The fate of thousands depends on the Supreme Court’s interpretation of the word ‘and’

The Supreme Court is hearing arguments Monday in Pulsifer v. United States, one of the most important criminal law cases in recent memory.

The issue in Pulsifer is very specific: the meaning of the word “and” in an obscure federal statute. But the consequences are massive. If the court rules against the government, then thousands more federal defendants each year can avoid federal drug laws’ draconian mandatory minimum sentences.

Since the 1980s, people convicted of federal drug crimes have been subject to 10-year mandatory minimum sentences for relatively modest amounts of drugs. If you transport one kilogram of heroin, 280 grams of crack cocaine or just 50 grams of methamphetamine, then you are looking at a mandatory 10 years in prison. These sentencing rules were enacted in 1986 during a moral panic that was sparked by the basketball player Len Bias’s cocaine-related death. With minor exceptions, they have not been changed in the four decades since.

These 10-year sentences are incredibly harsh, especially since they apply to even the lowest-level drug defendants. As former federal public defenders, we have represented scores of people facing these mandatory minimums. Our clients in these cases have included 18-year-olds, honor students, battered women, veterans, parents, grandparents and drug addicts in need of treatment. Ten years in prison is often a far too harsh punishment in these cases. It destroys the lives of people who could be helped and leaves their families and communities to pick up the pieces.

Fortunately, the provision at issue in Pulsifer provides some relief. Nicknamed the “Safety Valve,” it gives federal drug defendants the opportunity to avoid a mandatory minimum sentence if they meet several criteria. These include not using violence or a weapon in the crime, not harming anyone, not being a leader of the drug-dealing enterprise and giving prosecutors all the information they have about the crime.

Defendants who receive Safety Valve get relief from the minimum mandatory sentence, but it does not change the maximum sentence (which is usually life in prison). So sentencing judges retain complete discretion to impose a very long sentence if they choose. The Walter Whites of the world can still be locked up for decades.

Up until 2018, Safety Valve was available only to people with basically no past criminal convictions. If you were on misdemeanor probation for a DUI, you were out of luck. But the First Step Act changed that by expanding Safety Valve to people with more substantial criminal history. This was a great development in the law: Many people charged with federal drug crimes have accrued criminal history due to addiction, poverty and racially targeted policing. And even people with multiple past convictions deserve the chance to ask a judge for a fair sentence.

Exactly how much did the First Step Act expand Safety Valve? That is the question in Pulsifer, which turns on the meaning of “and.” The First Step Act makes Safety Valve available to everyone who does not have three specific types of convictions (for simplicity let’s call them X, Y and Z). And basically no (or almost no) federal defendants have all three types of convictions on their record. So if the statute is read literally, as giving Safety Valve relief to everyone who doesn’t have “X, Y and Z” on their criminal record, then basically everyone is eligible if they satisfy the other criteria.

The government’s position is that “and” doesn’t mean “and” in this context, but rather “or.” Under that reading, any defendant with X, Y or Z on their criminal record (a significantly larger group) would be ineligible for Safety Valve. And if a criminal statute is unclear, is it fair to resolve that ambiguity in a way that harms a defendant?

Here the case raises an important rule of criminal law: the rule of lenity. Broadly speaking, this rule provides that defendants should get the benefit of the doubt in interpreting confusing laws. The text of the First Step Act seems clear enough — it says “and” not “or,” after all. But interpretation of the statute has proven vexing for judges, with no consensus interpretation after seven federal appellate circuits have reviewed the issue. If dozens of federal judges are unable to divine a clear interpretation, how can defendants?

Despite the divergent views of the appellate courts, this may be the rare issue where a cross-coalition majority is possible among the Supreme Court justices. While the Court’s conservative majority is often skeptical of criminal defendants’ rights, several of them (including Justices Neil Gorsuch and Clarence Thomas) have strongly endorsed the principle that a statute’s plain text is the most important evidence of its meaning. And here the word choice seems clear — “and” does not mean “or.”

But putting the legal argument aside, it would be an immensely positive development if the Supreme Court ruled that substantially more people can benefit from Safety Valve (or, failing that, if Congress expanded the law). The federal drug mandatory minimums are indefensibly harsh, and they have destroyed countless people’s lives. Sentencing discretion should be returned to federal judges in these cases.

Eric Fish and Ryan Stitt are both former federal public defenders. Fish is a law professor at University of California, Davis School of Law. Stitt is a partner at Stitt Vu Trial Lawyers APC, and brought the first case arguing for an expansive interpretation of the First Step Act’s Safety Valve provision.