Lockhart Solved

Tomorrow the Court hears argument, in United States v. Lockhart, on whether the phrase "involving a minor or ward," in a statute that refers to "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," only modifies "abusive sexual conduct" or aggravated sexual abuse and sexual abuse as well.  As a matter of grammar, the case could go either way.  As a matter of statutory interpretation, the rule of the last antecedent says "involving a minor or ward" only modifies the last "antecedent" (really, last noun), absent contextual indicia to the contrary.  One such contextual indicium, explored in my last two posts on this case, is that where the government concedes that abusive sexual conduct and sexual abuse mean about the same thing, it wouldn't have made much sense for Congress to use "involving a minor or ward" to modify one and not the other.  This is the kind of context-specific inference of legislative intent people usually use to evade the last antecedent rule.

It turns out, however, that in Lockhart there's a quasi-grammatical (really, stylistic) argument that knocks out the rule of the last antecedent.  As a general rule of style, when people write out lists of alternatives, they usually insert an "or" before the last item in the list - A, B, C, D, or E - which serves to indicate that the entire list is alternative.  That is, "you can buy A, B, C, D or E" means "you can buy A or B or C or D or E."  Occasionally, people will use "or" between each item on a list of alternatives.  What one never sees is a hybrid between the two, such as "A, B or C or D or E."

However, as an astute commenter on Neal Goldfarb's excellent blog on law and linguistics points out, the statute in Lockhart states a list in just that odd form: A, B, or C, or D, or E.  It says that one gets an enhanced sentence for a child pornography conviction if one has a prior conviction under state law "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, or sex trafficking of children."  To simplify, that's "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or [child pornography offenses], or sex trafficking of children."  Why the "or" before "abusive sexual conduct," but not before "sexual abuse"?  And why the "or" before the child pornography offenses?   Why not simply "aggravated sexual abuse, sexual abuse, abusive sexual conduct involving a minor or ward, [child pornography offenses], or sex trafficking of children"?  

The only explanation, besides positing that Congress just chose to write a list in an extremely eccentric way, is that the first three offenses in the list - aggravated sexual abuse, sexual abuse, and abusive sexual conduct - are a sub-list of offenses "involving a minor or ward" within the larger list of enhancing priors.  Once the first three offenses are read as a sub-list of related offenses, the use of an "or" at the end of that list makes sense.  Likewise, "the production . . . or transportation of child pornography" is a sub-list of pornography offenses within the larger list of enhancing priors, which explains why it seems perfectly natural for "transportation of child pornography," the last item on that list, to both be preceded and followed by an "or."  If the first three offenses are a sub-list of offenses that each involve minors or wards, the "or" before "abusive sexual conduct" wasn't just permissible, but necessary.  "Under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual conduct involving a minor or ward, child pornography offenses..." could only be read to require minor/ward involvement as to abusive sexual conduct alone.

An argument of this kind usually won't defeat the last antecedent rule, because the last antecedent rule is usually invoked to limit a modifier to modifying the last item on a list, not the third-to-last item on the list, as is the case here.  That is, the statutes where the rule is applied typically go "A, B, C, D, or E that Q," not "A, B, or C that Q, or D or E."  However, in cases where a modifier shows up in a middle of a list, as it does here, the presence or absence of an "or" before the last antecedent should usually (always?) resolve whether the modifier modifies the last possible antecedent or the terms that precede it.