Amicus Curiae Brief — Burgess v. United States
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
[FILED
T © —__sJAN2.8 2008
379 No. 06-11429 | OFFICE OF THE CLERK
Supreme Court of the Anited States
KEITH LAVON BURGESS,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
BRIEF OF NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS AND
FAMILIES AGAINST MANDATORY MINIMUMS
AS AMICI CURIAE IN SUPPORT OF PETITIONER
PAMELA HARRIS KEVIN B. HUFF
Co-CHAIR, NACDL Counsel of Record
AMICUS COMMITTEE GREGORY G. RAPAWY
1625 Eye Street, N.W. KELLOGG, HUBER, HANSEN,
Washington, D.C. 20006 TODD, EVANS & FIGEL,
(202) 383-5386 P.L.L.C.
1615 M Street, N.W.
MARY PRICE Suite 400
VICE PRESIDENT AND Washington, D.C. 20036
GENERAL COUNSEL (202) 326-7900
FAMILIES AGAINST
MANDATORY MINIMUMS PETER GOLDBERGER
1612 K Street, N.W. 50 Rittenhouse Place
Suite 700 Ardmore, Pennsylvania 19003
Washington, D.C. 20006 (610) 649-8200
(202) 822-6700
January 29, 2008
A
TABLE OF CONTENTS
Page
Se GP FA WI EI ceccccecccccencescccccssceecccccosseene ii
INTEREST OF AMICI CURITAE................cccccccceceeeeess 1
INTRODUCTION AND SUMMARY
REDS Se a 2
a cially 5
1. THE HISTORY AND PURPOSES OF
THE RULE OF LENITY SUPPORT
ITS APPLICATION TO MANDA-
TORY MINIMUM SENTENCES .........000.000.... 5
A. The Rule of Lenity Is Rooted in the
Narrow Construction of Mandatory
iii iiniesictslsdcea de hdl ciaiideiniiedin 5
B. This Court Has Employed the Rule
of Lenity To Protect the Separa-
tion of Powers and the Principle of
EES TS Per acre aT RTC ee 10
C. The Rule of Lenity Should Apply
to Mandatory Minimum Sentences
MIU asi incndacneinandbntiinmaidadeunpiibaininanainiedncaninns 16
Il. THE RULE OF LENITY REQUIRES
REVERSAL IN THIS CASE........................... 20
STITT icossicsicnicibisitaiinisieibiebiaaaciacinceeliieidipdinen 27
il
TABLE OF AUTHORITIES
Page
CASES
United States
Bell v. United States, 349 U.S. 81 (1955)................ 11,
12, 13, 17
Bifulco v. United States, 447 U.S. 381 (1980).....13, 16
Busic v. United States, 446 U.S. 398 (1980) ............ 18
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ............... 16
Callanan v. United States, 364 U.S. 587
ERE ees D eae e ene oe ene ees oer en a eR 20
Caron v. United States, 524 U.S. 308 (1998) ........... 14
Chapman v. United States, 500 U.S. 453
a a at laa lll 15
Chickasaw Nation v. United States, 534 U.S.
TT ne ee wenn ne TOO 22
Colautti v. Franklin, 439 U.S. 379 (1979)................ 22
Dowling v. United States, 473 U.S. 207
EERE AER RUE ee sean terrence eee EES oe 13
Engine Mfrs. Ass'n v. South Coast Air Quall-
ity Mgmt. Dist., 541 U.S. 246 (2004)...........000.0... 21
Fasulo v. United States, 272 U.S. 620 (1926) .....12, 26
Gall v. United States, 552 U.S. ---, 128 S. Ct.
TREES Re Eom a ee a 17
Harmelin v. Michigan, 501 U.S. 957 (1991)............ 17
Holloway v. United States, 526 U.S. 1 (1999).......... 19
Huddleston v. United States, 415 U.S. 814
TT vsutnenceiiherhcandaeehldteha beh iatoehded ential itlabiatiettine 15
lll
James v. United States, 550 U.S. ---, 127 S.
ELS ne 19
Kimbrough v. United States, 552 U.S. ---,
i a ceunintios 18
Koon v. United States, 518 U.S. 81 (1996)............... 17
Ladner v. United States, 358 U.S. 169 (1958).......... 16
Logan v. United States, 552 U.S. ---, 128 S.
SESE er An a a ene eo 19
Lopez v. Gonzales, 549 U.S. ---, 127 S. Ct. 625
_RRETRE RS RSC ESR al em E ROLE Bi eS coe 21, 22
McBoyle v. United States, 283 U.S. 25
I aa a 3, 11, 13
McNally v. United States, 483 U.S. 350
REE See nan Re aneen ee Oe eR 13
Morales v. Trans World Airlines, Inc.,
ETERS Eee oh ee 23
Moskal v. United States, 498 U.S. 103
RRR ge RTS SETS AW a ener ters tae Wk A i 14, 15
Muscarello v. United States, 524 U.S. 125
EAE a SEE Brn tome eTe Nee On a OS 15
National Cable & Telecomms. Ass'n, Inc. v.
Gulf Power Co., 534 U.S. 327 (2002)................... 23
Scheidler v. National Org. for Women, Inc.,
I, 13, 15, 26
Solem v. Helm, 463 U.S. 277 (1983) ..............c.cccceeeeee 17
Standefer v. United States, 447 U.S. 10 (1980)........... 5
United States v. Aguilar, 515 U.S. 593 (1995)......... 13
United States v. Bass, 404 U.S. 336 (1971).............. 20
United States v. Booker, 543 U.S. 220 (2005).......... 18
lV
United States v. Corbett, 215 U.S. 233 (1909) ......... 14
United States v. Hartwell, 73 U.S. (6 Wall.)
EEE ee ee era eee ee 14
United States v. Lanier, 520 U.S. 259 (1997)........... 13
United States v. Laub, 385 U.S. 475 (1967)............. 26
United States v. RL.C., 503 U.S. 291
TREE e er aE ween © Se On we 14, 15, 21
United States v. Roberson, 459 F.3d 39 (1st
Cir. 2006), cert. denied, 549 U.S. ---, 127
ft | EES eee enw pe ees 22, 23, 24
United States v. Shabani, 513 U.S. 10 (1994) ......... 14
United States v. Turkette, 452 U.S. 576
TARR IEE REARS ee elas oO oe a na 21
United States v. Universal C.1.T. Credit
Corp., 344 U.S. 218 (1962) .........22.0000000000. 12, 15, 22
United States v. West, 393 F.3d 1302 (D.C.
EE AR A are ee ee Ce a OE 23
United States v. Wiltberger, 18 U.S. (56 Wheat.)
iia atta ead 3, 10, 11, 13, 15, 26
Williams v. United States, 503 U.S. 193
IIIT sr tesieicinsatedihiasitiacdaaidiabeaeneididtielinadbidaetndiemadeiiiiicniesdantin 17
England
Evans & Finch’s Case, Cro. Car. 473, 79 Eng.
EE eee ese eee 8,15
Howard’s Case, Fost. 77, 168 Eng. Rep. 39
SE eae ence OR tre Paes ARO a a are POA 26
The King v. Baynes, 1 Leach 7, 168 Eng. Rep.
TET AOS A eee ee ee LT Coat ee aD ee 8
Vv
The King v. Beaney, Russ. & Ry. 416, 168
SE, re GD iisecdttinnenicnieniintinniiccennne 7,8
The King v. Cook, 1 Leach 105, 168 Eng. Rep.
