The Supreme Court to Delve into a Case Laden with ‘Buts’ and ‘Ifs’ Surrounding the Definition of ‘And’

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WASHINGTON — Few words appear as innocuous and uncontroversial as “and.”


Yet, the interpretation of this seemingly unassuming conjunction has ignited a complex legal battle that now stands before the Supreme Court as it commences its new term on October 2. The ramifications of the Court’s ruling could reverberate through thousands of prison sentences each year. A schism exists within federal courts nationwide regarding whether this word, as employed in a bipartisan 2018 overhaul of the criminal justice system, signifies “and” or “or.” Even an appellate panel that upheld an extended sentence found the structure of this provision to be “bewildering.”

The Supreme Court has assumed the mantle of resolving this dispute.

It’s precisely the kind of task that the justices—perhaps even their English instructors—relish. This case demands a meticulous dissection of a segment within a federal statute, the First Step Act, which aimed, in part, to curtail mandatory minimum sentences and bestow greater discretion upon judges.

Specifically, the justices will scrutinize what is known as the “safety valve provision.” This provision seeks to spare low-level, nonviolent drug offenders who opt to plead guilty and cooperate with prosecutors from facing lengthier mandatory sentences.

This endeavor transcends the mere art of diagramming a sentence. In the 2021 fiscal year alone, nearly 6,000 individuals convicted of drug trafficking find themselves within the pool of those potentially eligible for reduced sentences, as per data compiled by the U.S. Sentencing Commission.

In sum, over 10,000 individuals sentenced since the enactment of this law could potentially be affected, as noted by Douglas Berman, a sentencing expert hailing from Ohio State University’s law school.

The provision outlines three criteria that authorize judges to waive mandatory minimum sentences. Congress, in its wisdom, chose to couch this section in negation, thereby enabling judges to wield discretion in sentencing if a defendant “does not have” three specific types of criminal history.

The crux of the matter hinges on how to ascertain eligibility for the safety valve—whether any of these conditions, in isolation, suffice to disqualify an individual, or if the presence of all three is requisite for ineligibility. Counsel for Mark Pulsifer, the inmate whose case is before the Court, contend that all three conditions must concur for the imposition of a longer sentence. Conversely, the government posits that the mere presence of one condition suffices to mandate a minimum sentence.

The Supreme Court to Delve into a Case Laden

Pulsifer admitted guilt to a sole count of distributing a minimum of 50 grams of methamphetamine. Two of the three conditions applied to Pulsifer, leading both the trial court and the St. Louis-based 8th U.S. Circuit Court of Appeals to designate him as eligible for a mandatory sentence, spanning at least 15 years. He, in fact, received a 13 1/2-year sentence for reasons unrelated to this matter.

At present, Pulsifer, aged 61, remains incarcerated with a release date not slated until 2031, as per records from the federal Bureau of Prisons.

Appellate courts in Chicago, Cincinnati, and New Orleans have similarly ruled against defendants. Conversely, courts in Atlanta, Richmond, Virginia, and San Francisco have adopted a broader interpretation, thus expanding eligibility for safety valve reductions.

In a Texan case, Nonami Palomares, apprehended with heroin at the U.S.-Mexican border, faced a mandatory 10-year sentence due to a prior drug offense dating back two decades. Absent this, she might have seen a two-year reduction in her sentence.

However, in San Diego, Eric Lopez, found in possession of approximately 45 pounds of meth during his arrest, qualified for the safety valve, notwithstanding his previous conviction. U.S. District Judge James Lorenz, in Lopez’s case, remarked upon the ambiguity of the law.

The Supreme Court’s ruling could potentially influence the cases of both Palomares and Lopez.

Linguists specializing in legal language submitted a brief wherein they detailed survey findings, indicating that people viewed the language as either ambiguous or in alignment with the interpretation advocated by Pulsifer’s legal team.

FAMM, an advocacy group opposed to mandatory minimum sentences, has joined forces with criminal defense attorneys and the American Civil Liberties Union in asserting that mandatory sentences “contravene the essence of Congress’s intentions in amending the safety valve provision: granting judges the latitude to exercise discretion when sentencing low-level, nonviolent drug offenders.”

Berman opines that the statutory language itself hints at a comprehensive interpretation favoring defendants. “However, the concern with such a broad view is that it encompasses practically everyone. I believe it is safe to assume that such was not Congress’s intent,” Berman observes, echoing the sentiments of judges who aligned with prosecutors.

In a Court where numerous justices, spanning the ideological spectrum, profess allegiance to the words selected by Congress, with limited consideration for congressional intent, this could prove pivotal in favoring defendants. Additionally, Justice Ketanji Brown Jackson’s prior tenure as a member of the U.S. Sentencing Commission could wield substantial influence in the Court’s resolution of this case.

The safety valve has elicited interest from both prosecutors and defendants, as it expedites convictions and facilitates more nuanced sentencing parameters, as per Berman.

Irrespective of the verdict, Congress retains the prerogative to clarify the law. Even if Pulsifer prevails, judges are not compelled to impose lesser sentences, Berman underscores. Their discretion, however, would no longer be constrained by mandatory sentencing.

A decision in Pulsifer v. U.S., 22-340, is anticipated in the coming spring.

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