Commas, Canons, and Prior Convictions--The Lockhart Case

I tell students every year that a comma can mean the difference between life and death, as was the case for Sir Roger Casement, who was hanged by a comma. The existence or lack of a comma can be the difference in millions of dollars or none. And in the case of Avondale Lockhart, a comma may mean many extra months in prison. 

Last week, the Supreme Court heard Lockhart's case, which centers on interpretation of 18 U.S.C. 2252(b)(2).  That statute provides for a mandatory minimum sentence of 10 years for someone convicted of violating federal child pornography laws who has also previously been convicted of a state charge "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."

In 2010 Lockhart pleaded guilty to buying child pornography. His sentencing guidelines were increased to the mandatory minimum of 10 years because Lockhart had previously been convicted of attempted rape of his then-girlfriend (who was not a minor). The government took the position that the qualifying language "involving a minor or ward" applies only to the third class of crimes, meaning that even though Lockhart had not previously been convicted of a sexual crime involving a minor, he was subject to the trumped-up sentence for his prior attempted rape conviction. Lockhart disagreed, arguing that the qualifying language applies to all three classes of crimes, and because his prior conviction did not involve a minor, he should not have been subject to the mandatory minimum sentence. 

In Lockhart's case, two canons of statutory interpretation produce different results. Under the last-antecedent canon, the qualifying phrase only applies to the final class of crimes; under the series-qualifier canon, the qualifying phrase applies to each class of crimes in the series. 

During last week's oral argument, Justice Alito gave Congress a D grade for its drafting of 2252(b)(2), and Justice Scalia told attorneys for the parties that he had "no assurance what the right answer is." As The Economist notes, Congress could have modified the language and punctuation of the statute in several different ways to clarify its intent. Because it didn't, another canon of statutory interpretation--the rule of lenity--likely will save Lockhart from the longer term.