RE EE WU chetevedndaserincssvssepemniesiiaamianiinesbbineseniin 8
The King v. Hammond, 1 Leach 444, 168
i, Fe TOD sists vvnseconunsssneesiiiersensoncionsis 9,10
The King v. Midwinter & Sims, Fost. 415,
Ee, BT Ee setinricsccccensepesnovsnemievnenee 8,9
The King v. Page & Harwood, Style 86,
ee ee, SEE cncsectevsencestesenestonimeninstosiin 8
The King v. Sterne, 1 Leach 473, 168 Eng.
BA Se PUD tarinchsasnecniletvesiniccencsioiustiinsiaisianidmmeiien 8
CONSTITUTION, STATUTES, AND RULES
nite tes
U.S. Const.:
Art. I, § 9, Cl. 3 (Ex Post Facto Clause).............. 13
Amend. V (Due Process Clause)....................0000+8 13
Act of Apr. 30, 1790, ch. 9, 1 Stat. 112.................. 10
lg Sg | EN ee erv en =e 10
ES I eT ee eRe 10
Adam Walsh Child Protection and Safety Act
of 2006, Pub. L. No. 109-248, § 141(a)(1),
I eel 19
Anti-Drug Abuse Amendments Act of 1988,
Pub. L. No. 100-690, tit. VI, § 6452(a), 102
i SE, SIE TIEN Sw ictneciniasecdeidliaianiineniansincianiaiai 25
vi
Controlled Substances Act, Pub. L. No. 91-
513, tit. I], 84 Stat. 1236, 1242 (1970)
(codified, as amended, in part at 21
RT) Seana 20, 21, 23, 24
Be le OF IED cccctcccescccccsccceses 20, 21, 22, 23, 25
21 U.S.C. § 802(44)............. 2, 20, 22, 23, 24, 25, 26
cere rcnsncentiintcnnsidicnnassseeniies 24
ncn nctaninesiclintsatiniidnniiidiien 20
21 U.S.C. § 841(b)(1)(A)........ 2, 4, 18, 20, 24, 25, 26
cs ocsicninttncnncacecummebiinseenil 24
sc crnnanennesennasoeconsnes 24
Ts crscaccennanennssnssnneinneniee 24
i nicisn siicnnccncncinntenneninnssntensnil 24
ii cs ttcdnncetnmnensennenemnegatsids 24
nin cnaratcncinctnmncancnnecennsntil 24
asec rreenerentabenmatncsennt 24
IE Re cme 24
se sentcscenestnnmmnenecsannenienes 24
ee 24
. . «| Ee seweseee 24
21 U.S.C. § 848(q)(5) (2000) 00.0.0... eeeeeeeeeeeees 25
21 U.S.C. § 848(q)(6) (2000) 00... cece ceeceeeeeeeeees 25
ne cciicgnnpenimnenenntnnnsnntiin 24
a sinntetceeinccinadl 24
ci crtenrciesccpnnasennrnenisniinneings 25
21 U.S.C. § 881(a)(9) (1994) ................ceerccrccsssees 24
vil
Controlled Substances Import and Export
Act, Pub. L. No. 91-513, tit. III, 84 Stat.
1236, 1285 (1970) (codified, as amended,
in part at 21 U.S.C. § 951 et seq.) ............cceeeeeeees 24
Be I ici ccssnntcinsesenintecsnciinneenmnoenss 24
iis scccniccctinsassnnserensinasennntions 24
Oe nincnsrsennennsmiennnenininennienininlti 24
inane ensariaeabbamiinieienien 24
PROTECT Act, Pub. L. No. 108-21, § 103(b),
117 Stat. 650, 653 (2003).................ccccsrcssceseees 19
Protection of Lawful Commerce in Arms Act,
Pub. L. No. 109-92, § 6(b), 119 Stat. 2095,
as esetens 19
Sentencing Reform Act of 1984, Pub. L. No.
98-473, tit. II, ch. Il, 98 Stat. 1837,
1987 (codified, as amended, in part at
ee OD citcinsccstccapnaisscinsesescorscsnecs 19
a cnencectncinineeiaieineninetnectinianiiie 19
ee iicsinttinincenicsceesccensenssnvniniids 18, 19
ii ceccccncmnsencsnsstanecontemiiainiiiii 18
te Oe I icrccnccsnsssrscscncccnensssnsesees 18
ee ee iicnctninnnenniticsnneieianenssonee 18
Violent Crime Control and Law Enforce-
ment Act of 1994, Pub. L. No. 103-322,
§ 90105(c)-(d), 108 Stat. 1796, 1987-88 .............. 25
GI tile I cecceccenserencenssmnanenensstinntintmantinnenanennsnanties 1
vill
England
1 Edw. 6, c. 12, §§ 9, 13 (1547) ....ccecccccssescececsessesseeeee 6
fee " —-_- snes 7
11 Geo. 1, c. 29, §§ 5, 6 (1724) ..cecccccscccesseseesessessesseeeee 7
EG 6
Pee fs eS | eS aeesenee 7
Serene Nereen re 7
OTHER MATERIALS
Cesare Beccaria, An Essay on Crimes and
Punishments (4th ed. 1775)..................ccccccssssseees 14
William Blackstone, Commentaries:
SEARS Ea Nav ase Oa sane DETR TS 7
a i eieiataiiachicheeichaiaeiaielncicaitciniieniniahnaee ideiiacmeblinsninsines 5, 6, 7
George W. Dalzell, Benefit of Clergy in
America & Related Matters (1955)...............000.00++- 6
Henry J. Friendly, “Mr. Justice Frankfurter
and the Reading of Statutes,” in Bench-
ceri 20
1 Matthew Hale, Historia Placitorum
ES RR ne a ae 7, 8,9
Jerome Hall, Theft, Law and Society (2d ed.
REEDS CRIS ees er ee an oe 5, 6,9
John H. Langbein, Shaping the Eighteenth-
Century Criminal Trial: A View from the
Ryder Sources, 50 U. Chi. L. Rev. 1 (1983)....... 5, 6
Charles de Montesquieu, The Spirit of Laws
SR SERRE VC Ea Spe ec eae 11
ix
Herbert L. Packer, The Limits of the Crimi-
SERS rece 13, 14
1 Leon Radzinowicz, A History of English
Criminal Law and Its Administration
Antonin Scalia, Assorted Canards of Con-
temporary Legal Analysis, 40 Case W.
ee 5 | —_s See 14-15, 16
2A Norman J. Singer, Statutes and Statutory
Construction (5th ed. 1992) ................ccceeeeeeeeeeeees 23
1 James Stephen, A History of the Criminal Law of
TALE ERI ce ne ae eee een 5
INTEREST OF AMICI CURIAE'!
The National Association of Criminal Defense
Lawyers (“NACDL”) is a nonprofit organization with
a direct national membership of more than 12,500
attorneys, in addition to more than 35,000 affiliate
members from all 50 states. Founded in 1958,
NACDL is the only professional association that rep-
resents public defenders and private criminal defense
lawyers at the national level. The American Bar
Association (“ABA”) recognizes NACDL as an affili-
ated organization with full representation in the
ABA House of Delegates.
NACDL’s mission is to ensure justice and due proc-
ess for the accused; to foster the integrity, independ-
ence, and expertise of the criminal defense profes-
sion; and to promote the proper and fair administra-
tion of justice. NACDL routinely files amicus curiae
briefs on a broad range of issues in this Court and
other courts and has filed amicus curiae briefs in
previous cases involving the interpretation of manda-
tory minimum sentencing statutes. See, e.g., Begay
v. United States, No. 06-11543 (argued Jan. 15,
2008).
Families Against Mandatory Minimums (“FAMM”)
is a national, nonprofit, nonpartisan organization of
14,300 members founded in 1991. FAMM’s primary
mission is to promote fair and proportionate sentenc-
! Pursuant to Supreme Court Rule 37.6, counsel for amici
represent that they authored this brief in its entirety and that
none of the parties or their counsel, nor any other person or
entity other than amici, their members, or their counsel, made
a monetary contribution intended to fund the preparation or
submission of this brief. All parties have consented to the filing
of this brief, and letters reflecting their consent have been filed
with the Clerk.
