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The Supreme Court Comes to the Defense of the Dangling Modifier

By Casey C. Sullivan, Esq. | Last updated on

Strict textualism is alive and well in the Supreme Court, even after Justice Scalia's passing. Nowhere can that be seen more clearly than in Lockhart v. U.S., one of the first decisions since Scalia's death.

The question presented: how to interpret statutory mandatory minimum sentences for sexual abuse. The result: a 6-2 split, broadly extending the reach of the statute. The cause: a dangling modifier the justices refused to overlook. Get out your grammar books, kids. This is going to be fun.

A Dangling Participle With Lives in the Balance

The statute in question requires a ten-year mandatory minimum sentence for those convicted of first-degree sexual abuse who also has a prior conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."

Most people would read that as requiring the conviction to have involved a minor or ward, regardless of whether the crime was aggravated sexual abuse, sexual abuse, or abusive sexual conduct. Not six justices on the Supreme Court, however. (Those six were Chief Justice Roberts, and Justices Kennedy, Thomas, Ginsburg, and Alito, who joined the opinion written by Justice Sotomayor.)

The problem was the dangling modifier, "involving a minor or ward." In most spoken and written language, it's understood to apply to all three items in the list. But to grammarians, and most justices, "involving a minor or ward" applied only to abusive sexual conduct. Aggravated sexual abuse and sexual abuse did not need to involve a minor to trigger the mandatory minimum, according to the majority.

The Tyrannical Rule of the Last Antecedent

In so ruling, the Court invoked the relatively little-known "rule of the last antecedent." That cannon of construction holds that qualifying phrases, where no contrary intention is show, apply only to the last antecedent. If you ban the importation of "fruit, fowl, and cattle from England," you're banning all fruit and fowl imports, but only beef from England.

Of course, we're not banning imports, we're sentencing criminals. And this criminal did not make the most sympathetic defendant. Avondale Lockhart pleaded guilty to possessing child pornography in 2011. He had previously been convicted of sexually abusing his adult girlfriend 11 years prior. According to the district court, Second Circuit, and now Supreme Court, that previous non-child abuse triggered the minimum sentence.

English How It's Actually Spoken?

While the rule of the last antecedent is considered a "common sense" interpretation, Justice Kagan noted in her dissent, joined by Justice Breyer, that it was anything but:

Imagine a friend told you that she hoped to meet "an actor, director, or producer involved with the new Star Wars movie." You would know immediately that she wanted to meet an actor from the Star Wars cast -- not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client "a house, condo, or apartment in New York." Wouldn't the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?

Yes and yes. The reason is the same, Kagan explained: "Everyone understands that the modifying phrase ... applies to each term in the preceding list, not just the last." Yet that "ordinary understanding of how English works," wasn't enough to withstand the rigors of judicial interpretation, at least in the minds of six justices.

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