The Supreme Court Prepares to Examine Ambiguities Surrounding the Term ‘And’ in Upcoming Case

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The term “and” is generally regarded as a straightforward and uncontroversial conjunction in the English language. However, its interpretation has spawned a complex legal debate set to be heard by the Supreme Court on October 2, marking the inception of the court’s new term. The resolution of this issue could have far-reaching implications, potentially affecting thousands of prison sentences annually.

The focal point of disagreement among federal courts nationwide is the precise meaning of the word “and” as employed in the First Step Act, a bipartisan legislation enacted in 2018 aimed at reforming criminal justice. The courts are divided over whether the term means “and” as traditionally understood, or if it implies “or.” An appellate court that had upheld a lengthier prison sentence even described the language of the relevant statute as “confounding.”

To bring closure to this discord, the Supreme Court has decided to intervene. The justices will scrutinize the text of a particular provision within the First Step Act, designed to grant judges more latitude in sentencing by minimizing mandatory minimums. Specifically, they will examine what is known as a “safety valve” provision, aimed at providing relief to low-level, nonviolent drug offenders willing to plead guilty and collaborate with the prosecution.

This examination transcends mere linguistic analysis. In the fiscal year 2021 alone, close to 6,000 individuals convicted for drug trafficking could potentially benefit from a more lenient sentencing framework, according to data compiled by the U.S. Sentencing Commission. Since the inception of the First Step Act, Douglas Berman, a legal scholar specializing in sentencing at Ohio State University’s law school, estimates that over 10,000 sentenced individuals could be impacted.

The provision in question outlines three criteria that judges should consider to waive mandatory minimum sentences, primarily focusing on the gravity of an offender’s prior criminal history. However, the language employed by Congress is constructed in negative terms, making the criteria somewhat difficult to interpret.

The core legal issue to be addressed is how these criteria should be applied to determine eligibility for the safety valve. Legal representatives for Mark Pulsifer, the petitioner whose case is slated for Supreme Court review, assert that all three conditions should be met for a longer sentence to be imposed. On the other hand, the government posits that meeting just one condition is sufficient for invoking the mandatory minimum.

Pulsifer, now 61, was convicted on a single count of distributing a minimum of 50 grams of methamphetamine. He is currently scheduled for release in 2031, according to Federal Bureau of Prison records. While his case is under consideration, appellate courts in various jurisdictions, including Chicago, Cincinnati, and New Orleans, have rendered decisions unfavorable to defendants. Conversely, courts based in Atlanta, Richmond, and San Francisco have interpreted the law more liberally.

Both the interpretation espoused by linguistics experts specializing in law and advocacy groups such as FAMM, criminal defense lawyers, and the American Civil Liberties Union generally favor a more lenient application of the provision. Douglas Berman adds that, while the text suggests a broader interpretation that would benefit defendants, the risk lies in too expansive an interpretation that might dilute the legislative intent of Congress.

The justices’ textualist approach—emphasizing the language Congress uses over legislative intent—could prove pivotal in this case. The prior experience of Justice Ketanji Brown Jackson as a member of the U.S. Sentencing Commission may also play a significant role in the court’s final ruling.

The safety valve provision has found favor among both prosecutors and defendants for expediting convictions and enabling more nuanced sentencing. Regardless of the Supreme Court’s decision, legislative action to clarify the law remains a possibility. Even if the court rules in favor of Pulsifer, judges will not be required to hand down reduced sentences, only that they will not be mandated to impose stricter ones.

A resolution in the case of Pulsifer v. U.S., 22-340, is anticipated by the coming spring.

Frequently Asked Questions (FAQs) about Supreme Court interpretation of First Step Act

More about Supreme Court interpretation of First Step Act

• First Step Act: Overview and Key Provisions
• U.S. Sentencing Commission: Annual Data Reports
• Supreme Court of the United States: Upcoming Cases
• Douglas Berman’s Scholarly Work on Sentencing
• American Civil Liberties Union (ACLU) on Criminal Justice Reform
• Federal Bureau of Prisons: Inmate Records
• Textualism and Judicial Interpretation
• Safety Valve Provision in Sentencing