In a complicated and convoluted March 15, 2024 decision, Pulsifer v. United States, the U.S. Supreme Court upheld an Eighth Circuit Court of Appeals’ interpretation of the federal sentencing scheme’s “safety valve provisions—an interpretation that ensures continued restrictions on their availability.


Safety valves are provisions of the federal sentencing law, 18 U. S. C. §3553, that offer some criminal defendants a pathway to avoid mandatory minimum sentencing for the crime(s) for which they have been convicted.


Congress has, in fits of law-and-order pandering, established mandatory minimum sentences for certain crimes, particularly drug and sex offenses. But in 1994, these lawmakers realized that significant numbers of young first offenders were receiving sentences for low-level, non-violent drug offenses that did not fit their crimes.


In response to these sentencing inequities, Congress created safety provisions, § 3553(f)(1),  that gave federal judges the discretion to depart from mandatory minimum sentencing if the defendant satisfied the following five requirements:


  1. no one was harmed during the offense,
  2. the person has little or no criminal history,
  3. the person did not use violence, threats of violence, or a gun,
  4. the person was not a leader or organizer of the offense, and
  5. the person told the prosecutor all that they knew about the offense.


3553(f)(1)and the U.S. Sentencing Guidelines governing the implementation of the safety valve provisions have changed significantly in recent years, creating reform pathways for thousands of federal criminal defendants facing sentencing and federal inmates already serving their sentences to benefit from reduced mandatory sentencing. The Pulsifer decision—a decision that saw Justice Elena Kagan join the extreme right-wing group of the Court’s justices to hand down the 6-3 majority ruling, and Justice Neil Gorsuch abandoning the right-wing justices to join the remaining two liberal justices (Sotomayor and Brown) in dissent—missed an opportunity to bring even more equitable sentencing under § 3553(f)(1).


In what was more a grammatical interpretation than a constitutional or statutory interpretation of § 3553(f)(1), the Pulsifer court said that the word “and should be viewed as an “or when it comes to applying the three-point criteria used to determine a federal defendant’s criminal history. In a nutshell, the Pulsifer decision held that defendants are disqualified for “safety valve” if they meet any of the three-point criteria, rejecting the argument that disqualification could be found only if they met all three prongs of the criminal history criteria.


Ronald Mann, in Scotusblog, sums up the grammatical confusion nicely, “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.”


Justice Gorsuch was not pleased with this muddled, Justice Kagan-led reasoning. Saying that the ruling flies in the face of the reform provisions of the First Step Act of 2018, Justice Gorsuch said the Pulsifer decision “guarantees that thousands of people in the federal criminal justice system will be denied a chance, just a chance, at an individualized sentence … It is a chance Congress promised in the First Step Act, and it is a chance this Court should have honored.”


We agree wholeheartedly, as did Justices Brown and Sotomayor, with Justice Gorsuch’s concluding assessment of the Pulsifer decision:


“Today, the Court does not hedge its doubts in favor of liberty. Instead, it endorses the government’s implicit distribution theory and elevates it over the law’s ordinary and most natural meaning.


 “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.”


Now, Congress must clarify what “and” means if it chooses to effectuate the purpose of the First Step Act. In the meantime, too many federal criminal defendants will unnecessarily suffer from more frequent use of mandatory minimums.