Lockhart v. United States, USSC No. 14-8358, 2016 WL 782862 (March 1, 2016); affirming United States v. Lockhart, 749 F.3d 148 (2nd Cir. 2014); Scotusblog page (including links to briefs and commentary)
Under 18 U.S.C. § 2252(b)(2), a defendant convicted of possessing child pornography must be given a prison term of at least ten years if the defendant “has 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.” Federal courts had disagreed about whether a conviction for “aggravated sexual abuse” or “sexual abuse” had to “involv[e] a minor or ward,” or whether the “minor or ward” language applied only to convictions for “abusive sexual conduct.” The Supreme Court holds, 6 to 2, that the phrase “involving a minor or ward” modifies only “abusive sexual conduct.”
This decision affirms the approach previously taken in the Seventh Circuit. United States v. Rezin, 322 F.3d 443, 448 (7th Cir. 2003). It has no direct effect on Wisconsin law. If you’re interested in highly adept statutory construction arguments, however, the majority and dissenting opinions are worth a read.
The majority opinion by Justice Sotomayor invokes a canon of construction known as the “rule of the last antecedent,” which says that a limiting clause or phrase is ordinarily read to modify only the noun or phrase that it immediately follows. (Slip op. at 3-4). Like any other canon, this rule is not absolute and can be overridden by indications of a contrary legislative intent. The majority finds no reason not to apply the rule after canvassing the obvious sources of intent—here, context and legislative history. (Slip op. at 5-13). The majority also considered the rule of lenity (slip op. at 14), but as law professor Evan Lee notes in her detailed opinion analysis at Scotusblog, they dispose of it “rather briskly … in a single paragraph,” even though it had some prominence at oral argument, leaving it a “mystery” as to why the rule of lenity “got so little traction with the majority.”
It got more traction with the dissent (written by Justice Kagan, joined by Justice Breyer), which offers a powerful, page-turner of a rejoinder based on (and using) plain English. We’ve previously recommended reading one of Justice Kagan’s opinions on a statutory construction issue (her dissent in Yates v. United States), and we happily do so again. To pique your interest, here’s the opening:
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. Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” …. The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms—just as in the examples above. 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. ….