dissents in the past two decades.385See People v. Ream, 750 N.W.2d 536, 559 (Mich. 2008) (Kelly, J., dissenting); People v. Jackson, 655 N.W.2d 229, 231 (Mich. 2003) (Kelly, J., dissenting); see also sources cited supra notes 299–302 and accompanying text. The issue was left unresolved and no supporting rationale was provided.386See Ream, 750 N.W.2d at 559. (Kelly, J., dissenting); Jackson, 655 N.W.2d at 231 (Kelly, J., dissenting). That gap is unsurprising. State legislatures define by statute what constitutes a crime and define statutory terms consistent with that authority, subject to the requirements that the enactments pass constitutional muster.387See, e.g., Dowling v. United States, 473 U.S. 207, 214 (1985) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment.” (quoting United States v. Wiltberger, 18 U.S. 76, 95 (1820))); Rochin v. California, 342 U.S. 165, 168 (1952) (“In our federal system the administration of criminal justice is predominantly committed to the care of the States. The power to define crimes belongs to Congress only as an appropriate means of carrying into execution its limited grant of legislative powers. Broadly speaking, crimes in the United States are what the laws of the individual States make them, subject to the limitations of Art. I, s 10, cl. 1, in the original Constitution, prohibiting bills of attainder and ex post facto laws, and of the Thirteenth and Fourteenth Amendments.” (citing U.S. Const. Art. I, § 8, cl. 18.)); see also Newland, supra note 1. That legislative authority and responsibility is mandated by, or at very least consistent with, separation of powers concepts. Accordingly, it is hard to see how a statute also providing guidance to courts about how the criminal code should be interpreted—like the anti-lenity statutes discussed here—would trespass constitutional boundaries.388But cf. Gary E. O’Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. Legis. & Pub. Pol’y 333, 348 & n.78 (2004) (“While this issue is beyond the scope of this article, some scholars argue that Congress lacks the power to enact laws that instruct courts and other interpreters on how to interpret future laws and that previous exercises of the alleged power, such as the Dictionary Act, are unconstitutional.”). Indeed, if Wiltberger was correct in stating that “[i]t is the legislature, not the Court, which is to define a crime,”389United States v. Wiltberger, 18 U.S. 76, 95 (1820). recognizing the validity of an anti-lenity statute directing how a criminal statute should and should not be construed would appear to further the concept that the legislature, not the court, defines crimes.

Separately, but more specifically, the fact that hundreds of opinions decided over many decades have cited the second sentence of state anti-lenity statutes (stating how the criminal code is to be construed) would significantly undercut any thought that the legislature cannot direct how courts should construe criminal statutes as directed in the first sentence of state anti-lenity statutes. Moreover, if the legislature properly can direct how courts should construe the criminal code in the second sentence of an anti-lenity statute, from a separation of powers perspective, it is hard to see how the legislature could not also do so by including the anti-lenity directive in the first sentence of the same statute. Not surprisingly, to date, no opinion has found that an anti-lenity statute violated separation of powers concepts.

That no case has struck a state anti-lenity statute as violating constitutional requirements or prohibitions does not, of course, mean that will never happen. And it is not beyond question that a statute prohibiting courts from construing statutes in a certain way could violate separation of powers.390See Linda D. Jellum, “Which Is To Be Master,” The Judiciary or The Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. Rev. 837, 844–46, 846 n.41 (2009) (discussing Evans v. State, 872 A.2d 539, 549–50 (Del. 2005), which struck down on separation of powers grounds a statute that provided “Delaware judicial officers” may not “interpret or construe statutes and other Delaware law when the text is clear and unambiguous”); see also Gluck, supra note 305, at 1825 & n.285 (same); cf. State v. Reed, 456 P.3d 453, 458 (Ariz. 2020) (holding that a statute requiring dismissal of a pending appeal on convicted defendant’s death violated separation of powers). If, however, a state anti-lenity statute creates a separation of powers defect, an opinion reaching that conclusion should do so expressly, provide the supporting analysis, and strike the anti-lenity statute as unconstitutional. To date, no court has come close to doing so.

Apart from the small number of opinions showing anti-lenity statutes can be outcome determinative and alter the analysis used, and the reconciliation attempts and constitutional questions occasionally raised, nearly all opinions citing anti-lenity statutes are not applying them, either at all or with any meaning. Properly enacted statutes, however, are valid and enforceable unless they are found unconstitutional. Until a state anti-lenity statute is declared unconstitutional, either facially or as applied, it should be applied by the courts construing that state’s criminal law.