2
ing policies and to challenge inflexible and excessive
penalties required by mandatory sentencing laws.
By mobilizing prisoners and their families who
have been adversely affected by unjust sentences,
FAMM illuminates the human face of sentencing as
it advocates for state and federal sentencing reform.
FAMM advances its charitable purposes in part
through education of the general public and through
selected amicus filings in important cases.
Amici file this brief for two reasons. First, the
question presented in this case will affect the sen-
tences of a significant number of criminal] defendants
in the federal courts. This Court’s decision will
have a direct and immediate impact on the lives of
these individuals and their families. Second, the way
in which the Court decides this case will greatly
influence how the federal courts deal with the wide-
spread proliferation of mandatory minimum sentenc-
ing provisions. Amici believe that the Court should
take the opportunity offered by this case to empha-
size the important role of the rule of lenity in inter-
preting those provisions.
INTRODUCTION
AND SUMMARY OF ARGUMENT
Both the historical roots of the rule of lenity and its
modern function in American criminal law strongly
suggest that a “felony drug offense” for purposes of
21 U.S.C. § 841(b)(1)(A) must be a “felony” within the
meaning of 21 U.S.C. § 802(44). The Court should
reaffirm the importance of the rule of lenity and
emphasize the rule’s especially significant role in the
interpretation of mandatory minimum sentences.
The rule of lenity derives from the practice of the
English courts in the seventeenth and eighteenth
centuries of strictly construing penal statutes. The
3
English courts applied this rule of strict construction
primarily to enactments that effectively imposed
a mandatory death sentence for a broad range of
felonies by removing the so-called “benefit of clergy,”
a legal fiction that had allowed first-time offenders
to avoid hanging. Parliament passed many such
statutes, some of which applied to minor felonies,
such as shoplifting. The courts responded by read-
ing these statutes narrowly, thereby reducing the
number of covered felonies. The result was a rule
requiring a clear statement by Parliament before the
courts would construe a statute as depriving a defen-
dant of the benefit of clergy and subjecting him to the
death penalty. Some of these historical precedents,
moreover, show an emerging understanding that a
restrained judicial reading of sentencing laws appro-
priately observes the line between the legislature’s
prerogative in enacting criminal statutes and the
more limited judicial role of interpreting and apply-
ing them.
The rule of lenity likewise has deep roots in Ameri-
can law. Chief Justice Marshall’s opinion in United
States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820),
detached the rule from any particular association
with capital sentencing and located it firmly in the
understanding that it is the role of the legislature,
not the courts, to define crimes and their punish-
ments. By the time of McBoyle v. United States, 283
U.S. 25 (1931), it was clear that the rule of lenity
was a structural safeguard requiring that criminal
punishment be clearly authorized by a statute — not
so much for the benefit of the individual defendant,
who Justice Holmes’s opinion acknowledged was
unlikely to “carefully consider the text of the law,” id.
at 27, but rather to protect the broader principle
22
it “reflects a judgment that the length of authorized
punishment is a better,measure of severity than a
State’s label for the offense.” Br. 36-37. But as
petitioner already has shown, the length of permis-
sible sentences — especially in the context of drug
crime “ varies widely from state to state, and thus is
often a| poor guide for judging the seriousness of the
underlying conduct. Petr. Br. 21-22. Classifying a
crime as a felony, by contrast, has a time-honored
import; and carries well- established consequences.
Individuals who are convicted of “felonies” can lose
the right to vote, see Richardson v. Ramirez, 418 U.S.
24 (1974); the right to run for public office, see, e.g.,
Tex. Elec. Code § 141.001(a\(4) (Vernon 2007); the
right to obtain professional: licenses, see, e.g., N.Y.
Real Prop. Law § 440-a (McKinney 2006)-(real estate
license); and numerous other civil rights. It thus
seems jlikely that Congress — even while adding a
length-of-punishment criterion to the calculus for
determining whether a prior conviction for a drug
offense triggers a twenty-year mandatory sentence —
would |have wanted to' retain the requirement that
such prior offenses also'be classified as felonies. _
Even assuming, as the government says, requir-
ing a crime to be classified as a felony in order to
constitute a “felony drug offense” docs not have any
practical significance in the vast majority of cases,
this reality would not pose any impediment to
enforcing Section 802(13)’s classification requirement
in cases in which it does matter. “It is not at all
unusual to give a statute’s ambiguous language a
limiting construction called for by one of the statute’s
applications, even though other of the _ statute’s
applications, standing alone, would not support the
3
23
same limitation.” Clark v. Martinez, 543 U.S. 371,
380 (2005). In cases where the rule of lenity comes
into play, “[tlhe lowest common denominator, as it
were, must govern.” /d.
CONCLUSION
For the foregoing reasons, as well as those in the
petitioner’s opening brief, the judgment of the court
of appeals should be reversed.
Respectfully submitted.
Thomas C. Goldstein Jeffrey L. Fisher
AKIN, GUMP, STRAUSS, Counsel of Record
HAUER & FELD LLP Pamela S. Karlan
1333 New Hampshire STANFORD LAW SCHOOL
Ave., NW SUPREME COURT
Washington, DC 20036 LITIGATION CLINIC
559 Nathan Abbott Way
Amy Howe Stanford, CA 94305
Kevin K. Russell | (650) 724-7081
HOWE & RUSSELL, P.C.
7272 Wisconsin Ave.
Suite 300
Bethesda, MD 20814
March 17, 2008
4
that prospective statutes, not retrospective judicial
decisions, should define the criminal law. The rule
of lenity is by now an established part of our legal
system and a background principle against which
Congress presumptively legislates, and so has ac-
quired precedential significance that reinforces its
original justification.
Application of the rule of lenity is particularly
appropriate with respect to mandatory minimum
sentencing provisions, such as § 841(b)(1)(A). Like
the English statutes removing benefit of clergy,
mandatory minimums require a harsher punishment
than might otherwise be imposed after judicial con-
sideration of the circumstances of a particular case.
Mandatory minimums are thus contrary to the usual
rule permitting discretion in sentencing. Applying
the rule of lenity to mandatory minimums also
vindicates the underlying bases of the rule — the
separation of powers and the principie of legality.
A mandatory minimum sentence, with its serious
consequences for individual liberty, should be im-
posed only when Congress has spoken clearly. In
addition, the certainty offered by the rule of lenity
enhances the smooth operation of the criminal justice
system.
Petitioner correctly argues that § 841(b)(1)(A) is
best read in his favor even without the rule of lenity.
But that rule resolves any residual doubt in peti-
tioner’s favor. The contrary position of the First
and Fourth Circuits and the Government ignores
the plain language and ordinary meaning of the
statute in favor of dubious extensions of inapplicable
canons of statutory construction. This Court should
reject those arguments and construe § 841(b)(1)(A)
ee
5
narrowly, consistent with the longstanding and well-
justified rule of lenity.
