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March 15, 2024

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

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.

March 15, 2024 at 10:19 AM | Permalink



In other news, Fani gets to say--what a joke.

Posted by: federalist | Mar 15, 2024 10:30:28 AM


Why does the SCOTUS have to be pro-defendant or pro-Government? Why can't it just get the decision right, no matter whose ox is gored? Your posts always suggest that in any contested sentencing issue, the defendant should win if there's any credible way to write the opinion. That's a policy position, not a legal position.

Posted by: Da Man | Mar 15, 2024 11:43:30 AM

Da man, I tend to agree with you. I don't consider myself "pro-defendant" at all, yet I think Apprendi was right among other decisions.

Posted by: federalist | Mar 15, 2024 12:19:19 PM

Da Man: I mean to be descriptive, not prescriptive, in these accounts of SCOTUS work. Issues do not get SCOTUS attention unless and until there are credible arguments on both sides, and in criminal cases those sides are often conveniently described as pro-defendant and pro-govt. In the era of Apprendi/Blakely/Booker, lower courts frequently rejected defense efforts to extend these rulings, and SCOTUS regularly took up these issues and rebuffed government claims that these rulings should be limited. (Rulings I have in mind here include, e.g, Ring, Blakely, Cunningham, Gall, Kimbrough, Spears, Pepper, Dorsey, Southern Union, Puegh.)

I agree that labels like "pro-defense" and "pro-governtment" serve as imperfect and incomplete ways to describe arguments or votes in SCOTUS cases, and rulings and votes in every SCOTUS era defy simplified accountings. But the labels can provide a crude/simplified way to capture some essentials or some eras -- eg, that SCOTUS a few decades ago seemed more likely to disrupt lower-court rulings for the government than they seem to be now. And, critically, different issues/cases can and often do lead different judges and justices to different views of the "right" answer on all of these topics. As it should be.

Still, any serious SCOTUS observer can already reasonably predict where Justices Alito and Sotomayor are likely to come out on some future criminal cases --- and that descriptive truth is a critical part of understanding the realities of how SCOTUS resolves cases (and decides what cases to take up). It also reveals, as Justice Gorsuch stresses, that policy views always, at least to some extent, undergird all legal interpretations.

Posted by: Doug B | Mar 15, 2024 12:31:51 PM

Doug --

"It also reveals, as Justice Gorsuch stresses, that policy views always, at least to some extent, undergird all legal interpretations."

Including, of course, his own.

P.S. Although I'm most often a strict literalist, I think Justice Kagan's decision is the one gives the better common sense accounting of the statute.

Posted by: Bill Otis | Mar 15, 2024 2:10:33 PM

And means or. War is peace.

SCOTUS are textualists - i.e. whatever the heck they want the text to mean. No principles, pure politics.

Posted by: John Minock | Mar 15, 2024 4:47:29 PM

I agree 100%, Bill, that Gorsuch reveals his policy preferences in his dissent. He mentions the word "liberty" six times in his dissent. The opinion for the Court does not use the word once.

Posted by: Doug B | Mar 15, 2024 5:23:00 PM

Doug --

Policy preferences might have a degree of influence, yes, but get-down-in-the-weeds legal analysis has more. That's what Justice Kagan did, together with a not-that-close majority.

If just repeating the word "liberty" should tell the tale, however, does that work to get to get a ten day sentence for Sam Bankman-Fried? Why not? His liberty counts, too, no? And suppose the Court majority repeats the word "accountability" seven times. Should that win the case, on the theory that seven is more than six?

Posted by: Bill Otis | Mar 15, 2024 9:18:11 PM

John Minock --

Justice Kagan is "no principles, pure politics." Was that true in Dobbs, too? In the affirmative action case?

Posted by: Bill Otis | Mar 15, 2024 9:20:31 PM

I had read that more than once before and always assumed the "and" really meant "or", because the other way to read it makes no sense.

