In 2018, Congress passed the First Step Act to water down federal sentencing law. I was critical of many provisions of the act at the time, see here, here, and here, though I did agree that some sentences were too harsh and could use a bit of moderation. Mandatory minimums were particularly under assault. I believe they serve a useful function, but some were overboard.
The previous version of 18 U.S.C. § 3553(f) had a safety valve allowing judges to let a defendant off from an otherwise mandatory minimum for certain drug crimes if all five of its listed requirements were met. The criminal history requirement was very narrow, and there is no doubt that the 2018 Congress wanted to open the door wider. But how wide? Unfortunately, the drafting of this section was sloppy, and today the Supreme Court disagreed sharply on how to read it. The case is Pulsifer v. United States.
Paragraph (1) of § 3553(f) limits the safety valve on the basis of criminal history as determined in the Sentencing Guidelines. The pre-2018 version said “(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines,” a very low limit. A one-point offense is one with a sentence of less than 60 days. Only two such priors would be enough to disqualify a defendant from the safety valve. The new paragraph (1) reads (emphasis added):
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
Normally, when a statute has several clauses joined with “and” that is a conjunctive requirement, and all must be met. However, the “not” in the front makes this a trickier problem, one that may have eluded the drafter of this language. Is a defendant disqualified from the safety valve if any of A, B, or C is true or only if all three are true?
In the strict logic used in digital circuits and computer programs “not and” means the output is true if any one of the inputs is false. See, e.g., here and this post. That is how the defendant argues the statute should be read. He meets condition (1) of the safety value if any one of these three criteria is not true. But this is not a digital circuit, and the majority and dissent instead trade examples and counter-examples from ordinary usage that lead to no firm conclusion from the text alone.
As a matter of policy, this would be an odd hodge-podge of requirements if the defendant’s reading were correct. Paragraph C does not say “a prior violent offense of 2 points or more,” it says “a prior 2-point violent offense.” A defendant could have 5 violent 3-point priors and no 2-point ones, totaling 15 points, and this criterion would not be met. Yet a defendant with a single 3-point non-violent prior and a single 2-point violent one, totaling 5 points, would meet all three criteria and be ineligible. See opinion of the Court 21-22. Such a result is much too far at odds with the whole structure of assessing criminal history to have been intended.
The dissent’s response is unconvincing. The dissent observes that policy considerations cannot trump the plain text of the statute (p. 26), but the text is not plain. A nonsensical result is a valid consideration when choosing between two plausible interpretations. The dissent also notes that curious results can come from the way offenses are designated points. A prior that seems more serious to most people can result in fewer points if the defendant got a lenient judge in the prior case (p. 28). But this kind of varying result on the border of a statutory line is a far cry from the absurd result noted in the majority opinion.
A second problem with defendant’s reading, according to the majority, is whether it gives paragraph A any function at all. Doesn’t a defendant who meets both B and C necessarily have at least 5 points, so that A’s threshold requirement of 4 points would always be met whenever B and C are both true? The defendant and the dissent claim that B and C include offenses that would normally qualify as 2-point or 3-point but do not actually result in any points because the Sentence Guidelines exclude them for reasons such as being too old. The majority doesn’t buy it (pp. 18-19). The text says a 2-point or 3-point offense “as determined under the sentencing guidelines,” and that means an offense that is actually counted as 2 or 3 points. The defendant’s reading would make paragraph A superfluous. Why would anyone write a statute that requires all of three criteria must be met when meeting only two of the three achieves the exact same result? No one would, so that reading is likely wrong.
Pulsifer is a 6-3 decision, but it does not follow the standard “liberal” v. “conservative” lines, illustrating once again the limits of those labels. Justice Kagan wrote the opinion of the Court, interpreting the statute in a way that makes policy sense. Justice Gorsuch wrote the dissent, favoring an interpretation to maximize the number of criminals who are eligible to escape the mandatory minimum, see p. 7, despite bizarre results that make it unlikely to have actually been intended.
P.S.: Doug Berman has this post at Sentencing Law and Policy headlined “In notable 6-3 split, SCOTUS rules in Pulsifer that ‘and’ means ‘or’ for application of FIRST STEP safety valve.” No, the majority’s position is not that “and” means “or.” It is that the “not” is distributed through the subparagraphs rather than “and-ing” them first and then applying the “not” to that result.
Symbols:
Not = ¬And = ∧Or = ∨
Majority -> ¬A ∧ ¬B ∧ ¬C
Dissent -> ¬(A ∧ B ∧ C)
The majority’s position produces the same result as ¬ (A ∨ B ∨ C), but that is not its interpretation of the language.
