Pornography

A 10-Year Mandatory Minimum Hinges on the Inartful Placement of Five Words

The law of the last antecedent beats the law of lenity.

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Senate Judiciary Committee

Under federal law, merely possessing child pornography can be punished by a prison sentence of up to 20 years, but ordinarily there is no mandatory minimum. One exception is when prosecutors decide to charge the defendant with "receiving" those images, which triggers a five-year mandatory minimum (an arbitrary enhancement, since anyone who looks at online images also receives them). Another exception is the 10-year mandatory minimum for a defendant with a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Since we're talking about child pornography, you might think the phrase "involving a minor or ward" modifies all three offenses in that list. If that is what you think, you are wrong. Or so says the Supreme Court, in a 6-to-2 decision issued this week. 

The case involved Avondale Lockhart, a New Yorker who in 2000 was convicted of "sexual abuse in the first degree" against his 53-year-old girlfriend. That crime, which involves subjecting another person to "sexual contact" either by force or when she is incapable of consent, is a Class D felony punishable by two to seven years in prison. In 2011 a sting operation led to the seizure of Lockhart's computer, on which the FBI found some 15,000 images and nine videos showing minors engaged in sexual activity. He pleaded guilty to possession to avoid the five-year mandatory minimum triggered by a receiving charge, which prosecutors agreed to drop. But then the judge decided Lockhart's prior conviction made him subject to the 10-year mandatory minimum.

Lockhart argued that the judge was mistaken, since the 2000 conviction involved not a minor but a middle-aged woman. The U.S. Court of Appeals for the 2nd Circuit disagreed, and so did the Supreme Court.

Writing for the majority, Justice Sonia Sotomayor says "the rule of the last antecedent" indicates that the phrase "involving a minor or ward" in the list of prior state offenses applies only to "abusive sexual conduct" and not to "sexual abuse" or "aggravated sexual abuse." She says that reading is reinforced by the list of prior federal offenses that also trigger the mandatory minimum, each of which is described in a separate section and only one of which refers to minors. "We see no reason to interpret §2252(b)(2) so that '[s]exual abuse' that occurs in the Second Circuit courthouse triggers the sentence enhancement, but 'sexual abuse' that occurs next door in the Manhattan municipal building does not," writes Sotomayor, who used to serve on the 2nd Circuit. Because the language is clear in context, she adds, Lockhart was wrong to invoke the "rule of lenity," which says ambiguous statutory language should be read to favor the defendant.

Justice Elena Kagan mocks Sotomayor's conclusion in a dissent joined by Stephen Breyer:

Imagine a friend told you that she hoped to meet "an actor, director, or producer involved with the new Star Wars movie." You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client "a house, condo, or apartment in New York." Wouldn't the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the "violation of any statute, rule, or regulation relating to insider trading." Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—"involved with the new Star Wars movie," "in New York," "relating to insider trading"—applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case….That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart's prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)'s mandatory minimum penalty.

I tend to think Kagan has the better of this argument. But neither outcome is anything resembling justice for Avondale Lockhart, who paid the penalty for a crime he committed 16 years ago and now faces a minimum sentence five times as long for downloading forbidden pictures. Even if his appeal had been successful, Lockhart still would face a prison term of six-and-a-half to eight years under federal sentencing guidelines. That is more severe than New York's penalty for sexual contact with a child. It makes no sense that people who look at images of crimes against children are punished more harshly than people who actually commit crimes against children.

NEXT: This Professor Is Still Out of the Classroom After Offending Her Students Months Ago

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  1. The oxford comma is important. Otherwise you end up hanging out with the strippers, JFK and Stalin. And nobody wants that. Well, maybe SF.

    1. Who gives a fuck about an Oxford comma?

        1. Cambridge, where’s that? How silly for these “dissenters” to quarrel with such a necessary decision. Do people really think they can do this sort of thing and not have their sentences enhanced by every comma on the book? This is as foolish as arguing that inappropriately deadpan “parody” should not be criminalized under our great nation’s identity theft laws. See the documentation of America’s leading criminal “satire” case at:

          http://raphaelgolbtrial.wordpress.com/

      1. Your mother, a whore and a transvestite, being involved in this joke, walk into a bar.

      2. I remember Fowler was vexed by that commas in serial lists were unlike other use of commas in English in that they didn’t bracket the enclosed items entirely nor logicly. He said it could repaired by sticking a comma on both sides of the penultimate “and” or else once before it and once at he end of the whole series. It was one case where he deviated from his usual dictum that punctuation represents audible elements of speech (generally pauses of various lengths) and should never be used where they would not actually be pronounced in normal speech. What a dick!

