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The Supreme Court released its opinion in Lockhart v. United States, where

Petitioner Avondale Lockhart pleaded guilty to possessing child pornography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence enhancement provided in §2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the District Court applied the mandatory minimum. The Second Circuit affirmed.

More abstractly, as John Brewer wrote to me, the case depended on the question of “whether the phrase ‘relating to A, B, or C involving D’ covers an A that doesn’t involve a D”. And the Supremes decided, a vote of 6-2, that it does.

The court’s reasoning leaned heavily on “the rule of the last antecedent”:

The “rule of the last antecedent,” a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U. S. 20, 26, clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” ibid., but §2252(b)(2)’s context reinforces its application in this case.

The statute in question is 18 U.S. Code § 2252 – Certain activities relating to material involving the sexual exploitation of minors, and clause (b)(2) reads

Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

It’s always been a source of wonder to me that (law) code, on which so much depends, is written without any means of bracketing to specify scope, and without even an unambiguous set of conventions for default binding in cases where scope is not explicitly marked. If the universe suddenly shifted so that computer code was written this way, modern society would disintegrate in a swirl of chaos, as every computer program began to behave in randomly unintended ways.

Back in November, Evan Lee suggested that Antonin Scalia’s contributions to the oral argument hinted at a vote in the other direction (“Argument analysis: Court appears fractured in child pornography mandatory minimum case“, SCOTUSblog 11/4/2015):

Justice Antonin Scalia made it clear that he thinks this “battle of the canons” results in a draw, and therefore that the rule of lenity should tip the case toward Lockhart. “[W]e’ve been discussing this dueling canons and so forth,” he said to Assistant to the Solicitor General Ann O’Connell, who argued on behalf of the federal government. “My goodness, I have no – I have no assurance what the right answer is. But I know that somebody could read this and think that it means what [Lockhart] says it means. And if that’s the case, it seems to me the rule of lenity comes into play.”

But Lee also thought that Justice Anthony Kennedy was leaning in the same direction. He concluded that

In the end, Lockhart’s fate may be determined by Scalia’s ability to create enough doubts about the clarity of the text in the minds of Thomas and Ginsburg. If their doubts rise to a sufficiently great level, they could be persuaded to decide the case on the basis of the rule of lenity. Kennedy may already be there, and, although Kagan does not seem to think this is an appropriate case for lenity, she may be persuaded on the “series qualifier” canon.

If Lee was even close to being on the right track, this case’s outcome supports the view that Antonin Scalia’s death might have a much larger effect than just his individual vote.

 



41 Comments

  1. Richard Zach said,

    March 1, 2016 @ 8:48 pm

    So this is the opposite of the interpretation that got Roger Casement hanged?

    http://www.irishtimes.com/culture/heritage/comma-chameleon-an-irishman-s-diary-about-the-sometimes-fatal-effects-of-punctuation-1.2081575

  2. D.O. said,

    March 1, 2016 @ 9:09 pm

    The main effect of justice Scalia is, of course, that such close parsing of the text is the main way of deciding such cases. This won’t automatically change with his death, but who knows what happens down the road.

  3. Dennis Baron said,

    March 1, 2016 @ 9:10 pm

    Like it or not, the language of the law turns out to be no less ambiguous than the language of scripture, literature, conversation, or pretty much everything other utterance. That’s why canons of legal interpretation exist: to disambiguate. But even they don’t work so well, as we see in Lockhart — a case I had my students in Descriptive Grammar look at last semester. What influenced the class’s decision, in the end, was not so much the syntax, but the desire to punish a sex offender.

    What’s interesting to me is the question about legal interpretation that is raised by 5-4 decisions like Heller (2008–the one about the right to bear arms), where 9 jurists who spend their professional lives interpreting the language of the law come to two opposite readings of the same 27-word sentence that is the Second Amendment. Computer doesn’t work simply because 5 programmers say it does and 4 say it doesn’t, but in legal interpretation, majority rules, at least until the majority overrules itself.

  4. Jerry Friedman said,

    March 1, 2016 @ 9:16 pm

    Of course there’s no doubt that in “the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” “of child pornography” applies to the whole preceding series of nouns.

