Lenity After Loper Bright: Reclaiming Criminal Law from Administrative Deference
How the demise of Chevron — and the logic of Kisor — require courts to favor liberty over agency interpretations in penal statutes, regulations, and the sentencing guidelines
Over the past several terms, the Supreme Court has aggressively reworked the foundations of administrative law, narrowing Auer deference in Kisor, elevating the “major questions” doctrine in several cases, and, most dramatically, overruling Chevron in Loper Bright. In doing so, the Court has shifted primary responsibility for interpreting statutes and regulations from agencies to Article III courts, reengineering separation of powers doctrine as it had been interpreted for decades. The most recent Court action came just last week in Rutherford v. United States, when the Court invalidated part of the U.S. Sentencing Commission’s interpretation of circumstances that are “extraordinary and compelling” warranting a sentence reduction. It cited Loper Bright, leaving no doubt about its application in criminal contexts generally and specifically to the Commission.
Congress has empowered the Commission to “give meaning” to the compassionate release provision by identifying the circumstances that constitute “extraordinary and compelling” reasons for release. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024). Even so, the Commission’s policy statements must be “consistent with” the governing statute, 28 U. S. C. §994(a), and courts have a duty to “independently interpret the statute and effectuate the will of Congress,” 603 U. S., at 395. We are not bound to follow the Commission’s guidance when it “exceed[s its] statutory authority” by adopting a definition of a term that is inconsistent with the statute. Batterton v. Francis, 432 U. S. 416, 426 (1977). Put differently, the Commission’s interpretation must land within the statutory goalposts, no matter how wide they might be. Cf. Koons v. United States, 584 U. S. 700, 707 (2018) (“[P]olicy statements cannot make adefendant eligible when [the statute] makes him ineligible”).
That project on administrative law is not over by any stretch, though. The Court’s docket includes a wave of cases testing the President’s authority over administrative agencies and also the permissible scope of agency power and judicial deference, including — most importantly for those involved in federal sentencing — Beaird v. United States, which squarely presents the question of the proper level of deference owed to the U.S. Sentencing Commission’s commentary in the Guidelines Manual. In a recent article published in the February 2026 issue of the Federal Sentencing Reporter, two Oregon federal public defenders argue that where criminal liability and liberty are at stake, the same separation of powers principles underlying the recent Court decisions on administrative law require courts to reject administrative deference and instead apply the rule of lenity and the doctrine of constitutional avoidance to penal statutes, regulations, and the sentencing guidelines.
In the article, recently retired Oregon Chief Deputy Public Defender Stephen Sady and Assistant Federal Public Defender Devin Huseby do a deep dive on how Loper Bright’s abrogation of Chevron has profound effects on the construction of criminal laws and regulations, including the Guidelines. They discuss how courts — and litigants — should approach these issues in light of the Supreme Court’s administrative law jurisprudence.
The article is an important read for all those involved in federal sentencing practice. Below is a short summary of the article and also a discussion of the implications of the recent administrative law cases for Beaird, which will be argued before the Supreme Court in the fall.
Sady and Oregon Public Defender Appellate Chief Elizabeth Daily have also written a second article about administrative law challenges in sentencing and correction, which appeared in NACDL’s publication, The Champion. This one is specifically focused on BOP agency action and is also summarized below.
-Jonathan
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From the Federal Sentencing Reporter
Under Chevron, courts resolved statutory silence and ambiguity by deferring to reasonable agency interpretations. Before Loper Bright, the Supreme Court sent mixed signals in the penal context by applying both lenity and administrative deference in different cases. In Loper Bright, even though a civil case, the Court explicitly resolved the mixed signals in the criminal context, finding that lenity should prevail.
The article explains how past rulings, especially in Bureau of Prisons, immigration, and firearms cases, were incorrectly decided based on administrative deference and how, going forward, statutes and regulations having criminal law ramifications must be resolved based on traditional rules of statutory construction. Those rules require that ambiguity and silence be resolved in favor of the individual under the rule of lenity and the doctrine of constitutional avoidance, not deference to the agency’s interpretation.
