November 3, 2015

"How would you feel if your 10-year prison sentence depended on a dangling modifier?"

"That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court...."
According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before. It thinks Lockhart should get the 10 years.
Reading that description, it's quite clear that Lockhart should win and that Professor Noah Feldman doesn't know the meaning of "dangling modifier." A "dangling modifier" is what I put at the beginning of the previous sentence. The modifier in that federal statute isn't dangling. It's attached to something it modifies, but there's ambiguity about how much else it modifies.

31 comments:

SteveR said...

Damn Oxford comma

Mark said...

In addition to his other shortcomings, Feldman also does not provide the full context of the statute. The mandatory 10-year minimum sentence for the child pornography applies when "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."

The federal statutes listed here involve adult victims as well as children.

The whole point of the sentencing enhancement is if the defendant is a sexual predator and, thus, more dangerous than others. That the attempted rape was of an adult does not make one any less of a sexual predator.

MadisonMan said...

Why are columnists who don't know simple grammar employed? Sheesh.

Richard Dolan said...

So long as there are respectable arguments for both positions, the rule of lenity requires that the statute be read to favor the defendant, not the Gov't. Haven't seen the transcript of the argument, but that was presumably part of the defendant's pitch. A defendant won on that basis a few years ago, where the issue was whether the word "proceeds" in a criminal statute meant "revenues" or "profits." Scalia wrote the decision, holding that in these circumstances a tie goes in favor of the defendant. Of course, the court first has to conclude that the two readings of the statute result in a tie, with no powerful reason to go with one rather than the other.

Quaestor said...

The State is already much too powerful. We citizens should get the benefit of every ambiguity in the criminal code, even lower- than-snake-shit scum like Avondale Lockhart.

Quaestor said...

Damn Oxford comma

I say hurrah for the Oxford comma. Hip-hip hurrah, huzzah, and a good old, countrified hoo-ray!

JCC said...

Reading Feldman's previous columns, he has a predictable left-wing bias. So, any column that starts with "How would you feel if your 10-year prison sentence depended on a dangling modifier?" rather than, say, "Does your previous rape conviction count as an enhancement when you are convicted of of a new felony, to wit: possessing child pornography?" is going to reach a predictable conclusion. Feldman even says, in a fit of self-congratulation "If you're still reading, you’re either interested in grammar or really care about civil liberties..."

Also, Feldman says "The purpose of the sentencing enhancement is rather clearly to identify those people convicted of child pornography who have a proven propensity to harm children." But Mark, above, makes a strong case to the contrary, and notes that Feldman apparently forgot that the statutory enhancements specify crimes involving adult victims as well as children, which would reasonably argue against Feldman's main thrust that the enhancements are for crimes against children only. Probably just a slip on Feldman's part to miss that.

So, just more disingenuous claptrap being pushed as truth. Liars.

Wince said...

By dangling modifier I thought it was a reference to, well, his pee-pee.

Judge: Mister Whorewinkle, this has not the first time you have appeared before this court on such a charge, and we must make sure you do not appear here again.

Bailiff, WHACK HIS PEE-PEE!

Whorewinkle: What the hell are you staring at you goddamned facist pig, haven't you ever seen a criminal before. Kiss my ass you stupid bastard.

Bailiff: Leslie Whorewinkle you are charged that on the night of September 14th at approximately 8pm you did willfully with malice of forethought sexually assault a 16 year old girl, how do you plead?

Whorewinkle: I plead insanity!

Bailiff: Insanity?

Whorewinkle: That's right, insanity. I'm just crazy about that stuff.

etienne said...
This comment has been removed by the author.
William said...

All sorts of sexual behavior that used to be mocked and shamed are now permissible. The two exceptions are pedophilia and fraternity house rapes. If his previous rape conviction occurred in a frat house, then give him the max.

Carnifex said...

Willliam forgot that according to dogma, all accusations of rape are to be considered wholly truthful, with no defense even possible.

William said...

Possession of child pornography is a non violent crime. I thought we were going to lighten up on non violent offenses, Obama could show us the way by granting him amnesty and arranging a job for him at the Sidwell School.

Sebastian said...

"it's quite clear"

Umm, no. Should win, perhaps, but not "quite clear."

"The federal statutes listed here involve adult victims as well as children."

