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

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


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.