    Does it matter that if Congress had meant “involving a minor or ward” to apply to the previous noun phrase only, they could have written the law unambiguously? “…under the laws of any State relating to abusive sexual conduct involving a minor or ward, aggravated sexual abuse, or sexual abuse, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography…” Or is that kind of thing not among the canons of interpretation?

  5. Jerry Friedman said,

    March 1, 2016 @ 9:41 pm

    Of course there’s no doubt that in “the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” “of child pornography” applies to the whole preceding series of nouns.

    I suppose I should have used the terms “complement” and “modifier”?

  6. Don Sample said,

    March 1, 2016 @ 11:47 pm

    Of course there’s no doubt that in “the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” “of child pornography” applies to the whole preceding series of nouns.

    An important distinction between the two is that by themselves “production”, “possession”, etc. aren’t illegal without the “of…” qualifier, but “aggravated sexual assault”, and “sexual assault” are.

  7. Rubrick said,

    March 2, 2016 @ 12:02 am

    A cynical interpretation of the ambiguity of legal text is that if precise language with clear scoping rules was adopted, we’d need a lot fewer lawyers.

  8. Joyce Melton said,

    March 2, 2016 @ 1:43 am

    Here’s a suggested canon: Any law that is not clear and unambiguous is void. A further desirable wrinkle would be that any payment for time spent passing such unlawful laws should be deducted from the pay of the legislators and any executive who signed them. Not going to happen but then i _am_ a computer programmer and ambiguity bugs me.

  9. Adam said,

    March 2, 2016 @ 2:11 am

    criminal law isnt written in formal logic largely because its purpose is not to provide a fair and equitable set of rules and punishments for society, but to hurt those we hate.

  10. Mike Sullivan said,

    March 2, 2016 @ 2:13 am

    The best part of the decision is the beginning of the dissent by Justice Kagan:

    “Imagine a friend told you that she hoped to meet “anactor, director, or producer involved with the new StarWars 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 realestate agent promised to find a client “a house, condo, orapartment in New York.” Wouldn’t the potential buyer beannoyed if the agent sent him information about condos inMaryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulationrelating to insider trading.” Surely a person would havecause 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. . . .”

    And her opinion gets better from there.

  11. rosie said,

    March 2, 2016 @ 3:04 am

    I think Kagan’s reasoning is bogus. Syntactically, each of her example noun phrases may bear either interpretation. I gather what Kagan thinks they mean only from my notions of a film buff’s desires and a house-purchaser’s requirements, and that it does not seem sensible to me to couple “any statute” (unqualified) with “regulation relating to insider trading”. To understand each of those examples, I had to think about that example, not blindly apply any legal principle about how to parse a law. Thinking about the wording involved in Lockhart’s defence, I do not reach a similar conclusion; I agree with Don Sample.

    An additional reason why Jerry Friedman’s example bears only the “series qualifier” meaning is that “the production” is not a sensible noun phrase in the context: it has to be “the production” of something.

  12. Adrian Bailey said,

    March 2, 2016 @ 6:29 am

    Kagan is right and the decision is evidently wrong. It’s a crying shame when legal folk over-think themselves into nonsense like this. Or is the court saying that there is no such thing as sexual abuse of a minor?

  13. GH said,

    March 2, 2016 @ 7:17 am

    This seems like a perfect example of how we need to look at the likely intent of the law. I would think the best way to resolve the ambiguity is to look at the discourse context, and the whole clause quoted here is clearly concerned with sexual offenses against children. Therefore, the most reasonable interpretation is to take “involving a minor or a ward” as modifying all the parts of the sentence.

    I find it interesting that Scalia, who I suppose wouldn’t agree with this type of reasoning, was apparently leaning towards the same conclusion based on other arguments.

  14. Hans Adler said,

    March 2, 2016 @ 8:57 am

    After reading the decision and Justice Kagan’s dissent, it appears to me that there are only two reasonable positions on this:

    1. Justice Kagan’s position: The qualification applies to all antecedents because (a) it has no effect at all if it doesn’t, and (b) summaries made in the drafting and decision stage made it explicit that the entire provision is about prior convictions concerning minors without hinting at convictions concerning adults being relevant as well.

