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The Rule Of Lenity: The Rarely & Selectively Applied Constitutional Right

Scalia Rule of Lenity

The rule of lenity requires the court to interpret anyambiguity in a criminal statute in favor of the defendant. It is aconstitutional right that has been codified by Florida Statute 775.021(1) which states “The provisions of this code andoffenses defined by other statutes shall be strictly construed; when thelanguage is susceptible of differing constructions, it shall be construed mostfavorably to the accused.”

However this rule is rarely applied, and the defendant is frequently deprived of this important constitutional right. Scalia has tried to revive and emphasize the importants of this rights. Also a broad interpretation of a statute would allow prosecutors to charge defendant’s with crimes for conduct that was never meant to be criminalized.

DOUGLAS F. WHITMAN v. UNITED STATES, 574 U. S. ____ (2014) Statement of SCALIA, November 10, 2014 – Docket No. 14–29

The rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants. Deferring to the prosecuting branch’s expansive views of these statutes “would turn [their] normal construction . . . upside-down, replacing the doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U. S. 152, 178 (1990) (SCALIA, J., concurring in judgment).


Criminal laws give the government the ability to take away a person’s freedom. A criminal conviction often entails many collateral consequences that could follow a defendant around for life. If the rule of lenity is not applied a person could be imprison for conduct that was not known to be illegal until after the conduct occurred, which would deprive the defendant of notice that his action was illegal. Also since crimes involve taking away a persons freedom, crimes should be narrowly defined to allow the prosecution of a specific kind of conduct. To rule otherwise could result in a defendant being imprisoned for conduct the legislature never meant to criminalize.


In conclusion the rule of lenity is an important constitutional right. Unfortunately many jurist have forgotten the importance of this law, have failed to apply the rule. As a result defendants are being charged with crimes without even being given notice that their conduct is illegal. Even worse, not only do defendant not have notice that their conduct is illegal, but their conduct may not even have been meant to be illegal. Laws which were suppose to be created to outlaw specific conduct, and therefore be narrowly construed are resulting in unintended convictions.