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Defendant’s criminal sentence hangs on court’s interpretation of a comma – which case won?
10 Aug | Which Case Won

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

by Geoff Baldwin, Parramatta

The Facts

Defendant pleads guilty to criminal offence

In a case decided in 2016 by the United States Supreme Court, a defendant had pleaded guilty to the offence of possessing child pornography. The defendant had a prior conviction for the sexual abuse of his 53-year-old girlfriend, but no prior convictions for sexual abuse involving a minor.

As he had pleaded guilty, the only issue before the court was the sentence to be applied. The applicable sentencing guidelines suggested a term of imprisonment of between six and a little over eight years.

Should the previous conviction give rise to a mandatory ten-year sentence?

However, the relevant statute also prescribed that a ten-year mandatory sentence must be imposed where the offender had a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor…”

It was up to the court to interpret those words and decide how they applied in this case. That is, did the defendant’s prior conviction (which had not involved a minor) mean that a mandatory ten-year sentence had to be imposed?

casea
The case for the prosecution
  • When drafting the words, the legislature deliberately used three phrases, separated by commas, to describe three separate concepts: first, aggravated sexual abuse; second, sexual abuse; and third, abusive sexual conduct involving a minor.
  • This means that ANY prior conviction in respect of the first two concepts (aggravated sexual abuse or sexual abuse) – not just convictions involving minors – must result in the mandatory ten-year sentence.
  • The defendant has a prior conviction for sexual abuse.
  • Therefore, the court must impose the mandatory ten-year sentence.
caseb
The case for the defence
  • The words “involving a minor” were intended to apply to all three concepts in the list, not just the final one. This is how the English language works, in speech and writing alike.
  • The legislature intended that a mandatory sentence should apply ONLY where a defendant’s prior conviction involved the abuse of a minor.
  • The defendant’s previous conviction for sexual abuse had nothing to do with a minor.
  • As the statute is ambiguous and this is a criminal case, the court should rule in the defendant’s favour and not impose the longer ten-year sentence.

So, which case won?

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Expert commentary on the court's decision

Geoff BaldwinConsultant Lawyer
“The case illustrates the power of the humble comma. 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 was estimated to weigh 80 kilos. However, it’s not always as clear as this.”
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.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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