The Felony Murder Statute and the Serial Comma
The felony murder statute, title 14, section 922(a)(2), of the Virgin Islands Code provides:
§ 922. First and second degree murder defined
(a) All murder which—
(2) is committed in the perpetration or attempt to perpetrate arson, burglary, kidnapping, rape, robbery or mayhem, assault in the first degree, assault in the second degree, assault in the third degree and larceny; . . . is murder in the first degree.
My client was convicted after the government proved only assault in the third degree but not larceny. In the statute, assault in the third degree and larceny are not separated by a comma. Nobody can tell without guesswork if the government must prove either or both assault in the third degree and larceny. This conviction deprived the defendant of his Fourteenth Amendment due-process rights. It dispensed of his Sixth Amendment rights to a speedy and public trial before an impartial jury. He had no “jury determination that he is guilty of every element of the crime [i.e., larceny] with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995).
There are five major reasons why section 922(a)(2) requires proof of both assault in the third degree and larceny. First, the statute is plain on its face; second, the history shows that the legislature joins the last two items as one in this provision; third, the Virgin Islands Code requires common usage of English as its rule of construction; fourth, the Virgin Islands Supreme Court requires the serial comma; fifth, applying the serial-comma rule does not conflict with the legislative intent and does not make superfluous any other item on the list.
Applying the Serial Comma to the Felony Murder Statute
First, simply and on its face, assault in the third degree and larceny are joined. Second, the provision’s history demonstrates a legislative practice that classes as one items in a series not separated by a comma. Prior to 2001, section 922(a)(2)’s predicate offenses were “arson, burglary, kidnapping, rape, robbery or mayhem.” In 2001, the legislature amended the statute to provide “arson, burglary, kidnapping, rape, robbery or mayhem, assault in the first degree, assault in the second degree, assault in the third degree and larceny.” Robbery or mayhem remains one item, although they are no longer final entries. It follows that “assault in the third degree and larceny,” section 922(a)(2)’s final entries, constitute one item.
Third, English usage is the basis for statutory construction. V.I. Code tit. 1, § 42 (“Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.”). Further, “[t]echnical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law,” the code commands, “shall be construed and understood according to their peculiar and appropriate meaning.” No matter what happens to the serial comma in journalism, it has acquired a peculiar and appropriate mandatory meaning in the law. Fourth, the Virgin Islands Supreme Court itself requires the serial comma. “Grammar, editorial, and punctuation issues,” commands the Court, “should be resolved in a manner consistent with standard American usage, for which the Chicago Manual of Style (15th ed. 2003) is an excellent modern synthesis, and The Redbook: A Manual on Legal Style (3d ed. 2013) is also helpful as a grammar and style guide specifically for legal writing.” V.I. S. Ct. I.O.P. app. at A-1. Both books require the serial comma.
Fifth, the plain reading of section 922(a)(2) does not contravene the legislature’s intent to require proof of the elements of a crime. It does not contravene the federal, state, or territorial interests for the government to discharge its burden of proof in a criminal case. In addition, the legislative history supports the serial-comma rule by joining third-degree assault and larceny as one item. The question arises whether “robbery” subsumes “assault in the third degree and larceny.” But this is not the case here. “Robbery is the unlawful taking of personal property in the possession of another, from his person or immediate presence and against his will, by means of force or fear.” V.I. Code tit. 14, § 1861. Even if a dangerous weapon is displayed, where the initial taking was not by means of force or fear, robbery in any degree is not implicated. See V.I. Code tit. 14, § 1862. Assault of another, not the victim, after perpetrating larceny, is not robbery.
The Widespread Support for the Serial Comma
The following authorities require the use of the serial comma: courts (including the U.S. Supreme Court and the Virgin Islands Supreme Court), congressional manuals, state legislative manuals, Bryan A. Garner, legal-drafting teachers, and general style guides.
Courts. The plain meaning of a statute is determined by the placement of a comma and the conjunction within the statute. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“This reading is also mandated by the grammatical structure of the statute.”). The plain meaning is conclusive, unless a literal application of a statute will be at odds with the intentions of its drafters.
