Substack musings on originalism and sentencing

Regularly readers are perhaps used to seeing irregular references here to some of my thinking about originalism and criminal justice topics.  This week over at the Sentencing Matters Substack, I mused on these topics a bit.  Here is the the start of this new post, which flags a few coming SCOTUS arguments and might whet some originalist appetites:

The Supreme Court earlier this month kicked off its latest season, October Term 2024, and sentencing fans may be especially interested in two federal cases to be argued in the coming months, Delligatti v. US and Hewitt v. US.  Both matters involve statutory interpretation issues, and advocates for the defendants in these cases invoke the “rule of lenity” in their arguments for their preferred statutory interpretation.

Reviewing the briefs in Delligatti and Hewitt got me to wondering if the rule of lenity should be considered a constitutional doctrine and how it might be linked to originalist views on our Constitution.   Interestingly, some of the Supreme Court’s most prominent originalists have been notable proponents of the rule.  The late Justice Antonin Scalia, in the words of one law professor, “revitalize[d] the rule of lenity,” and Justice Neil Gorsuch has written opinions championing the rule as “a means for upholding the Constitution’s commitments to due process and the separation of powers.”  And yet other avowed originalists now on the Supreme Court, ranging from Justice Samuel Alito to Justice Brett Kavanaugh to Justice Clarence Thomas, tend to give the rule of lenity short shrift.    

It will be interesting to see if the rule of lenity commands any attention in the coming oral arguments and eventual opinions in Delligatti and Hewitt.  And my musings about that doctrine’s relation to the Constitution and originalist philosophies is part of an effort, at the start of a budding scholarly project, to reflect on what constitutional principles in general — and originalist approaches to the Constitution in particular — ought to mean for modern sentencing systems and doctrines.  With many current Justices professing originalist commitments, it is timely and important to consider just what originalism might entail generally for various criminal law issues and doctrines (and this great recent Inquest piece by Cristian Farias engages on this broad front).  In particular, what originalism could and should mean for modern sentencing laws and practices especially intrigues and puzzles me.

Check out the rest of the post here.