To the extent that courts are citing anti-lenity statutes, but not applying them with rigor, why might that be? Again, the answer is unclear. Where state courts have cited anti-lenity statutes, the citation typically is with no analysis of consequence. In almost all jurisdictions with state anti-lenity statutes, the rule of lenity still appears in opinions. Perhaps this can be explained by the various justifications for the rule of lenity, ranging from notice and fairness, procedural due process, separation of powers, judicial restraint, constitutional avoidance, presumption of innocence, and the rule of law. More basically, there may be an intuitive appeal to the thought that when a criminal statute is ambiguous the defendant should receive the benefit of the doubt. These reasons may influence opinions that either ignore or fail to apply with rigor anti-lenity statutes, as well as those finding lenity exists despite the existence of an anti-lenity statute (or, more confoundingly, that lenity is found in an anti-lenity statute).

If these speculative reasons do explain the opinions that ignore state anti-lenity statutes or fail to apply them with any rigor, they are never expressed in those opinions. Moreover, to the extent these speculative reasons do explain those opinions, they would be consistent with criticisms of the rule of lenity, including criticisms such as that it is used to negate legislation, leads to uncertain application, is ill-defined, and undercuts the rule of law. More bluntly, if these speculative reasons do explain those opinions, those opinions would conflict with the very purpose of an anti-lenity statute: a declaration, in a properly enacted statute, that in construing criminal statutes the court should not strictly construe the statutory text but, instead, should do so in light of the purposes set forth in the anti-lenity statute.

Conclusion

This long, strange trip for state anti-lenity statutes has roots tracing back nearly two centuries. State anti-lenity statutes have been part of state criminal codes since 1864. A dozen states have had anti-lenity statutes for decades, and they can alter the outcome of a case and the analysis used. Never has a state anti-lenity statute been held unconstitutional. But they have largely been ignored. Precisely why is a mystery that remains unresolved. That said, state anti-lenity statutes remain the law of a dozen states, and undoubtedly will continue to be part of criminal statutes in various states for many decades to come.

This long, strange trip for state anti-lenity statutes continues. How, where, and if it will end is unknown and currently unknowable. But, as properly enacted statutory directives for how criminal statutes should be construed, unless they are repealed or found to be unconstitutional, state anti-lenity statutes should be applied by courts and not be ignored. Advocates and courts will help chart the route forward for state anti-lenity statutes, as this long, strange trip continues.

Appendix 1: Jurisdictions Recognizing The Rule of Lenity (Example Case by Jurisdiction)

