Does “and” mean “and,” or does “and” mean “or?” This case shows the wide implications of our laws and the importance of how they are written. The Supreme Court’s decision here will affect how drug crimes are prosecuted everywhere.

From The Epoch Times. Lawyers and justices argued during an Oct. 2 hearing about whether “and” always means “and,” as a convicted drug dealer hoping to reduce his sentence under the First Step Act of 2018 made his case before the Supreme Court.

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The case, Pulsifer v. United States (court file 22-340), was heard on the first day of the court’s new term.

The First Step Act, a bipartisan measure approved by Congress and signed by then-President Donald Trump in 2018, reformed aspects of the criminal justice system, making it easier for the courts to reduce penalties for nonviolent drug offenders. …

‘Safety Valve’

Under the “safety valve” provision of the statute, judges are allowed to ignore mandatory minimum sentences when defendants convicted of nonviolent drug offenses present only a limited criminal history. In such cases, judges can follow the more lenient established sentencing guidelines instead.

The provision includes three requirements related to the person’s criminal track record.

The justices are considering whether defendants cease to qualify for the safety valve if they meet only one of the criteria, or if they are required to satisfy all three. …

Defendants are eligible if they do not have a lengthy criminal history, a previous serious offense, “and” a previous violent offense.

15 Years Prison for Drug Dealing

The petitioner, Mark Pulsifer, pled guilty in federal district court in Iowa to one count of distributing 50 grams or more of methamphetamine, contrary to federal law. Because he was previously convicted of a serious drug felony, the statutory minimum penalty for the new offense was 15 years imprisonment.

Mr. Pulsifer argued that under the First Step Act, he was eligible to be sentenced under sentencing guidelines and without regard to the statutory minimum of 15 years. Under the act, his case would be evaluated under a criminal history point-based system.

The district court rejected the First Step Act argument but sentenced him under a different authority to 162 months, or 13.5 years, in prison to be followed by 10 years of supervised release.

Mr. Pulsifer appealed, arguing the court erred in not applying the guideline range that would have been in effect if there were no statutory minimum.

The U.S. Court of Appeals for the 8th Circuit affirmed the trial court in July 2022.

Mr. Pulsifer’s attorney, Shay Dvoretzky, posed a rhetorical question in a brief he filed with the court:

“In other words, is a defendant eligible for safety-valve relief so long as he does not have all three of (A), (B), and (C), or is he eligible only if he does not have (A), (B), or (C)?” …

Justice Elena Kagan pushed back.

“When we look at this statute, I mean, isn’t what is most likely to have gone on here is that Congress made a completely ordinary drafting decision which said does not have A, does not have B, and does not have C? Who writes like that?” …

“We don’t keep on repeating a verb when the verb applies to everything. So that’s what Congress did here. It just took out the – rather than say ‘does not have’ three times, it took it out and put it in prefatory language, followed by three things that you shouldn’t have.” …

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(Excerpt from The Epoch Times. Photo Credit: Al Drago/Getty Images)