Publications

Greetings, Court Fans!

The Nine returned to action late last week, issuing decisions in three (well, really just two) closely watched cases:

• In Lindke v. Freed (No. 22-611) and O’Connor-Ratcliff v. Garnier (No. 22-324), a unanimous Court clarified when a public official’s blocking of a member of the public from the official’s social-media pages violates the First Amendment, holding that the state-action requirement is satisfied only if the official (1) possessed actual authority to speak on the state’s behalf on a particular matter and (2) purported to exercise that authority when speaking in the relevant social-media posts.
• And in Pulsifer v. United States (No. 22-340), a 6-3 Court held that a defendant charged with drug offenses is ineligible for the statutory “safety valve” from certain mandatory minimum sentences if the defendant’s prior criminal history has any of three characteristics enumerated in the statute, rather than all three characteristics, as those who favor broader application of the safety valve have argued.

The Court followed up with two more opinions this morning:

• In FBI v. Firke (No. 22-1178), the Court unanimously held that a plaintiff’s suit against the federal government over his allegedly improper placement on the No Fly List was not mooted when the Government removed him from the list given the possibility that he might be relisted in the future.
• And in Wilkinson v. Garland (No. 22-666), the Court held 6-3 that an immigration judge’s determination that the removal of a person from the United States would not cause an “exceptional and extremely unusual hardship” to that person’s family is a mixed question of fact and law reviewable by a court of appeals.

We’ll have summaries of today’s cases and the two social-media decisions later this week. But today, we’ll give you a rundown of Pulsifer, a decision that’s not only important in its own right—it will affect the sentences of thousands of defendants—but also provides a clinic on how to make statutory-interpretation arguments at the Supreme Court level.

Pulsifer involves the so-called safety valve of federal sentencing law, which allows a district court to disregard a statutory mandatory minimum if a defendant meets five criteria. One of those criteria requires the court to find that the defendant’s prior criminal history does not have three characteristics, which are joined together with “and.” Does that “and” require the court to find that the defendant doesn’t have any of those characteristics or only that he doesn’t have all of them? In a showcase of the tools of statutory interpretation, Justice Kagan adopted the former reading on behalf of a six-justice majority, while Justice Gorusch dissented with an equally thorough explanation of why “and” doesn’t mean “or.”

As you’re presumably aware, Congress has established a range of mandatory minimum penalties for various criminal offenses, which, in the case of drug offenses, are triggered primarily by the type and quantity of drugs involved. But the “safety valve,” codified at 18 U.S.C. § 3553(f), offers relief to some defendants convicted of drug crimes from the harsh mandatory minimums that would otherwise apply. Under that provision, the sentencing court can depart from the statutory minimum if it finds five criteria are met. Three of those criteria address the characteristics of the offense (e.g., whether violence was used). One asks whether the defendant cooperated with the Government. And the third, found in paragraph (f)(1), looks to the defendant’s criminal history.

Originally, that criminal-history requirement provided that only defendants who did not have “more than 1 criminal history point” were eligible for the safety valve, meaning in effect that it was unavailable to anyone with more than a single conviction for a minor offense. (A conviction that results in a sentence of imprisonment of greater than 60 days will typically carry at least 2 criminal history points.) But in the First Step Act of 2018, Congress relaxed this criminal-history requirement to enable defendants with more significant criminal records to nonetheless qualify. The current safety valve requires the sentencing court to find that the defendant does not have:

(A) more than 4 criminal history points . . .

(B) a prior 3-point offense . . . ; and

(C) a prior 2-point violent offense . . . .

After the First Step Act was enacted, Mark Pulsifer pled guilty to distributing at least 50 grams of methamphetamine, an offense that would otherwise subject him to a 15-year mandatory minimum term of imprisonment. He argued he could escape that sentence via the safety valve. Having satisfied the four other elements of the safety valve, his eligibility came down to paragraph (f)(1). Pulsifer’s prior criminal history consisted of two three-point offenses. That obviously satisfied (A) (because he had 6 points total) and (B) (because he had a prior 3-point offense). But it didn’t satisfy (C) because neither of Pulsifer’s prior offenses was violent. The District Court rejected Pulsifer’s argument he was eligible, concluding that paragraph (f)(1) applied only if Pulsifer’s criminal history lacked any of the features identified in (f)(1). The Eleventh Circuit affirmed, in the process rejecting the conclusions of several other circuits, which had found (f)(1) satisfied so long as the defendant’s history does not have all three criteria. The Court granted certiorari to resolve this split.