    2. An explanation that I would not expect to see expressed explicitly in any court decision: The mixture of incompetence and foul play that is so typical of politics everywhere. Ambiguous language was chosen because unambiguous language containing the radical version could not have been passed. Some players concealed the ambiguity intentionally, the others didn’t see it or didn’t think it relevant.

    I am scared by the thought that part of the court’s majority secretly believes that 2 is the correct interpretation and intentionally play the role intended for them.

  15. Robert Coren said,

    March 2, 2016 @ 9:57 am

    It’s not just syntax; the meanings of the words matter. To me, the phrase “of a minor…” could only modify all three offenses if we believe that “sexual abuse” and “abusive sexual conduct” mean significantly different things.

  16. Levantine said,

    March 2, 2016 @ 10:13 am

    Robert Coren, “abuse” and “abusive conduct” imply different things to me (though I know nothing about any legal distinctions between these categories).

  17. J. W. Brewer said,

    March 2, 2016 @ 11:13 am

    Yeah, “abusive sexual conduct” clearly means something different and, in context, likely broader that “sexual abuse,” but since there are lots of different criminal codes in the U.S. and they vary quite a bit in terms of how a) many different offenses they divide up the vast range of potentially criminal sexual misconduct into; b) where the lines are drawn between different offenses; and c) how the different offenses are labeled. So e.g. it *might* be the case that the Model Penal Code definition of “abusive sexual contact” which some states have probably adopted either word-for-word or with local variations would be “abusive sexual conduct” but not “sexual abuse.” And if that’s a milder offense, it wouldn’t be irrational to think that “abusive sexual conduct” involving an adult victim was not as great a risk factor for a subsequent child porn offense as “sexual abuse” involving an adult victim, and to draw the line in between.

    I don’t think anyone on the Court thought the statute was well-drafted. Certainly it would be very easy to come up with clearer formulations that would express both side’s proposed meaning, such that the lawyers on both sides can say with a straight face “if Congress had meant to adopt the meaning my adversary proposes, it could have and would have used such-and-such language, but it didn’t.” Sometimes muddled statutory language is as Hans Adler suggests the result of strategic ambiguity, because you can’t get a majority of the legislature to agree to clearer language so you mask the areas of disagreement with vague wording and kick the can down the road. But in many other cases it’s just the result of sloppiness and failure to think through in advance all the potential scenarios to which the statute ought to give a clear answer, and I have no particular reason to suspect this was the former situation. To be blunt, it is unlikely that there was a substantial faction in Congress consciously concerned about excessively punishing a particular subset of child pornography offenders, as opposed to a broad consensus to “throw the book” at child porn offenders in general, coupled with an implicit consensus to let the picky technical details of the book-throwing be worked out by low-level staff without a lot of careful oversight.

    The overall institutional structure problem is that American courts are not willing (at least not consistently willing) to construe badly-drafted statutes in a way that will appropriately incentivize legislatures to be clearer in the future — although note that in this particular case using the rule of lenity would not mean the defendant would escape punishment, only that the defendant would end up with a lesser sentence, although still probably one that until the last few decades would have been thought plenty draconian for the conduct.

  18. Bloix said,

    March 2, 2016 @ 11:36 am

    “It’s always been a source of wonder to me that (law) code, on which so much depends, is written without any means of bracketing to specify scope,”

    Actually, statutes often use outline formats to provide clarity in just this sort of situation. A typical format for this statute would be (for the majority opinion):
    “…or under the laws of any State relating to
    (a) any of the following:
    (i) aggravated sexual abuse,
    (ii) sexual abuse, or
    (iii) abusive sexual conduct involving a minor or ward;
    or
    (b) the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography;
    such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.”

    For the minority, one would write:

    “…or under the laws of any State relating to
    (a) any of the following involving a minor or ward:
    (i) aggravated sexual abuse,
    (ii) sexual abuse, or
    (iii) abusive sexual conduct;

    But this sort of statutory writing is difficult for non-lawyers to parse. Think about IRS regulations, for example. People hate them.

