Supreme Court’s Answer to a Simple Question Has Devastating Consequences

By Shanna Rifkin

The Supreme Court decision in Pulsifer v. United States is the kind of case that makes the legal world subject to jokes and eyerolls. This incredibly important case came down to a very simple question: What does “and” mean?

Yes. You read that right.

FAMM has advocated against mandatory minimums for over 30 years — and for good reason. Mandatory minimums take discretion away from judges and require a strict sentence on an individual. These mandatory minimum sentences are nearly impossible to avoid. One exception to a mandatory minimum sentence is aptly called the “safety valve.” The safety valve, adopted in 1994, provides a set of criteria that allows a judge to disregard a mandatory minimum sentence for defendants who meet them. One of those criteria has to do with the defendant’s criminal history.

Qualifying for the safety valve has historically been limited to very few people. But in the First Step Act, Congress expanded access to the safety valve by permitting people with more criminal history to qualify. Under the First Step Act, courts are directed to disregard a mandatory minimum if, among other things, the defendant does not have:

**more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

**a prior 3-point offense, as determined under the sentencing guidelines; and

**a prior 2-point violent offense, as determined under the sentencing guidelines.

The bolded “and” is what led to the Supreme Court case. Courts across the country disagreed about whether “and” truly meant “and” (as in the conjunctive sense) or if “and” actually meant “or” (as in the disjunctive sense). Cue the jokes about lawyers.

If “and” was interpreted conjunctively, then a person was eligible for the safety valve, so long as they did not have all of the above disqualifying factors. But if “and” really meant “or,” then a person was disqualified from the safety valve if they met even just one of the criteria above. This “or” reading would seriously limit the number of people eligible for the safety valve.

When the issue reached the Supreme Court, FAMM submitted an amicus brief (friend of the court brief) urging the court to adopt the “and” interpretation. In essence, we urged the Court to interpret the First Step Act as it was written. After all, the Supreme Court typically follows a rule of statutory interpretation that essentially says, “Congress says what it means!” And if Congress wrote “and,” then it must mean “and,” not “or.”

Curiously, however, six members of the Supreme Court, led by Justice Elana Kagan, said that “and” means “or.” This is confusing and concerning for a few reasons. Above all, it ignores the words of the statute. First, many of the conservative justices on the Court cling to their identities as “strict textualists,” meaning that they believe they interpret statutes by relying on the text as it was written by Congress. Nothing more. Well, perhaps they are just not textualists when a textualist interpretation would benefit criminal defendants.

Second, the Court acknowledged that Congress meant to expand access to the First Step Act, but said the text of the law, not the intent, is what matters. And yet, they still found the more limiting definition — one contrary to the text of the law — to reign supreme. The Court essentially jumped through more hoops than one thought possible to arrive at a conclusion — that “and” means “or” — that only makes sense if the goal was to limit the number of people who could be eligible for the safety valve. And that is exactly what will happen.

Justice Gorsuch, writing for the dissent (along with Justices Sotomayor and Jackson) characterized the majority’s statutory interpretation as requiring mental gymnastics — and he is so right. But statutes, Justice Gorsuch says, “are not games or puzzles” and this is especially so when the word at issue in the statute is as simple as “and”!

As Justice Gorsuch noted — and all lawyer jokes aside — “and” versus “or” has serious implications for legal rights. In this case, “the difference between ‘and’ versus ‘or’ affects the lives of thousands — a fact so inconvenient for the Court that the Court says to ignore it.”

The dissenting opinion also did something really important and noteworthy: it elevated the Rule of Lenity. What’s that, you ask? Well, when someone’s liberty is at stake, and courts can’t figure out what a law means, it seems only fair that the law should be interpreted in a way that benefits the criminal defendant. This theory is known as the Rule of Lenity. In this case, because the Justices disagreed about the meaning of “and” in the law, the law should be interpreted with the meaning least harmful to the defendant. FAMM’s amicus brief to the Supreme Court endorsed the Rule of Lenity as a guiding tool when interpreting the question in this case. Even though lenity did not win, Justice Gorsuch’s endorsement could have important implications for other cases in the future.

At the end of his dissent, Justice Gorsuch hit the nail on the head when he asked what is the impact of an opinion that defies tradition, ignore rules of statutory interpretation, and makes no sense? Sadly, as Justice Gorsuch noted, the impact is “[t]o deny some individuals a chance — just a chance — at relief from mandatory minimums and a sentence that fits them and their circumstances. It is a chance Congress promised in the First Step Act, and it is a promise this Court should have honored.”

So, what can be done about this outcome? Unfortunately, Supreme Court opinions are binding on all federal courts, so for now, “and” means “or.” But one way to tell the Supreme Court they got it wrong is to pass a new law that would allow for a more expansive safety valve.

Fortunately, that bill already exists! Sen. Dick Durbin has introduced a bill alongside fellow First Step Act champion Sen. Chuck Grassley in the U.S. Senate, known as the First Step Implementation Act (S. 1251). This bill includes a provision that would allow judges to “waive” the criminal history eligibility criteria in certain cases, in the judge’s discretion. You can support this bill by urging your member of Congress to sign on.

Shanna Rifkin is FAMM’s Deputy General Counsel.