I'm betting the judges will take that into account and, lo and behold, will disagree with what a law prof tells them is "quite clear."

Ken B said...

Nodding with appreciation, the professor's argument is sound. Recognizing the intent is to punish pedophiles, he should win.

azbadger said...

To paraphrase (sort of) Justice White, how far up the paragraph does "involving a minor" travel?

BN said...

Yup, except for dangling modifiers, the rest of our justice system is pert' near perfect.

We jes gotta stop all dat dang danglin'.

Dude1394 said...

After the twisting done to create a tax when it wasn't a tax or an exchange where it was not exchange, it is funny that anyone takes the written word seriously at all.

tim maguire said...

Absent larger context (which is provided in the comments here, Mr. Feldman), it would make sense that "involving a minor" would apply to the whole list because the purpose of the mandatory minimum is to protect minors--not just predators, but predators of children.

PB said...

Why would the SC adhere to the plain text, now? The precedent seems to be it can mean exactly what they want it to mean.

Monkeyboy said...

Either
aggravated sexual abuse
sexual abuse
abusive sexual conduct involving a minor
are individual crimes by statute

or

aggravated sexual abuse (involving a minor)
sexual abuse (involving a minor)
abusive sexual conduct (involving a minor)
are individual crimes.

Don't know myself

rhhardin said...

Antique vase for sale by lady with cracked legs.

Curious George said...

The important thing is that Lockhart, when done serving his time, is set completely free. You know, so he can do this again. I mean our safety is not worth more than his freedom. So if Lockhart sodomizes MadisonMan's daughter against her will in some dark alley, he can explain to her why that is what it is. That is, if Lockhart doesn't slit her throat.

Virgil Hilts said...

I see this drafting ambiguity all the time in contracts. Lots of dumb lawyers out there.

tim maguire said...

You're right Curious George, we should ignore juries and laws and simply lock people up if we think they might one day commit another crime. Rule by whim is so much more convenient, isn't it?

Curious George said...

"tim maguire said...
You're right Curious George, we should ignore juries and laws and simply lock people up if we think they might one day commit another crime. Rule by whim is so much more convenient, isn't it?"

I didn't suggest that.

Tobias said...

Is it a dangling modifer, hanging with baited breath to strike?

Peter said...

The modifier may not be dangling, but it surely is misplaced if if what it modifies is less than obvious.

Ron Nelson said...

I was confused when I read the initial post because, under the rules of grammar I learned, the absence of a comma before phrase meant the modifying phrase applied solely to the preceding phrase and not the entire sentence. But in reviewing the comments it is clear that there are alternative logics at play: mandatory minimums to sanction a limited specie of sexual crime (against children) or to sanction serial sexual offenses (predation using sex). Given the plasticity of language and the disrepair of our education in English grammar, it seems the logics must trump grammar.

Nichevo said...

Dread Justice Roberts can fix this! Him and his magic eraser.

Sammy Finkelman said...

I think this could be explained if "abusive sexual conduct" is a less serious crime than either "aggravated sexual abuse" or just average "sexual abuse"

When you get down to "abusive sexual conduct" it maybe has to involve a minor to still be an aggravating factor.

There's not that much logic to this thing, but this whole area of law is characterized by an absence of logic, in which it is assumed that proclivities are not limited in nature.

So any kind of serious sexual offense is an aggravating factor for anyone possessing child pornography. They don't say that because the attempted rape was that of an fully grown women, he doesn't really have a sexual orientation limited to underage women.

I wonder what kind of "child pornography" that really was. Did he even know the age of the person(s) in the pictures?

The Godfather said...

I'm no grammar maven, but in trying to understand what this statute means, the first thing I'd do is look at the statute books to see whether there is a crime called "abusive sexual conduct involving a minor" or whether instead there's only a crime called "abusive sexual conduct" of which the victim may be either an adult or a minor. In the former case, it would make sense to interpret "involving a minor" as applying only to the phrase "abusive sexual conduct". In the latter case, however, the uncertainty would remain.

If the uncertainty remains, I'd probably opt for the lenity approach, if for no other reason than to encourage Congress to do a better job of drafting its statutes. But then, for the same reason, I would interpret "exchange established by a state" to mean an exchange established by a state, so what do I know?