Codifying the Rule of Lenity

The rule of lenity is a technique of statutory interpretation that instructs a court to resolve ambiguities about whether conduct is criminally prohibited in favor of the defendant. In a 2008 opinion authored by Justice Antonin Scalia, the U.S. Supreme Court explained the rule using a sports analogy: “the tie must go to the defendant.” In some ways the rule of lenity is a partial solution to a larger problem—the overall trend towards overcriminalization in American life. Texas (and other states) should primarily focus on eliminating most non-traditional crimes altogether. Fewer “business crimes” would mean fewer crimes for which the rule of lenity is disregarded. Until this happens, though, the codification of the rule of lenity will serve as an important safeguard of defendants’ rights. It will provide an important reminder to prosecutors and the judiciary that anything serious enough to be labeled a crime by the government should only be prosecuted with fundamental, centuries-old legal protections firmly in place.

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