Skip to content
Version 1.0.0
Sentencing Law and Policy
Part of the Law Professor Blogs Network

In notable 6-3 split, SCOTUS rules in Pulsifer that “and” means “or” for application of FIRST STEP safety valve

By Douglas Berman

The Supreme Court this morning handed down its opinion in the sentencing case of this Term I have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back onthe first day of this Term).  Specifically, Justice Kagan authored the opinion for the Court, while Justice Gorsuch filed a dissenting opinion joined by Justices Sotomayor and Jackson.  Here is how the Court’s lengthy opinion (available here) gets started: 

The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms.  To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history.  That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence.  In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”

The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions.  On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C.   Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three.  The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief.  On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C.  Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three.  Today, we agree with the Government’s view of the criminal-history provision.

Justice Gorsuch’s dissent, which runs even longer than the Court’s opinion, kicks off:

The First Step Act of 2018 may be “‘the most significant criminal justice reform bill in a generation.’” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9.  Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences.  In part due to these policies, the federal prison population grew by more than 100% in less than a decade.  In the First Step Act, Congress sought to recalibrate its approach.  It did so by promising more individuals the chance to avoid one-sizefits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act.  Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests.  After the Act, all those tests remain, only the first is now less demanding.  As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense.  In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits — A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief ).  Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits — A, B, or C.

If this difference seems a small one, it is anything but.  Adopting the government’s preferred interpretation guarantees 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.  Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result.  Ordinary meaning is its first victim.  Contextual clues follow.  Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.  Respectfully, I would not indulge any of these moves.

Though I will need some time to read and re-read these opinions before having firm thoughts, this ruling serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts.  I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS (sometimes led by Justice Scalia or Justice Stevens or Justice Kennedy reversing circuit rulings for the government).  But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.