    You say: “If … computer code was written this way, modern society would disintegrate in a swirl of chaos”

    But ordinary people cannot read computer code and aren’t expected to. They are expected to read statutes, and therefore where possible statutes should be written like ordinary language.

    In this case, the drafters made a mistake. They thought their ordinary language was clear but they introduced an ambiguity. So IMHO, the dissent is clearly correct. I think that the two best indications of the correct reading are (i) that the most plausible purpose of the statute is to increase penalties on felons who pose a danger to children, not to increase penalties on sex offenders generally; and (ii) the rule of lenity, which provides that ambiguous criminal statutes should be read in favor of the accused, not the government.

    Note also that the gov’t pulled a bait and switch on Lockhart. They got him to plead guilty to possession by dropping the “receipt” charge, which would have led to the imposition of the longer sentence, and then they got the court to impose the longer sentence anyway by use of the prior conviction. I don’t think the Supreme Court should be encouraging this sort of prosecutorial gamesmanship.

    It is interesting that Sotomayor, a supposed liberal, wrote the majority opinion. I suspect that she was influenced by her experience as a prosecutor, and by her sympathy with victims of sexual abuse and dislike of sex offenders. I think political or social factors have overcome the most reasonable statutory construction. Again IMHO, It’s bad judging.

    But the final vote was 6-2, which means that Scalia would have had to have brought not just Kennedy but two other justices with him to change the outcome. Not likely, to say the least.

  19. J. W. Brewer said,

    March 2, 2016 @ 12:01 pm

    BTW, I am certainly not a Supreme Court Kremlinologist, but while justices can and do sometimes switch positions after the initial vote taken shortly after oral argument, it seems improbable to me that anyone would have done so in the fairly brief period between Scalia’s death and the release of this opinion, especially since there is no good institutional reason why the release of the decision couldn’t have been delayed (for months, if necessary) while someone reconsidering his/her position did so.

    Occasionally S Ct Kremlinologists can find (or claim to find) traces of secret history in opinions, e.g. indications that the majority opinion in a 5-4 decision was drafted as a dissent but then edited (but imperfectly so) after someone switched sides late in the process. Presumably such people will be examining lots of opinions this Term for indirect traces of Scalianess, both situations in which a released opinion may have started as a draft by Scalia and then inherited by another Justice voting the same way but not completely discarded in favor of starting on a blank slate, and situations in which a separate Scalia opinion (let’s say for example one agreeing with Kagan’s bottom-line in dissenting but not all the details of how she got there) had been in preparation and the released opinions had had portions responding to Scalia that did not get completely airbrushed out before release.

  20. Guy said,

    March 2, 2016 @ 12:25 pm

    @Joyce Melton

    That would be a great way to incur enormous amounts of litigation about whether a law is “ambiguous”, and judgments on that issue are likely to be even more subjective than judgments about what the law means.

  21. Neal Goldfarb said,

    March 2, 2016 @ 1:47 pm

    I agree with Bloix that the risk of ambiguity can be greatly reduced by using an outline format (though I think such a format makes the statute easier to read, not harder). And in fact the Scalia-Garner book includes this principle as what they call the Scope-of-the-Subparts Canon:

    Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts.

    This makes eminent sense, and as an interpretive principle I think it’s stronger than the Rule of the Last Antecedent. But unfortunately, the principle is sometimes ignored, with absurd results, as in United States v. Hayes (in which I submitted an amicus brief) and Paroline v. United States.

  22. Joyce Melton said,

    March 2, 2016 @ 3:11 pm

    @Guy. Yes, my solution has the same weakness as the system as a whole has: it’s all based on opinion. We would need a change in political and judicial organization to really avoid this problem.

    Ben Franklin once suggested a Third House for the legislature, a House of Review, though I don’t know if he called it that. The H. of Review would review laws already passed for relevance, ambiguity and obsolescence and repeal as necessary. Ben also suggested that only women would be allowed to serve in the Third House.

  23. Bloix said,

    March 2, 2016 @ 4:28 pm

    @Joyce Melton – you may not have noticed that all eight justices of the Supreme Court agree that the law in question is unambiguous.

