On March 15, the United States Supreme Court severely limited the reach and impact of the 2018 First Step Act, which has been widely praised as the most significant criminal justice reform in decades. It did so in a decision so mind bogglingly technical and complex that it gives life to Charles Dickens’s portrait of law as a fog of obscurity in his mid-19th century novel “Bleak House.”
The court’s decision in Pulsifer v. United States concerned a very consequential question: Who may be eligible to have their prison sentences reduced in length under the First Step Act. Pulsifer, who according to the New York Times “had been accused of twice selling methamphetamine to a confidential informant in southwest Iowa, pled guilty to a single count of distributing at least 50 grams of methamphetamine. He had a prior drug conviction from 2013 in the state for possessing a controlled substance with intent to distribute.”
His case created an unusual alignment of justices, with Justice Elena Kagan joining five of her conservative colleagues in the majority and Justice Neil Gorsuch writing a dissent joined by liberal Justices Sonia Sotomayor and Ketanji Brown-Jackson.
Kagan’s opinion puts a troubling stumbling block in the way of achieving the First Step Act’s goal of reducing draconian sentences for non-violent drug offenses — and ends the hope of thousands of prisoners for early release. It pivoted on the question of whether a word in one section of the First Step Act really means what it says or if it means something else.
The word in question is “and.”
That applicable section of the act, the so-called “safety-valve” provision, offers, as Kagan explained, “some defendants convicted of drug offenses an escape from otherwise applicable mandatory minimums.” It allows judges to exercise discretion in determining appropriate sentences.
The New York Times report on the Pulsifer case says that “The law lists three types of criminal history among its criteria for eligibility. The justices were asked to decide whether just one type of criminal history disqualifies a person from a lighter sentence, or whether all three must be present for a disqualification.”
The applicable section of the act is written in the negative. It says that the defendant must “not have” previously committed three different kinds of offenses. The section uses the word “and” between the second and third in that offense list.
Acknowledging that he had committed offenses in the first two listed categories, Pulsifer said he had not committed an offense in the third listed category. As a result, he contended, he should be eligible for “safety-valve” consideration.
He argued that the statute meant what it said when it used the word “and.” That word meant he could only be excluded if he had committed offenses in all three categories.
Seems straightforward.
The Biden administration, again displaying its hard-to-follow attitude on criminal justice policy, disagreed.
It insisted that the “and” should be read as if it meant “or.” In its view, Pulsifer could not qualify for the “safety-valve” exception if he had committed an offense in any one of the three categories listed in the statute.
As the Brennan Center for Justice reported last year, “Federal appeals courts have split on this grammatical tangle. The Fourth, Ninth and Eleventh Circuits (covering the West Coast and much of the South) follow Pulsifer’s interpretation. But the Eighth Circuit, which first heard his case, as well as the Fifth, Sixth, and Seventh Circuits, have held that the statutory language introducing the list of disqualifying conditions (‘does not have’) applies to each item in the list separately, effectively converting ‘and’ to an ‘or.’”
The six-justice majority on the Supreme Court supported the government’s position and those of the Fifth, Sixth, Seventh and Eighth Circuits.
But the court’s decision in the Pulsifer case is more than an English teacher’s nightmare. It guts a key section of the First Step Act.
That act was an important break from harsh “law and order” politics that, for more than half a century, have dominated criminal justice policy in this country.
Remarkably in an era of intense partisan polarization, the First Step Act had passed the Senate by a vote of 87-12 and the House of Representatives 358-36. It was signed into law by President Donald Trump just before Christmas in 2018.
“The First Step Act,” he said, “will make communities SAFER and SAVE tremendous taxpayers dollars. It brings much-needed hope to many families during the holiday season.”
The act included provisions designed to improve conditions for current prisoners and reduce recidivism. It also expanded the amount of “good time credit” that prisoners could accumulate toward reductions in their sentences.
The Brennan Center estimates that the “‘good time’ amendment will benefit as many 85 percent of federal prisoners.”
The act also changed the “three strikes” rule that imposed a life sentence for three or more convictions and reduced the harshness of sentences for nonviolent drug offenses. And it expanded the “drug safety-valve” provision that was at the heart of the Pulsifer case.
The highlight of Kagan’s interpretation of that provision was a nine-page exegesis on what she called “grammatical structure.” Along the way, she surveyed “grade-school math notation,” a dictionary of legal usage, Eric Carle’s wonderful children’s story, “The Very Hungry Caterpillar,” and The Cambridge Grammar of the English Language. She noted, with no hint of irony or regret, that the Supreme Court does “not demand (or in truth expect) that Congress drafted in the most translucent way possible.”
Kagan concluded that the “safety-valve” provisions of the First Step Act created what she called “an eligibility checklist,” which specified three necessary conditions for relief. “A defendant,” she said, “is eligible for safety valve relief only if he satisfies each of the paragraphs 3 conditions,” which they stated Pulsifer could not do.
Justice Gorsuch’s dissent took up the grammatical challenge that Kagan laid down. Ignoring her survey of grammar sources, he insisted that “our duty is to interpret congresses work as an ordinary reader would.”
Such a reader, Gorsuch argued, would understand the word “and” to mean “‘together with,’ ‘along with,’ ‘in addition to,’ or ‘as well as.’”
He noted that elsewhere in the First Step Act Congress had used the word “or” and that it could have used that word in the “safety-valve provision” but chose “and” instead. And, contra Kagan, Gorsuch said that “our cases begin (and often end) with the presumption that Congress is careful in all its word choices and afford variations between terms like ‘and’ and ‘or’ the same respect to others.”
Gorsuch reminded his colleagues, if they had any doubt about the meaning of the “safety-valve” provision, that long-standing Supreme Court precedent requires them “to interpret ambiguous ‘penal laws,’ including those concerning sentencing, in favor of liberty, not punishment. […] Today,” he said, “the court does not hedge its doubt in favor of liberty. It is a regrettable choice that requires us to abandon one principle of statutory construction after another.”
In the end, Gorsuch was right to point out that Kagan’s grammar games produced a draconian result. They guarantee, he noted, that “thousands more people in the federal criminal justice system will be denied a chance-just a chance-at an individualized sentence. For them, the First Step Act offers no hope.”
For the rest of us, the Pulsifer decision means that a rare example of a bipartisan agreement to change course in our treatment of criminal offenders has suffered a disappointing setback.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.