Professor Joel Johnson, "Ad Hoc Constructions of Penal Statutes" -- Notre Dame Law Review (forthcoming)

Professor Joel S. Johnson's article, "Ad Hoc Constructions of Penal Statutes," (SSRN) will be published in the Notre Dame Law Review, Vol. 100, 2024. The article provides a comprehensive analysis of the Supreme Court's approach to construing penal statutes over the last ten terms.

Abstract of "Ad Hoc Constructions of Penal Statutes"

This Article takes a hard look at the Supreme Court’s construction of penal statutes in 43 cases over the ten most recent Terms. It shows that the Court tended to adopt narrow constructions in those cases, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in the parties’ briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never definitively relied upon the rule of lenity—the substantive canon most often raised in briefs and at argument—to justify a narrow construction over the entire ten-Term period. Instead, the Court’s rationale in these cases tended to be “ad hoc,” in the sense that the Court based its narrow reading only on statute-specific ordinary-meaning analysis.

The Court’s repeated ad hoc approach in narrow-construction cases may be motivated by textualist commitments that view substantive canons with suspicion because they are inescapably judge-made and policy-driven; the ad hoc approach may be considered more law-like and thus more consistent with the rule-of-law values on which textualism is based. It is also possible that ad hoc preference is a function of the Court’s composition: efforts to rely on substantive canons may ultimately be softened to retain the votes needed to keep a majority. Some Justices may also prefer an ad hoc approach because it maximizes interpretive discretion in future cases involving penal statutes.

The Court’s ad hoc approach has consequences. Although it usually satisfies the party arguing for the narrow construction, the ad hoc approach has large-scale implications for the criminal legal system that perpetuate the enactment, enforcement, and interpretation of penal statutes in an expansive manner—undermining the rule of law by systematically increasing discretion for various actors in the criminal legal system. The ad hoc approach does little to deter legislatures from writing open-ended statutes, and it enables lower courts to adopt sweeping constructions of those statutes put forward by prosecutors seeking to maximize statutory breadth. The ad hoc approach simultaneously burdens defense counsel by making easier narrow-construction arguments based on substantive canons less likely to succeed, often leaving more difficult ordinary-meaning arguments as the only viable option. Finally, the Court’s ad hoc approach increases police discretion that can be used for on-the-street invention and enforcement of venturesome constructions of open-ended statutes.