The Fate Of This Sex Offender May Lie In The Hands Of Justice Scalia

The justice's hard-line approach to interpreting criminal law may spare a man from a 10-year sentence.

WASHINGTON -- A man convicted of possessing child pornography wants the Supreme Court to read his offense under federal law narrowly -- and in the process, to give him a break from a very long prison sentence.

Whether he's successful may depend on the voice and vote of Justice Antonin Scalia.

On Tuesday, the justices heard arguments in Lockhart v. United States, a case stemming from a sting operation where the defendant, Avondale Lockhart, ended up arrested and charged for attempting to receive and possess child pornography.

The dispute actually involves a rather straightforward issue of statutory interpretation -- an area where Scalia is often a leading voice -- but Congress wasn't so straightforward when it wrote the law that Lockhart is challenging.

At issue in the case is whether that law, which only applies at the sentencing stage, allows the government to seek a 10-year term of incarceration for Lockhart, rather the roughly six to eight years he would receive if the confusing statute didn’t apply.

Lockhart's troubles began in 2008, when federal agents found out he had wired money to Russia for the purpose of purchasing child pornography. Based on that tip, the agents, in partnership with the U.S. Postal Inspection Service, sent a letter to Lockhart luring him to a fake website where he purportedly would be able to buy more child pornography.

Lockhart took the bait and purchased six videos. But upon delivery of his order, the couriers -- who happened to be undercover agents -- surprised him with the package and a search warrant, which they used to rummage through his laptop and an external hard drive. There, they found more than 15,000 images and nine videos depicting sexually explicit acts involving minors.

Based on that discovery, Lockhart was indicted and later convicted in New York for possession of child pornography. The case could’ve ended there, but when it was time for sentencing, prosecutors pushed for a mandatory minimum sentence of 10 years -- even though Lockhart's crime called for a significantly lower penalty.

Why the disparity? Relying on an ambiguous provision of federal law that enhances sentences for repeat offenders, prosecutors sought to punish Lockhart more harshly because he had a decade-old conviction in his record for sexual abuse. The victim in that case, though, wasn't a minor, but Lockhart's 53-year-old girlfriend, and he had only been given probation for the conviction.

That was good enough for the U.S. government, which on Tuesday told the Supreme Court that Lockhart deserved that enhanced 10-year sentence because of his prior offense against his girlfriend, even though it bears no relation to his latest conviction for child pornography. 

Lockhart's lawyer, federal public defender Edward Zas, countered that the ambiguous statute doesn’t cover his client for the simple reason that Congress enacted it “to protect children, and to punish and deter those who would harm them.”

Scalia seemed more convinced by Lockhart than by his opponent. Invoking the so-called “rule of lenity,” he reminded the government that judges must side with a criminal defendant and err on the side of leniency if a criminal statute is hazy with respect to the conduct it prohibits.

“When the government sends somebody to jail for 10 years, it must turn sharp corners,” Scalia said. “It has to dot every I and cross every T. It must be clear.”

That’s particularly true when Congress does a shoddy job at writing a criminal statute.

"We give them a 'D' for their drafting of this statute," said Justice Samuel Alito.

Agreeing with Alito, Lockhart's lawyer said the law was "not a model of the drafter's art by any means."

Child pornography or not, it would offend basic notions of fairness and due process if the federal government were allowed to rely on a poorly drafted law to send people away for a very long time.

Here’s where Scalia comes in.

Applying a similar principle, he convinced a majority of his colleagues in June to strike as unconstitutional a hopelessly ambiguous law that over the years subjected thousands of federal offenders to unduly lengthy sentences. It didn’t matter to Scalia that a good chunk of those offenders weren’t the most sympathetic; it sufficed that the law was simply too vague to survive in the books.

Lockhart is not looking to strike any laws, but simply arguing that the law that punishes repeat child-porn offenders more severely doesn’t apply to him. He may not be the most sympathetic defendant -- he faces a long prison sentence -- but criminal law has nothing to do with likability; it either applies to you or it doesn’t.

A decision in Lockhart v. United States is expected sometime between now and June. If the court finds in Lockhart's favor, he could become eligible for a lower sentence. He is currently due to be released in 2021.