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Turning the Rule of Lenity Into a Rule of Lenity

The Rule of Lenity remains a valuable criminal law canon because it forces the legislatures to define crimes themselves rather than punt that task to the courts. By and large, federal and state legislatures have left the development of canons of construction of criminal statutes to the courts as part of their common law, case-by-case decision-making process. Yet legislatures have occasionally intervened to make their wishes known, enacting statutes to direct the courts how to interpret particular laws. The Texas lenity statute enacted in June 2015 may serve as an indication that legislatures will attempt to take back from the courts the development of canons of statutory construction. At a minimum, the new Texas law is a welcome addition to the legal developments underway to respond to the overuse of the criminal law that we have witnessed over the past four decades.

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