Jurisdiction Example Case and Text
D.C. Circuit
Court of Appeals
Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 27 (D.C. Cir. 2019) (“Under the rule of lenity, ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’”).
First Circuit
Court of Appeals
United States v. Giggey, 867 F.3d 236, 243 (1st Cir. 2017) (“The rule of lenity generally applies to criminal statutes that are subject to more than one plausible interpretation and demands that the interpretation more favorable to the defendant prevail.”).
Second Circuit
Court of Appeals
Golb v. Att’y Gen. of New York, 870 F.3d 89, 104 (2d Cir. 2017) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”).
Third Circuit
Court of Appeals
Binderup v. Att’y Gen. United States, 836 F.3d 336, 342 (3d Cir. 2016) (stating that the rule of lenity provides “that ambiguous criminal laws be construed in favor of defendants”).
Fourth Circuit
Court of Appeals
United States v. Torrez, 869 F.3d 291, 312 n.10 (4th Cir. 2017) (“Under the rule of lenity any criminal statute, including a sentencing provision, must be construed in favor of the accused and against the government if it is ambiguous.”).
Fifth Circuit
Court of Appeals
United States v. Chapman, 851 F.3d 363, 373 (5th Cir. 2017) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”).
Sixth Circuit
Court of Appeals
United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016) (“When, in criminal cases, the tools of statutory interpretation do not resolve aquestion, where significant doubt or uncertainty lingers, we must construe the provision in favor of the defendant. This principle—the rule of lenity—has roots deep within the Anglo-American legal tradition, and it embodies the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.’”).
Seventh Circuit
Court of Appeals
United States v. Spencer, 739 F.3d 1027, 1031 (7th Cir. 2014) (“To the extent that there is ambiguity in the text and structure of [a federal statute], the Rule of Lenity calls for us to read the federal statute favorably to the accused.”).
Eighth Circuit
Court of Appeals
United States v. Smith, 756 F.3d 1070, 1075 (8th Cir. 2014) (“The rule of lenity requires a criminal statute be construed in a defendant’s favor where, ‘after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended.’”).
Ninth Circuit
Court of Appeals
United States v. Edling, 895 F.3d 1153, 1158 (9th Cir. 2018) (“The rule of lenity ‘instructs that, where a statute is ambiguous, courts should not interpret the statute so as to increase the penalty that it places on the defendant.’”).
Tenth Circuit
Court of Appeals
United States v. Martinez-Cruz, 836 F.3d 1305, 1314 n.8 (10th Cir. 2016) (“The rule of lenity applies where a statute is facially ambiguous and resort to the legislative history does not reveal the congressional intent of the language. Under these circumstances, courts construe the statute favorably to the criminal defendant.”).
Eleventh Circuit
Court of Appeals
United States v. Phifer, 909 F.3d 372, 383–84 (11th Cir. 2018) (“Under the rule of lenity, when a criminal law is ambiguous, we resolve doubts in favor of the defendant.”).
Federal Circuit
Court of Appeals
O’Neill v. Dep’t of Hous. & Urb. Dev., 220 F.3d 1354, 1360 (Fed. Cir. 2000) (“[C]riminal statutes must be strictly construed in favor of lenity.”).
Alabama Ex parte Pate, 145 So. 3d 733, 737 (Ala. 2013) (“[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. The rule of lenity requires that ‘ambiguous criminal statute[s] . . . be construed in favor of the accused.’”).
Alaska George v. State, 988 P.2d 1116, 1117–18 (Alaska Ct. App. 1999) (“Where legislative intent is ambiguous, the rule of lenity must prevail. That rule requires that ambiguous penal statutes be construed against the government.”).
Arizona State v. Miles, 414 P.3d 680, 688 (Ariz. 2018) (“[W]here 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.”) (citations omitted).
Arkansas State v. Ledwell, 526 S.W.3d 1, 3 (Ark. 2017) (“Criminal statutes are construed strictly, and any doubts are resolved in favor of the defendant.”).
California People v. Arias, 195 P.3d 103, 107 (Cal. 2008) (“If a statute defining a crime or punishment is susceptible of two reasonable interpretations, we ordinarily adopt the interpretation that is more favorable to the defendant.”).
Colorado People v. Summers, 208 P.3d 251, 258 (Colo. 2009) (“Under the rule, ‘ambiguity in the meaning of a criminal statute must be interpreted in favor of the defendant.’”).
Connecticut State v. Ward, 52 A.3d 591, 600 (Conn. 2012) (“[I]f, after interpreting a penal provision, there remains any ambiguity regarding the legislature’s intent, the rule of lenity applies. ‘It is a fundamental tenet of our law to resolve doubts in the enforcement of a Penal Code against the imposition of a harsher punishment.’”).
Delaware State v. Barnes, 116 A.3d 883, 892 n.42 (Del. 2015) (“[W]hen a criminal statute is ambiguous, it should be construed against the State and read in favor of the defendant.”).
District of Columbia Cullen v. United States, 886 A.2d 870, 874 (D.C. 2005) (“It is well-established that criminal statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant (i.e., the Rule of Lenity).”).
Florida State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016) (“[W]hen criminal statutes are subject to competing, albeit reasonable, interpretations, they must be ‘strictly construed . . . most favorably to the accused.’”).
Georgia McNair v. State, 745 S.E.2d 646, 648 (Ga. 2013) (“The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment.”).
Hawaii State v. Woodfall, 206 P.3d 841, 850 (Haw. 2009) (“Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.”).
Idaho State v. Anderson, 175 P.3d 788, 792 (Idaho 2008) (“The rule of lenity states that criminal statutes must be strictly construed in favor of defendants.”).
Illinois People v. Gutman, 959 N.E. 2d 621, 624 (“Pursuant to the rule of lenity, ambiguous criminal statutes will generally be construed in the defendant’sfavor.”).
Indiana Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009) (“The rule of lenity requires that penal statutes be construed strictly against the State and any ambiguities resolved in favor of the accused.”).
Iowa State v. Hearn, 797 N.W. 2d 577, 585 (Iowa 2011) (“The rule of lenity requires that ambiguous statutes imposing criminal liability be strictly construed in favor of the defendant.”).
Kansas State v. Jordan, 370 P.3d 417, 419 (Kan. 2016) (“[W]here a criminal statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that the statute be construed in favor of the accused.”).
Kentucky Shouse v. Commonwealth, 481 S.W.3d 480, 485 (Ky. 2015) (“[T]he rule of lenity requires a conflict in a statutory scheme ‘to be resolved in favor of a criminal defendant.’”).
Louisiana State v. Oliphant, 113 So. 3d 165, 168 (La. 2013) (“[I]t is well-established criminal statutes are subject to strict construction under the rule of lenity. Criminal statutes, therefore, are given a narrow interpretation, and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State.”).
Maine State v. Stevens, 912 A.2d 1229, 1231 (Me. 2007) (“The rule of lenity counsels us to resolve ambiguities in favor of the more lenient punishment when construing an ambiguous criminal statute that sets out multiple or inconsistent punishments.”).