  24. Viseguy said,

    March 2, 2016 @ 11:44 pm

    @MYL: “It’s always been a source of wonder to me that (law) code, on which so much depends, is written without any means of bracketing to specify scope, …”.

    Any lawyer worth his or her hourly rate has the “means” to draft around such ambiguities. If the statute had read, “relating to aggravated sexual abuse; sexual abuse; or abusive sexual conduct involving a minor or ward”, there would have been nothing to argue about. Ditto if it had read, “relating to aggravated sexual abuse involving a minor or ward, sexual abuse involving a minor or ward, or abusive sexual conduct involving a minor or ward”; or, “relating to the following offenses involving (a) a minor or (b) a ward of the perpetrator regardless of the ward’s age: aggravated sexual abuse, sexual abuse, or abusive sexual conduct.”

    The problem isn’t a want of means, but a want of prescience. It’s one thing to draft around an ambiguity after a real-world dispute has put it in high relief, quite another to anticipate every possible ambiguity a priori and deploy the “means” to avoid them all. The former is relatively easy; the books are full of “remedial” legislation. The latter is really, really hard — or, more likely, impossible, even in ideal conditions. And the conditions under which laws are made are far from ideal, given the well-known family resemblance between legislatures and sausage factories.

  25. Jerry Friedman said,

    March 3, 2016 @ 12:56 am

    GH: This seems like a perfect example of how we need to look at the likely intent of the law. I would think the best way to resolve the ambiguity is to look at the discourse context, and the whole clause quoted here is clearly concerned with sexual offenses against children. Therefore, the most reasonable interpretation is to take “involving a minor or a ward” as modifying all the parts of the sentence.

    I could easily imagine that the legislators thought someone who had sexual abused an adult was particularly likely to turn his predilection for child pornography into abuse of a child. In that case “involving a minor or a ward” would apply only to the last noun phrase. Or as J. W. Brewer said, they just wanted to throw the book at sex offenders.

    I think Hans Adler is saying that the legislative history—for those who consider it relevant—suggests a different intention. But I don’t see that the discourse as quoted here suggests one interpretation more than the other.

    rosie: An additional reason why Jerry Friedman’s example bears only the “series qualifier” meaning is that “the production” is not a sensible noun phrase in the context: it has to be “the production” of something.

    If all has gone well with my jargon, that may be what I hinted at by mentioning “complement” (of “the production”, etc.) and “modifier” (of “abusive sexual conduct”, etc.)

  26. James Wimberley said,

    March 3, 2016 @ 3:38 am

    The other way programmers establish unambiguous parsing is through nested indents. These are also available to legal draftsmen, along with semicolons in lists. They just often aren’t very good at their job.

  27. GH said,

    March 3, 2016 @ 4:38 am

    @Jerry Friedman:

    I may have spoken too soon (i.e. without reading beyond the post), and I think you are right. When I actually look at the other laws referenced, I see that they are not limited to statutes regarding sexual abuse of children or child pornography, as I had assumed. E.g. Chapter 71 is “Obscenity”, and Article 120 of the Uniform Code of Military Justice covers rape in general (except for rape of a spouse, depressingly excluded). Most seriously for my earlier position, Chapter 109A covers sexual abuse in general, and includes among its sections: § 2241 – Aggravated sexual abuse; § 2242 – Sexual abuse; and § 2243 – Sexual abuse of a minor or ward.

    It now seems overwhelmingly likely to me that the list under discussion intended to reference any state laws dealing with these concepts, and that the “of a minor or ward” therefore only modifies the last entry in the list. And looking at the Court’s decision, I see that this is indeed their second argument in favor of this interpretation.

    Now, I still haven’t actually read the dissent, but it seems very odd to me that the drafting should only have considered prior crimes against children when the final text clearly includes prior crimes against adults among its aggravating circumstances.

