Professor Joel Johnson Cited in Western District of Texas Federal Court Order in United States v. Tapia

Professor Joel S. Johnson's scholarly work on the construction of criminal statutes was heavily cited and relied upon in a recent order issued by Judge Pulliam, a federal judge in the Western District of Texas, in United States v. Tapia.

Excerpt from the order:

II. Statutory Interpretation and Construction of Penal Statutes

A discussion of some general principles regarding interpreting and construing penal statutes will be helpful in resolving the additional issues raised in the Motion.

Professor Joel S. Johnson, Law Professor at Pepperdine University's Caruso School of Law, has written extensively on the topic of interpreting and construing criminal laws. Professor Johnson first recognizes the well-established principle for interpreting text, which is for judges “to show fidelity to the text.” Professor Johnson also identifies the subtle distinction between interpretation and construction; two distinct stages of textual analysis.
“The first stage—interpretation—is the process of ‘discover [ing] the linguistic meaning or semantic content of the legal text.’ ” The second stage—construction—is “the process that gives a text legal effect ... [b]y translating the linguistic meaning into legal doctrine or by applying or implementing the text.”

Most practitioners and judges use the term interpretation for both stages of the analytical process. Id. In most cases, treating the analytical process as one interpretive activity instead of two is not controversial or unusual. Id. For purposes of resolving the instant matter, the Court need not settle the interpretation-construction distinction debate, but it recognizes, as a practical matter, that there may be two mental acts involved in textual analysis: (1) discerning the meaning of the text and (2) an application stage. 

It is also important to understand the difference between ambiguity and vagueness. Professor Johnson states,

"Ambiguity refers to linguistic indeterminacy that arises when a term can be used in more than one sense such that it is open to a discrete number of possible meanings. Ambiguity can typically be resolved through interpretation, the process of recovering the semantic content of the legal text by looking to materials such as statutory context, rules of grammar, dictionaries, and usage norms embodied in descriptive canons of statutory interpretation. A term exhibits vagueness, by contrast, when there are difficult, borderline cases to which the indeterminate term may or may not apply, with the result that it is open to practically innumerable ... applications. Vagueness cannot usually be resolved through mere interpretation, but only through construction, the process of giv[ing] a text legal effect by translating the linguistic meaning into legal doctrine."

Therefore, a court resolves ambiguity through interpretation and vagueness through construction. Textual analysis, when appropriate, may also include reliance on certain tools, such as dictionaries and canons of construction. Id. at 86.

Professor Johnson illuminates the distinction between descriptive canons and substantive canons. He explains,

 "Scholars divide canons into two basic categories: descriptive canons (sometimes called “linguistic” or “semantic” canons) and substantive canons (sometimes called “normative” canons). Descriptive canons capture generalizations about how particular linguistic constructions are used and understood by competent speakers of English. Substantive canons capture “nonlinguistic considerations that weigh in favor of particular legal results."

Here, Defendant relies on two substantive canons of construction in the Motion. Defendant states the Court should apply the rule of lenity and constitutional avoidance to rule in his favor. ECF No. 115 at 6.

A. Rule of Lenity

The rule of lenity applies only when “there is grievous ambiguity or uncertainty in the statute.” Arreola v. Bondi, No. 25-60091, 2025 WL 2694844, at *1 (5th Cir. Sept. 22, 2025) citing Shaw v. United States, 580 U.S. 63, 71 (2016). “The rule [of lenity] applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” Shular v. United States, 589 U.S. 154, 165 (2020); United States v. Shabani, 513 U.S. 10, 17 (1994).

B. Constitutional Avoidance

As Professor Johnson notes, “there are two types of constitutional avoidance canons.” First, “[u]nder the unconstitutionality canon, if one construction would render a statute unconstitutional, a court should adopt any plausible construction that would save it.” Id. Second, “[u]nder the doubts canon, if one construction would raise serious constitutional questions, a court should adopt any plausible construction that would avoid those questions.” Id. Ambiguity must exist for either version of avoidance to apply. Id. “Both canons are triggered by ambiguity: a court will not consider avoidance unless it first determines that the statutory language can be fairly understood to have two or more discrete semantic meanings, one of which is unconstitutional or raises serious constitutional questions.” Id.

Here, because the Court finds the statute of conviction, 18 U.S.C. § 115(a)(1)(B), is not ambiguous, the rule of lenity does not apply. Likewise, neither version of constitutional avoidance applies.

The complete order may be found at United States v. Tapia