ARGUMENT
I. THE HISTORY AND PURPOSES OF THE
RULE OF LENITY SUPPORT ITS APPLICA-
TION TO MANDATORY MINIMUM SEN-
TENCES
A. The Rule of Lenity Is Rooted in the Nar-
row Construction of Mandatory Sentences
At common law, all felonies were punishable by
death. See, e.g., Standefer v. United States, 447
U.S. 10, 15 (1980). Over time, however, the English
courts developed procedural mechanisms that left
room for discretion to impose what were effectively
noncapital sentences. See id. Among these was the
doctrine known as “benefit of clergy.”2 Benefit of
clergy was originally a jurisdictional mechanism by
which ordained clergy could transfer criminal cases
brought against them out of the royal courts and into
the ecclesiastical courts.* Later, benefit of clergy
became available to almost any male defendant who
could read;4 and, later still, to almost any defendant
2 See generally 4 William Blackstone, Commentaries *365-74
(“Blackstone”); 1 James Stephen, A History of the Criminal Law
of England 458-73 (1883); John H. Langbein, Shaping the
Eighteenth-Century Criminal Trial: A View from the Ryder
Sources, 50 U. Chi. L. Rev. 1, 37-41 (1983).
3 See Langbein, 50 U. Chi. L. Rev. at 37; Jerome Hall, Theft,
Law and Society 110-11 (2d ed. 1952) (“Hall”). According to
Blackstone’s somewhat critical summary, the ecclesiastical
courts would reexamine the merits of the conviction under pro-
cedures markedly more favorable to the accused, and it was
common for them to find innocent those previously found guilty.
See 4 Blackstone at *361; see also Hall at 110 n.1.
4 Moreover, a specific verse of the Bible — called for this
reason the “neck verse” — was used for the literacy test, and
6
at all, at least for a first offense.6 A statute had
eliminated any actual referral of lay defendants to
the ecclesiastical courts, and the royal courts would
impose an alternative punishment such as, depend-
ing on the period and the offense, branding, whip-
ping, the pillory, imprisonment, or “transportation”
to one of the colonies. Effectively, by the time of the
eighteenth century, benefit of clergy — when avail-
able — rendered a first felony offense noncapital and
subject to judicial discretion in sentencing.
From the sixteenth to the eighteenth centuries,
however, Parliament passed a series of statutes
making certain felonies punishable by death “with-
out benefit of clergy.”’ A conviction under one of
these statutes was equivalent to a mandatory death
sentence. Some statutes took away benefit of clergy
for the most serious offenses against the person, such
as murder and rape. See 1 Edw. 6, c. 12, §§ 9, 13
(1547); 18 Eliz. c. 7 (1575-76). But, especially in the
late seventeenth and early eighteenth centuries,
Parliament stripped benefit of clergy from a long list
so even illiterate defendants could memorize it to claim the
benefit. See George W. Dalzell, Benefit of Clergy in America &
Related Matters 24 (1955) (quoting Psalms 51:1: “Have mercy
upon me, O God... .” (King James)).
5 See 4 Blackstone at *362-63; Langbein, 50 U. Chi. L. Rev. at
37-38.
6 See 4 Blackstone at *362-64; Hall at 115 & n.15; see also
1 Leon Radzinowicz, A History of English Criminal Law and
Its Administration, app. 1, 633 (1948) (“Radzinowicz”) (listing
punishments for larceny). Branding on the brawn of the thumb
was used to indicate that the defendant had already received
benefit of clergy once and therefore would not be eligible a
second time. See Langbein, 50 U. Chi. L. Rev. at 37-38.
’ For collections cf these statutes, see Hall at app., 356-63;
1 Radzinowicz at app. 1, 611-59.
7
of felonies, some of them newly created by statute.
These new capital felonies included shoplifting, see
10 Will. 3, c. 12 (1698); destroying a ship to defraud
an insurance company, see 11 Geo. 1, c. 29, §§ 5, 6
(1724); and bankruptcy fraud, see 5 Geo. 2, c. 30, § 1
(1732). A statute even imposed the death penalty
upon “any outlandish people calling themselves or
being called Egyptians ... [and] any person being
fourteen years old, which hath been seen or found
in the fellowship of such Egyptians,”® who remained
in England or Wales for more than a month. 1
Matthew Hale, Historia Placitorum Coronae *670
(1736) (“Hale”) (citing 1 & 2 Phil. & M. c. 4 (1554-55)).
Faced with application of these statutes, the royal
courts began to invoke the principle that “penal
statutes must be construed strictly,” 1 Blackstone
at *88, meaning that they would be applied to
cases only within their express terms and that those
terms would be read narrowly (in some cases, very
narrowly). Blackstone gives two examples. One
statute took away benefit of clergy if a defendant
had been convicted of stealing “horses,” but “the
judges conceived that this did not extend to him
that should steal but one horse.” Id. Another statute
made benefit of clergy inapplicable to the stealing of
“sheep, or other cattle.” Id. “[T|hese general words,
‘or other cattle,’ being looked upon as much too loose
to create a capital offence, the act was held to extend
to nothing but mere sheep.” Jd. Similarly, in the
later case of The King v. Beaney, Russ. & Ry. 416,
168 Eng. Rep. 874 (1820), a defendant was found to
have stolen two “colts,” and the courts found that “as
‘colts’ were not mentioned, eo nomine in the statute,
* Blackstone refers to the targets of this statute as “gypsies,”
4 Blackstone at *165, today more properly called Roma.
8
the judges could not take notice that they were of the
horse species,” so that Beaney could be convicted only
of common law larceny. Jd. at 416, 168 Eng. Rep. at
874 (citation omitted); see also The King v. Cook,
1 Leach 105, 168 Eng. Rep. 155 (1774) (theft of a
“heifer,” though “clearly proved,” could not be pun-
ished under a statute forbidding the stealing of a
“cow’). In each case, although framed as interpreta-
tion of the substantive scope of the statutory prohi-
bition, the strict construction principally worked to
limit the application of the mandatory penalty.
The English rule of strict construction also applied
to situations in which the interaction of two differ-
ent statutes, or of a statute with the common law,
was doubtful or ambiguous. For example, Evans &
Finch’s Case, Cro. Car. 473, 79 Eng. Rep. 1009
(1638), interpreted a statute denying benefit of clergy
to those convicted of robbery from a dwelling house.
Although the common law made accessories to rob-
bery equally liable with principals, the statute did
not mention accessories, and so the King’s Bench
held that Finch, who had been convicted as an
accessory, was entitled to benefit of clergy. Jd. at
474, 79 Eng. Rep. at 1009; see 1 Hale at *528
(explaining the reasoning in more detail). Similar
results were reached in The King v. Baynes, 1 Leach
7, 8, 168 Eng. Rep. 106, 106 (1731) (statutory offense
of “privately stealing from the person”), The King v.
Sterne, 1 Leach 473, 474-75, 168 Eng. Rep. 338, 339
(1787) (same), and The King v. Page & Harwood,
Style 86, 82 Eng. Rep. 550 (1648) (statutory man-
slaughter by stabbing).°
® Additional cases on the treatment of accessories are dis-
cussed in the reporter’s note to The King v. Midwinter & Sims,
Fost. 415, 168 Eng. Rep. 90 (1751), which criticizes the result
9
The English courts’ practice of strict construction
was motivated in large part by the fatal result of a
holding that the benefit of clergy was not available.
See 2 Hale at *335 (stating that, when a statute has
“ousted clergy ..., it is only so far ousted, and only
in such cases and as to such persons, as are expressly
comprised within such statutes, for in favorem vitae
& privilegii clericalis such statutes are construed lit-
erally and strictly”).
There is evidence, however, that by the late eight-
eenth century the practice of narrowly construing
penal statutes had already begun to rest on more
general principles about the appropriately limited
role of the courts in construing criminal legislation.
In The King v. Hammond, 1 Leach 444, 168 Eng.
Rep. 324, tried at the Old Bailey in 1787, the court
said:
In all cases ... so highly penal as the present
case is, it is certainly necessary not only to
consider the intention of the Legislature, but
to bring the offender within the words of the
Act of Parliament itself.... The Judges ...
are not to consider what the Legislature would
have done in certain cases, but to look at the
words they have used, and to construe them
according to the meaning which it is most
likely they entertained at the time the subject
was under their consideration.
in that case as inconsistent with the general principle and
adds that “[c]lases without number might [be] cited to shew how
extremely tender the judges in all times have been in the con-
struction of Acts, which take away clergy.” Jd. at 419, 168 Eng.
