Douglas Berman

"Context is everything." This adage could have been a mantra for both the U.S. Supreme Court majority and the dissenters in Pulsifer v. U.S., decided March 15.[1]

Pulsifer resolved an intricate statutory interpretation issue turning on a single word in a provision of the First Step Act. The dispute concerned how to interpret the word "and" in the FSA's expansion of the "safety valve" provision of federal sentencing law, which exempts certain drug defendants from severe mandatory minimum sentences.

According to the Pulsifer majority, the narrow context of surrounding words and the provision's function called for reading "and" to limit the safety valve. The dissent stressed the broader context of federal sentencing reform and practices to argue that "and" should be read to loosen that valve.

In the end, some even broader contexts help account for Pulsifer's resolution and the court's division.

Mark Pulsifer pled guilty in 2020 to distributing 50 grams or more of methamphetamine, and he faced a statutory mandatory minimum of 15 years in federal prison unless he qualified for the safety-valve provision as expanded by the FSA.

The government asserted, and the U.S. District Court for the Southern District of Iowa and U.S. Court of Appeals for the Eighth Circuit agreed, that Pulsifer was ineligible for the safety-valve provision due to his two significant prior convictions.

But other circuits had read the new criminal history rules of the expanded safety valve differently, and the Supreme Court took up Pulsifer's case to resolve the circuit split.

According to data from the U.S. Sentencing Commission, the resolution of this dispute would affect the sentencing of many thousands of federal drug defendants each year.

Beyond being quite consequential, the Pulsifer ruling proved revealing as to how different justices approach the task of statutory interpretation in this context.

A Little Conjunction in a Long Federal Sentencing Tale

Over a half-century of federal sentencing reforms provide a backdrop to the conjunction "and" dividing the justices in Pulsifer.

Congress in 1970 repealed all mandatory sentences for federal drug offenses. But in 1986, it brought mandatory minimums back with a vengeance amid the 1980s crack epidemic through the Anti-Drug Abuse Act. This law created severe mandatory minimum sentences requiring five or 10 years of imprisonment based solely on the quantity of drugs involved in an offense.

The Sentencing Commission, in a 1991 report, documented the inconsistent and problematic application of mandatory minimum statutes, especially for lower-level drug offenders.[2] Congress responded in 1994 by enacting a new statutory section, commonly called the safety-valve provision, to permit judges to sentence some drug defendants without regard to statutory minimums.

The safety valve authorizes drug sentences below mandatory minimums when the offense is less serious — e.g., it does not involve violence or firearms — and when a defendant meets key conditions, e.g., they plead guilty and have little criminal history.

According to Sentencing Commission data, this statutory safety valve has, from its enactment, affected thousands of federal drug sentences each year, with roughly a third of all drug defendants who would be sentenced to a mandatory minimum qualifying for the safety valve to allow a lower prison term.

In a 2011 report, the Sentencing Commission detailed how a relatively minor criminal history could still inappropriately preclude low-level offenders from the benefit of the safety valve, and urged Congress to expand eligibility.[3]

Taking heed, Congress revised the safety valve's criminal history restriction through the FSA in 2018. The original safely-valve provision limited relief to a drug defendant who "does not have more than 1 criminal history point, as determined under the sentencing guidelines." But the FSA makes drug defendants eligible as long as


The clumsy structure of this statutory provision — especially the highlighted phrasing that the defendant "does not have" (A), (B) "and" (C) — produced a split in lower courts as to whether a defendant was ineligible for safety-valve relief only if they had all three types of criminal history set forth in this list, or if they had any one of these types of criminal history.

In lower courts, the government argued "and" here could and should be read to be disjunctive, like an "or." Pulsifer and other defendants with one or two, but not all three, of these types of criminal history argued for "and" to be conjunctive, so that only defendants with all three types would be safety-valve ineligible.

Before the Supreme Court, the government refined its argument to claim the "does not have" phrase from the start of the provision could and should be distributed into subparts (A), (B) and (C) to create an eligibility checklist precluding relief for those with any one type of the listed criminal history.

Competing Contexts for Giving Meaning to "And"

The court's Pulsifer opinion, authored by Justice Elena Kagan, asserts that "and" here "cannot be construed in the abstract."

A resolution of the "and" dispute, the court states, "can sensibly be made only by examining … the paragraph's content, as read in conjunction with the Guidelines."

Wordsmithing with examples drawn from the U.S. Code to children's literature and everything in between, the court stresses the import of "items on the list and the way they interact, as against relevant background understandings." According to the majority, its "inquiry into text and context" reveals that "[t]he paragraph creates an eligibility checklist."

The safety-valve provision would function less sensibly if read to set out a single condition, in the court's view, since "Subparagraph A would become superfluous … because if a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C, he will always have more than four criminal-history points under Subparagraph A."

In addition, "eligibility for relief would not correspond to the seriousness of ... criminal records" if "a defendant with numerous violent three-point offenses could get relief because he happens not to have a two-point offense."