  2. thank u and im with u in this ponit thx again gamesbarq
    see u in next tipo

  3. Well fuck, now I agree with Kagan. What a strange day.

    1. So, the Latina is not so wise?

    2. It’s probably an uncommon case where I’d differ from the view that the plain meaning of words ought to apply, but here the context of the phrase and its clear intention stands strongly against plain meaning. On the other hand, in most cases I’d say the actual language of a law needs to be relied upon, regardless what the legislators meant to have said, with intent only legitimately applicable when it’s a simple matter of interpretation and not when it stands the meaning of the words on its motherfucking head.

  4. This seemd like a decision we should outsourcevto Nikki.

  5. That ordinary understanding of how English works, in speech and writing alike, should decide this case

    Oh NOW this sort of thing matters all of a sudden?

    1. Yet when Thomas suggets we ought to apply the language of the fucking constitution the same way, it’s ridiculous or even suspect.

  6. I am confused by the distribution of justices on this case.

    Also, how so many could agree with the absurd position put forth by Sotomayor.

    1. Statutory construction – it appears they are trying to stay consistent with the weird way law is written. So much reading the damn thing in a normal, human manner.

      1. It’s obvious that both the letter and the spirit of the law are releated to repeat offenders of child abuse. You have to be deliberately obtuse to go with “but this clause was not directly modified because it’s part of a list and we drew imaginary parentheses around the modifier and the last clause in the list”

  7. Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast?not an actor in, for example, the latest Zoolander.

    It’s amusing to think that this dissent may be studied 50 or 100 years from now. Perhaps it will inspire a Zoolander reboot in 2085.

  8. Under federal law, merely possessing child pornography can be punished by a prison sentence of up to 20 years, but ordinarily there is no mandatory minimum.
    […]
    Even if his appeal had been successful, Lockhart still would face a prison term of six-and-a-half to eight years under federal sentencing guidelines.

    Can a sentencing (federal) judge depart from the federal sentencing guidelines downward? Because if not, then the 6 1/2 years is effectively a mandatory minimum.

  9. Normally i would agree with Kagan here about the plain meaning in english. However, I disagree with her that her examples show definitively that the added modifier at the end of the list is generally understood to apply to the whole list. The examples she supplies do tend to that. But in the absence of greater context, it is impossible to know for sure. “I like chicken, beef, and fish when it is very well done”. I only mean the fish in this case. It might be inartful, but it is not wrong.

    Greater context: 18 US Code calls out specific sections:
    2241 Aggravated Sexual Abuse
    2242 Sexual Abuse
    2243 Sexual Abuse of a Minor or Ward
    2244 Abusive Sexual Contact

    Since only one of these specifically refer to a “minor or ward”, it seems pretty clear.

    If SCOTUS only took this much care over the letter of the penaltax law.

    1. For the record, ANY issues one may have with this entire case rests squarely on CONGRESS. One may agree with SCOTUS or disagree. But either way, this is not a case of the Nazgul making shit up, or obviously allowing a violation of the US Constitution.

  10. you might think the phrase “involving a minor or ward” modifies all three offenses in that list.

    I’m too cynical of government to ever think that.

  11. In these days of 15,000-page legislation, Kagan wants me to believe legislators actually take shortcuts in language?

  12. He’s lucky he wasn’t strung up!

  13. Kagan, ‘That ordinary understanding of how English works, in speech and writing alike, should decide this case….’

    That’s rich.

  14. What we need is to send kiddie porn pictures to ALL the legislators (past and present) who voted for these insane laws. Note: They may be encrypted. They may be so small as to be difficult to see. There only needs to be 4 or 5 of them. And guess what? They RECEIVED the images. Under the law they drafted, they are GUILTY. No defense.

    Even if they delete the images, even if they never even open the email – they are guilty.

    That’s the way the law reads.

    Prosecute them all to the fullest and throw away the key.

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