Opinion analysis: Battle of statutory interpretation canons ends in defeat for convicted sex offender
on Mar 1, 2016 at 5:49 pm
In a classic case of statutory interpretation, in which every technical thrust seemed to be met by an equally adept technical parry, Lockhart v. United States ended in a result readily understandable to the non-technical observer: the convicted sex offender lost.
The technical dispute was about the meaning of 18 U.S.C. § 2252(b)(2), which subjects defendants convicted of possessing child pornography to a ten-year mandatory minimum sentence if they have “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.” Avondale Lockhart’s prior conviction was for sexual abuse of his adult girlfriend, rather than a “minor or ward.” Thus, the issue was whether the phrase “sexual abuse” is limited to minors or wards, or whether that limitation applies only to “abusive sexual conduct.”
The federal government had argued that the issue should be decided by a canon of statutory construction known as “the rule of the last antecedent.” Under this rule, “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Here, the government contended, “minor or ward” immediately follows “abusive sexual conduct,” and therefore should not limit the two prior items in the list, “aggravated sexual abuse” and “sexual abuse.”
On the other hand, Lockhart had argued that a different canon of statutory construction, the “series qualifier” rule, should control instead. Under that rule, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a modifier at the end of the list normally applies to the entire series.” Here, Lockhart argued, the three nouns in the list are followed by a modifier – “minor or ward” – that applies to the whole series.
Even for lawyers, this dispute was a painfully technical one. Both the majority and dissent employed homespun metaphors to illustrate their respective positions. “[I]magine you are the general manager of the Yankees and you are rounding out your 2016 roster,” wrote Justice Sonia Sotomayor, whose beloved world included growing up in the Bronx, for the Court. “You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year’s World Champion Kansas City Royals. It would be natural for your scouts to confine their search for a pitcher to last year’s championship team, but to look more broadly for catchers and shortstops.” The qualifier at the end only applies to the last thing in the list.
But Justice Elena Kagan was not going down with the bat on her shoulder. If your instruction as a scout was to find “a catcher, shortstop, or pitcher from the Kansas City Royals,” she wrote in her dissent (which was joined by Justice Stephen Breyer), surely you wouldn’t come back with a catcher or a shortstop from another team. Whomever you came back with, he would be from the Royals. The qualifier “Royals” obviously applies to everything in the list.
In her opening paragraph, Kagan offered a metaphor from a different part of everyday life, the movies. “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie,’” she wrote. “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.” And still another familiar metaphor: “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?”
In other words, Kagan chose the “series qualifier” canon because it is more consistent with the normal usage of English. “That ordinary understanding of how English works, in speech and writing alike, should decide this case,” she wrote. But here the majority balked. Section 2252(b)(2) is not ordinary English – not ordinary written English, and certainly not ordinary conversational English. Conceding that the provision in question was the product of “inartful drafting,” the majority nonetheless insisted that it “is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.” “Whatever the validity of the dissent’s broader point,” Sotomayor wrote, “this simply is not a case in which colloquial practice is of much use.”
Evidently, there was something other than ordinary linguistic analysis that concerned Justice Sotomayor, and that concern seems to have plagued her from the start. If Lockhart’s argument prevailed, then federal convictions for sex offenses involving adults would be treated differently than state convictions for sex offenses involving adults. At oral argument, Sotomayor said very little until Lockhart’s lawyer, Assistant Federal Defender Edward Zas, offered his rebuttal. Sotomayor suddenly came to life: “My problem is, why would [Congress] include adults as a predicate for the minimum in Federal crimes but not in straight State crimes?”
To understand Sotomayor’s concern, one must look at the entirety of Section 2252(b)(2)’s coverage. In addition to authorizing the mandatory minimum for state convictions described in the list in question, the provision authorizes the mandatory minimum for certain convictions under the federal criminal code, including those under “chapter 109A.” The problem is, Chapter 109A covers sexual-abuse offenses involving adults or minors. If the Court were to follow Lockhart’s argument, federal convictions for sex offenses against adults would get the mandatory minimum, but state convictions for sex offenses against adults would not. Yet there was little to suggest that Congress considered the two groups of offenders differently from the standpoint of culpability or dangerousness. Taking another page from her beloved world, Sotomayor wrote, “We therefore see no reason to interpret § 2252(b)(2) so that ‘[s]exual abuse’ that occurs in the Second Circuit courthouse triggers the sentence enhancement, but ‘sexual abuse’ that occurs next door in the Manhattan municipal building does not.” Sotomayor could visualize what would otherwise be an abstract concept. She had worked in those neighboring buildings years apart, the municipal building as a young assistant under New York County District Attorney Robert Morgenthau, the Second Circuit courthouse as a judge.
Asymmetry between the treatment of Chapter 109A convictions and state convictions would be particularly troubling if Congress had used Chapter 109A as a template for the description of qualifying state convictions in Section 2252(b)(2), and the majority thought it likely that Congress had done exactly that. The first three sections of Chapter 109A were given the headings, “Aggravated sexual abuse,” “Sexual abuse,” and “Sexual abuse of a minor or ward.” The last of those headings differs slightly from the third type of state conviction (“abusive sexual conduct involving a minor or ward”), but the overall sequence and linguistic similarity were too close for comfort. “We cannot state with certainty that Congress used Chapter 109A as a template for the list of state predicates set out in § 2252(b)(2),” wrote the majority, “but we cannot ignore the parallel, particularly because the headings in Chapter 109A were in place when Congress amended the statute to add § 2252(b)(2)’s state sexual-abuse predicates.” Kagan complained that there were things in Chapter 109A that Congress left out of the description of state convictions, but the parallel did not have to be perfect to be persuasive, said the Court.
For criminal-law watchers, the biggest mystery about this case is why the rule of lenity got so little traction with the majority. At oral argument, the late Justice Antonin Scalia – a well-known statutory interpretation maven – said, “[W]e’ve been discussing this dueling canons back and forth . . . . 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.” Unsurprisingly, Kagan’s concluding section echoed Scalia’s sentiment. “This Court has a rule for how to resolve genuine ambiguity in criminal statutes: in favor of the criminal defendant,” she wrote. “At the very least, that principle should tip the scales in Lockhart’s favor.” Yet the majority opinion rather briskly disposed of the rule-of-lenity argument in a single paragraph, concluding that “[w]e will not apply the rule of lenity to override a sensible grammatical principle buttressed by the statute’s text and structure.”
Observers may wonder whether, for at least some members of the majority, application of the rule of lenity was complicated by the fact that Lockhart was not just a criminal defendant but a convicted sex offender. To be fair, the majority cited other reasons for its decision I have not discussed in this analysis, such as a concern that applying the “minor or ward” qualifier to all the items on the list would render them largely redundant, and that the legislative history leaned in the government’s direction. Yet in a case where all the Justices struggled to understand the technical issues in ordinary human terms, it is tempting to understand the result that way too.