Maryland Oglesby v. State, 109 A.3d 1147, 1149 (Md. 2015) (“When a court construes a criminal statute, it may invoke a principle known as the ‘rule of lenity’ when the statute is open to more than one interpretation and the court is otherwise unable to determine which interpretation was intended by the Legislature. Instead of arbitrarily choosing one of the competing interpretations, the court selects the interpretation that treats the defendant more leniently.”).
Massachusetts Commonwealth v. Carrion, 725 N.E.2d 196, 198 (Mass. 2000) (“If the statutory language ‘can plausibly be found to be ambiguous,’ the rule of lenity requires the defendant be given ‘the benefit of the ambiguity.’”).
Michigan People v. Denio, 564 N.W.2d 13, 17 (Mich. 1997) (“The ‘rule of lenity’ provides that courts should mitigate punishment when the punishment in a criminal statute is unclear.”).
Minnesota State v. Thonesavanh, 904 N.W.2d 432, 440 (Minn. 2017) (“The canon [the rule of lenity], as its name would imply, directs courts to ‘favor a more lenient interpretation of a criminal statute.’”).
Mississippi McLamb v. State, 456 So. 2d 743, 745 (Miss. 1984) (“[T]he long-standing rule that penal statutes are to be interpreted strictly against the state and construed liberally in favor of the accused. Where a statute is patently ambiguous, it must be interpreted in favor of the accused.”).
Missouri State v. Rowe, 63 S.W.3d 647, 650 (Mo. 2002) (“The rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation.”).
Montana State v. Goodwin, 813 P.2d 953, 966–67 (Mont. 1991) (“We agree with the following rule of implementation articulated by the United States Supreme Court over the years: ‘First, as we have recently reaffirmed, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”’”), overruled by State v. Turner, 864 P.2d 235, 241 (Mont. 1993).
Nebraska State v. Covey, 859 N.W.2d 558, 566 (Neb. 2015) (“Under the rule of lenity, ambiguities in a penal statute are resolved in the defendant’s favor.”).
Nevada Casteneda v. State, 373 P.3d 108, 114 (Nev. 2016) (“Consistent with the rule of lenity, though, we are obligated to construe statutes that contain ambiguity in the proscribed conduct in the accused’s favor.”).
New Hampshire State v. Dansereau, 956 A.2d 310, 315 (N.H. 2008) (“We have previously noted that ‘[t]he rule of lenity serves as a guide for interpreting criminal statutes where the legislature failed to articulate its intent unambiguously.’ This rule of statutory construction ‘generally holds that ambiguity in a criminal statute should be resolved against an interpretation which would increase the penalties or punishments imposed on a defendant.’”).
New Jersey State v. Regis, 32 A.3d 1109, 1116 (N.J. 2011) (“The rule of lenity is an important principle of statutory construction; if a statutory ambiguity cannot be resolved by analysis of the relevant text and the use of extrinsic aids, the rule requires that the ambiguity be resolved in favor of the defendant.”).
New Mexico Santillanes v. State, 849 P.2d 358, 364 (N.M. 1993) (“It is well-settled in our state that a statute defining criminal conduct must be strictly construed. Any doubts about the construction of penal statutes must be resolved in favor of lenity.”).
New York People v. Golb, 15 N.E.3d 805, 814 (N.Y. 2014) (“[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity.”).
North Carolina State v. Hinton, 639 S.E.2d 437, 440 (N.C. 2007) (“In construing ambiguous criminal statutes, we apply the rule of lenity, which requires us to strictly construe the statute.”)
North Dakota State v. Rath, 901 N.W.2d 51, 56 (N.D. 2017) (“The rule of lenity ‘requires ambiguous criminal statutes to be construed in a defendant’s favor.’”).
Ohio State v. Straley, 11 N.E.3d 1175 (Ohio 2014) (“We have, however, emphasized that ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.’ This canon of strict construction, also known as the rule of lenity, is codified in R.C. 2901.04(A), which provides that sections of the Revised Code that define offenses or penalties ‘shall be strictly construed against the state, and liberally construed in favor of the accused.’”).
Oklahoma Newlun v. State, 348 P.3d 209, 211 (“[A] primary rule of statutory construction, the ‘rule of lenity,’ requires that we construe statutes strictly against the state and liberally in favor of the accused.”).
Oregon Bailey v. Linthwaite, 665 P.2d 863, 873 (Or. 1983) (concluding that a criminal statute creating “a separate offense for each victim of a criminal episode, does not indicate legislative intent that punishment be by way of multiple sentencing. We therefore apply the principle of lenity adopted in State v. Welch,” 505 P.2d 910 (Or. 1973)), superseded by statute on other grounds as noted in State v. Crotsley, 765 P.2d 818, 820 (Or. Ct. App. 1988)).
Pennsylvania Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015) (“Generally speaking, under the rule of lenity, penal statutes are to be strictly construed, with ambiguities resolved in favor of the accused.”).
Rhode Island State v. Smith, 766 A.2d 913, 924 (R.I. 2001) (“When the meaning of a criminal statute is ambiguous, the policy of lenity in the construction of criminal statutes requires that the less harsh of two possible meanings be adopted.”).
South Carolina Berry v. State, 675 S.E.2d 425, 426 (S.C. 2009) (“[I]n construing a criminal statute, we are guided by the rule of lenity—the principle that any ambiguity must be resolved in favor of the accused.”).
South Dakota State v. Dillon, 632 N.W.2d 37, 46 (S.D. 2001) (noting the “rule of lenity allows ambiguous criminal statutes to be construed in favor of accused”).
Tennessee State v. Denton, 149 S.W.3d 1, 17 (Tenn. 2004) (“[I]n criminal cases, all ambiguities will be resolved in favor of the defendant.”).
Texas Bruner v. State, 463 S.W.2d 205, 215 (Tex. Crim. App. 1970) (“A forbidden act must come clearly within the prohibition of the statute and any doubt as to whether an offense has been committed should be resolved in favor of the accused.”).
Utah State v. Rasabout, 356 P.3d 1258, 1266 (Utah 2015) (“The rule of lenity requires that we interpret an ambiguous statute in favor of lenity toward the person charged with criminal wrongdoing.”).
Vermont State v. Hurley, 117 A.3d 433, 439 (Vt. 2015) (“[T]he rule of lenity, the principal that ‘requires any doubts created by ambiguous legislation be resolved in favor of the defendant’ and construed against the state. . . . The rule of lenity applies to penal laws.”).
Virginia Johnson v. Commonwealth, 793 S.E.2d 321, 324 n.2 (Va. 2016) (“[T]he rule of lenity, under which we give the defendant in a criminal case the benefit of any ambiguities in a penal statute, does not apply when the statute is unambiguous.”).
Washington State v. Weatherwax, 392 P.3d 1054, 1061 (Wash. 2017) (“In this situation, the rule of lenity requires us to interpret the statute strictly in favor of the defendant.”).
West Virginia State v. Trent, 465 S.E.2d 257, 262 (W. Va. 1995) (“[I]n construing an ambiguous criminal statute, the rule of lenity applies which requires that ‘[p]enal statutes must be strictly construed against the State and in favor of the defendant.’”).
Wisconsin State v. Villamil, 898 N.W.2d 482, 488 (Wis. 2017) (“The rule of lenity ‘provides generally that ambiguous penal statutes should be interpreted in favor of the defendant.’”).
Wyoming Adekale v. State, 344 P.3d 761, 768 (Wy. 2015) (“No discussion of this issue would be complete without addressing the rule of lenity or strict construction of criminal statutes. That rule provides that an ambiguity in a criminal statute should be resolved in favor of lenity.”).

