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The Rule of Lenity

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The News Scan notes today's decision in United States v. Abramski, in which the Court affirmed, 5-4, the conviction of a straw purchaser for lying about the actual intended owner of the gun.

There is a strong dissent by Justice Scalia, relying in part on the rule of lenity, which, the Justice maintains, might as well be explicitly tossed overboard if it is not to be applied in favor of Mr. Abramski.

There  is something of a battle of the footnotes about this question, as pointed out in Prof. Josh Blackman's blog entry.  Although I most often agree with Justice Scalia and his three dissenting colleagues, in this instance I thought Justice Kagan got the better of the argument.

I would add only one thing.  If you don't want to get prosecuted for lying, don't lie. It's not that hard.

4 Comments

The twists and turns required by the majority to uphold this conviction are inappropriate in a criminal case.

And "Don't lie"? You forgot the materiality qualifier.

In my view, if these are the types of prosecutions the government brings, then someone's budget needs to be cut.

This guy got prosecuted, but Corzine walked. As did Eliot "structuring" Spitzer.

The twists and turns required by the majority to uphold this conviction are inappropriate in a criminal case.

And "Don't lie"? You forgot the materiality qualifier.

In my view, if these are the types of prosecutions the government brings, then someone's budget needs to be cut.

This guy got prosecuted, but Corzine walked. As did Eliot "structuring" Spitzer.

That guilty defendants A and B got away with it is no reason for guilty defendants C and D also to get away with it. Were it otherwise, no one would get indicted for anything, since the system is replete with people walking around who could and probably should be in jail.

It was plenty easy for Abramski to say honestly what he was doing. He elected not to in what he, as a former policeman, certainly knew was a heavily regulated part of the law.

In other words, he lied.

He got probation, not a single day in jail that I know about.

Could the nation have lived without this prosecution? Yup. Can Mr. Abramski live with probation? Yup.

When people deliberately lie, particularly in a matter not affecting deep personal and private feelings, there is a limit on the amount of sympathy I have for them.

This offense is really, really easy to avoid. Maybe next time he will.

The offense, of course, is not lying, but making materially false statements. It's easy to say--he lied, he deserved what he got. Not so easy to deal with the powerful arguments in Scalia's dissent.

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