Gorsuch, KBJ, and Sotomayor ding fellow justices for ‘regrettable choice’ and broken ‘promise’


Justices Sonia Sotomayor (L) Neil Gorsuch (C) and Ketanji Brown Jackson (R)

Justices Sonia Sotomayor (Photo by Allison Shelley/Getty Images), Neil Gorsuch (Photo by Melina Mara / POOL / AFP), Ketanji Brown Jackson (OLIVIER DOULIERY/AFP via Getty Images)

After the Supreme Court of the United States decided in a 6-3 ruling on Friday that a man convicted of methamphetamine distribution was not entitled to the “safety-valve relief” he sought under the First Step Act, criminal justice reform legislation signed into law by former President Donald Trump in 2018, three dissenting justices framed the ruling as a betrayal and breach of a “promise” made by Congress.

Mark Pulsifer, facing a mandatory minimum of 15 years behind bars, filed a petition for a writ of certiorari in 2022 asking the high court to resolve a circuit split on how to interpret 18 U.S.C. § 3553(f)(1), which deals with limiting mandatory minimums in cases where a defendant doesn’t have [emphasis on “and” ours]: “(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Emphasizing that Pulsifer’s criminal record did not include a two-point violent offense, his lawyers said the dispute with the government largely boiled down to the meaning of “and” in the statute.

“The question presented is whether to read § 3553(f)(1) conjunctively or disjunctively. Put simply, does a defendant satisfy § 3553(f)(1) unless he has all three of (A), (B), and (C)—the conjunctive reading—or must he have none of (A), (B), or (C)—the disjunctive reading?” the petition asked. “The Ninth Circuit says conjunctive, relying on the ordinary conjunctive meaning of the word ‘and’ to rule in the defendant’s favor. But the Eighth Circuit here, since joined by the Seventh Circuit, said disjunctive, expressly rejecting the Ninth Circuit’s view and holding that ‘and’ really means ‘or.’”

On Friday, Justice Elena Kagan wrote the opinion and was joined by each of her colleagues not named Justice Neil Gorsuch, Justice Ketanji Brown Jackson, and Justice Sonia Sotomayor.

More Law&Crime coverage: Justices Sotomayor, Thomas and Gorsuch Headline Unusual Majority in First Step Act Case

The majority ruled that a defendant in Pulsifer’s situation can get “safety valve relief […] only if he ‘does not have’ all three of the items listed—or said more specifically, does not have four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense.”

“The paragraph thus creates an eligibility checklist, and demands that a defendant satisfy every one of its conditions,” Kagan continued, before providing a real-world example for interpretation [again, our emphasis on “and”]:

All student-athletes are eligible for an academic scholarship, provided that the student during the previous semester did not—
(A) fail a course;
(B) commit plagiarism; and
(C) get arrested.

Acknowledging that Pulsifer’s interpretation of “and” is “grammatically possible,” Kagan said the “opposite” interpretation was more compelling, as demonstrated by her hypothetical.

“A student would need a lot of confidence to argue that he remains scholarship-eligible when he (A) failed a course, and (B) committed plagiarism, but (C) managed to evade arrest. That reading—Pulsifer’s reading—is grammatically possible,” the majority opinion said. “But so too is the opposite—that a student must meet all three conditions. And when we think about the content of the policy—what (A), (B), and (C) actually say—against the backdrop of all we know (or perchance all the college handbook tells us) about academic scholarships, we cannot read the revised hypothetical in Pulsifer’s way.”

The dissent, 33 pages in length, was penned by Gorsuch. Joined by Sotomayor and Jackson, Gorsuch wrote that while the justices in the majority parsed language to make it harder to obtain sentencing relief, what might seem like a “small” difference in opinion actually “guarantees” consequences for “thousands more people.”

“Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch wrote. “Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering. Respectfully, I would not indulge any of these moves.”

The criticism of his colleagues only became sharper from here, accusing the majority of making an anti-liberty ruling fueled by a “regrettable choice” to ignore the “law’s ordinary and most natural meaning.” The result? Reneging on the congressional “promise” that the First Step Act made to Pulsifer, and those similarly situated, to have “just a chance” for an “individualized sentencing.” From Gorsuch:

It is a regrettable choice that requires us to abandon one principle of statutory interpretation after another. We must read words into the law; we must delete others. We must ignore Congress’s use of a construction that tends to avoid, not invite, questions about implicit distribution. We must dismiss Congress’s variations in usage as sloppy mistakes. Never mind that Congress distributed phrases expressly when it wanted them to repeat in the safety valve.

Never mind that Congress used “or” when it sought an efficient way to hinge eligibility for relief based on a single characteristic. We must then read even more words yet into the law to manufacture a superfluity problem that does not exist. We must elevate unexpressed congressional purposes over statutory text. Finally, rather than resolve any reasonable doubt about statutory meaning in favor of the individual, we must prefer a more punitive theory the government only recently engineered.

Today, the Court indulges each of these moves. All to what end? To deny some individuals a chance—just a chance—at relief from mandatory minimums and a sentence that fits them and their circumstances. It is a chance Congress promised in the First Step Act, and it is a promise this Court should have honored. Respectfully, I dissent.

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