The US Supreme Court kicked off its Fall 2023 term Monday by hearing oral arguments in a statutory interpretation case examining federal sentencing laws. The issue before the court in Pulsifer v. United States is whether a nonviolent drug offender can receive a sentence below the mandatory minimum for their offense if they do not meet all three disqualifying conditions mentioned in 18 U.S.C. § 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. According to the court’s decision:
The practical effect of reading “and” in its distributive sense is that § 3553(f)(1) serves as an eligibility checklist for offenders who seek to avail themselves of the limitation on statutory minimums. The text distributes the introductory phrase “does not have” across each statutory condition. … If a defendant does not meet all three conditions, then the defendant is not eligible to be sentenced under the sentencing guidelines without regard to the statutory minimum.
Also on the court’s docket this term are cases regarding firearm possession, racial gerrymandering and blocking on social media, among others.