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New Supreme Court Case Shows That Words, Even Small Ones, Matter

Last week, the justices heard arguments in a case that’s all about the word “and.”

By Nicole Ezeh  |  October 11, 2023

Have you heard of those infamous cases where a missed comma, typo or wrong word cost a company millions of dollars? As silly as that might seem, it’s not uncommon for a court case to revolve around the meaning of a single word. Last week, the U.S. Supreme Court heard a case that’s all about the word “and.”

In Pulsifer v. United States, Mark Pulsifer pled guilty to distribution of 50 or more grams of methamphetamine in violation of federal drug trafficking laws. Due to Pulsifer’s criminal history, he was subject to a 15-year mandatory minimum sentence unless he was eligible for relief under the First Step Act of 2018.

The justices seemed exasperated at the lack of a framework to answer the question of what “and” means.

Congress passed the First Step Act to enact and broaden a series of criminal justice reform initiatives. One of those existing initiatives, the “safety valve,” allows federal district courts to deviate from a mandatory minimum for qualifying defendants. Before the passage of the First Step Act, defendants qualified for this relief in very limited situations. The act broadened the safety valve, allowing a defendant relief if, among other things, the defendant does not have “(A) more than four criminal history points, excluding any criminal history points resulting from a one-point offense … ; (B) a prior three-point offense … ; and (C) a prior two-point violent offense” [emphasis added] (18 U.S.C. § 3553). Under the sentencing guidelines, points are assigned to a defendant’s prior convictions based on the severity of the crime and length of prior sentence.

During his sentencing, Pulsifer argued he satisfied the requirements of the safety valve provision because he did not have more than four criminal history points, and although he did have a prior three-point offense, he did not have both a three-point and a two-point prior offense. Because the provisions were connected with “and” instead of “or,” Pulsifer argued his criminal history satisfied the requirements of the safety valve. The district court rejected this argument, ruling that a defendant is ineligible for safety valve if the defendant fails any one of the three requirements. On appeal, the 8th Circuit Court of Appeals affirmed the district court opinion, stating that the statute’s requirements must be interpreted severally instead of jointly, meaning that the sentencing court should only grant relief if a defendant shows that he does not have more than three points, a three-point offense or a two-point violent offense.

The government argued that defendants who fail any of the safety valve provisions are ineligible for relief. Pulsifer’s interpretation of the safety valve would disqualify only defendants with a rare combination of characteristics, and would permit defendants with worse criminal histories to be eligible for relief instead of defendants with lesser sentences for prior convictions. Citing legal drafting guides and grammar authorities, the government also argued that “and” is often used severally instead of jointly.

At oral argument, the justices examined the text of the entire First Step Act to determine how “and” and other conjunctions were utilized by the bill drafters, and seemed exasperated at the lack of a framework to answer the question of what “and” means. “People who haven’t studied the case must think this is gibberish,” Justice Samuel Alito said.

While the case might seem trivial, the effects of the interpretation of the safety valve provision of the First Step Act could be wide-reaching, potentially changing the requirements for defendants seeking to avoid mandatory minimums throughout the federal criminal justice system. In addition, many states have passed legislation that mirrors or complements the First Step Act, so the current litigation could affect those state laws. The court will issue a decision later in the term. Stay tuned.

Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.

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