Along with the sea change in administrative law brought about by the abrogation of Chevron in Loper Bright, the article addresses how Loper Bright and Kisor, in the criminal context, also require the application of the rule of lenity and the doctrine of constitutional avoidance in interpreting ambiguity in regulations and the sentencing guidelines. In the civil context, a rising majority of justices reject deference to agency interpretation of ambiguous regulations, known as Auer or Seminole Rock deference, on separation of powers grounds. The concerns regarding agency deference are heightened when applied to penal laws.
The article addresses the circuit split on whether under the Guidelines, Kisor requires that lenity apply, instead of deference to the Sentencing Commission, when Guidelines’ commentary interprets guideline ambiguity or silence. Now in Beaird v. United States, the Supreme Court has granted a writ of certiorari to resolve whether Stinson, which afforded the Commission deference in construing ameliorative commentary, survives Kisor. Although preceding the cert. grant, the article makes two arguments on why the defense should win in Beaird and that courts should apply the rule of lenity to ambiguous or silent guidelines, instead of deferring to commentary that expands punishment.
First, Loper Bright and Kisor require that interpretation be resolved based on concerns regarding separation of powers with legislation outside of the legislative branch. Where liberty is at issue, the rule of lenity, with its roots in separation of powers —only legislatively authorized punishments are permitted — and regard for individual freedom — if there is a question regarding the scope of punishment, the answer must favor the individual — require resolution in favor of the individual and against administrative measures that increase punishment.
Second, courts have missed a critical step in applying Stinson to commentary that increases punishment. The article argues that Stinson applies only in the context of ameliorative commentary. In Stinson, the commentary narrowed the scope of the career offender guideline. The other Supreme Court cases on Guidelines’ commentary were also ameliorative: in Neal, the Court addressed the Commission’s effort to limit the use of carrier medium (blotter paper) in weighing LSD; in LaBonte, the Court revisited a narrowing of the career offender guideline. Thus, the Court never had to address the question of whether commentary that increased punishment implicates the rule of lenity. The Court need not overrule Stinson in Beaird: Stinson is not precedential on the question before the Court on whether administrative deference is appropriate where Guidelines’ commentary increases punishment.
In Beaird, the Fifth Circuit deferred to Guidelines’ commentary regarding high capacity magazines as including amounts of ammunition typical for handguns. Because the firearms guideline can be construed to include normal-sized magazines, including those covered by the commentary as high capacity, the Court will be deciding whether lenity is required or whether Stinson requires deference to commentary that exacerbates punishment. The article demonstrates the reasoning going back to the time of Chief Justice Marshall for rejecting administrative deference under the rule of lenity and the doctrine of constitutional avoidance.
Criminal law increasingly intersects with administrative law in cases involving immigration, firearms, and penal statutes such as the First Step Act and the residential drug abuse program. For fuller background on how basic administrative law needs to be part of the criminal practitioner’s tool box, this article is a must.
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From The Champion
This article explains how the Bureau of Prisons (BOP) has mishandled implementation of the First Step Act’s earned time credit program — missing deadlines, creating categorical exclusions that Congress did not authorize, and retroactively applying restrictive rules. Drawing on prior litigation over the residential drug abuse program, it argues that federal defenders must add two core tools to their practice: administrative law challenges to unlawful BOP rules and practices, and habeas corpus petitions under 28 U.S.C. § 2241 to correct unlawful execution of sentences. It outlines how new BOP rules must comply with the Administrative Procedure Act (including notice-and-comment and reasoned decision-making), be consistent with existing regulations, and, above all, obey the text and purposes of the First Step Act, which uses mandatory language (“shall”) in directing that credits be applied.
The article then turns to the mechanics and strategy of using § 2241 to remedy over-incarceration and other harms caused by the BOP’s narrowing of First Step Act eligibility. It emphasizes that § 2241 is not constrained by AEDPA’s limits and allows challenges to unlawful execution of sentences, but warns that the BOP frequently raises procedural defenses, making early and careful planning essential. The article discusses the importance of appointed counsel, identifies common BOP tactics, and highlights available remedies, including sentence adjustments and reductions or early termination of supervised release to account for excess time served. It concludes that ongoing and future BOP efforts to restrict earned time credits will be fertile ground for layered administrative, statutory, and constitutional challenges, and that sustained § 2241 litigation will be necessary to enforce Congress’s intent that the First Step Act genuinely reduce time in federal prison.
Will this impact sex offense registration?