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

Professor Joel S. Johnson's article, "Ad Hoc Constructions of Penal Statutes," (SSRN) has been published in the Notre Dame Law Review, 100 Notre Dame L. Rev. 73 (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"

The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, 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 party 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 firmly 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. That approach may be motivated by textualist suspicion of substantive canons or a desire to maximize interpretive discretion in future cases involving penal statutes. Whatever its cause, the Court’s ad hoc approach has large-scale implications 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 who administer criminal law.