SCOTUS ruled that "and" means "or." It's pretty wild.
The Supreme Court case is Pulsifer and it demonstrates that today's Court is one of the most prosecution friendly in a long long time. I'm sure Scalia would have ruled for the defendant here and I bet he would have carried a majority. Instead, Justice Kagan takes the government's position that and means or, which is pretty devastating to thousands of prisoners who would have received relief under the First Step Act.
Justice Gorsuch, who is trying to take over the Scalia mantle as willing to rule for a criminal defendant if that's what the text says, wrote an incredible dissent. It's worth a read.
Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.
The dispute in the case turns on the meaning of the “and” between subparagraphs B and C. For its part, Kagan explains, “the Government contends that the phrase … creates a checklist with three distinct conditions. [Thus], a person fails to meet the requirement … if he has any one of the three.” In contrast, the defendant contends that the phrase ‘does not have A, B, and C’ sets out a single, amalgamated condition for relief, [which] a defendant … fails … only when he has all three of A, B, and C.” Kagan ultimately agrees with the government’s harsher view: Defendants lose the safety valve if they have A, they lose if they have B, and they lose if they have C.
5 comments:
Should have just stuck with his two sentences:
"Sometimes, it seems, we are supposed to assume Congress was sloppy, other times careful. The only common thread seems to be what benefits the government in the moment."
Like Marshall's dissents on death cases. Simple, why argue, you guys are fuckers.
3 + 2 = 5 > 4. Hard to argue with Kagan. You should have included this part of the SCOTUS blog post:
"In the end, Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity. Specifically, the first of the three tests (subparagraph A) would under the defendant’s view lack “any operative significance. That is 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.”
Hence, under the government’s view, each of the three subparagraphs bears weight, because each defines a separate reason for denying application of the safety valve. Under Pulsifer’s view, though, subparagraph A is entirely superfluous. Kagan points out that “[w]hen a statutory construction … renders an entire subparagraph meaningless, … the canon against surplusage applies with special force.” Principally for that reason, she rejects the defendant’s view and limits application of the safety valve to defendants who satisfy each of the three subparagraphs."
This is an old problem, but a continuing one: the Courts should not be in the business of cleaning up Congress's mess. Congress wrote a sloppy law. Kagan is trying to fix it. She's probably right that Congress meant what she concludes, but the other position is more logically sound from a plain meaning point of view. When the Courts take up this role, we end up with legislation by an unelected and life appointed pseudo-legislative body.
10:17, here's two points from Garcon:
1. The superfluity argument "rests on the mistaken premise that a defendant who satisfies subsections (f)(1)(B) and (f)(1)(C) will always satisfy subsection (f)(1)(A). To the contrary, there are at least two circumstances in which a defendant could have “a prior 2-point violent offense” and “a prior 3-point offense ... under the sentencing guidelines” but fewer than five “criminal history points.”
United States v. Garcon, 54 F.4th 1274, 1281 (11th Cir. 2022)
2. "Even if our dissenting colleagues and the government were correct that our interpretation rendered part of section 3553(f)(1) superfluous, we would be faced with an ambiguous statute: ordinary meaning, the presumption of consistent usage, and the Senate drafting manual would point toward one interpretation, and the presumption against superfluity would point toward another. In that circumstance, the rule of lenity would require us to give the word “and” “its ordinary, accepted meaning,” see Burrage v. United States, 571 U.S. 204, 216, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), and treat the word as conjunctive.
Id. at 1285
US v Fischer will be fun.
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