On Lenity: What Justice Gorsuch Didn’t Say

*Associate Professor, Washington and Lee University School of Law; J.D., Washington and Lee University School of Law. I want to thank Daniel Harawa, Alex Klein, and Jilliann Hasbrouck for their inspiration, guidance, and feedback. Shout out to my research assistants Elena Schiefele, Halley Townsend, Sophia Henderson, and Warren Buff, whose outstanding work made this Essay better. I am grateful for the extraordinary support of the Frances Lewis Law Center at the Washington and Lee University School of Law. So much love to the amazing editors at the Virginia Law Review—specifically Julia Eger, Sydney Stanley, Andrew Nell, Mustapha Yoosuf-Akinlaja, and Scott Chamberlain—for superb editing and thoughtful comments that significantly advanced this piece. For my daughters. Black Lives Matter.Show More

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. It advances the systemic racism of colorblindness against any race-conscious remedial legislation, while denying marginalized people relief from unequally burdensome systems so long as those systems’ rationale is facially neutral. This obstinate colorblindness has become so pervasive in the framework of criminal jurisprudence that race is no longer merely the elephant in the room—it is the room itself.

This Essay presents the Court’s recent decision in Wooden v. United States as a case study of what the Court could achieve by saying the quiet part out loud and explaining the white supremacist motives underlying presumptively neutral doctrines. The Court can overturn its misguided doctrines without acknowledging their racial and colonial dimensions, but fixing the underlying rot in the system requires the Court to first acknowledge that the rot exists. Otherwise, new “neutral” doctrines and rationales will continue to crop up to take the place of those that were overturned. The decline of lenity and corresponding shifts in fundamental doctrines can only be fully reversed if the Court is willing to embrace the anti-colonial and abolitionist consequences.

Introduction

“As every civil rights lawyer has reason to know—despite law school indoctrination and belief in the ‘rule of law’—abstract principles lead to legal results that harm [B]lacks and perpetuate their inferior status. Racism provides a basis for a judge to select one available premise rather than another when incompatible claims arise.”¹ 1.Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992).Show More

– Derrick Bell

In the second season of Star Trek: Deep Space Nine, the longsuffering engineer Miles O’Brien is arrested and tried in a Cardassian criminal court.² 2.See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime).Show More The trial is overseen by an archon, who acts as both judge and prosecutor.³ 3.See id.Show More At the beginning of the trial, she declares, “The offender Miles O’Brien, Human, officer of the Federation’s Starfleet, has been found guilty of aiding and abetting seditious acts against the state. The sentence is death; let the trial begin.”⁴ 4.Id.Show More As viewers, we recoil from this perversion of justice; it’s the stuff of kangaroo courts. Our notion of justice is grounded in the public perception of a fundamentally fair process.⁵ 5.See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process).Show More We would be shocked to encounter Cardassian procedures in an American courtroom.

And yet, there are two sorts of justice in America. There is the ideal, guided by strong constitutional limits on prosecution meant to produce a fair trial for defendants, even if it means the guilty sometimes go free. Traditional doctrines guide the court to favor the defendant until the prosecution can overcome all reasonable doubt. And then there is the fast and loose world of mass incarceration, replete with plea bargaining, harmless error, qualified immunity, and good faith exceptions. That sort of justice is fit for a colonial power—like the Cardassians—bent on subjugating large portions of its populace. That sort of justice would have little use for lenity. These two systems often exist in parallel, with the latter cloaking itself in the trappings of the former.

In Wooden v. United States,⁶ 6.Wooden v. United States, 142 S. Ct. 1063 (2022).Show More the Court, in an opinion authored by Justice Kagan, held that a series of burglaries committed at a single address on a single night did not count as more than one “occasion” under the Armed Career Criminal Act’s⁷ 7.18 U.S.C. § 924(e)(1).Show More (“ACCA”) mandatory minimum sentencing provision.⁸ 8.Wooden, 142 S. Ct. at 1069.Show More In a concurring opinion joined in part by Justice Sotomayor, Justice Gorsuch indicated that, when interpreting ambiguous statutes such as the ACCA, courts should turn to the rule of lenity before analyzing a statute’s legislative history or purpose.⁹ 9.Id. at 1081 (Gorsuch, J., concurring).Show More The rule of lenity requires that courts resolve reasonable doubts about the application of penal laws in the defendant’s favor.¹⁰ 10.Id.Show More

