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Will the Court nullify even mild sentencing reform?


Congress created a process to reduce the applicability of federal mandatory minimums, and federal prosecutors are trying to whittle it down to nearly nothing through extremely strained textual interpretation:

Fortunately for Pulsifer, mandatory minimums are not exactly in vogue on Capitol Hill these days, given the mountains of evidence that they drain public resources without making anyone safer, all while exacerbating horrific racial disparities in a criminal legal system already rife with them. In 2018 Congress passed the First Step Act, a bipartisan criminal justice reform bill that, among many other things, allows judges to deviate from mandatory minimums for people convicted of nonviolent drug offenses. This provision of federal law, known as the “safety valve,” assigns point values to different offenses and defines the group of people eligible for sentencing reductions as follows: anyone who does not have a significant criminal history (4 or more total points), a prior serious offense (a 3-point offense), and a prior (2-point) violent offense.

This might sound like a lot of numbers, but here the sums matter less than the three-letter word that ties them together. Pulsifer has more than 4 total points, and a previous 3-point conviction. However, he’s never been convicted of a 2-point violent offense. Thus, he says, the safety valve covers him: People aren’t eligible for sentencing relief only if they meet all three criteria, A, B, and C. And because Pulsifer doesn’t meet criterion C, he should be eligible for a sentencing reduction of about five years. Or, as his lawyers put it in their brief, the law’s “plain meaning is unambiguous: “ ‘and’ means ‘and.’ ”

Federal prosecutors, it will shock you to learn, feel differently: In the government’s view, anyone who fails to clear any of these hurdles is ineligible for relief. In other words, it argues that and means “or.”

At oral argument, the justices spent most of their time parsing this slurry of semicolons, em dashes, and conjunctions in painstaking detail, trying to divine whether the First Step Act uses and to join three eligibility criteria together (as Pulsifer argues) or distributively across three independently disqualifying criteria (as the government argues). The lawyers invoked an array of dictionaries, grammar usage guides, statutory drafting manuals, and handbooks for reading law, one of which was co-authored by the late Justice Antonin Scalia. Assistant to the Solicitor General Frederick Liu had the misfortune of having to explain the government’s appeal to “common sense,” which did not appear to land with members of the target audience. “I don’t know that canon, but I guess it’s a good one,” said Neil Gorsuch, the justice perhaps most obsessed with defining himself as a textualist.


The most interesting exchanges occurred when the justices found ways to wade through linguistic minutiae to talk about the real-world stakes of the case: years of Mark Pulsifer’s life, and of the lives of thousands of others who could spend less time in federal prison depending on how the justices decide it. The point of the First Step Act, after all, was to subject fewer people to harsh mandatory minimum sentences. Against this backdrop, why, asked Justice Ketanji Brown Jackson, should the Supreme Court construe a purported ambiguity as narrowly as possible? “I appreciate that and can sometimes mean or,” she said. “But this is not a conversation. This is a statute. And it’s a criminal statute with huge implications for the lives and well-being of the people who come through the system.”

Jackson’s point is compelling — not only should ambiguities generally be resolved against the government in criminal cases, it is perverse to give an exceptionally narrow reading to a statute whose purpose was to make mandatory minimum sentences less common.

If she has a chance of prevailing, it’s because this would seem to be the case of another appearance by the Sporadic Conscience of Neil Gorsuch:

Jackson and her colleagues also returned several times to the fact that safety valve relief is not automatic—that however the justices decide this particular question, a defendant must meet several other eligibility criteria and convince a judge of their worthiness for discretionary relief to actually get a shorter sentence. In practice, ruling for Pulsifer would only marginally reduce the tremendous power that life-tenured judges wield over the futures of the people who come before them. To the extent that Congress wanted to deny anyone the opportunity to even participate in this process, Jackson pointed out, denying it only to those with the most serious and violent criminal histories doesn’t seem “crazy.”

Her most vocal ally on Monday was Gorsuch, whose occasional libertarian sympathies make him probably the most defendant-friendly justice on the conservative wing. (His reputation in this space is cartoonishly overblown in certain circles, but again, we are grading the Supreme Court’s reactionary law-and-order cruelty on a Clarence Thomas curve here.) In an exchange with Liu, Gorsuch focused on the imbalance of power between Pulsifer and the massive carceral state working diligently to lock him up for as long as possible. “The government of the United States has a lot of resources, and the average criminal defendant doesn’t,” he said. If that government is incapable of crafting coherent rules for whom and when and how to punish, it shouldn’t get the benefit of the doubt when someone points that out.

“At the end of the day, what we’re really talking about here is whether mandatory minimums send people away for … life sentences, effectively, for many people, or whether the guidelines, which are not exactly the most defendant-friendly form of sentencing known to man themselves, apply,” Gorsuch said. To that, Pulsifer’s attorney responded, gratefully: “That summation was better than my introduction.”

I will choose to be cautiously optimistic.

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