 Appendix 2: States That Currently Have Anti-Lenity Statutes and Their Text

State Statute and Text
Arizona “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 § 13-101.” Ariz. Rev. Stat. § 13-104 (West, Westlaw through 2020 Sess.).
California “The rule of the common law, that penal statutes are to be strictly construed, 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.” Cal. Penal Code § 4 (West, Westlaw through 2020 legislation).
Delaware “The general rule that a penal statute is to be strictly construed does not apply to this Criminal Code, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in § 201 of this title.” Del. Code Ann. tit. 11, § 203 (LEXIS through 2019–2020 legislation).
Michigan “The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” Mich. Comp. Laws Ann. § 750.2 (West, Westlaw through 2020 legislation).
Montana “The rule of the common law that penal statutes are to be strictly construed 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 object and to promote justice.” Mont. Code Ann. § 45-1-102(2) (West, Westlaw through 2019 Sess.).
New Hampshire “The rule that penal statutes are to be strictly construed does not apply to this code. All provisions of this code shall be construed according to the fair import of their terms and to promote justice.” N.H. Rev. Stat. Ann. § 625:3 (West, Westlaw through 2020 legislation).
New York “The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.” N.Y. Penal Law § 5.00 (LEXIS through 2019–2020 legislation).
North Dakota “The rule of the common law that penal statutes are to be strictly construed has no application to this title. This title establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to promoting its objects and in furtherance of justice.” N.D. Cent. Code § 29-01-29 (LEXIS through 2019 Sess.).
Oregon “The rule that a penal statute is to be strictly construed shall not apply to chapter 743, Oregon Laws 1971, or any of its provisions. Chapter 743, Oregon Laws 1971, shall be construed according to the fair import of its terms, to promote justice and to effect the purposes stated in subsection (1) of this section.” Or. Rev. Stat. Ann. § 161.025(2) (West, Westlaw through 2020 Sess.).
South Dakota “The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes shall be construed according to the fair import of their terms, with a view to effect their objects and promote justice.” S.D. Codified Laws § 22-1-1 (West, Westlaw through 2020 Sess.).
Texas “The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.” Tex. Penal Code Ann. § 1.05 (a) (West, Westlaw through 2019 Sess.).
Utah “The rule that a penal statute is to be strictly construed shall not apply to this code, any of its provisions, or any offense defined by the laws of this state. All provisions of this code and offenses defined by the laws of this state shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law and general purposes of Section 76-1-104.” Utah Code Ann. § 76-1-106 (West, Westlaw through 2020 Sess.).