Rep. at 92; see also Hall at 118-26 (collecting and discussing
more cases); 1 Radzinowicz at app. 2, 660-98 (same).
10
Id. at 446, 168 Eng. Rep. at 325. This case reflects
the more modern concern of the courts that the legis-
lature’s role was to define a crime and its potential
punishment and the judiciary’s role was to ensure
that the definition clearly applied to the defendant.
B. This Court Has Employed the Rule of Len-
ity To Protect the Separation of Powers
and the Principle of Legality
When the courts of the United States adopted the
rule of lenity, they rested it primarily on concerns
about the separation of powers and the principle
of legality (which holds that punishment must be
imposed only pursuant to law), rather than concerns
about erroneous application of the death penalty.!°
In United States v. Wiltberger, 18 U.S. (5 Wheat.) 76
(1820) (Marshall, J.), the Court adopted the “rule
that penal laws are to be construed strictly,” alluding
to its English history by observing that the rule “is
perhaps not much less old than construction itself.”
Id. at 95. Wiltberger made express what the English
courts had largely hinted at: that the rule of lenity is
founded both 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.” Jd. (emphasis
added).!! Although these goals would not justify a
10 The Congress of 1790, in “An Act for the Punishment
of certain Crimes against the United States,” provided that
the benefit of clergy should not apply in the federal courts, so
this Court never had occasion to apply the rule of lenity in its
original context. See Act of Apr. 30, 1790, ch. 9, Preamble, § 31,
1 Stat. 112, 112, 119.
1 The manslaughter statute interpreted in Wiltberger did not
provide for capital punishment, see 18 U.S. (5 Wheat.) at 93-94,
and Chief Justice Marshall did not invoke the presurnption in
favorem vitae in support of the rule of lenity.
11
court in “defeat[ing] the obvious intention of the leg-
islature,” this “intention ... is to be collected from
the words [the legislature] employ{s],” and so, “[t]o
determine that a case is within the intention of a
statute, its language must authorise [a court] to say
so.” Id. at 95-96.'2
Justice Holmes’s opinion for the Court in McBoyle
v. United States, 283 U.S. 25 (1931), provides another
leading explanation of the rule of lenity. Justice
Holmes wrote that, before imposing a criminal pun-
ishment, “it is reasonable that a fair warning should
be given to the world in language that the common
world will understand, of what the law intends to do
if a certain line is passed.” Jd. at 27. McBoyle makes
clear, however, that the rule is not based on any
unrealistic assumption that “a criminal will carefully
consider the text of the law before he murders or
steals.” Jd.'3 Instead, the rule of lenity ensures that
courts do not punish “because it may seem to [them]
that a similar policy applies” to acts not expressly
covered by a statute, “or upon the speculation that
if the legislature had thought of it, very likely
broader words would have been used.” Jd. This “fair
warning’ function of the rule is closely tied to the
separation-of-powers justification given by Chief
Justice Marshall in Wiltberger. It is less concerned
with actual notice to particular defendants, and
12 See also Charles de Montesquieu, The Spirit of Laws 80
(1794 ed.) (“In republics the very nature of the constitution
requires the judges to keep to the letter of the law. Here there
is no citizen against whom a law can be interpreted, in cases
where his honour, property, or life is concerned.”).
13 See also Bell v. United States, 349 U.S. 81, 83-84 (1955)
(the rule of lenity does not “assume that offenders against
the law carefully read the penal code before they embark on
crime”).
12
more with the certainty and predictability that the
justice system as a whole derives from ensuring that
statutes providing for criminal punishments contain
clear statements rather than calling for judicial
extrapolation.
Many other decisions of this Court similarly
emphasize the role of plain statutory language in
monitoring the boundary between the legislative and
judicial spheres in criminal punishment. In Fasulo
v. United States, 272 U.S. 620 (1926), for instance,
the Court wrote that, in construing a criminal
statute, “it is not permissible for the court to search
for an intention that the words themselves do not
suggest.” Jd. at 628. In United States v. Universal
C.L.T. Credit Corp., 344 U.S. 218 (1952), the Court
explained that, “when choice has to be made between
two readings of what conduct Congress has made a
crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have
spoken in language that is clear and definite.” Jd. at
221-22. The Court’s reference to “what conduct ...
has [been] made a crime” meant not the difference
between conduct that is criminalized and that which
is not, but to a scope-of-punishment issue — the “unit
of prosecution,” which determines how many counts
may be charged against the defendant for a single
course of conduct. In Bell v. United States, again
addressing the scope of punishment rather than the
definition of crime, the Court addressed the number
of counts that could be laid for a single act that
endangered multiple victims, adding that the rule of
lenity applies when “Congress leaves to the Judiciary
the task of imputing to Congress an undeclared
13
will.” 349 U.S. at 83-84.!4 This Court also has said
recently that the rule of lenity asks whether, in a
criminal statute, “‘Congress has spoken in clear
and definite language,” citing the concern that
“expansion of the law’s coverage must come from
Congress, and not from the courts.” Scheidler v.
National Org. for Women, Inc., 537 U.S. 393, 409
(2003) (quoting McNally v. United States, 483 U.S.
350, 359-60 (1987)).
This requirement for a clear statutory statement to
guide decisions of whether and how much to punish
also safeguards the “principle of legality,” which
requires that punishment be dictated by “law in
existence at the time the conduct complained of
occurred,” and “that the amount of discretion en-
trusted to those who enforce the law does not exceed
tolerable limits.” Herbert L. Packer, The Limits of
the Criminal Sanction 93 (1968) (“Packer”); see also
United States v. Lanier, 520 U.S. 259, 265 n.5 (1997).
Legality is protected in federal criminal law both by
the Constitution’s Ex Post Facto and Due Process
Clauses and by the rule of lenity. See Lanier, 520
U.S. at 266-67; Packer at 95 (observing that lenity
“may perhaps be viewed as something of a junior
\4 See United States v. Aguilar, 515 U.S. 593, 600 (1995)
(giving both “deference to the prerogatives of Congress” and
McBoyle’s concern for “fair warning” as reasons for the Court’s
“traditional{] ... restraint in assessing the reach of a federal
criminal statute”); Dowling v. United States, 473 U.S. 207, 213-
14 (1985) (citing “[djue respect” for Congress as the justification
for the rule, and quoting Wiltberger); see also Bifulco v. United
States, 447 U.S. 381, 401-02 (1980) (Burger, C.J., concurring)
(observing that, “[p]articularly in the administration of criminal
justice, a badly drawn statute places strains on judges,” but
warning against “|[t]he temptation to exceed our limited judicial
role and do what we regard as the more sensible thing”).
14
version of the vagueness doctrine”). Uncertainty
in the interpretation of penal statutes, or judicial
expansion of them beyond their plain language,
erodes legality by removing the required constraints
on judicial discretion. Because of the importance of
avoiding this danger, “[cJourts have . . . traditionally
been quite insistent on maintaining a high standard
of compliance with thfe] policy of clear statement”
embodied by the rule. Packer at 95."
