WASHINGTON — Supreme Court justices may be forgiven if they found themselves humming the Schoolhouse Rock lyrics “Conjunction Junction, what’s your function?” when interpreting one of the first cases they hear for its latest October term.
The court heard arguments on Monday for Pulsifer v. United States, a case that could have significant implications for federal drug-related sentences depending on whether the justices decide to an expanded interpretation of the Safety Valve provision in the First Step Act, a 2018 bipartisan crime bill.
This provision aims to decrease mandatory minimum sentences, which are mandated by Congress, not individual judges.
Mandatory minimum sentences have come under increased scrutiny by social justice advocates who say these sentences have played a large role in the growth of the federal prison population, which has ballooned more than 600% from 1980 to 2018.
The Associated Press reported 6,000 people convicted of drug trafficking in 2021 could become eligible for reduced sentences if the Supreme Court decides on an expanded interpretation of the Safety Valve provision. Mandatory minimum sentences only looked at the type and quantity of a drug in each case, which created a “formula” for sentencing and took discretion away from judges, Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, said in an interview. In May, FAMM submitted an amicus brief in support of Pulsifer.
Price said mandatory minimum sentences have led to mass incarceration. Federal drug crimes have carried a 10-year mandatory minimum sentence since the 1980s, The Hill reported, even for people who possess small amounts of drugs and people who have no criminal record.
The Safety Valve allows judges to ignore statutory mandatory minimum sentences, so long as defendants satisfy the provision’s five criteria.
The case before the court concerns the first criteria, which states Safety Valve relief is granted if the defendant does not have: more than four criminal history points, a prior 3-point offense and a prior 2-point offense.
Appellate courts have been split in their rulings over the meaning of “and” – that is, whether a defendant must satisfy all three subsections or just one to qualify for the provision that gives the judge discretion to reduce sentences. The ruling will determine whether “and” means “and” or “or.”
In defendant Mark E. Pulsifer’s case, the U.S. Court of Appeals for the Eighth Circuit decided “and” means “or.” Pulsifer met the first and second subsections of the Safety Valve, which the court said disqualified Pulsifer from relief. He was charged with two counts of meth possession and issued a mandatory minimum sentence of 15 years.
Pulsifer’s lawyer, Shay Dvoretzky, said on Monday this was a mistake. Dvoretzky began his oral argument with a simple statement: “‘And’ means ‘and.’”
“It’s a matter of common sense that if Congress wanted to say ‘or,’ it would have said ‘or,’” Dvoretzky told the court.
Justice Elena Kagan pushed back against this claim by giving a hypothetical: after a medical test, a doctor instructs their patient to not eat, drink liquids and smoke.
“Obviously,” Kagan noted, “The context tells you that it’s an ‘or’ rather than an ‘and.’”.
The justice further argued “and” would mean “and” in a scenario such as “don’t drink and drive.” Both items must be conjoined because their harm is dependent on their relationship. Kagan said the harm in the case of Pulsifer v. United States is evident in each of the three subsections. Thus, “and” means “or.”
Assistant to the Solicitor General Frederick Liu, who represented the United States in the case, also argued that the conjunction should be interpreted as an “or” because reading it as an “and” would make part of the provision superfluous.
Liu said if a defendant satisfies the second and third subsections, then the defendant will automatically satisfy the first subsection because a 3-point offense and 2-point offense added together is more than four criminal points. Liu argued this substantiates the “or” reading.
“That’s the only interpretation that avoids rendering the first subparagraph entirely redundant and the only interpretation that assigns (the first subsection) a coherent gatekeeping role,” Liu said.
Kagan said the “and” reading would also expand the Safety Valve to people who committed serious offenses. If a defendant had to meet all three criteria, the justice said it would allow them to commit the right combination of crimes to escape a mandatory minimum sentence.
Kagan said to Dvoretsky, “I guess you don’t have an explanation for why Congress would say ‘It’s OK if you have a gazillion 3-point offenses, so long as you don’t have a 2-point violent offense.’”
Dvoretzky conceded anomalies may occur due to Congress operating at a “macro level.” But this would be prevented by the nature of the Safety Valve, which is to allow judges the discretion to sentence on a case-by-case basis.
Justice Ketanji Brown Jackson, former vice chair and commissioner of the U.S. Sentencing Commission, said the conjunction must be understood within the context of the statute’s purpose: to expand relief from mandatory minimum sentences. If this was Congress’s intent, she said, then the “and” reading would be acceptable because more defendants, including Pulsifer, would qualify for relief.
“It is not irrational at all for Congress to be making the amendment they were making in this case, which was intended to broaden the availability of the Safety Valve,” Jackson said.
The Safety Valve can particularly help people of color who have become victims of compound bias and over policing, said Liz Komar, the Sentencing Reform Counsel at The Sentencing Project.
According to the U.S. Sentencing Commission, 38.5% of offenders convicted of mandatory minimum penalty were Hispanic, 30.2% were white and 28.1% were Black. Mandatory minimum sentences, Komar said, are “not an actual solution” for increasing safety and protecting marginalized communities.
“This decision has the potential to expand the Safety Valve,” she noted, “which would increase proportionality and increase equity in sentencing.”
Price said she was glad the Safety Valve’s goal was considered at Monday’s hearing. She said moving away from a “one size fits all” form of justice can help create fairer sentences.
“I think there’s something about the dignity of directing judges to sentence people as individuals and not based on an algorithm,” Price said.
The Supreme Court’s decision will come out next spring.