Appendix 3: States That Have Adopted Anti-Lenity Statutes

Appendix 4:  Search Methodology to Locate Cases Citing, Construing, or Quoting State Anti-Lenity Statutes

State Search Methodology
Arizona Although codified in different locations and manners, the text of the Arizona statute has not substantively changed since first enacted in 1887. See Ariz. Rev. Stat. § 13-104 (West, Westlaw through 2020); Ariz. Terr. Penal Code § 5 (1887).

The methodology to locate Arizona state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Arizona” Westlaw database searches for “13-104” (resulting in sixty-one reported opinions); “43-102” (resulting in twenty-three reported opinions); “4477” (resulting in five reported opinions); and “penal statute” /5 “strictly construed” (resulting in thirty-eight reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “13-104” (resulting in twenty-nine reported opinions, one of which cites Arizona’s anti-lenity statute); “43-102” (resulting in nine reported opinions, none of which cite Arizona’s anti-lenity statute); “4477” /20 ariz! (resulting in no reported opinions); and “penal statute” /5 “strictly construed” /20 ariz! (resulting in no reported opinions).

California The codification and text of the California statute have not changed since first enacted in 1874. See Cal. Penal Code § 4 (West, Westlaw through 2020 legislation); Cal. Penal Code § 4 (1874).

The methodology to locate California state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “California” Westlaw database searches for “Penal Code section 4” (resulting in fifty reported opinions) and “penal statute” /5 “strictly construed” (resulting in ninety-one reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “Penal Code section 4” (resulting in eighty-six reported opinions, none of which cite California’s anti-lenity statute) and “penal statute” /5 “strictly construed” /20 cal! (resulting in six reported opinions, none of which cite California’s anti-lenity statute).

Delaware The codification and text of the Delaware statute have not changed since first enacted effective in 1972. See Del. Code Ann. tit. 11 § 203 (West, Westlaw through 2019–2020 legislation).

The methodology to locate state court cases citing, construing or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Delaware” Westlaw database searches for “11” /2 “203” (resulting in fifteen reported opinions, although almost all of these cases captured a number associated with a keycite number found in publisher’s headnotes) and “penal statute” /5 “strictly construed” (resulting in eighteen reported opinions). Perhaps because of the unique importance of Court of Chancery of Delaware in business disputes, the Westlaw database includes decisions from the Supreme Court of Delaware, the Court of Chancery of Delaware and the Superior Court of Delaware. The discussion here addresses the reported cases for all levels of Delaware courts.

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “11” /2 “203” /20 Del! (resulting in thirty reported opinions, none of which cite Delaware’s anti-lenity statute; the “/20 Del!” limitation was included in this search to eliminate thousands of cases that captured a number associated with a keycite number found in publisher’s headnotes) and “penal statute” /5 “strictly construed” / 20 Del! (resulting in five reported opinions, none of which cite Delaware’s anti-lenity statute).

Michigan Although codified in different locations and manners, the text of the Michigan statute has not changed since first enacted in 1931. See Mich. Comp. Laws Ann. § 750.2 (West, Westlaw through 2020 legislation); Mich. Comp. Laws 750.2 (1931).

The methodology to locate state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Michigan” Westlaw database searches for “750.2” (resulting in forty-three reported opinions); “28.192” (resulting in twenty-five reported opinions); and “penal statute” /5 “strictly construed” (resulting in seventy-six reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “750.2” (resulting in three reported opinions, none of which cite Michigan’s anti-lenity statute); “28.192” (resulting in no reported opinions); and “penal statute” /5 “strictly construed” /20 Mich! (resulting in two reported opinions, none of which cite Michigan’s anti-lenity statute).

Montana Although codified in different locations and manners, the text of the Montana statute has not changed since first enacted in 1895. See Mont. Code Ann. § 45-1-102(2) (West, Westlaw through 2019 Sess.); Mont. Penal Code § 4 (1895).

The methodology to locate state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020 “Montana” Westlaw database searches for “45-1-102” (resulting in thirteen reported opinions); “94-101” (resulting in nineteen reported opinions); “10710” (resulting in four reported opinions); and “penal statute” /5 “strictly construed” (resulting in fourteen reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “45-1-102” (resulting in one reported opinion, which did not cite Montana’s anti-lenity statute); “94-101” (resulting in 169 reported opinions, none of which cite Montana’s anti-lenity statute); “10710” (resulting in 125 reported opinions, none of which cite Montana’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 Mont! (resulting in five reported opinions, none of which cite Montana’s anti-lenity statute).

