Ad Hoc Constructions of Penal Statutes

Joel S. Johnson*

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.

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© 2024 Joel S. Johnson.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Pepperdine Caruso School of Law.  For helpful comments and consultations, I am grateful to Nadia Banteka, Erin Blondel, Aliza Hochman Bloom, Darryl Brown, Aaron-Andrew Bruhl, Michael Cahill, Cristina Ceballos, Jake Charles, Jack Chin, Frank Rudy Cooper, Eric Fish, Jeff Fisher, Brenner Fissell, Thomas Frampton, Trevor Gardner, Stuart Green, Tara Leigh Grove, David Han, Eve Hanan, Carissa Byrne Hessick, Esther Hong, Mary Hoopes, Jason Jarvis, John Jeffries, Thea Johnson, Sarah Jones, Sam Kamin, Rachel Kincaid, Jennifer Koh, Ben Levin, Evelyn Malavé, Justin Murray, Jeesoo Nam, Dan Ortiz, Will Ortman, Shalini Ray, Laurent Sacharoff, Michael Smith, Sarah Swan, India Thusi, and Kate Weisburd.  This project also greatly benefited from comments offered by participants at CrimFest, Markelloquium, and the Southwest Criminal Law Workshop.  Special gratitude is owed to Sam Askari and Menachem Schochet for their excellent research assistance.