The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_1577/90_1577.zc1

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SUPREME COURT OF THE UNITED STATES
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No. 90-1577
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UNITED STATES, PETITIONER v. R. L. C.
on writ of certiorari to the united states court of
appeals for the eighth circuit
[March 24, 1992]

  Justice Scalia, with whom Justice Kennedy and
Justice Thomas join, concurring in part and concurring in
the judgment.
  In my view it is not consistent with the rule of lenity to
construe a textually ambiguous penal statute against a
criminal defendant on the basis of legislative history.
Because Justice Souter's opinion assumes the contrary, I
join only Parts I, II-A, and III, and concur in the judgment.
  The Court begins its analysis, quite properly, by examin-
ing the language of 18 U. S. C. 5037(c)(1)(B)-which
proves to be ambiguous.  Reasonable doubt remains, the
Court concludes, as to whether the provision refers (i) to the
maximum punishment that could be imposed if the juvenile
were being sentenced under the United States Sentencing
Guidelines (15-21 months) or (ii) to the maximum punish-
ment authorized by the statute defining the offense, see 18
U. S. C. 1112(a) (36 months).  Ante, at 5.  With that
conclusion I agree-and that conclusion should end the
matter.  The rule of lenity, in my view, prescribes the result
when a criminal statute is ambiguous: the more lenient
interpretation must prevail.
  Yet the plurality continues.  Armed with its warrant of
textual ambiguity, the plurality conducts a search of
5037's legislative history  to determine whether that
clarifies the statute.  Happily for this defendant, the
plurality's extratextual inquiry is benign: It uncovers
evidence that the ``better understood'' reading of 5037 is
the more lenient one.  Ante, at 12.  But this methodology
contemplates as well a different ending, one in which
something said in a Committee Report causes the criminal
law to be stricter than the text of the law displays.
According to the plurality, ``we resort to the [rule of lenity]
only when `a reasonable doubt persists about a statute's
intended scope even after resort to ``the language and
structure, legislative history, and motivating policies'' of the
statute.'''  Ante, at 12 (quoting Moskal v. United States, 498
U. S. ---, --- (1990) (slip op., at 4)) (citation omitted).  I
doubt that Moskal accurately characterizes the law in this
area, and I am certain that its treatment of ``the venerable
rule of lenity,'' ante, at 12, does not venerate the important
values the old rule serves.
  The Moskal formulation of the rule, in approving reliance
on a statute's ``motivating policies'' (an obscure phrase),
seems contrary to our statement in Hughey v. United
States, 495 U. S. 411, 422 (1990), that ``[e]ven [where] the
statutory language . . . [is] ambiguous, longstanding princi-
ples of lenity . . . preclude our resolution of the ambiguity
against [the criminal defendant] on the basis of general
declarations of policy in the statute and legislative history.''
And insofar as Moskal requires consideration of legislative
history at all, it compromises what we have described to be
purposes of the lenity rule.  ``[A] fair warning,'' we have
said, ``should be given to the world in language that the
common world will understand, of what the law intends to
do if a certain line is passed.  To make the warning fair, so
far as possible the line should be clear.''  McBoyle v. United
States, 283 U. S. 25, 27 (1931).  ``[T]he rule of lenity ensures
that criminal statutes will provide fair warning concerning
conduct rendered illegal.''  Liparota v. United States, 471
U. S. 419, 427 (1985).  It may well be true that in most
cases the proposition that the words of the United States
Code or the Statutes at Large give adequate notice to the
citizen is something of a fiction, see McBoyle, supra, at 27,
albeit one required in any system of law; but necessary
fiction descends to needless farce when the public is
charged even with knowledge of Committee Reports.
  Moskal's mode of analysis also disserves the rule of
lenity's other purpose: assuring that the society, through
its representatives, has genuinely called for the punishment
to be meted out.  ``[B]ecause of the seriousness of crim-
inal penalties, and because criminal punishment usually
represents the moral condemnation of the community,
legislatures and not courts should define criminal activity.''
United States v. Bass, 404 U. S. 336, 348 (1971).  See also
Liparota, supra, at 427; United States v. Wiltberger, 5
Wheat. 76, 95 (1820).  The rule reflects, as the plurality
acknowledges, `````the instinctive distaste against men
languishing in prison unless the lawmaker has clearly said
they should.'''''  Ante, at 12 (quoting Bass, supra, at 348,
and H. Friendly, Benchmarks 209 (1967)).  But legislative
history can never provide assurance against that unaccept-
able result.  After all, ``[a] statute is a statute,'' ante, at 12,
n. 5, and no matter how ``authoritative'' the history may
be-even if it is that veritable Rosetta Stone of legislative
archaeology, a crystal clear Committee Report-one can
never be sure that the legislators who voted for the text of
the bill were aware of it.  The only thing that was authori-
tatively adopted for sure was the text of the enactment;
the rest is necessarily speculation.  Where it is doubtful
whether the text includes the penalty, the penalty ought
not be imposed.  ``[T]he moral condemnation of the commu-
nity,'' Bass, supra, at 348, is no more reflected in the views
of a majority of a single committee of congressmen (assum-
ing, of course, they have genuinely considered what their
staff has produced) than it is reflected in the views of a
majority of an appellate court; we should feel no less
concerned about ``men languishing in prison'' at the direc-
tion of the one than of the other.
  We have in a number of cases other than Moskal done
what the plurality has done here: inquired into legislative
history and invoked it to support or at least permit the
more lenient reading.  But only once, to my knowledge,
have we relied on legislative history to ``clarify'' a statute,
explicitly found to be facially ambiguous, against the
interest of a criminal defendant.  In Dixson v. United
States, 465 U. S. 482, 500-501, n. 19 (1984), the Court
relied on legislative history to determine that defendants,
officers of a corporation responsible for administering
federal block grants, were ``public officials'' within the
meaning of 18 U. S. C. 201(a).  The opinion does not
trouble to discuss the ``fair warning'' or ``condemnation of
the community'' implications of its decision, and both of the
cases it cites in supposed support of its holding found the
statute at hand not to be facially ambiguous.  See United
States v. Moore, 423 U. S. 122, 131 (1975) (``By its terms
841 reaches `any person'' and ``does not exempt (as it could
have) `all registrants' or `all persons registered under this
Act'''); United States v. Brown, 333 U. S. 18, 22 (1948) (``The
legislation reflects an unmistakable intention to provide
punishment for escape or attempted escape to be superim-
posed upon the punishment meted out for previous offenses.
This appears from the face of the statute itself'').  I think
Dixson weak (indeed, utterly unreasoned) foundation for a
rule of construction that permits legislative history to
satisfy the ancient requirement that criminal statutes
speak ``plainly and unmistakably,'' United States v.
Gradwell, 243 U. S. 476, 485 (1917); see also Bass, supra,
at 348.
  In sum, I would not embrace, as the plurality does, the
Moskal formulation of this canon of construction, lest lower
courts take the dictum to heart.  I would acknowledge the
tension in our precedents, the absence of an examination of
the consequences of the Moskal mode of analysis, and the
consequent conclusion that Moskal may not be good law.