Justice Kagan, writing for a majority of the Chief Justice and Justices Thomas, Alito, Kavanaugh and Barrett, affirmed the Eleventh Circuit’s approach. She began with paragraph (f)(1)’s grammatical structure, on which Pulsifer (and the dissent) rested most of their argument. That paragraph requires a court to find that the defendant does not have the features specified in (A), (B), and (C). By linking those requirements with “and,” Pulsifer argued, Congress made only a defendant who “has the complete combo” ineligible for safety-valve relief. In mathematical terms, (f)(1) requires the sentencing court to find “not (A, B, and C)”. But while Kagan found that reading plausible, she noted it was equally possible to read (f)(1) as requiring the sentencing court to find that the defendant does not have A, B, and C consecutively, rather than combined into a unit. That is, “(Not A) and (Not B) and (Not C).” She pointed to several examples, both in legal and ordinary language, where one finds similarly worded lists: The Very Hungry Caterpillar—who “ate through one piece of chocolate cake, one ice cream cone, one pickle,” and a whole lot more—ate through each of those things in sequence. And she rejected Pulsifer’s argument that “and” can’t work the way when a list is framed in the negative: If a surgeon tell you “don’t eat, drink, and smoke” the day before your surgery, she’s not saying it’s fine to have a steak and martini as long as you hold the cigar. Working through these and many other examples, Kagan concluded that while the literal language could be read Pulsifer’s way, it didn’t have to be.

So if the words themselves aren’t dispositive, where does that leave us? With other tools of statutory interpretation, mostly the broader statutory context. Right out the gate, Pulsifer’s reading suffers from a major contextual problem: It seems to make (A) superfluous because any defendant who has both a prior 3-point offense and a prior 2-point violent offense will ipso fact have more than 4 criminal history points. (A) thus does not independent work under Pulsifer’s reading. And his approach would also lead to some strange (perhaps illogical) results: A defendant with 15 criminal-history points from five 3-point offenses, every one of which was violent, would be eligible for the safety valve because none of his violent offenses happened to be exactly 2-point offenses. His crimes, in other words, were so serious that he became eligible for the safety valve. But a defendant with the less-serious history of a 3-point offense and a 2-point violent offense would not be similarly eligible. It is hard to see why Congress would have intended the statute to work that way.

Pulsifer, not surprisingly, had responses to these points. He also presented his own explanation for why his approach to (f)(1) is more logical in context. And he argued that in light of the two plausible competing interpretations of (f)(1)’s grammar, the rule of lenity required the Court to adopt his approach. But Kagan (at considerable length) found those counter-arguments unpersuasive. And the rule of lenity was irrelevant, because when all was said and done, the superfluous and illogical consequences of Pulsifer’s approach made it untenable, so there was no ambiguity for the rule of lenity to resolve.

Justice Gorsuch, joined as he frequently is in criminal matters by Justices Sotomayor and Jackson, dissented. He started by noting the stakes: The First Step Act was enacted as part of Congress’s effort to address several features of sentencing law that made sentences for drug offenses overly harsh. And as to the safety valve, the consequences of this rather dry dispute about how to interpret “and” were significant: Under the original safety valve, only 33% of drug offenders were eligible for relief. Under Pulsifer’s approach, that number would double to nearly 66%. But under the majority’s narrower interpretation, just 44% would be. The “lives and liberty of thousands of individuals” were thus at stake.

Turning to the language itself, Gorsuch all but concluded that Pulsifer’s interpretation was the only grammatically possible one. That was so principally because of something the majority relegated to a lesser point in its analysis: Paragraph (f)(1) is not the entirety of the safety valve, there’s also an (f)(2), (f)(3), (f)(4), and (f)(5). And like (f)(1), some of those other numbered paragraphs present alternatives. But unlike (f)(1), Congress linked those alternatives with “or,” making clear that the defendant would flunk that particular element if either alternative was met. That suggests that Congress’s use of “and” was deliberate, and that it should be read in the “additive” way one would normally expect. For these and many other grammatical reasons we can’t do justice to here, Gorsuch concluded that Pulsifer’s reading was overwhelmingly, if not definitively, preferable as a matter of ordinary language.

But what of the superfluity and logical arguments the majority found dispositive? Suffice to say that Gorsuch was not persuaded by the former, because he concluded in certain situations (A) might still disqualify some defendants even when (B) and (C) are met given some subtle nuances in how the guidelines calculate criminal-history points. And the majority’s logical argument, Gorsuch characterized as a “policy” concern, something the modern textualist court typically dismisses out of hand. But even if these issues were enough to create some doubt, the rule of lenity required the Court to resolve that ambiguity in favor of the interpretation that most favors liberty: Pulsifer’s broader reading.