  28. D.O. said,

    March 3, 2016 @ 9:03 am

    I do not dispute that most professionally written programs in the end perform better than congressionally written laws, but anyone who debugged a program in her life knows that writing unambiguous program is harder than it sounds. And having unintended outcome (which, technically, is not an ambiguity) is only part of it. A program can enter indefinite loop or run into wrong syntax or try to divide by 0 or encounter a wrong data type and neither of this might be obvious a long time after it is written. Heck, a program may physically destroy your computer (this, I imagine, is rarely happens by accident) . In analogous legal case, a wise judge wrote that the Constitution is not a suicide pact.

  29. J. W. Brewer said,

    March 3, 2016 @ 12:47 pm

    Yes, one plausible argument for the majority’s position is that even if you think the reading of the dissenters is more plausible for that piece of the statute considered in isolation, that reading allegedly creates a lack of parallelism to other parts of the same statute that seems puzzling (i.e. it’s easier to imagine reasons that Congress would have wanted the two sections to be parallel than non-parallel). And in the everyday interpretation of non-statutory language we not infrequently resolve ambiguities in particular sentences by thinking about which reading fits better into the general flow of the broader discourse.

    But then you get back to a deep methodological question that Scalia, in particular, spent a lot of time arguing about, i.e. how far should you depart from the most plausible reading of the text in order to give effect to what was probably the drafters’ intent, even if inartfully worded. Everyone agrees you should look at the intent when a fair reading of the text produces a sufficiently absurd result that it is overwhelmingly likely to be a drafting screw-up (“scrivener’s error,” is one lawyer’s idiom that might be used). But here the consequence of the dissenters’ reading would be that the particular defendant would be facing a prison sentence of probably at least six-and-a-half years (with discretion for the sentencing judge to go lower for various reasons) instead of a minimum of ten years (with no discretion to go lower), which is certainly not a so-absurd-or-unjust outcome that the judiciary ought (imho) to feel a strong sense of institutional obligation to clean up the mess caused by inartful drafting.

  30. Hans Adler said,

    March 3, 2016 @ 1:33 pm

    @J. W. Brewer:

    > […] even if you think the reading of the dissenters is more plausible for that piece of the statute considered in isolation, that reading allegedly creates a lack of parallelism to other parts of the same statute that seems puzzling […]

    Actually, as I understand Justice Kagan in her dissent, it’s at least in part the other way round. The relevant passage is 2252(b)(2) – concerning possession. However, exactly the same language was originally put only into 2252(b)(1) – concerning distribution -, for which Congress’ original intent in 1996 seems clear. To quote Justice Kagan:

    > At that time, the Senate Report on the legislation explained what the new language meant: The mandatory minimum would apply to an “offender with a prior conviction under . . . any State child abuse law.” […] It is hard to imagine saying any more directly that the just-added state sexual-abuse predicates all involve minors, and minors only.

    Then in 1998 it was still understood in the same way:

    > Two years later, in urging Congress to include the same predicate offenses in §2252(b)(2), the Department of Justice (DOJ) itself read the list that way. In a formal bill comment, DOJ noted that proposed legislation on child pornography failed to fix a statutory oddity: Only §2252(b)(1), and not §2252(b)(2), then contained the state predicates at issue here. DOJ described that discrepancy as follows: Whereas §2252(b)(1) provided a penalty enhancement for “individuals charged with receipt or distribution of child pornography and who have prior state convictions for child molestation,” the adjacent §2252(b)(2) contained no such enhancement for those “charged with possession of child pornography who have prior convictions for child abuse.” […] That should change, DOJ wrote: A possessor of child pornography should also be subject to a 2-year mandatory minimum if he had “a prior conviction for sexual abuse of a minor.”

    Also, it doesn’t seem puzzling to me at all to exclude convictions concerning adults both in §2252(b)(1) and in §2252(b)(2). Remember that this is about *minimal sentences*, i.e. about removing the judges’ discretion. What is extremely puzzling, on the other hand, is why the restriction to *sexual* conduct involving minors. Possessors of child pornography probably have seriously broken sex lives, so they probably have partners with seriously broken sex lives, too. There are several plausible paths from this to convictions for sexual misconduct against adults even without their being danger to anyone.

