Lawyers and justices argued during an Oct. 2 hearing about whether “and” always means “and,” as a convicted drug dealer hoping to reduce his sentence under the First Step Act of 2018 made his case before the Supreme Court.
The case, Pulsifer v. United States (court file 22-340), was heard on the first day of the court’s new term.
The First Step Act, a bipartisan measure approved by Congress and signed by then-President Donald Trump in 2018, reformed aspects of the criminal justice system, making it easier for the courts to reduce penalties for nonviolent drug offenders.
At the time he signed the First Step Act, President Trump said it constituted “an incredible moment” for “criminal justice reform.” He singled out the sentencing reforms included in it, saying “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption, so if something happens and they make a mistake, they get a second chance at life.”
Even though President Trump considers the legislation to be one of his signature achievements, it is not popular among some conservative Republicans.
For example, Florida Gov. Ron DeSantis, who, like President Trump, is seeking the GOP 2024 presidential nomination, said earlier this year he would repeal the law, which he called “a jailbreak bill.”
“If you are in jail, you should serve your time. And the idea that they’re releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake,” the governor said.
'Safety Valve'Under the “safety valve” provision of the statute, judges are allowed to ignore mandatory minimum sentences when defendants convicted of nonviolent drug offenses present only a limited criminal history. In such cases, judges can follow the more lenient established sentencing guidelines instead.
The provision includes three requirements related to the person’s criminal track record.
The justices are considering whether defendants cease to qualify for the safety valve if they meet only one of the criteria, or if they are required to satisfy all three. Point values are assigned to offenses.
Defendants are eligible if they do not have a lengthy criminal history, a previous serious offense, “and” a previous violent offense.
15 Years Prison for Drug DealingThe petitioner, Mark Pulsifer, pled guilty in federal district court in Iowa to one count of distributing 50 grams or more of methamphetamine, contrary to federal law. Because he was previously convicted of a serious drug felony, the statutory minimum penalty for the new offense was 15 years imprisonment.
Mr. Pulsifer argued that under the First Step Act, he was eligible to be sentenced under sentencing guidelines and without regard to the statutory minimum of 15 years. Under the act, his case would be evaluated under a criminal history point-based system.
The district court rejected the First Step Act argument but sentenced him under a different authority to 162 months, or 13.5 years, in prison to be followed by 10 years of supervised release.
Mr. Pulsifer appealed, arguing the court erred in not applying the guideline range that would have been in effect if there were no statutory minimum.
The U.S. Court of Appeals for the 8th Circuit affirmed the trial court in July 2022.
Mr. Pulsifer’s attorney, Shay Dvoretzky, posed a rhetorical question in a brief he filed with the court:
“In other words, is a defendant eligible for safety-valve relief so long as he does not have all three of (A), (B), and (C), or is he eligible only if he does not have (A), (B), or (C)?”
“Plain meaning, context and purpose — not to mention Occam’s razor — all point to the same conclusion: ‘And’ means ‘and.’”
“Ordinary English speakers understand that ‘and’ means ‘and,’ not ‘or,’” he wrote.
At the oral argument on Oct. 2, Mr. Dvoretzky said:
“The natural reading of Section 3553(f)(1) is that ‘and’ means ‘and.’ It joins together enumerated criteria. To be safety valve eligible, a defendant must not have (A), (B), and (C), all three. That's what ordinary grammar says and the surrounding text confirms.”
“The government needs ‘and’ to mean ‘or’ or it needs the court to insert the words ‘does not have’ into the statute three times. But asking for a rewrite isn't statutory interpretation,” he said.
Justice Elena Kagan pushed back.
“When we look at this statute, I mean, isn't what is most likely to have gone on here is that Congress made a completely ordinary drafting decision which said does not have A, does not have B, and does not have C? Who writes like that?”
“What we usually do is we try to make writing efficient and not repetitive, and so we take out terms that apply to everything and put it in a format where we don't have to keep repeating it,” she said.
“We don't keep on repeating a verb when the verb applies to everything. So that's what Congress did here. It just took out the – rather than say ‘does not have’ three times, it took it out and put it in prefatory language, followed by three things that you shouldn't have.”
The Biden administration argued that any offense matching the criteria means defendants would fail to satisfy safety valve requirements.
U.S. Department of Justice attorney Frederick Liu said, “‘And’ is conjunctive … the question is what does ‘and’ join?”
Justice Ketanji Brown Jackson, who used to work for the United States Sentencing Commission, said the stakes are high for criminal defendants.
“I appreciate that ‘and’ can sometimes mean ‘or’ but this is not a conversation. This is a statute. And it’s a criminal statute with huge implications for the lives and well-being of the people who come through the system.”
Justice Samuel Alito expressed frustration.
“Everybody I assume in this courtroom today speaks the English language, and all we’re trying to do is understand some words in the English language,” he said.
“It just seems to me that a lot of these arguments that we’ve heard, I mean, the people here who haven’t studied the case must think … this is gibberish.”