Fate of Thousands of Convicts May Lie in This One Word

Sentencing case that's going before the high court revolves around the word 'and'
By Newser Editors and Wire Services
Posted Sep 25, 2023 7:53 AM CDT
Grammarians May Be Curious About This SCOTUS Case
The Supreme Court is seen in Washington, with the US Capitol in the distance, on Nov. 4, 2020.   (AP Photo/J. Scott Applewhite, File)

It's hard to imagine a less contentious or more innocent word than "and." But how to interpret that simple conjunction has prompted a complicated legal fight that lands in the Supreme Court on Oct. 2, the first day of its new term. What the justices decide could affect thousands of prison sentences each year. Federal courts across the country disagree about whether the word, as it's used in a bipartisan 2018 criminal justice overhaul, indeed means "and" or whether it actually means "or." Even an appellate panel that upheld a longer sentence called the structure of the provision "perplexing." The Supreme Court has stepped in to settle the dispute, per the AP.

It's the kind of task the justices—and maybe their English teachers—love. The case requires the close parsing of a part of a federal statute, the First Step Act, which aimed in part to reduce mandatory minimum sentences and give judges more discretion. In particular, the justices will be examining a so-called safety valve provision that's meant to spare low-level, nonviolent drug dealers who agree to plead guilty and cooperate with prosecutors from having to face often longer mandatory sentences. It's much more than an exercise in diagramming a sentence: Nearly 6,000 people convicted of drug trafficking in the 2021 budget year alone are in the pool of those who may be eligible for reduced sentences, per data compiled by the US Sentencing Commission.

Overall, more than 10,000 people sentenced since the law took effect could be affected, according to Douglas Berman, a sentencing expert at the Ohio State University's law school. The provision lists three criteria for allowing judges to forgo a mandatory minimum sentence that basically looks to the severity of prior crimes. Congress didn't make it easy by writing the section in the negative, so that a judge can exercise discretion in sentencing if a defendant "does not have" three sorts of criminal history. The question is how to determine eligibility for the safety valve—whether any of the conditions is enough to disqualify someone or whether it takes all three to be ineligible. Lawyers for Mark Pulsifer, the inmate whose challenge the court will hear, say all three conditions must apply before the longer sentence can be imposed.

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The government says just one condition is enough to merit the mandatory minimum. Pulsifer pleaded guilty to one count of distributing at least 50 grams of methamphetamine. Two of the three conditions applied to Pulsifer, and that was enough for the trial court and the St. Louis-based 8th US Circuit Court of Appeals to make him eligible for a mandatory sentence of at least 15 years. He actually received a 13 1/2-year sentence for unrelated reasons. Now 61, Pulsifer isn't scheduled to be released from prison until 2031, per federal Bureau of Prisons records. Congress could clarify the law, no matter which side wins. Even if Pulsifer prevails, judges won't be obligated to impose lower sentences, Berman said. They just won't be compelled to give mandatory ones. A decision in Pulsifer v. US is expected by the spring.

(More US Supreme Court stories.)

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