Unclear Writing Sends Man to Jail

March 3, 2016

Buried amid yesterday’s Super Tuesday coverage was this gem from USA Today about the importance of clear writing:

Justices OK child porn sentence in war of words
RICHARD WOLF
USA TODAY

WASHINGTON — A divided Supreme Court upheld a child pornography defendant’s 10-year mandatory minimum sentence Tuesday in a case that had both sides debating the meaning of Star Wars and sour lemons.

Six justices ruled that a federal law’s key phrase — “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” — means only that the last charge must involve children. The first two charges, they reasoned, could apply to adults as well.

Not so, Justice Elena Kagan said in a dissent joined by Justice Stephen Breyer, triggering a colorful debate over what she called the “ordinary understanding of how English works.”

“Imagine a friend told you that she hoped to meet ‘an actor, director or producer involved with the new Star Wars movie,'” she said. “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.”

Kagan added two more examples and then concluded: “Everyone understands that the modifying phrase — ‘involved with the new Star Wars movie’ … — applies to each term in the preceding list, not just the last.”

Justice Sonia Sotomayor, who wrote the 6-2 opinion, countered with an example of her own.

“It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico,” she wrote. “If you brought back lemons from California, but your friend insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts.”

Sotomayor’s interpretation prevailed, which was bad news for Avondale Lockhart, whose enhanced sentence for child pornography was based on a prior conviction of sexual abuse involving his 53-year-old girlfriend. He argued that the tougher sentence was intended only for those whose prior conviction involved children.

During oral argument in November, the dispute was close enough to convince Justice Antonin Scalia that the verdict should tilt in Lockhart’s favor. “When the government sends somebody to jail for 10 years, it has to turn sharp corners,” he said. “It has to dot every I and cross every T. It has to be clear.”

Scalia’s death last month left only eight justices to decide the case, but his influence lived on in the opinion and dissent. Each side cited his influential book, Reading Law: The Interpretation of Legal Texts, written with Bryan Garner, to bolster its case.

So, there you go. Proof that copyediting saves lives, my friends, and the pen is mightier than the sword, and so on.

Seriously, though, this is an example of how critical it can be to write clearly. In the case of Avondale Lockhart, it sent him to prison for an additional ten years. For what it’s worth, I agree with Justice Kagan. But this is the U.S. Supreme Court, and their word is final. In light of that, and assuming the statute was not actually intended to send someone like Lockhart to the clink for an additional ten years, how should the statute have been written? Here is an alternative. Incidentally, it uses the Oxford comma, which I think also adds clarity:

a prior conviction … under the laws of any state relating to sexual abuse or abusive sexual conduct involving a minor or ward, aggravated sexual abuse, or sexual abuse

All I did was reorder the list items so that the crime related to minors comes first. The problem, though, is that it’s clunky as hell. Perhaps it should have been like this:

a prior conviction … under the laws of any state relating to: (a) aggravated sexual abuse, (b) sexual abuse or (c) abusive sexual conduct involving a minor or ward

The Supreme Court should have remanded the case to a fact-finding court for further testimony about the statute, if it hadn’t been done already. An expert witness in English grammar could have shed some light on this. Or how about (gasp!) calling in the actual legislator who wrote the law to testify about what he/she intended?