Cite as: 511 U. S. 39 (1994)
Kennedy, J., concurring in judgment
II
It is unfortunate that Congress has drafted a criminal statute that is far from transparent; more unfortunate that the Court has interpreted it to require imprisonment when the text and structure call for a different result; but most unfortunate that the Court has chosen such a questionable path to reach its destination. I speak of the Court's speculation that Congress drafted the § 3565(a) drug proviso with the pre-1984 federal sentencing regime in mind. See ante, at 52-53. Reading the proviso to require Granderson to serve a 2-month mandatory minimum sentence of imprisonment, the Court reasons, "would fit the [pre-1984] scheme precisely." Ante, at 53. And viewing the proviso in that light, the Court adds, would avoid problems with both Granderson's and the Government's interpretations. See ibid. Although the Court purports not to place much reliance upon this venture in interpretive archaeology, its extended discussion of the matter suggests otherwise.
This interpretive technique, were it to take hold, would be quite a novel addition to the traditional rules that govern our interpretation of criminal statutes. Some Members of the Court believe that courts may look to "the language and structure, legislative history, and motivating policies" when reading a criminal statute in a manner adverse to a criminal defendant. See United States v. R. L. C., 503 U. S. 291, 305 (1992) (plurality opinion) (internal quotation marks omitted). Others would eschew reliance upon legislative history and nebulous motivating policies when construing criminal statutes. See id., at 308-310 (Scalia, J., concurring). But, to my knowledge, none of us has ever relied upon some vague intuition of what Congress "might . . . have had in mind" (ante, at 52) when drafting a criminal law. And I am certain that we have not read a criminal statute against a criminal defendant by attributing to Congress a mindset that reflects a statutory framework that Congress itself had discarded over four years earlier.
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