To be sure, the rule of lenity does not preclude
the use of the “traditional tools of statutorv construc-
tion.” Caron v. United States, 524 U.S. 308, 316
(1998) (citing United States v. Shabani, 513 U.S. 10,
17 (1994)). This Court has always made clear,
however, that, when called upon to clarify a criminal
statute, these traditional tools of statutory construc-
tion must meet a high burden: if, after consulting
them, “a reasonable doubt persists about a statute’s
intended scope,” then the traditional presumption
takes effect. United States v. R.L.C., 503 U.S. 291,
305-06 (1992) (plurality opinion) (internal quotation
marks omitted).'6 There is no precise way to quan-
tify exactly the “weight” of the “judicial thumb on . . .
the scales” imposed by the rule of lenity, Antonin
15 See Cesare Beccaria, An Essay on Crimes and Punishments
16 (4th ed. 1775) (“The disorders, that may arise from a rigor-
ous observance of the letter of penal laws, are not to be com-
pared with those produced by the interpretation of them.”).
16 See R.L.C., 503 U.S. at 307-08 (Scalia, J., concurring in part
and concurring in the judgment) (disagreeing with the R.L.C.
plurality’s reliance on “legislative history” and “motivating
policies” but agreeing with its “reasonable doubt” criterion)
(internal quotation marks omitted); Moskal v. United States,
498 U.S. 103, 108 (1990) (same “reasonable doubt” standard);
see also United States v. Corbett, 215 U.S. 233, 242 (1909);
United States v. Hartwell, 73 U.S. (6 Wall.) 385, 395-96 (1868).
15
Scalia, Assorted Canards of Contemporary Legal
Analysis, 40 Case W. Res. L. Rev. 581, 582 (1990),
but the rule’s deep roots and crucial purpose estab-
lish that the weight should be significant. As the
line from Evans & Finch’s Case through Wiltberger to
the modern cases shows, judges have often found the
rule of lenity, and its function of protecting the sepa-
ration of powers and the principle of legality, decisive
in the interpretation of criminal statutes. !”
17 Muscarello v. United States, 524 U.S. 125 (1998), includes
language suggesting that only a “grievous ambiguity or uncer-
tainty” will trigger the rule of lenity. /d. at 138-39 (internal
quotation marks omitted; quoting, among others, Chapman uv.
United States, 500 U.S. 453, 463 (1991)); see also Huddleston v.
United States, 415 U.S. 814, 831 (1974). Conceivably, the term
“grievous” could indicate a lightened “thumb on the scales” — a
heightened degree of ambiguity as necessary to trigger lenity,
especially in contrast with older cases that require lenity in the
absence of a “clear and definite” statement, e.g., Universal
C.LT., 344 U.S. at 221-22. But Muscarello and its short line of
predecessors should not be read to depart from the traditional
standard. These cases show no intent to change a centuries-old
rule and contain additional language that is more consistent
with the clear-statement requirement of the properly applied
rule of lenity. See, e.g., Muscarello, 524 U.S. at 139 (reasoning
that the conduct there at issue fell within the “generally
accepted contemporary meaning” of the statutory language);
Chapman, 500 U.S. at 463-64 (quoting Moskal’s formulation
that lenity applies in cases of “reasonable doubt”). Moreover,
this Court has in more recent cases reaffirmed that the rule of
lenity is a requirement that Congress speak in “clear and defi-
nite language.” Scheidler, 537 U.S. at 409 (internal quotation
marks omitted). The “grievous ambiguity” formulation, if read
to require a heightened degree of ambiguity, would be in con-
siderable tension with the “reasonable doubt” test applied in
such cases as R.L.C. and Moskal. This case presents a good
opportunity to review this Court’s many statements about the
rule of lenity and to clarify that triggering ambiguity need not
be “grievous,” except perhaps in the sense that any uncertainty
16
In addition, as with other background principles
of statutory interpretation, the rule’s long history
alone reinforces its importance: because Congress
“presumably has |the rule] in mind when it chooses
its language,” id. at 583, the absence of clear lan-
guage in a statute that might be read to expose indi-
viduals to additional liability suggests that Congress
did not mean to achieve that result.
C. The Rule of Lenity Should Apply to Man-
datory Minimum Sentences Today
The interpretation of a mandatory minimum sen-
tencing provision squarely implicates the history and
policies underlying the rule of lenity. Accordingly,
the Court should give that rule very serious consid-
eration in interpreting those provisions.
This Court’s precedents firmly establish that the
rule of lenity “applies not only to interpretations of
the substantive ambit of criminal prohibitions, but
also to the penalties they impose.” Bifulco, 447 U.S.
at 387; see also Ladner v. United States, 358 U.S.
169, 178 (1958) (stating that the rule applies to
any question of statutory interpretation that would
“increase the penalty that [the statute] places on
an individual”). These holdings make sense from a
historical perspective, given the rule’s roots in cases
interpreting statutes that enhanced sentences for
crimes already punishable at common law. They also
make sense in light of the rule’s theoretical ground-
ing in the principle of legality.'* Because the rule of
about the reach of a criminal statute raises grievous concerns
for the rule of law.
18 Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion
of Chase, J.) (stating that ex post facto laws include “{e]very law
that changes the punishment, and inflicts a greater punish-
ment, than the law annexed to the crime, when committed”).
17
lenity does not rest on an “assum|(ption] that offend-
ers against the law carefully read the penal code,”
Bell, 349 U.S. at 83-84, but instead on a broader
imperative that the criminal laws be clear, it has
equal force in decisions whether to punish conduct at
all, and, if so, how much punishment to inflict.
A mandatory minimum sentencing statute, more-
over, raises with particular force the concerns that
underpin the rule of lenity. Such a statute repre-
sents a legislative abrogation of the “uniform and
constant . . . federal judicial tradition for the sentenc-
ing judge to consider every convicted person as an
individual and every case as ... unique.” Koon v.
United States, 518 U.S. 81, 113 (1996), quoted in Gall
uv. United States, 552 U.S. ---, 128 S. Ct. 586, 598
(2007).!8 Every mandatory minimum provision is a
congressional directive that a greater risk of injustice
in many cases will be tolerated in order to serve a
perceived social need for greater deterrence or in-
capacitation of a class of offenses or offenders. This
kind of tradeoff is within legislative competence,
subject to constitutional constraints, but it is not part
of the judicial role. Cf. Williams v. United States,
503 U.S. 193, 205 (1992) (“[E}xcept to the extent
specifically directed by statute, ‘it is not the role of
an appellate court to substitute its judgment for that
of the sentencing court as to the appropriateness of
a particular sentence.’”) (quoting Solem v. Helm,
463 U.S. 277, 290 n.16 (1983)) (emphasis added).
19 See also Harmelin v. Michigan, 501 U.S. 957, 1007 (1991)
(Kennedy, J., concurring in part and concurring in the judg-
ment) (“Mandatory sentencing schemes can be criticized fer
depriving judges of the power to exercise individual discretion
when remorse and acknowledgment of guilt, or other extenuat-
ing facts, present what might seem a compelling case for depsr-
ture from the maximum.”).
18
Accordingly, the courts should read such statutes
narrowly to ensure that they are implementing a de-
cision that the legislature has actually made, rather
than guessing about an unclear legislative intent.
See Busic v. United States, 446 U.S. 398, 408-09
(1980) (refusing to interpret a sentencing enhance-
ment based on the “assumption that ... Congress’
sole objective was to increase the penalties . . . to the
maximum extent possible”).
Indeed, in one sense, the argument for reading a
mandatory minimum narrowly is stronger than the
concern that motivated the English courts. Even
after this Court’s decision in United States v. Booker,
543 U.S. 220 (2005), the Sentencing Guidelines
system promotes “uniformity [as] an important goal
of [federal] sentencing.” Kimbrough v. United States,
552 U.S. ---, 128 S. Ct. 558, 573 (2007). And the exis-
tence of this system, together with judicial discretion
guided by 18 U.S.C. § 3553(a), ensures that the policy
considerations that underlie mandatory minimums
will be taken into account even in cases to which the
minimums themselves do not apply. For example, if
the mandatory minimum is held not to apply in this
case, the sentencing court will be required to take
Burgess’s prior state conviction into account for the
light it sheds on his “history and characteristics,”
18 U.S.C. § 3553(a)(1), to consider its seriousness
and the need for deterrence, id. § 3553(a)(2)(A), (B),
and to balance it against the other factors present in
the case. There is therefore no need for the courts to
stretch the language of § 841(b)(1)(A) to ensure that
prior convictions are given due weight and much
reason to read that provision narrowly to ensure that
the significance of prior convictions is not exagger-
ated beyond what Congress's clear intent requires.
