Conjunction Function

Jacob Sullum | December 7, 2004

Arrested at 18 for e-mailing child pornography to people who requested it, Jorge Pabon-Cruz received a 10-year sentence last year. U.S. District Judge Gerard Lynch called it "the worst case of my judicial career," saying he had no choice but to impose a sentence he considered inappropriately harsh.

But the U.S. Court of Appeals for the 2nd Circuit says Lynch did have a choice, because the law Pabon-Cruz violated did not actually impose a mandatory minimum sentence. The law called for a fine, a 10-year sentence, "and both"--phrasing the appeals court says rendered Congress' intent opaque, especially since an earlier version of the bill said "or both," language that would have allowed judges to choose between a fine and a prison term. As a result of the misplaced conjunction, Pabon-Cruz will be resentenced to a shorter prison term.

Meanwhile, Congress has fixed the law under which he was convicted, although not in the way Judge Lynch would have liked. Now first-time offenders convicted of advertising to receive or distribute child pornography will receive a mandatory minimum sentence of 15 years.