New Hampshire The codification and text of the New Hampshire statute have not changed since first enacted effective in 1973. See N.H. Rev. Stat. Ann. § 625:3 (West, Westlaw through 2020 legislation).

The methodology to locate state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “New Hampshire” Westlaw database searches for “625:3” (resulting in 114 reported opinions) and “penal statute” /5 “strictly construed” (resulting in seven reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “625:3” (resulting in one reported opinion, which did not cite New Hampshire’s anti-lenity statute); “penal statute” /5 “strictly construed” /20 new (resulting in seven reported opinions, none of which cite New Hampshire’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 hamp! (resulting in no reported opinions).

New York Although codified in different locations and manners, the text of the New York statute has not substantively changed since first enacted in 1881.See N.Y. Penal Law § 5.00 (LEXIS through 2019–2020 legislation); N.Y. Penal Code, ch. 676, § 11 (1881).

The methodology to locate state court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “New York” Westlaw database searches for “5.00” (resulting in 205 reported opinions); “penal law” /2 “21” (resulting in sixty reported opinions); “penal code” /2 “11” (resulting in one reported opinion); and “penal statute” /5 “strictly construed” (resulting in 191 reported opinions).

The methodology to locate federal court cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “5.00” /20 (NY or “New York”) (resulting in ten reported opinions, two of which cite New York’s anti-lenity statute); “penal law” /2 “21” (resulting in two reported opinions, neither of which cite New York’s anti-lenity statute); “penal code” /2 “11” (resulting in fourteen reported opinions, none of which cite New York’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 (NY or “New York”) (resulting in five reported opinions, none of which cite New York’s anti-lenity statute).

North Dakota

North Dakota’s current anti-lenity statute is comparatively unique and reads as follows: “The rule of the common law that penal statutes are to be strictly construed has no application to this title. This title establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to promoting its objects and in furtherance of justice.” N.D. Cent Code § 29-01-29 (LEXIS through 2019 Sess.).

Although the first sentence is consistent with other state anti-lenity statutes, the second sentence adds the concept of liberal construction that is not present in other states. From the original enactment of the statute in 1895 until 1913, the second sentence had read “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.” N.D. Rev. Codes, ch. 1, § 6808(1895). In 1913, for reasons long lost to history, the second sentence was amended to read: “This code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.” N.D. Comp. Laws, ch. 16, § 11172 (1913). The changes to the second sentence since then appear non-substantive and likely attributed to consistency with other recodification efforts.

The methodology to locate state cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “North Dakota” Westlaw database searches for “29-01-29” (resulting in six reported opinions); “6808” (resulting in two reported opinions); “8538” (resulting in seven reported opinions); “10313” (resulting in fourteen reported opinions); “11172” (resulting in three reported opinions); and “penal statute” /5 “strictly construed” (resulting in twenty-one reported opinions). This count does not include two cases from the 1880s decided by the Supreme Court of the Territory of Dakota, which included land beyond the boundaries of the state of North Dakota, that cite the statute. See Territory v. Miller, 29 N.W. 7, 9 (Dakota Terr. 1886) (“Section 10 of the Penal Code declares that ‘the rule of the common law that penal statutes are to be strictly construed 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.’”); Territory v. Stone, 4 N.W. 697, 700 (Dakota Terr. 1880) (“Both by the Penal Code and the Code of Criminal Procedure it is declared that ‘the rule of the common law that penal statutes are to be strictly construed, has no application to this Code.’”).

The methodology to locate federal cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “29-01-29” (resulting in no reported opinions); “6808” /20 (ND or North) (resulting in two reported opinions, neither of which cite North Dakota’s anti-lenity statute); “8538” /20 (ND or North) (resulting in no reported opinions); “10313” /20 (ND or North) (resulting in two reported opinions, neither of which cite North Dakota’s anti-lenity statute); “11172” /20 (ND or North) (resulting in one reported opinion, which did not cite North Dakota’s anti- lenity statute); and “penal statute” /5 “strictly construed” /20 (ND or North) (resulting in one reported opinion, which did not cite North Dakota’s anti-lenity statute).

Oregon Although codified in different locations and manners, the text of the Oregon statute has not substantively changed since enacted in 1874. See Or. Rev. Stat. Ann § 161.025(2) (West, Westlaw through 2020 Sess.); 2 Or. Crim. Code § 787 (1874).