19
Moreover, the Sentencing Reform Act of 1984 itself,
including its overriding principle of parsimony
(requiring a sentence “not greater than necessary,”
id. § 3553(a)), is to be applied at every federal sen-
tencing unless “otherwise specifically provided.” /d.
§ 3551(a) (emphasis added). This mandate reinforces
the traditional requirement that a departure from
discretionary sentencing be justified by an unambi-
guous statement of congressional intent.
A robust rule of lenity applied to mandatory mini-
mum sentencing provisions also will promote clarity
and predictability in interpreting those provisions.
Congress has passed and continues to consider many
such provisions.2” This Court has felt it necessary
to grant review in a significant number of cases to
resolve circuit splits in the interpretation of these
mandatory minimums.?! Proper application of the
rule of lenity can provide helpful clarity and reduce
litigation over the meaning of such statutes. More-
over, uncertainty in the interpretation of mandatory
minimums can impede the plea negotiations that
today help resolve a large majority of the federal
criminal caseload. These negotiations will proceed
more quickly and smoothly if the law that governs
criminal punishment is clear. See Holloway v.
United States, 526 U.S. 1, 22 (1999) (Scalia, J., dis-
senting) (citing the “in terrorem effect” of expanded
20 See, e.g., Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, § 141(a)(1), 120 Stat. 587, 602;
Protection of Lawful Commerce in Arms Act, Pub. lL. No. 109-
92, § 6(b), 119 Stat. 2095, 2102 (2005); PROTECT Act, Pub. L.
No. 108-21, § 103(b), 117 Stat. 650, 653 (2003).
21 See, e.g., Begay v. United States, No. 06-11543 (argued Jan.
15, 2008): Logan v. United States, 552 U.S. ---, 128 S. Ct. 475
(2007); James v. United States, 550 U.S. ---, 127 S. Ct. 1586
(2007).
20
liability on “a modern federal criminal-law system
characterized by plea bargaining” to support the rule
of lenity).
Finally, the consequences of triggering 4 manda-
tory minimum can be severe. Although not as severe
as the parliamentary statutes that led to the rule’s
English predecessor, mandatory minimums never-
theless have a dramatic impact on individual liberty
in many cases, and this is the kind of consequence
that courts for centuries have given reasonable
weight in the construction of statutes. See Callanan
v. United States, 364 U.S. 587, 596 (1961) (when
“applicable statutory provisions [are] found to be un-
clear ..., the rule of lenity [is] utilized, in favorem
libertatis, to resolve the ambiguity”). The Court has
approved Judge Friendly’s observation that the rule
of lenity embodies an “instinctive distaste against
men languishing in prison unless the lawmaker has
clearly said they should.” Henry J. Friendly, “Mr.
Justice Frankfurter and the Reading of Statutes,”
in Benchmarks 196, 209 (1967), quoted in United
States v. Bass, 404 U.S. 336, 348 (1971). It should do
so again today.
Il. THE RULE OF LENITY REQUIRES RE-
VERSAL IN THIS CASE
Applied properly to this case, the rule of lenity
compels reversal. As petitioner’s brief shows, the
Controlled Substances Act can be read harmoniously
only if a prior “felony drug offense” within the mean-
ing of § 841(b)(1)(A) is defined in accord with both
§ 802(13) and § 802(44). This reading best accords
with the text of the statute and with the ordinary
usage of the English language. The arguments pre-
sented by the court below and by the Government for
the harsher reading of § 841(a)(1) fail to overcome
21
this more natural reading and certainly cannot
eliminate the “reasonable doubt” (R.L.C., 503 U.S. at
305-06 (plurality opinion)) that calls the rule of lenity
into play.
To begin, as the Court should, with the text of
the statute, § 802(13) says plainly that “|t]he term
‘felony’ means . . . [an] offense classified by applicable
Federal or State law as a felony.” Any reading of
the statute that did not incorporate this requirement
into the meaning of “felony drug offense” would fail
to give § 802(13) full application according to its
language, because, when used as part of the phrase
“felony drug offense,” the term “felony” would not
refer to an offense so classified. Such a reading
would make the provisions of the Controlled Sub-
stances Act internally inconsistent, which is not a
promising beginning for an argument that must
show that the statute contains no ambiguity. Cf.
United States v. Turkette, 452 U.S. 576, 580 (1981)
(observing that the process of statutory construction
involves “dealj{ing] with” any “internal inconsisten-
cies in the statute”).
This reading is reinforced by this Court's “assump-
tion that the ordinary meaning of [statutory] lan-
guage accurately expresses the legislative purpose.”
Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252 (2004) (internal quotation
marks omitted). Congress, of course, is “free to be
unorthodox” and may “define [statutory terms] in an
unexpected way” — but, to do so, it must “tell us so.”
Lopez v. Gonzales, 549 U.S. ---, 127 S. Ct. 625, 630
(2006). This logic applies to the relationship be-
tween noun and adjective in the phrase “felony drug
offense” —- such an offense would, in ordinary usage,
be a “felony.” Congress could, to be sure, have
22
created a statutory scheme in which a felony drug
offense was not necessarily a felony, or indeed one in
which the two categories were mutually exclusive.
This statute, however, does not speak directly to
the relationship between § 802(13) and § 802(44).
Accordingly, because a situation in which a felony
drug offense is not a felony is “just what the English
language tells us not to expect,” this Court should be
“very wary before reaching that result. Id.
The contrary arguments presented and discussed
by the court below and by the First Circuit in United
States v. Roberson, 459 F.3d 39 (1st Cir. 2006), cert.
denied, 549 U.S. ---, 127 S. Ct. 1261 (2007), rely on
various canons and maxims of statutory construction.
In this context, it is worth remembering Justice
Frankfurter’s caution that “(gjeneralities about stat-
utory construction ... are not rules of law but merely
axioms of experience.” Universal C.I.T., 344 U.S. at
221; accord Chickasaw Nation v. United States, 534
U.S. 84, 94 (2001). To begin with, the court below
relied on this Court's statement in Colautti v. Frank-
lin, 439 U.S. 379 (1979), that “a statutory definition
‘which declares what a term means ... excludes
any meaning that is not stated.” Pet. Br. App. 7a
(quoting 439 U.S. at 392 n.10) (ellipsis in original).
This undoubtedly accurate statement does not re-
solve the problem, but only restates it, because this
case, unlike Colautti, features two statutory defini-
tions rather than only one. If § 802(44) excludes
from the term “felony drug offense” any meaning
other than § 802(44) itself provides, then § 802(13)
should likewise exclude from the term “felony” any
meaning other than § 802(13) itself provides, and the
word “felony” remains part of the phrase “felony drug
offense.” Recognizing Congress’s ability to define
23
words does not help to resolve the question, in an
individual case, of how Congress actually chose to
define them.
The canon that “specific statutory language should
control more general language when there is a con-
flict between the two,” National Cable & Telecomms.
Ass'n, Inc. v. Gulf Power Co., 534 U.S. 327, 335
(2002), relied upon by the Government in the First
Circuit and in its brief in opposition, see Roberson,
459 F.3d at 55 (citing Morales v. Trans World Air-
lines, Inc., 504 U.S. 374, 384-85 (1992)); Br. in Opp.
