Supreme Court Lockhart case: Scalia argues for lenity.

Scalia Sticks Up for a Child Pornography Convict While the Other Justices Gape

Scalia Sticks Up for a Child Pornography Convict While the Other Justices Gape

Oral argument from the court.
Nov. 3 2015 5:38 PM

Scalia Sticks Up for a Child Pornography Convict

Nino still has a few surprises left in him.

U.S. Supreme Court Justice Antonin Scalia.
At one point during Tuesday’s proceedings, Justice Scalia beamed like a naughty little boy who isn’t really sorry he broke the fine china. Pictured here on July 27, 2012, in Washington, D.C.

Photo illustration by Juliana Jiménez. Photo by Paul Morigi/Getty Images

The United States is a nation of laws—but many of our laws are an absolute mess. Take, for instance, the federal child pornography statute at the center of a rambunctious hour of oral arguments at the Supreme Court on Tuesday. The statute says that anyone caught possessing child pornography is subject to a 10-year mandatory minimum sentence if he or she has a prior state court conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Now tell me: Does that “involving a minor or ward” phrase apply to all three crimes? Or just an “abusive sexual conduct” conviction? The solution to this quandary turns on your interpretation of a single clause. It will also decide whether Avondale Lockhart spends a decade of his life in prison.

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Lockhart is not a sympathetic plaintiff. In 2008, the government noticed he had transferred funds to a Russian money courier in pursuit of child pornography. In 2010, federal law enforcement set up a successful sting to catch him purchasing the materials. A search of his laptop and hard drive turned up nine videos and 15,000 images of child pornography. Lockhart was charged under a federal child pornography ban and pleaded guilty. Prosecutors then discovered that, in 2000, Lockhart had attempted to rape his adult girlfriend. They persuaded a judge to impose the mandatory minimum sentence required by the child pornography law, arguing that Lockhart qualified because he had engaged in “aggravated sexual abuse.” Lockhart appealed, asserting that, because he did not abuse “a minor or ward,” the mandatory minimum didn’t apply to him.

So there’s our puzzle. As arguments begin, those of us in the press gallery brace ourselves for a tedious day of technical debates about canons of construction—the buffet of rules with unpronounceable Latin names that judges use to interpret statutes. Lockhart v. United States pits two canons against each other: the “series qualifier” canon and the “last antecedent” canon. Under the series qualifier canon (which Lockhart favors), “a minor or ward” would apply to every crime listed before it. Under the last antecedent canon (which the government favors), the clause would apply only to the crime that directly precedes it.

Before your eyes glaze over, rest assured that the showdown over esoteric canons never really arrives. Instead, the justices engage in a freewheeling conversation about how explicit the government must be when it wants to send people to prison. That turns out to be great news for Lockhart, who finds a champion early on in Justice Antonin Scalia. Usually a rock-ribbed conservative, Scalia is also a staunch advocate of defendants’ rights, eagerly invalidating vague criminal laws or interpreting them narrowly. (The justice revels in this apparent contradiction, once joking that he should be “the pinup of the criminal defense bar.”) Scalia may hate criminals. But he hates the government more.

Tuesday’s big moment, then, arrives when Scalia casts aside the musty canons and tosses a new idea on the table: the rule of lenity, which dictates that an ambiguous criminal law should be resolved in favor of the defendant. After Ann O’Connell, counsel for the government, concedes that “the canons of interpretation don’t get anybody 100 percent of the way there,” Scalia pounces.

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“I agree!” he says with a Yoda-like head tilt. “And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!”

Scalia pauses. From either end of the bench, Justices Sonia Sotomayor and Elena Kagan lean forward to watch him speak. Nino still has a few surprises left in him.

“We’ve been discussing dueling canons and so forth,” he continues. “My goodness! I have no assurance what the right answer is. But I think that somebody could read this and think that it means what the petitioner says it means. And if that’s the case, it seems to me the rule of lenity comes into play. That’s what concerns me most about this case—not the dueling canons.”

Justice Stephen Breyer perks up visibly. Scalia has spent much of his career arguing for canons and textualism and strict constructionism. Breyer has spent most of his career fighting against all that, in favor of more flexible, contextual, practical mode of interpretation. Suddenly, Scalia appears to be joining his team. Breyer decides to see how far he can push his frequent sparring partner.

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“So if we are absolutely at equipoise,” Breyer says, “before turning to the rule of lenity, I would like your comment”—he grins slightly—“on my temptation”—his grin becomes a smile—“to say, at least here”—Scalia turns to watch—“that the legislative history helps.”

“I knew you were going to say that!” Scalia roars with a chortle, and the courtroom explodes into laughter. “I knew it!”  

Caught in between Scalia and Breyer, Justice Clarence Thomas chuckles, too. Thomas and Scalia, of course, despise legislative history and absolutely refuse to use it. But Breyer boldly presses on, citing a congressional committee report stating that the law in question was designed to enhance a defendant’s penalty “if they had a prior conviction for sexual abuse of a minor.

“And that’s what the drafter would have been looking at,” Breyer continues, “when working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it’s not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with a pen and pencil thinking, where does the or go?”

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Breyer’s thoughtful defense of legislative history receives a verbal middle finger from Scalia.

“You don’t think Congress can leave it to its staff to decide what a statute means, do you?” Scalia asks O’Connell, beaming like a naughty little boy who isn’t really sorry he broke the fine china. “Isn’t legislative power nondelegable?”

Justice Anthony Kennedy jumps in to keep the discussion on track and stop Breyer and Scalia from bickering over judicial philosophy.

“Could you talk about the rule of lenity?” he asks. “Does the rule of lenity apply with the same force when the question is the substantive definition of a crime as distinct from the penalty that’s attached?” In other words, does the rule apply when the court is determining which sentence a defendant should receive? O’Connell admits that it does.

“That makes a great deal of sense,” Kennedy responds. And suddenly the government’s odds of winning fall to roughly zero.

In fact, only one justice—Samuel Alito—appeared inclined to rule against Lockhart on Tuesday. Every other justice seemed to lean against the government and in favor of sparing Lockhart a mandatory 10-year sentence. Presuming this near-unanimity holds until decision day, Lockhart could be a slam dunk for criminal defense attorneys—and a strong reprimand to overzealous prosecutors eager to land lengthy sentences. Everyone wants to put child pornographers, rapists, and child pornography–consuming rapists behind bars. But the justices’ message to the government on Tuesday was clear: Before you go in for the law-and-order stuff, find a law that actually makes sense.