December 07, 2004

A fine, or imprisonment... and both

The New York Times reports an instance in which a criminal case was overturned on appeal because of a single word that was changed in a statute: In between consideration by a Congress conference committee and the preparation of the bill for signing by President Clinton, an or was changed to an and in a statute regarding the sentencing of people guilty of distributing child pornography, the result being the following surprising wording:

"Any individual who violates ... this section, shall be fined under this title or imprisoned not less than 10 years nor more than 20 years, and both."

The question at issue was whether Jorge L. Pabon-Cruz, a young man of 18 with no criminal record, should be imprisoned for ten years for chat-room pornography distribution. The defense said that the jury should have been told what the sentencing consequence of their guilty verdict would be. But the Second Circuit decided on its own initiative to ask for a briefing on the question of whether the statute Clinton signed was even coherent.

The position taken by the defense was that, read literally, it made no sense: obviously Congress meant "or both", the "and both" being just a slip; hence it would have been legal to sentence the young man to either a fine or a term of imprisonment. The government, amazingly, defended the language of the final statute as signed, and maintained that even though it was ungrammatical, its intent was clear: that the punishment was to be both a fine and a term of imprisonment, with no judicial discretion. The United States Court of Appeals for the Second Circuit disagreed with the government. Linguistically, the court had it right.

The court reasoned:

As a grammatical matter, one cannot choose between "A, or B, and both." Rather, it seems obvious that Congress intended the provision to mean either "A, or B, or both," or "A and B."

And that is entirely correct. A coordinate construction of the form "A, or B, and both" is neither grammatical nor clearly interpretable. Imagine a restaurant offering a choice of "asparagus or beetroot and both". It's not even clear what your choices are. The phrase has no interpretation at all.

Of course, an and-coordination of the form can have a first part that is itself an or-coordination of the form "A or B": you could be offered asparagus or beetroot (you can't have both) and cauliflower. But there, C is a third thing that can co-occur with either of the first two. "(1) A or B, and (2) C" is coherent. What is not is what we have here: "(1) A or B, and (2) A and B". You can't make that interpretation relevant in the case at hand, and the court did not even consider it. It would have meant that judges had to sentence people to either a fine or a term of imprisonment, and both a fine and a term of imprisonment. But in that case the part after the and makes the part before it redundant.

Strangely, the prosecution actually agreed that it was "simply illogical" and "essentially [a] scriveners error." That was quite a concession, given that they wanted the intent of the erroneous scrivener to prevail in interpretation.

The court looked around for other textual evidence, and found it was only sinking deeper into the morass. For example,

Confusingly, the Senate Judiciary Committee Report on the Child Pornography Prevention Act employs the "and both" language when it sets forth the terms of the bill, S. Rep. No. 104-358, at 4 (1996), and the "or both" language in its analysis of the bills provisions. Id. at 23.

It explored the Congressional history a bit, and looked at some precedents for what courts have done when faced with laws that seemed eccentric (like a racketeering law that proposed either a fine or life imprisonment or death, but nothing in the middle like a few years of prison), and eventually concluded (you can read the decision here, or view it as HTML here) that the sentencing should be done again.

Perhaps the most worrying thing is that both Congress and the President were either asleep or uninformed about the content of what they were approving, despite the grave implications for the lives of people sentenced under the law they were putting on the books. The Second Circuit apparently figured that if Congress is going to require that a young man with no criminal past living with his mentally impaired mother should be put in the penitentiary for ten years if he sends dirty pictures to people on the Internet who ask for them, he at least has the right to be sentenced under a law of which the grammar and meaning are clearly understood by the people doing the sentencing.

Posted by Geoffrey K. Pullum at December 7, 2004 06:16 PM