On Monday, the Supreme Court begins a new term; it almost certainly will be a momentous one. But opening day will seem a lot like a game of legal trivia: the first hearing will focus on the meaning of the word “and.” As always with the Court, there is a larger meaning in that case.
Although the new term is just opening, the Justices have already agreed to issue major new decisions on gun rights under the Second Amendment, on significant rules involving social media platforms, on the meaning of the Sixteenth Amendment (adopted 110 years ago to authorize a national income tax), and on the continuing conservative attack on the power of federal government agencies.
The Court seems sure also to be drawn in coming months into a variety of legal disputes involving former President Donald Trump – maybe including the basic issue of whether he is ineligible to run for office ever again, and perhaps some issues arising out of his criminal trials. It could take action on voting rights law that could affect which party controls the U.S. House of Representatives in 2025. And it is likely to look anew at whether women will lose access to an abortion pill, a non-surgical alternative — now the most widely used abortion method.
The term starts tomorrow with a single hearing, on a dispute about the age-old question of fairness in dealing with crime: how to make the punishment fit the crime, and fit the criminal. (NOTE: This is the first of a continuing series of reports explaining the cases that the Court will be deciding in the new term. Each report will appear a day before the scheduled hearing.)
Monday’s hearing: Pulsifer v. United States Scheduled for one hour, the hearing will begin at 10 a.m.
The Court will resume its practice of broadcasting “live” the audio (no video) of its hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
Background on Monday’s case: One of the noble sentiments in the U.S. Constitution is that those convicted of crime should not be punished in ways that are “cruel and unusual.” In other words, the penalty should not be far out of proportion to the harm inflicted. The concept has an echo in the Bible, in Leviticus: “If a man injures his neighbor, what he has done must be done to him…eye for eye, tooth for tooth.”
America has struggled to define what that means since the ban on barbarous punishment was put into the Constitution in the Eighth Amendment, added as part of the Bill of Rights in 1791. In modern times, the pendulum of sentencing for crimes has swung widely, from harshness to leniency, from fixed minimum prison terms to highly variable terms of years.
Since 1984, at the federal government level, the nation has pursued several experiments to try to ensure that sentencing is not imposed in an arbitrary fashion, and especially not in ways that discriminate on the basis of the race of the convicted individual. This is the experience under the so-called United States Sentencing Guidelines. Initially made mandatory by Congress, they now are advisory: federal judges have some discretion to vary a specific sentence, up or down, from a specified guideline range.
In the last decades of the 20th Century and the opening of the 21st, criminal justice reformers were deeply disturbed that this system in actual operation had filled up the nation’s prisons to alarming levels, due at least in part to the Guidelines that set fixed minimum sentences for the most serious crimes. The core complaint was that the system had become harsh, arbitrary and discriminatory, and that it all but destroyed opportunities for rehabilitation and inmates’ potential return to society.
Congress stepped in, passing the FIRST STEP Act in 2018. (The name of the law is short for its cumbersome formal title, obviously cobbled together to get the desired initials: “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person.”)
The case that will be heard by the Supreme Court on Monday involves one feature of that system: how one who had been convicted of a non-violent drug crime could avoid being sentenced to a mandatory minimum sentence. This gesture toward leniency is called the “safety valve” provision. The theory behind it is that such an individual should have a chance to get out of prison sooner, to make a fresh start.
The facts of this case: An Iowa man, Mark E. Pulsifer, pleaded guilty to one count of dealing at least 50 grams of methamphetamine (a dangerous narcotic sometimes called, on the street, “meth” or “crystal meth”). The crime involved his sale of meth at a gas station in Council Bluffs to an individual who turned out to be a confidential informant.
If that was all that there was on Pulsifer’s record, he faced at most ten years in prison, under the Guidelines. Because he was ruled ineligible for “safety valve” relief, however, he was facing a mandatory minimum sentence of 15 years. He got a partial break from the judge, on another technicality, but wound up with a sentence of 13 ½ years.
Here’s how that happened: Pulsifer met some of the requirements for a “safety valve,” but prosecutors contended that he did not qualify for that because he had accumulated too many “criminal points” under the Guidelines, based upon prior crimes. (The Guidelines are based upon sentencing values that are assigned numbers, taking into account various factors but focusing largely on the seriousness of the current crime and prior crimes. Criminal points are a part of that system, keyed to the “safety value.”)
A complex part of the FIRST STEP law provides three different levels of “criminal points” that a convicted drug dealer must not have in order to be eligible for “safety value” relief. The law spells them out in sequence – four points, three points, two points — with the word “and” placed between the three and two levels. Pulsifer conceded that he could not qualify under the four and three levels, but that he could qualify because he had no prior crime at the two-point level. He argued that the word “and” meant that he had to fail on all three levels, not just one or two. That, his lawyers argued, is the normal way to understand “and.”
Prosecutors contended, however, that the word “and” was used just to differentiate the point levels from each other: in effect, that “and” meant “or.” The trial judge agreed with the prosecutors, denied “safety valve” relief and imposed the sentence of 13 ½ years.
However minor and technical this dispute may seem, the answer has split the federal appeals courts, with three favoring Pulsifer’s view and four favoring the prosecutors’ view. Probably because of that split, the Supreme Court agreed to hear Pulsifer’s appeal.
The question before the Court: To qualify for the “safety valve” in federal criminal sentencing law, and avoid a minimum prison term, what must a convicted individual satisfy on the point schedule linked to prior crimes?
Significance: For more than two centuries, American courts have followed the custom – borrowed from English history – that any doubt about the definition of a crime or the level of punishment to be imposed for crime should be resolved in favor of leniency (the so-called “rule of lenity”). This is a part of the tradition that, when an individual’s freedom is at stake, the prosecution should have the burden of establishing guilt clearly (“beyond a reasonable doubt”).
That is what ultimately is at stake in Mark Pulsifer’s case.
The rule is particularly important because of the risk that mandatory minimum sentencing requirements may be unnecessarily punitive or excessive. There is, and has been for years, an entire movement in the criminal justice reform community to do away with, or at least ease, the practice of minimum sentencing terms.
The Supreme Court’s review will be a test of the current Justices’ view on that long-standing principle, and a test of how they read what Congress had in mind in writing the “safety valve” feature into the 2018 law on sentencing. The current conservative majority of six Justices tends to focus tightly on the ordinary meaning of a federal law’s words, and not on the underlying policy purpose that Congress may have had in mind.
Defense lawyers and their organizations are joining in the case to argue that the substitution of the word “or” for the text’s word “and” is the kind of misreading of text that the current majority tends to disfavor. But they also argue that this interpretation runs against the purpose that Congress had in mind – that is, to ease, somewhat, the burden of minimum sentences for non-violent crimes.
On Tuesday, the Court will hear a single case, testing the constitutionality of the way that Congress provides funds for the federal Consumer Financial Protection Bureau. The outcome could have a major impact on the way the federal budget operates.