12 (same), likewise fails to remove ambiguity from
the statute. As the First Circuit itself acknowledged
in rejecting this argument, the canon applies only
where a conflict exists within the text of the statute.
See Roberson, 459 F.3d at 55; see also National Cable
& Telecomms., 534 U.S. at 336 (canon inapplicable
where “there is no conflict”); 2A Norman J. Singer,
Statutes and Statutory Construction § 46.05, at 105
(5th ed. 1992) (canon applies only “[w]here there is
inescapable conflict”). In this case, however, only the
Government’s construction creates a conflict between
§ 802(13) and § 802(44). Petitioner’s construction
does not, and it is preferable for that reason alone.
Further, any attempt to apply to the Controlled
Substances Act the canon that the specific trumps
the general deepens, rather than resolves, the ambi-
guity created by the Government’s interpretation. As
the D.C. Circuit correctly observed in United States
v. West, 393 F.3d 1302 (D.C. Cir. 2004), “the word
‘felony, as used in the enhancement provisions of
the Act to refer to prior convictions, always pertains
explicitly to drug offenses.” Jd. at 1314.22 It is there-
22 This is true not only for the enhancement provisions
themselves, but also for a large majority of all uses of the term
24
fore wrong to say that either definition is more
specific than the other: both refer to felony drug
offenses. The First Circuit, and the Government,
have objected that the word “felony” is used in the
statute for purposes other than to describe a felony
drug offense. See Roberson, 459 F.3d at 53-54; Br.
“felony” in the Controlled Substances Act as a whole. For
example, 21 U.S.C. § 824(a)(2) refers to a “felony under this
subchapter or subchapter II of this chapter or any other law of
the United States, or of any State, relating to any substance
defined in this subchapter as a controlled substance or a list |
chemical”; any such felony would be a “felony drug offense”
as defined by § 802(44). Accord id. §§ 841(b)(2) (“felony under
any other provision of this subchapter or subchapter II of this
chapter or other law of a State, the United States, or a foreign
country relating to narcotic drugs, marihuana, or depressant or
stimulant substances”), 841(b)(1)(A), (B), (C), (D) (“felony drug
offense”), 841(e) (“felony violation of this section relating to the
receipt, distribution, manufacture, exportation, or importation
of a listed chemical”), 843(b) (“felony under any provision of this
subchapter or subchapter II of this chapter”), 843(d)(1) (“felony
under any other provision of this subchapter or subchapter
II of this chapter or other law of the United States relating
to narcotic drugs, marihuana, or depressant or stimulant sub-
stances”), 843(d)(2)(B) (“felony under any other provision of this
subchapter or subchapter II of this chapter”), 843(e) (“felony
violation of this section relating to the receipt, distribution,
manufacture, exportation, or importation of a listed chemical”),
848(c)(1) (“any provision of this subchapter or subchapter II of
this chapter the punishment for which is a felony”), 848(e)(1)(B)
(“felony violation of this subchapter or subchapter II of this
chapter”), 853(d) (“felony under this subchapter or subchapter
Il of this chapter”), 862a(a) (“felony [under] the law of the
jurisdiction involved ... which has as an element the posses-
sion, use, or distribution of a controlled substance”); see also id.
§ 881(a)(9) (1994) (amended in relevant part in 1996; formerly
referring to “a felony provision of this subchapter or subchapter
II of this chapter”); id. §§ 960(b)(1), (2), (3), 962(b) (in penalty
provisions of adjacent Controlled Substances Import and Export
Act; “felony drug offense”).
25
in Opp. 9. Inspection, however, shows that the three
relevant references apply only to federal felonies, so
that § 802(13)’s incorporation of state law is irrele-
vant to them.”* Accordingly, while the word “felony”
is used in these three parts of the statute, the defini-
tion of “felony” contained in § 802(13), which is the
relevant subject for the specificity analysis, is not.
Section 802(44)'s enactment history also does
not support the inference that it was intended to
define felony drug offenses that were not necessarily
felonies, as the Government has argued. See Br. in
Opp. 11-12. Before 1994, § 841(b)(1)(A) contained a
section-specific definition of “felony drug offense”
that included a requirement that any prior non-
federal offense be a felony under state law. See
Anti-Drug Abuse Amendments Act of 1988, Pub. L.
No. 100-690, tit. VI, § 6452(a), 102 Stat. 4181, 4312,
4371. In 1994, Congress removed that definition and
enacted § 802(44) as it now stands (then numbered
§ 802(43)). See Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322,
§ 90105(c)-(d), 108 Stat. 1796, 1987-88. If consistent
with the inference that Congress meant to remove
the state-law requirement from the operation of
§ 841(b)(1)(A), this sequence nevertheless equally
supports the inference that, with § 802(44) now
located alongside § 802(13), Congress considered the
#8 The provisions are 21 U.S.C. § 878(a)(3), which authorizes
arrests for a “felony, cognizable under the laws of the United
States,” and former § 848(q)(5) and (q)(6), repealed in 2006,
which required counsel in capital cases to have “experience
in the actual trial of felony prosecutions,” or the “handling of
appeals .. . in felony cases,” in the specific courts in which those
capital cases were to be tried or appealed, id. § 848(q)(5), (6)
(2000). Because the courts were federal ones, the felonies would
also have been federal.
26
extra language unnecessary for both requirements
to apply. After all, if Congress had the intent the
Government now attributes to it, it also could easily
have added express language to § 802(44) stating
that a felony drug offense need not be a felony under
state law. The Government’s indirect extrapolation
of congressional intent thus falls far short of the
“clear and definite language” that this Court’s prece-
dents require before invocation of the rule of lenity.
Scheidler, 537 U.S. at 409; see United States v. Laub,
385 U.S. 475, 487 (1967) (“Crimes are not to be cre-
ated by inference.”).
In summary, the arguments for a broad construc-
tion of § 841(b)(1)(A) fail because they neglect this
Court’s instructions that legislative “intention ...
is to be collected from the words [the legislature]
employ|s],” Wiltberger, 18 U.S. (5 Wheat.) at 95, and
that courts may not “search for an intention that
the words {of a criminal statute] themselves do not
suggest,” Fasulo, 272 U.S. at 628. No inferences
that can be drawn from the structure or history of
the statute are strong enough to establish a “clear
and definite” conclusion (Scheidler, 537 U.S. at 409)
that greater punishment is justified. To affirm in
this case would disserve a judicial tradition that pre-
dates the English Civil War. It also would increase
the danger that harsh mandatory minimums will
be applied in ways that Congress never considered
and did not authorize. Therefore, this Court should
adopt “the safer construction of so penal a statute,”
Howard’s Case, Fost. 77, 79, 168 Eng. Rep. 39, 39
(1751) (reporter’s note), reverse, and in doing so
reaffirm the importance of the rule of lenity in the
construction of sentencing provisions.
27
CONCLUSION
The court of appeals’ judgment should be reversed.
PAMELA HARRIS
Co-CHAIR, NACDL
AMICUS COMMITTEE
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5386
MARY PRICE
VICE PRESIDENT AND
GENERAL COUNSEL
FAMILIES AGAINST
MANDATORY MINIMUMS
1612 K Street, N.W.
Suite 700
Washington, D.C. 20006
(202) 822-6700
January 29, 2008
Respectfully submitted,
KEVIN B. HUFF
Counsel of Record
GREGORY G. RAPAWY
KELLOGG, HUBER, HANSEN,
TODD, EVANS & FIGEL,
P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900
PETER GOLDBERGER
50 Rittenhouse Piace
Ardmore, Pennsylvania 19003
(610) 649-8200
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.