US Supreme Court turns into grammar police

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Avondale Lockhard, who pleaded guilty to possessing child pornography in the U.S. Supreme Court yesterday, faced a 10-year mandatory prison sentence.

That is, until the question of grammatical interpretation was applied.

According to US federal law, the minimum sentence for the child pornography applies if he had a prior state conviction, “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor”, (a dangling modifier).

The “involving a minor” part is what is in contention.

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.

But Avondale’s prior conviction was for the attempted rape of a woman, not a minor so he thinks the law doesn’t apply to him, and according to a Bloomberg report and his lawyers are pointing to a rule of statutory interpretation.

The statutory interpretation, or canon his lawyers point to, 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,” according to Justice Antonin Scalia.

The government’s lawyer then point to another so-called canon, cancelling out the first, “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 catch, of course, is that first you have to decide whether the statute is ambiguous,” Noah Feldman said in his column on the case for Bloomberg.
“Scalia is a big believer in plain meaning -- and he might well conclude that there's nothing ambiguous about the words “involving a minor.”

According to Feldman, it’s up to 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,” he wrote.

“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.”
 
  • Ian Weldon on 5/11/2015 9:31:56 AM

    I agree generally, with respect, with the approach suggested by Gavin Moodie.

    At the risk of pointing out the obvious, and although it does not help in this case, the problem would have been easily avoided if the statute had said (something like) that the minimum term applied if the offender had been convicted:

    "of an offence relating to --
    (a) aggravated sexual abuse; or
    (b) sexual abuse; or
    (c) abusive sexual conduct involving a minor”,

    or (with the opposite meaning)

    "of an offence relating to --
    (a) aggravated sexual abuse; or
    (b) sexual abuse; or
    (c) abusive sexual conduct,

    which in any case involved a minor”.

  • Jennifer Pierno on 4/11/2015 1:30:59 PM

    A very entertaining report. The importance of grammar should not be under-rated.

  • Gavin Moodie on 4/11/2015 11:55:56 AM

    But why this fixation on rules of grammar? Why not consider the purpose of the legislation gleaned from its whole text and other indicia?

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