Defendant’s criminal sentence hangs on court’s interpretation of a comma - which case won?

Prosecution’s arguments prevail in three successive courts

The case, Lockhart v United States [2016], came first before a District Court, then on appeal before a Circuit Court, and finally, on further appeal, before the Supreme Court.

At each level the prosecution prevailed, and eventually the Supreme Court upheld the prosecution argument, that if the interpretation was “grammatically sensible”, it should stand.

Prosecution invokes “rule of the last antecedent”

In arguing that the mandatory ten year sentence should be applied, the prosecution followed the usual protocol applying to comma use.

That is, there are three phrases, separated by commas, which in the absence of other considerations should be read as describing three separate concepts: first, aggravated sexual abuse; second, sexual abuse; and third, abusive sexual conduct involving a minor.

The defendant, Mr Avondale Lockhart, had a conviction for sexual abuse, and thus it did not matter that a minor had not been involved.

The prosecution’s approach was to invoke the “rule of the last antecedent”, meaning that a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that immediately precedes it.

Black letter approach to interpreting the law

This is sometimes called the “black letter” approach, meaning an approach interpreting an Act by focusing on the specific words of the enactment, and rejecting speculation about whether the plain meaning of the words gives a result which might not have been intended by the legislature. It is a widespread approach, but arguably used more in the USA than in, say, Australia.

There was also an argument that it would be wrong to accept the defence argument and thus give Mr Lockhart a lighter sentence.

Defence counterargument hinges on “series modifier principle”

The defence countered with the “series modifier principle” (also referred to as the “series qualifier canon”), which means that a modifier at the end of a list normally applies to all items on the list.

As one of the two dissenting judges in this case pointed out, when several words are followed by a clause that can sensibly modify them all, it should be understood to do so.

What was the intention of the legislation?

The defence argued that the court should look beyond the grammar and syntax, to what the legislature intended. The offence in question was a child-related offence.

A mandatory sentence would be understandable if the words “involving a minor” qualified each of the three elements, ie aggravated sexual abuse and sexual abuse, as well as abusive sexual conduct.

However, there would appear to be little logic in imposing the mandatory sentence for a child-related offence because of a previous conviction unrelated in any way to a minor.

Repeat offences and mandatory sentencing

The surrounding argument was of course along the lines that the punishment should fit the crime. Whatever one may think of mandatory sentencing, it is at least understandable in the event of a repeat offence, given that the law, quite properly, treats sex offences against children differently from those against adults.

So, it was argued, the legislature cannot have intended that the heavier sentence should be triggered by a prior offence which did not involve a child.

Thus the defence argument was that, the rules of grammar and syntax notwithstanding, the legislature must have intended that the phrase “involving a minor” should qualify each of the three concepts, and not just the final one.

Defence unsuccessful in invoking “rule of lenity”

A further principle invoked by the defence was the so-called “rule of lenity”. That is, when there is genuine ambiguity in criminal statutes, that ambiguity should be resolved by ruling in the defendant’s favour – in this case, by giving Mr Lockhart a lesser sentence.

The defence was unsuccessful in this argument also.

Never underestimate the power of the humble comma

The case illustrates the power of the humble comma. The phrase “involving a minor” is, grammatically, a “dangling modifier” – a special sort of “dangling participle”. Usually the meaning is clear. For example, in the sentence “the burglar was tall, wearing shorts, and with long hair weighing about 80 kilos”, it is plain that it is the burglar, and not his hair, that is estimated to weigh 80 kilos.

However, it’s not always as clear as this and, if we are talking about legal documents, the consequences of the ambiguity can be made worse because one meaning suits the interests of one party but not the other, thus leading to argument, possibly costly legal fees and, in the worst cases, an outcome quite different from what was intended. In this case, Mr Lockhart incurred the heavier sentence.

Clarity in grammar and punctuation essential to good drafting

In the statute, the ambiguity could have been lessened by interposing a semi-colon after “conduct”; or removed altogether by different drafting. This shows that punctuation and grammar are often crucial where matters of importance are concerned, in the same way that coding is in computer programming. And of course, this applies to all manner of legal documents.

Which case won?