The methodology to locate state cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Oregon” Westlaw database searches for “161.025” (resulting in sixty-three reported opinions), “161.050” (resulting in eighteen reported opinions), “23-106” (five reported opinions); “14-1043” (resulting in two reported opinions); “2192” (resulting in 125 reported opinions, although these cases captured a number associated with a keycite number found in publisher’s headnotes); “2050” (resulting in fifty six reported opinions, although these cases captured a number associated with a keycite number found in publisher’s headnotes); crim /2 “787” (resulting in no reported opinions); and “penal statute” /5 “strictly construed” (resulting in twenty-six reported opinions).

The methodology to locate federal cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “161.025” (resulting in no reported opinion); “161.050” (resulting in no reported opinion); “23-106” (resulting in six reported opinions, none of which cite Oregon’s anti-lenity statute); “14-1043” (resulting in six reported opinions, none of which cite Oregon’s anti-lenity statute); “2192” /20 Ore! (resulting in six reported opinions, none of which cite Oregon’s anti-lenity statute), “2050” /20 Ore! (resulting in three reported opinions, none of which cite Oregon’s anti-lenity statute), crim /2 “787” (resulting in three reported opinions, none of which cite Oregon’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 “Ore!” (resulting in one reported opinion, which did not cite Oregon’s anti-lenity statute).

South Dakota Although codified in different locations and manners, the text of the South Dakota statute has not substantively changed since first enacted in 1903. See S.D. Codified Laws § 22-1-1 (Westlaw through 2020 Sess.); S.D. Penal Code, ch. 1, § 10 (1903).

The methodology to locate state cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “South Dakota” Westlaw database searches for “22-1-1” (resulting in seventeen reported opinions); “13.0101” (resulting in two reported opinions); “6298” (resulting in one reported opinion); “7656” (resulting in two reported opinions); and “penal statute” /5 “strictly construed” (resulting in sixteen reported opinions). This count does not include two cases from the 1880s decided by the Supreme Court of the Territory of Dakota, which included land beyond the boundaries of the state of North Dakota, that cite the statute. See Territory v. Miller, 29 N.W. 7, 9 (Dakota Terr. 1886) (“Section 10 of the Penal Code declares that ‘the rule of the common law that penal statutes are to be strictly construed 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.’”); Territory v. Stone, 4 N.W. 697, 700 (Dakota Terr. 1880) (“Both by the Penal Code and the Code of Criminal Procedure it is declared that ‘the rule of the common law that penal statutes are to be strictly construed, has no application to this Code.’”).

The methodology to locate federal cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “22-1-1” (resulting in fourteen reported opinions, none of which cite South Dakota’s anti-lenity statute); “13.0101” (resulting in no reported opinions); “6298” /20 (SD or South) (resulting in ten reported opinions, none of which cite South Dakota’s anti-lenity statute); “7656” /20 (SD or South) (resulting in eight reported opinions, none of which cite South Dakota’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 (“SD” or “South”) (resulting in one reported opinion, which did not cite South Dakota’s anti-lenity statute).

Texas The codification and text of the Texas statute have not changed since first enacted effective in 1974. See Tex. Penal Code Ann. §1.05(a) (West, Westlaw through 2019 Sess.); Tex. Penal Code § 1.05 (a) (1974).

The methodology to locate state cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Texas” Westlaw database searches for “Penal Code” /3 “1.05” (resulting in 135 reported opinions) and “penal statute” /5 “strictly construed” (resulting in eighty-eight reported opinions).

The methodology to locate federal cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “Penal Code” /3 “1.05” (resulting in three reported opinions) and “penal statute” /5 “strictly construed” /20 Tex! (resulting in two reported opinions, neither of which cite Texas’ anti-lenity statute).

Utah Although codified in different locations and manners, the text of the Utah statute has not substantively changed since first enacted in 1876. See Utah Code Ann. § 76-1-106 (West, Westlaw through 2020 Sess.); Utah Comp. Laws § 1834 (1876).

The methodology to locate state cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “Utah” Westlaw database searches for “76-1-106” (resulting in thirty-five reported opinions); “7892” (resulting in four reported opinions); “4052” (resulting in five reported opinions); “4369” (resulting in five reported opinions); “1834” (resulting in fifty-seven reported opinions); and “penal statute” /5 “strictly construed” (resulting in sixteen reported opinions).

The methodology to locate federal cases citing, construing, or quoting these provisions, and the number of “hits” or responses, is as follows: June 27, 2020, “All Federal” Westlaw database searches for “76-1-106” (resulting in three reported opinions); “7892” /20 Ut! (resulting in no reported opinions); “4052” /20 Ut! (resulting in ten reported opinions, none of which cite Utah’s anti-lenity statute); “4369” /20 Ut! (resulting in thirty-nine reported opinions, none of which cite Utah’s anti-lenity statute); “1834” /20 Ut! (resulting in two reported opinions, neither of which cite Utah’s anti-lenity statute); and “penal statute” /5 “strictly construed” /20 Ut! (resulting in one reported opinion).

 

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