    On the other hand, thinking about possessors of child pornography with a prior conviction for serious *non-sexual* violence against a minor, I can’t easily imagine circumstances under which I wouldn’t consider such a person a serious danger to children. Yet this is *not* included in the statute as a trigger for the higher minimum sentence. This is what is really puzzling – unless conduct concerning adults is also excluded and the drafters only wanted to take away the judges’ discretion in extraordinarily clear cases. (Which should really be enough, since judgements in cases that don’t formally trigger the higher minimum sentences are still informed by them.)

  31. J. W. Brewer said,

    March 3, 2016 @ 2:28 pm

    as to lack of parallelism, I was referring to the points made in this secondary analysis about “asymmetry” http://www.scotusblog.com/2016/03/opinion-analysis-battle-of-statutory-interpretation-canons-ends-in-defeat-for-convicted-sex-offender/ This is a post-decision analysis by the same fellow whose analysis of the oral argument was linked to by Prof Liberman in the earlier post – I have not yet had opportunity to read the opinions in sufficient detail to confirm independently that it’s an accurate summary. I will say that federal sentencing law is complicated as a general matter, and that mandatory-minimum statutes are both complicated and often rather arbitrary at least at the margin, i.e. even when clearly drafted they may say that you get the mandatory minimum if factors A B C or D are present, even if D doesn’t seem nearly as serious as the other three and even if potential factor E which does seem as serious as those isn’t included. Or they will have a similar list where A B and C are all pretty clear but then D is quite fuzzy and difficult to apply to borderline cases.

  32. GH said,

    March 3, 2016 @ 3:53 pm

    @ J.W. Brewer

    how far should you depart from the most plausible reading of the text in order to give effect to what was probably the drafters’ intent, even if inartfully worded.

    But sans any context whatsoever, is either reading more plausible than the other? It seems to me that in total isolation, “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” could equally well be read either way.

    And then when you add the full context of the paragraph (and actually look up what the references are referring to, as I initially neglected to do), one reading becomes more coherent than the other, and also seems to account fairly well for the particular items in the list in a way that would conclusively settle the question of scope. To me these are valid things to consider in determining the most plausible reading of the text, and do not distort it in order to “make it mean what it probably ought to mean”.

    I guess whether the rule of lenity should come into play depends on how definite you consider this argument and others that point to the same conclusion to be, no matter how non-obvious it is at first glance. Because I take it that the question isn’t whether a defendant could plausibly misinterpret the law, but whether the court is in doubt over what the law actually means.

  33. Bloix said,

    March 3, 2016 @ 4:40 pm

    Re computer code:
    In the comments to a post a half a dozen posts down (“Is this a sentence?”), someone proposed the questionable sentence:

    “‘Yes,” she said, or she remained quiet.”

    To a logician, this is an unambiguous sentence, and a computer would find it okay, too. But it’s not acceptable everyday English. A lot of the difficulty in drafting statutes, I think, arises from the tension involved in writing sentences that are logically unambiguous and also consistent with the requirements of everyday English. This is one reason I like outlines: they are clearly not everyday English and don’t try to be.

  34. J. W. Brewer said,

    March 3, 2016 @ 5:40 pm

    GH: I will agree that one problem with the rule of lenity and similar principles that basically say that if but only if the text of a legal document is ambiguous you should do such-and-such is that ambiguity is not a binary property. There’s sort of a continuum from perfect unambiguous clarity to total incoherence, and how far along that continuum you get before you have an ambiguous text is itself a fuzzy and judgmental sort of determination. Certainly as this case demonstrates, the mere fact that Supreme Court justices (who are unusually sophisticated and experienced readers of legal texts compared to the hapless ordinary citizens who are fictionally presumed to be able to understand federal criminal statutes well enough to stay out of trouble) disagree with each other as to the best interpretation is not itself sufficient to demonstrate that the text is sufficiently ambiguous for the rule of lenity to kick in.

  35. GH said,

    March 3, 2016 @ 7:42 pm

    Hah! Yes, I get your point. If each justice has to believe in his or her own mind that the law is truly ambiguous, and won’t take the fact that other justice disagree on its meaning as sufficient proof of the fact, then it’s a high bar to clear, certainly.