Justice Gorsuch observed that courts have weakened the rule of lenity over time, culminating in the Court’s current interpretation, which requires a finding of a “grievous ambiguity” before courts can apply lenity and find in favor of the defendant.¹¹ 11.Id. at 1084.Show More This narrow rule of lenity is one factor that perpetuates mass incarceration and its concomitant racial disparities. But Justice Gorsuch does not say why this shift in the rule of lenity occurred. This Essay presents the narrowing of the historical doctrine of lenity as an offshoot of mass incarceration’s racist roots. That is, lenity—or rather, its narrowing—is one tool courts use to lock up Black, Brown, and poor people, and to keep them locked up.

This constriction of lenity was only an intermediate step in the erosion of constitutional law to permit racially driven mass incarceration. In the early years of the conservative reaction to the Civil Rights Movement, the Court both invented new doctrines and revised or abandoned longstanding ones to police marginalized people and prevent their recourse to the courts. Even the Warren Court contributed to this reaction, giving rights access with one hand while erecting procedural barriers to rights access with the other.¹² 12.See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution.Show More The Court extended harmless error to encompass constitutional violations in 1967.¹³ 13.See Chapman v. California, 386 U.S. 18, 23–24 (1967).Show More The Court invented qualified immunity in 1967,¹⁴ 14.See Pierson v. Ray, 386 U.S. 547, 555 (1967).Show More then expanded it considerably over the next few decades.¹⁵ 15.See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).Show More Police harassment gained fresh justification with the invention of reasonable suspicion in 1968.¹⁶ 16.See Terry v. Ohio, 392 U.S. 1, 19 (1968).Show More Lenity was (sometimes) corralled to only apply in cases of “grievous” ambiguity in 1974.¹⁷ 17.See Huddleston v. United States, 415 U.S. 814, 831 (1974).Show More By 1983, the Court began to foreclose the possibility of implying damages as relief for constitutional violations by federal actors.¹⁸ 18.See Bush v. Lucas, 462 U.S. 367, 390 (1983).Show More The Court created a “good faith” exception to its Fourth Amendment exclusionary rule in 1984.¹⁹ 19.See United States v. Leon, 468 U.S. 897, 908 (1984).Show More While advancing purportedly race-neutral doctrines, the Court buttressed the racial hierarchies of the carceral state.²⁰ 20.See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”).Show More This is what Justice Gorsuch didn’t say. Leaving out this critical context indicates that even when the Court is willing to address the symptoms, it will leave the disease of systemic racism undiagnosed and untreated.

Part I explains lenity and provides a background of Wooden. Part II discusses how courts have shifted and narrowed the doctrine of lenity, so that it almost never applies today. Part III explains the reason for that shift: courts’ narrowing of the rule of lenity is one purportedly race-neutral means of imprisoning Black, Brown, and poor people. Finally, this Essay explains why it is necessary for members of the Court to start saying the quiet part out loud. The Court can overturn its misguided doctrines without acknowledging their racial dimensions. But to fix the rot in the system, the Court must first acknowledge that the rot exists. Otherwise, new “neutral” doctrines will continue to crop up to take the place of those that were overturned.

1. Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992). ↑

2. See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime). ↑

3. See id. ↑

4. Id. ↑

5. See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process). ↑

6. Wooden v. United States, 142 S. Ct. 1063 (2022). ↑

7. 18 U.S.C. § 924(e)(1). ↑

8. Wooden, 142 S. Ct. at 1069. ↑

9. Id. at 1081 (Gorsuch, J., concurring). ↑

10. Id. ↑

11. Id. at 1084. ↑

12. See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution. ↑

13. See Chapman v. California, 386 U.S. 18, 23–24 (1967). ↑

14. See Pierson v. Ray, 386 U.S. 547, 555 (1967). ↑

15. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). ↑

16. See Terry v. Ohio, 392 U.S. 1, 19 (1968). ↑

17. See Huddleston v. United States, 415 U.S. 814, 831 (1974). ↑

18. See Bush v. Lucas, 462 U.S. 367, 390 (1983). ↑

19. See United States v. Leon, 468 U.S. 897, 908 (1984). ↑

20. See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”). ↑