The US Supreme Court began its Fall 2023 session Monday with oral arguments in a case that examines federal sentencing laws. The court will decide in Pulsifer V. United States
whether a nonviolent offender who does not have a criminal history of more than four points can be sentenced to a lesser penalty if they meet the three conditions listed in 18 U.S.C. SS 3553(f)(1).Counsel for Pulsifer argued that “ordinary grammar says and the surrounding text confirms” that a defendant must not have (a) more than four criminal history points (b) a prior three-point offense and
(c) a prior two-point violent offense in order to qualify for such a sentence, known as a “safety valve.” When asked by the justices whether the word “and” in the statute should be taken to distribute the phrase “does not have” across all conditions, counsel for Pulsifer argued that it should not, pointing to Congress’ use of “and” to connect other portions of the statute and Congress’ use of “or” as an allegedly intentional disjunctive term.Pulsifer’s counsel also reiterated the fact that in the criminal context of this case, fairness is at stake for thousands of defendants who can potentially avoid harsh sentences for relatively minor drug offenses. According to the Equal Justice Initiative, 45 percent of people in federal prisons are incarcerated for drug offenses, which may contribute to the issue of mass incarceration currently facing the United States.Conversely, the United States contends that “and” is used to join (a), (b), and (c) by distributing the phrase “does not have.” To support this argument, Counsel relied on English grammar guides such as
The Cambridge Grammar of the English Language
, which indicate that “and” is more often used in the distributive sense, even when used alongside a negative, as it is in the statute.Before arriving to the Supreme Court, this case was before the US Court of Appeals for the Eighth Circuit, which affirmed the district court’s decision, ruling in favor of the United States. The court’s ruling states:The practical result of reading “and,” in its distributive meaning, is that SS3553(f),(1) functions as a eligibility checklist for offenders seeking to take advantage of the limitation of statutory minimums. The text uses the phrase “doesn’t have” to introduce each of the three statutory conditions. If the defendant fails to meet the three requirements, they are not eligible for the sentencing guidelines, regardless of the statutory minimum.