    Putting arbitrary and probably philosophically unsound thresholds on subjective questions is perhaps a necessary part of the law. “Reasonable” doubt?

  36. J. W. Brewer said,

    March 3, 2016 @ 9:53 pm

    There’s also fwiw an argument (not sure how much it may have relied on in this case) that says that rule-of-lenity type considerations don’t apply in situations like this where the issue is only degrees of punishment,not the distinction between criminal and non-criminal behavior. I.e., the argument that criminal statutes ought to be clear enough that citizens know how to stay out of trouble doesn’t mean you sympathize with citizens who say “sure, I was perfectly willing to break the law if it meant a few years in jail, and I did, but I didn’t get clear enough notice as to how to avoid the ten-year sentence.” Although one can think of exceptions to that point, where you really are trying to incentivize people who are already willing to cross the line into criminal behavior not to make things worse by crossing some specified further line, in which case you ought to want the further line in question to be conveyed as clearly as possible to the relevant audience. Or as in this case where you are presumably trying to deter people who have already committed certain specific types of past crimes from even thinking about committing certain specific types of future crimes by threatening them with even more draconian-than-usual punishment.

  37. D.O. said,

    March 4, 2016 @ 12:04 am

    @J. W. Brewer: Can we make a parallel with the exclusion rule? If evidence is collected by the police in violation of the 4th amendment it is not admitted by the courts (more or less, with exceptions and exceptions to exceptions). This is done not to let criminals of the hook, but as a prophylaxis against police misconduct. Can we say that the rule of fair notice and it’s logical consequence, the rule of lenity, are also essentially prophylactic. They don’t let the legislature to make dog’s breakfast out of criminal law.

  38. BenHemmens said,

    March 10, 2016 @ 5:29 am

    The rule of the last antecedent may not apply to ordinary language, but if it is defined to apply to legal language, and legislators and lawyers know this, then the sentence is not actually ambiguous, is it?

    Of course it would be better, and perfectly feasible, to avoid the problem altogether, for example by turning the three points into a list:

    “… relating to:
    – aggravated sexual abuse;
    – sexual abuse;
    – or abusive sexual conduct involving a minor or ward.”

    In my limited experience, this kind of structuring of sentences is almost ubiquitous in laws. It’s tempting to believe that ambiguity is as rampant as ML says it is, but I’m not sure that that’s true. Since my limited experience has been gathered entrirely in Europe and not the USA, I suppose it’s possible that the USA has a particular tradition of sloppiness in this regard. Well if so, you can can take heart that not inly can this be fixed but many countries much of the time manage to do so. But I suspect that this kind of thing is not as common as it might seem.

    The other issue in this particular case is whether mandatory minimum sentences for specific crimes are a good idea in law or whether a system should aim to make its general sentencing guidelines good enough to cover almost all cases.

  39. BenHemmens said,

    March 10, 2016 @ 5:31 am

    @Dennis Baron:
    “What influenced the class’s decision, in the end, was not so much the syntax, but the desire to punish a sex offender.”

    This is where Hans Kelsen’s strict distinction between what he called legal science and legal politics would come in handy.

  40. BenHemmens said,

    March 10, 2016 @ 5:38 am

    @Joyce Melton:

    Here in Austria, a likely outcome would have been both a lenient interpretation in the case at hand and – which I think is an interesting mechanism – the constitutional court would have put an expiry date on the statute and left it up to the legislature to pass a repaired paragraph. This happens regularly. If the law is flatly unconstitutional, they can invalidate it immediately.

  41. BenHemmens said,

    March 10, 2016 @ 5:51 am

    @ JW Brewer:
    “American courts are not willing (at least not consistently willing) to construe badly-drafted statutes in a way that will appropriately incentivize legislatures to be clearer in the future”

    A constitutional court that can void statutes and effectively tell the legislature to repair the language might be a good idea. We’ve got one of those over here in Austria.

    What we also have in Austria is a central editorial office that reviews all draft legislation produced in the ministries and sends them back lists of homework to be done before it goes to parliament. Parliament is still free to pass garbage if it wants to, but it has to be fairly persistent to succeed in doing so.

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