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Supreme Court Sits as the Grammar Police

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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How would you feel if your 10-year prison sentence depended on a dangling modifier? That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court.

Lockhart was caught in a federal sting and pleaded guilty to one count of possessing child pornography. He had a previous state conviction for attempted rape, a form of sexual abuse.

QuickTake Mandatory Minimums

According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before. It thinks Lockhart should get the 10 years.

If you're still reading, you’re either interested in grammar or really care about civil liberties, even for attempted rapists who possess child pornography.

And you probably want to know: How is the court supposed to decide what the statute means? The lawyers think they have answers to this question. But -- spoiler alert -- their answers are wildly unsatisfying.

Lockhart's lawyers point to a rule of statutory interpretation (sometimes called “canons” to make them sound fancier) that's known as the “series-qualifier canon.” According to no less an authority than Justice Antonin Scalia, this canon says that “when there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” That's a fancy way of saying that the dangling modifier must refer back to the whole list.

The government's lawyers, however, point to the “last-antecedent canon,” defined by the same Scalia as follows: “A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.” Applied to the child pornography statute, the phrase “involving a minor” would therefore refer only to “abusive sexual conduct.”

The canons cancel each other out, of course -- which is what's wrong with canons generally. In a famous article published in 1950, the influential law professor Karl Llewellyn laid out 28 canons of construction -- and for each one provided a matching canon that said almost exactly the opposite. After spending five minutes with that article, you'd be hard-pressed to understand how lawyers can ever say the word “canon” with a straight face.

Scalia, who famously believes that the rule of law is a law of rules, might concede that the canons aren't clear in this case -- and conclude that a different rule, called the rule of lenity, should apply. That's the attractive idea that, in criminal cases, an ambiguous statute should be interpreted favorably to the defendant.

The catch, of course, is that first you have to decide whether the statute is ambiguous. Scalia is a big believer in plain meaning -- and he might well conclude that there's nothing ambiguous about the words “involving a minor.”

So if there’s no canon that can definitively decide Lockhart’s fate, what then? Although Scalia doesn't like it, there is a way to interpret statutes going back at least to Aristotle that does provide an answer. That's for the person interpreting the law to ascertain the law’s purpose and to reason from that purpose the right interpretation of the statute.

The purpose of the sentencing enhancement is rather clearly to identify those people convicted of child pornography who have a proven propensity to harm children. That makes a certain amount of sense: We don’t definitively understand the relationship between child pornography and the sexual abuse of children. But in cases where we can say with confidence that they’re associated in the same person, it may make sense to punish them more harshly. It follows that the dangling words “involving a minor” really do refer to the whole list of crimes. Lockhart shouldn't get the 10-year enhancement.

If that doesn't convince you, consider how odd it would be to add an enhancement for aggravated sexual abuse and sexual abuse in all circumstances, but for abusive sexual conduct only if a minor is involved. Maybe, just maybe, “abusive sexual conduct” is less restrictive than “sexual abuse,” and the idea is that we want to be even more inclusive if a prior crime involves a child.

But that really requires an extremely fine distinction between sexual abuse and abusive sexual conduct. It seems much more likely that the phrases are being used to be as inclusive as possible.

After all, we know for sure that the statute’s authors weren't listing three totally different categories: all “aggravated sexual abuse” is by definition included in “sexual abuse.”

The upshot is that language is fuzzy and imperfect -- and we need a common-sense solution to that problem, not abstract rules. The court may spend a lot of time talking canons, but it shouldn’t. Statutory purpose is the best way to resolve difficult statutory questions. Lockhart shouldn't get the enhancement under the law -- no matter how much you detest his crimes.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net