Posted by: William C Jockusch | Mar 15, 2024 10:38:54 PM

Bill, I do not see "get-down-in-the-weeds legal analysis" as all that distinct from "policy preference" here given that both Justices Kagan and Gorsuch are in the weeds. As Justice Gorsuch explains (and as Judge Pryor found for the en banc 11th Circuit), textualism and the rule of lenity and other legal tools lead him to see the weeds growing the other way than how Justice Kagan sees matters. How, then, does one pick between two viable and plausible "get-down-in-the-weeds legal analyses"? Seem like "policy preference" -- whether explicit or implicit -- serves at least as a tie-breaker.

Of course, all types of policy preferences -- whether "liberty" or "accountability" or how best to apply the "canon against surplusage" --- have all types of possible applications. As one for example, Justice Gorsuch's vision of "liberty" seem not to shape his votes on habeas cases. I'm not claiming "policy preferences" make legal decision-making any easier or clearer. Rather I am just asserting that "policy preferences" in some form are inevitably a part of legal decision-making (especially at the Supreme Court level). That was a point you were seemingly making in your 2:10 comment, and I was agreeing.

Of course, you know well that policy views influence legal decision-making. If you did not, you would not have much reason to care who gets appointed as judges (or who runs DOJ). But I surmise you care about this a lot because you fully recognize my descriptive point: "policy views always, at least to some extent, undergird all legal interpretations."

Of course, myriad other factors can impact legal decision-making, too. Indeed, how we even distinguish what's "legal" and what's "policy" (and what else is involed) is syrely contestable --- eg. was Robert Hur's recommendation not to pursue criminal charges against Joe Biden a "legal" decision or a "policy" one or something else? How about SCOTUS's decisions to expedite hearing argument and issuing rulings in various cases involving Donald Trump?

Posted by: Doug B | Mar 16, 2024 11:10:00 AM

Doug --

The idea that there is no discernible difference between law and policy is the straight path to solipsism, in which NO legal outcome can be defended on principle, but only on grounds of personal preference. That's bad enough in itself (indeed, it's essentially the end of law as currently understood), but even worse, it's the opening portal for vigilantism. How can law claim any authority over self-help if it's just one man's opinion vs. the next man's vs. the next man's? The human race developed law PRECISELY to get beyond that.

Posted by: Bill Otis | Mar 17, 2024 3:04:30 PM

Bill, I see a huge difference between "policy views" and "personal preference." Democracy governance and a commitment to human liberty are, in my view, policy values that I will embrace, support and defend far beyond my personal preference for vanilla over strawberry or for real football over soccer. If you think policy commitments are no more than just debates over personal tastes and preferences, Bill, you are the one with a shallow view of how the human race generally organizes its affairs and moral commitments.

Though I suspect we are likely debating semantic more than big philosophical defenses, perhaps we can move forward by efforts to answer these slightly reformulated questions: Did "law" or "policy" or just "personal preference" drive Robert Hur's recommendation not to pursue criminal charges against Joe Biden? (I'd say "policy".) Did "law" or "policy" or just "personal preference" shape SCOTUS's decisions to expedite hearing argument and issuing rulings in various cases involving Donald Trump? (I'd say "policy".) Ot how about did "law" or "policy" or just "personal preference" lead to the invention of sentencing appeal waivers? (I'd say "policy".)

Policy can and should be informed by all sort of principles. "Personal preference," as I see it, is a matter of taste without concern for principles (eg, what principles can explain why I have a taste for vanilla)? Law can be principally informed by policy views --- indeed, its development and application usually will be (though some lawmakers and law appliers may elevate "personal preference").

Posted by: Doug B | Mar 17, 2024 6:47:54 PM

A lot of this discussion of personal preference vs. policy preference reminds me of the 9-0 opinion in Hurley v. ILGO. No one can accuse Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer of being "anti-gay." And if they allowed their personal preferences to trump the constitutional rights at issue, they would have voted differently. But they properly found that the First Amendment doesn't permit a city to force a private speaker to carry a message it disagrees with (no matter how much those justices agreed with the message).

Posted by: Da Man | Mar 19, 2024 11:51:55 AM

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