This commentary originally appeared in the Austin American-Statesman on September 16, 2014.
In baseball, the tie goes to the runner, but what happens in the law? While scholars have said the indictment against Gov. Rick Perry does not even make it to first base, the most charitable way to view these charges is that there are multiple objectively reasonable ways to construe the two statutes at issue.
Whenever that is the case, the maxim that Americans are innocent until proven guilty applies. Accordingly, Texas lawmakers must act to codify a rule which gives the benefit of the doubt to the defendant when there are two or more objectively reasonable interpretations of a statute and, under one of them, the conduct at issue would not have been a crime. This is known as the rule of lenity, which dates back to English common law and is codified in Ohio and Florida.
In the dubious case against Perry, the first charge — coercion of a public servant — requires attempting to influence a public servant “in a specific exercise of his official power or a specific performance of his official duty,” but provides an exception for an officeholder attempting to influence another public servant through an official action and notes “the term ‘official action’ includes deliberations by the governing body of a governmental entity.”
Clearly, the veto was an official action, but at best for the prosecution, there are two objectively reasonable interpretations as to whether the alleged threat to veto if the Travis County district attorney did not resign constitutes deliberations of a governing body.
Perry is also charged with misusing government property that had “come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” At a minimum, there is an objectively reasonable interpretation that funds appropriated by the Legislature are not property belonging to the governor. Indeed, it seems impossible to construct a way for this statute to apply to Perry’s conduct that would not criminalize every constitutional exercise of the line item veto.
If there are two objectively reasonable interpretations, why not let the judge or jury sort that out? First, in order to form a guilty mind, a person by definition must know that they are doing something wrong. An ambiguous statute fails to put the public on notice of what is a crime.
Also, if judges and juries can pick one equally valid interpretation over another on a case by case basis, the wheels of justice turn into a pinball machine. While facts inevitably vary from one case to the next, our society must be anchored by a consistent rule of law.
Without the rule of lenity, defendants are vulnerable to a prosecutor who takes the broadest possible interpretation of a statute.
Adopting the rule of lenity will not let criminals off the hook for serious offenses. After all, there is no objectively reasonable interpretation of Texas law under which crimes like murder, rape and theft are not criminalized.
House Bill 2658 in the 2013 session would have codified the rule of lenity in Texas law. Neither Perry nor millions of Texans should have their liberty be at the mercy of ambiguity.
Levin is the director of the Center for Effective Justice at the Texas Public Policy Foundation.