MANHATTAN (CN) – The Supreme Court agreed Tuesday to look at a case where a first-time child pornography offender who once sexually abused an adult received a mandatory 10-year sentence.
It was a 2000 conviction for the sexual abuse of his 53-year-old girlfriend that first classified Avondale Lockhart as a level-one sex offender.
He received five years of probation but found himself in legal crosshairs a decade later over a money transfer to a child-pornography distributor.
After an undercover sting operation nailed Lockhart for attempting to buy videos, agents obtained a warrant that uncovered more than 15,000 images and at least nine videos on his computer.
Lockhart pleaded guilty to the attempted purchase of child pornography, but received a 10-year mandatory minimum sentence under Section 2252(b)(2) of Title 18, which covers prior convictions under state laws “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Congress constructed this statute using a form of punctuation colloquially known as the Oxford comma, recognized as the preferred form of sentence construction in Strunk and White’s “Elements of Style,” and the U.S. Government Printing Office Style Manual.
Lockhart’s case hinges on whether the phrase “involving a minor or ward” modifies all, or merely the last, of the three elements in the series.
His prior conviction was for the second item in the series, sexual abuse, but prosecutors argued that the modifier applied only the third element, abusive sexual conduct, since those words follow together after the final comma.
The grammatical nuance has been a thorn in the foot of many a first-time child pornography offender sentenced to a decade in prison for prior sexual offenses involving adults.
In other cases, the 6th, 8th and 10th Circuits all found that the phrase “involving a minor” modifies all three categories of sexual offenders that the statute lists.
Proving that New Yorkers do things differently, Lockhart’s sentencing judge in Brooklyn, U.S. District Judge Sterling Johnson Jr., found that the modifier applied only to the third item in the list, abusive sexual conduct.
Creating a circuit split, the federal appeals court in Manhattan agreed last year that the mandatory-minimum law “does not require that a prior state-law aggravated sexual abuse or sexual abuse conviction involve a minor.”
Zeroing in on the grammatical issue, the 2nd Circuit quoted a 1971 decision by the U.S. Supreme Court about why “leading grammarians” concede that the Oxford comma is discretionary even though they “can avoid ambiguity” at the end of a series.
“Here, inserting a comma before ‘involving a minor or ward’ might confuse rather than clarify the meaning of this provision because, as discussed above, the relevant series of state sexual abuse offenses is separated only by a comma from a continuing list of state child pornography offenses,” Judge Robert Katzmann wrote for the panel.
The Supreme Court did not issue any comment, as is its custom, in granting Lockhart a writ of certiorari Tuesday. It noted only that Lockhart can proceed in forma pauperis.
Under the lens of the Associate Press Stylebook, the concluding conjunction in a series requires a comma “if an integral element of the series requires a conjunction.”
As to whether each element of the series should have been modified is a matter the justices will confront next term.
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