Supreme Court Upholds Mandatory Minimum in Child Porn Case

A United States Supreme Court decision over the appropriateness of a child pornography defendant's mandatory minimum sentence devolved into a discussion of semantics and the rules of the English language.

When Avon Lockhart pleaded guilty to possession of child pornography, he was given a mandatory minimum sentence of 10 years in prison under a federal law that requires the statutory minimum for repeat offenders. Because Lockhart had a prior conviction for sexually assaulting his adult girlfriend, the court ruled that Lockhart's prior conviction for sexual assault necessitated the mandatory minimum sentence.

The federal statute used for sentencing enhancement in Lockhart's case is 18 U.S. Code 2252(b)(2), which reads as follows:

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.

Emphasis has been added to the critical passage in determining the outcome of this case.

Lockhart appealed the sentence, saying that the syntax of the English language shows that each element--aggravated sexual abuse, sexual abuse, or abusive sexual conduct--involves a crime against a minor child. This is known as the "series qualifier" canon of statutory construction. 

Because Lockhart's first offense did not involve a minor, but rather a 53-year-old woman, he argued, the mandatory minimum for repeat offenders did not apply in his child pornography conviction.

Justice Elena Kagan and Justice Stephen Breyer agreed with the "series qualifier" school of thought. Kagan, calling the issue an "ordinary understanding of how English works" gave the following example in her opinion:

"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."

"Involved with the new Star Wars movie," then, is a series qualifier, applying to actor, director, and producer equally. You would not assume your friend wanted to meet any actor, any director, or a Star Wars producer specifically.

Unfortunately for Lockhart, six other Justices would apparently make that assumption about their friends' hopes to meet a celebrity.

Justice Sonya Sotomayor countered Kagan's Star Wars analogy with a lemon analogy relying on the "last antecedent" cannon of statutory construction:

"It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico. If you brought back lemons from California, but your friend insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts."

Sotomayor's argument seems to pale in comparison with Kagan's. Would a person assume that his or her friend did not care where the "tart lemons" or "sour lemons" were from, as long as the "sour fruit" came from Mexico? Or would he or she assume that the friend wanted Mexican lemons. Perhaps he or she would question instead why the friend did not just request "lemons," but rather described and defined them in three separate ways.

In fact, that would certainly make the federal statute more clear--if the statute simply read "or any sexual assault." 

Although Justice Antonin Scalia died before the Court reached its ruling, his opinion on the matter was that debate between the "series qualifier" canon and the "last antecedent" canon was too close to accurately determine. Because of this, he was leaning in favor of Lockhart:

"When the government sends somebody to jail for 10 years, it has to turn sharp corners. It has to dot every I and cross every T. It has to be clear."

In this case, the Court ruled 6-2 against Lockhart, despite a hair-breadth debate over English syntax. The court ruled that "involving a minor or ward" applies only to "abusive sexual conduct,"  and that prior offenses involving aggravated sexual abuse or sexual abuse of a person of any age apply to enhanced sentencing in federal child pornography cases.

Image credit: Mark Fischer

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