A New York court construed New York Agriculture and Markets Law section 353, which punishes anyone who “deprives any animal of necessary sustenance, food or drink.” The defendant provided food and drink, but did not otherwise take the animal to the veterinarian. The court applied the serial-comma rule and concluded that “necessary sustenance” means food or drink. 19 Misc. 3d 1105(A), 2008 WL 724724 (N.Y. City Crim. Ct.). It pointed to an author’s dedication “to my parents, the Pope and Mother Theresa.” For the court, “the absence of a comma between ‘Pope’ and ‘and’ indicates that the author’s parents are the Pope and Mother Theresa and not that a separate dedication was being made to each of the three.” Although one might view the dedication as ambiguous, the court’s interpretation illustrates the strict construction that a criminal statute demands, and it is consistent with other courts’ rulings.
For the Texas Court of Appeals, the serial comma is necessary to eliminate ambiguity. In re Readyone Indus., 394 S.W.3d 680, 686 (Tex. App. El Paso 2012). The court, quoting the 2002 edition of the Oxford Style Manual at page 122, concludes that “the use of a serial comma serves to resolve ambiguity, particularly when any of the items are compound terms joined by a conjunction.”
The growing importance of legislative manuals in statutory interpretation is even more surprising in the rise of the serial-comma use.
Congressional manuals. Both the Senate and the House of Representatives require the serial comma. The House’s legislative manual states: “The last 2 elements of a series should be separated by a comma before the conjunction. This prevents any misreading that the last item is part of the preceding one.” House Legislative Counsel’s Manual on Drafting Style, No. HLC 104-1, § 351 at 58 (1995). The Senate’s legislative manual employs the same language verbatim. Senate Office of the Legislative Counsel, Senate Legislative Drafting Manual § 321(c) 79 (1997). These manuals reflect “widely accepted modern legislative drafting convention[s].” Carr v. United States, 560 U.S. 438, 463 (2010) (Alito, J., dissenting). Legislative drafting manuals give meaning to statutes. See, e.g., BJ Ard, Comment, “Interpreting by the Book: Legislative Drafting Manuals and Statutory Interpretation,” 120 Yale L.J. 185, 200 (2010) (“Drafting manuals provide the shared stylistic framework that OLC and Hill staffers employ to draft a bill, making the manuals particularly credible for establishing the context in which a statute should be read.”); Brian Christopher Jones, “Drafting Proper Short Bill Titles: Do States Have the Answer?,” 23 Stan. L. & Pol’y Rev. 455, 463 (2012)(FISA Amendments Act of 2008 follows the House drafting manual.). Congress follows its legislative manuals. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 61 (2004).
State legislative manuals. Like the U.S. Congress, most state legislatures use drafting manuals to eliminate ambiguity and promote uniformity. The Uniform Law Commission, of the Uniform Commercial Code and other model acts, recommends the serial comma. “Use a comma followed by “and” [or “or”] to separate the last of a conjunctive series of three or more words, phrases, or clauses in a sentence,” writes the Uniform Law Commission in Rule 107(c) of its Drafting Rules (2012). In addition, a majority of state legislative manuals recommend use of the serial comma or allow its use to be optional. See, e.g., Legislative Reference Bureau, Illinois Bill Drafting Manual 232 (2012).
The National Conference of State Legislatures maintains links to current versions of more than 36 states’ legislative drafting manuals. The Wisconsin Supreme Court explains that the serial comma will be assumed when it is used in other parts of the section. Wisconsin v. Jensen, 782 N.W.2d 415, 421 (Wis. 2010). Since Jensen, Wisconsin’s legislative drafting manual requires the serial comma.
Several state legislative manuals disallow the serial comma to be omitted in a series. Arizona, Idaho, Maine, New Mexico, Oregon, South Dakota, and West Virginia are examples of such states. But courts look beyond them in search of clarity. For example, contrary to its legislative drafting manual, Arizona’s supreme court reasons that clarity requires items not separated by a comma to be joined as one item. Estate of Braden v. State, 266 P.3d 349, 352 (Ariz. 2011).