The key paragraph performs its "gatekeeping function, separating more serious from less serious criminal histories," only if read as an eligibility checklist; otherwise, "it allows and denies relief in ways that do not correspond to the gravity of what a defendant has previously done."

The dissent, authored by Justice Neil Gorsuch and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, adopts a much different contextual frame.

In a lengthy initial discussion, the dissent telescopes out, stressing the history of federal judges exercising "broad discretion at sentencing"; lamenting how "the federal prison population exploded" after Congress enacted many mandatory minimums; and explaining how Congress, through the First Step Act, "promis[ed] more individuals the chance to avoid one-size-fits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes."

The dissent here also emphasizes what's at stake: "[W]ho is eligible for individualized sentencing ... promises to affect the lives and liberty of thousands of individuals."

After providing this broader context, the dissent counters the court's wordplay and claims about the operation of the safety valve.

But the dissent's concluding section returns to its broader themes, knocking the majority for failing to "hedge its doubts in favor of liberty" and for adopting the "more punitive theory the government" advances, "rather than resolve any reasonable doubt about statutory meaning in favor of the individual."

Differing Views of Lenity, Liberty and Institutional Inclinations

Though the Pulsifer case is technically just about the word "and," a few other notable words and concepts find expression in the opinions to provide further insight regarding operative principles driving Pulsifer's resolution and the court's division.

Consider, for example, divergent descriptions of the safety valve: In the words of the court, it "offers some defendants convicted of drug offenses an escape from otherwise applicable mandatory minimums"; for the dissent, it allows "some individuals a chance — just a chance — at relief from mandatory minimums and a sentence that fits them and their circumstances."

The court's framing suggests that application of a mandatory minimum serves as a sound sentencing norm that "some defendants" are lucky to "escape" via the safety valve; the dissent, in contrast, speaks of the safety valve providing a form of "relief" that is essential to ensuring "some individuals" can receive a fitting sentence.

Even more tangible and trenchant are the opinions' different approaches to lenity. Stressing the historic rule of lenity, the dissent asserts courts must interpret "ambiguous 'penal laws,' including those concerning sentencing, in favor of liberty, not punishment." This interpretive principle "enforces weighty constitutional values," ranging from democratic governance to due process.

But, for the majority, lenity principles can be dismissed because the statute is not "genuinely ambiguous." Any "difficulty in choosing between" statutory constructions dividing lower courts "falls away once" the court concluded only one construction sorts "more serious from less serious criminal records, consistent with both the statute's and the Guidelines' designs."

For the dissent, lenity principles serve a range of critical values; for the court, lenity concerns fall away once it embraces the logic of the government's more punitive reading of the statute.

A few other telling words and values echo through the opinions in Pulsifer. The court repeatedly acknowledges that there "are two grammatically permissible" ways to interpret the revised safety valve, but the government's interpretation is to be adopted because it will "function without a hitch" as it "sorts defendants for relief (or not)."

A particular vision of how Congress would want the safety valve to "function" — and especially the notion that Congress likely would not want too many defendants eligible for a sentence below mandatory minimums — provides a critical undercurrent for the majority's application of the word "and" in this context.

In notable contrast, the dissent stresses individual liberty throughout: Early on, the dissent highlights that "the lives and liberty of thousands of individuals" are at issue, and the importance of interpreting laws "in favor of liberty" is stressed at the close.

For the dissent, a particular vision of the court's role in protecting individual liberty — especially given that doing so here means only that a sentencing judge will have the usual authority to "'consider every convicted person as an individual' and pick punishments that 'fit the offender and not merely the crime'" — constitutes a purpose more transcendent than figuring out what interpretation of a criminal statute may "function" better.

In the end, then, the justices' divergent visions of the judiciary's role may best account for their divergent visions of the meaning of the word "and" in Pulsifer.

The majority, comfortable having the court serve as a kind of agent of Congress, excogitated an interpretation of "and" that ensures not too many defendants "escape from otherwise applicable mandatory minimums." The dissent, believing the court's work should always advance how a "free nation operates against a background presumption of individual liberty," castigates the majority for adopting "an interpretation that restricts safety-valve relief to thousands more individuals."

And these divergent visions are sure to influence how these justices interpret other words in other statutes in the future.

Beyond revealing distinct approaches to statutory interpretation in this context, the Pulsifer ruling has a direct impact on how a very large number of federal drug defendants will be sentenced in the coming years.

Had the defendant prevailed in Pulsifer, only relatively few drug defendants would be ineligible for safety-valve relief from mandatory minimums due to their criminal history. But the court's embrace of the government's more limiting interpretation of the safety-valve criteria will result, according to data from the Sentencing Commission, in thousands more federal drug defendants being subject to severe mandatory minimum prison terms.

---

Douglas A. Berman is the Newton D. Baker-Baker & Hostetler chair in law, and executive director of the Drug Enforcement and Policy Center, at Ohio State University's Moritz College of Law.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Pulsifer v United States , 218 L. Ed. 2d 77 (S. Ct. March 15, 2024).

[2] See U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (1991).

[3] See U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, Chapter 12 (2011).