Bryan A. Garner. Legal-writing experts are almost unanimous that clarity requires the serial comma. I start with Bryan A. Garner, “a word man without peer, and [whose] usage and grammar rules are gospel.” Carl S. Kaplan, “Ten Items or Less: A Reflection on the Third Edition of Bryan Garner’s The Winning Brief,” 15 J. App. Prac. & Process 139, 141 (2014). The following are a few examples.
- The Oxford Dictionary of American Usage and Style 70 (2000) (without a serial comma before the conjunction, the final entries are “joined” or “read as one category”).
- The Redbook: A Manual on Legal Style 3 (2002) (“include a comma before the conjunction”).
- The Winning Brief 294 (2004) (“[W]hen a colleague tries to tell you that a comma shouldn’t precede the and or or introducing the last item in a list, ask for authority on the point. Your colleague probably can’t cite one.”).
- Book Review,“Don’t Know Much About Punctuation: Notes on a Stickler Wannabe: Eats, Shoots & Leaves: The Zero[-]Tolerance Approach to Punctuation. By Lynne Truss,” 83 Texas L. Rev. 1443, 1449 (2005) (listing some of the “vast multitude of authorities, who favor it”).
- The Chicago Manual of Style ¶ 6.18 (“When a conjunction joins the last two elements in a series of three or more, a comma—known as the serial comma or the Oxford comma—should appear before the conjunction. Chicago strongly recommends this widely practiced usage, blessed by Fowler and other authorities, since it prevents ambiguity. If the last element consists of a pair joined by and, the pair should still be preceded by a serial comma and the first and.”).
Law-drafting teachers. Legal-drafting teachers hail the serial comma.“In the drafting classroom, the serial comma reinforces the fundamental principle of avoiding ambiguity,” writes Professor Amy Langenfeld in “Capitol Drafting: Legislative Drafting Manuals in the Law School Classroom,” 22 Persp. Teaching & Writing 141, 143 (2014). “Legal writing guides,” writes Professor Susan Hankin, “often recognize that the serial comma may be considered optional in other contexts, [but] they advise that its use be mandatory in legal writing.” Susan J. Hankin, “Statutory Interpretation in the Age of Grammatical Permissiveness: An Object Lesson for Teaching Why Grammar Matters,” 18 Persp. Teaching & Writing 105 (2010).
General style guides. A majority of style manuals recommend the serial comma. Proponents include William Strunk, Jr. and E.B. White, Elements of Style (2005), the United States Government Printing Office Style Manual; American Psychological Association, The Publication Manual of the American Psychological Association (2009); and Modern Language Association, The MLA Style Manual and Guide to Scholarly Publishing. Interestingly, some of the authorities often cited being opposed to the serial comma, in fact, require its use when the list is not simple. True, Ronald Ridout and Clifford Witting write that “in such lists ‘and’ is not preceded by a comma.” The Facts of English 79 (1973). “But there are occasions when it [the serial comma] is necessary,” they conclude. Likewise, the AP Stylebook dispenses with the serial comma only in a simple series, such as “Tom, Dick or Harry.” Associated Press Stylebook and Briefing on Media Law 305 (Darrell Christian et al. eds., 2013). Otherwise, the stylebook commands the use of the serial comma. Under it, assault in the third degree and larceny would be joined as an integral element in section 922(a)(2)’s series.
Ambiguous statutes are resolved in favor of the accused because criminal statutes are strictly construed. Without the serial comma, ambiguities arise. Assault in the third degree and larceny must be proved in a felony murder statute predicated on arson, burglary, kidnapping, rape, robbery or mayhem, assault in the first degree, assault in the second degree, assault in the third degree and larceny. The rules of courts, legislatures, and legal-writing authorities support proof of both items joined as one category.
Keywords: criminal litigation, serial comma, felony murder, statutes, legal drafting
Kele Onyejekwe is an appellate public defender at the Office of the Territorial Public Defender in St. Thomas, United States Virgin Islands. He is also a co-editor-in-chief of the Criminal Litigation newsletter.