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Supreme Court Considers the First Step Act’s Lenient Sentencing Provision

The Court should respect congressional intent and allow federal judges greater sentencing discretion.

October 24, 2023

For the first case of its new term, the Supreme Court will consider how much discretion federal judges should have to depart from mandatory minimums in certain circumstances. Pulsifer v. United States marks the third time the Court has been called upon to interpret a provision of the First Step Act, a landmark bipartisan criminal justice reform bill enacted in 2018. Each time, the sentences of thousands of people have hung in the balance. Looking at Congress’s intent in passing the legislation, as well as the basic principles of criminal law, offers a strong case for granting judges broader discretion.

The First Step Act’s sentencing reform components shortened federal drug sentences and expanded the judicial “safety valve,” a provision that permits judges to deviate from mandatory minimums and impose more lenient sentences in some cases involving nonviolent drug offenses.

Whether or not someone is eligible for the “safety valve” depends in part on their criminal history. Specifically, the statute looks to the U.S. Sentencing Guidelines, which assign point values to every conviction on someone’s record. Prior to 2018, only people with 0 points (no recent conviction history) or 1 point (no recent prison sentence of more than 60 days) would qualify. The First Step Act changed that, allowing a person to qualify on the basis of their criminal history if he or she “does not have” a significant history (4 or more total points), a prior serious offense (a 3-point offense), “and” a prior violent offense (2 points).

The word “and” lies at the heart of the case. The person bringing the case, Mark Pulsifer, has more than 4 total points and a previous 3-point conviction. But he has never been convicted of a 2-point violent offense. As a result, Pulsifer argued at sentencing that the safety valve should apply to him.

The law, he noted, lists a series of disqualifying traits joined together with the conjunction “and” — a clear sign that Congress intended to exclude only people who meet every condition listed. But federal prosecutors disagreed, arguing that reading all three conditions as a package renders the first condition needless. Anyone meeting the second and third conditions, they note, would always have more than four total points. Under their interpretation, defendants who fail to clear any of the eligibility criteria would be ineligible for the safety valve — including Pulsifer.

Federal appeals courts have split on this grammatical tangle. The Fourth, Ninth, and Eleventh Circuits (covering the West Coast and much of the South) follow Pulsifer’s interpretation. But the Eighth Circuit, which first heard his case, as well as the Fifth, Sixth, and Seventh Circuits, have held that the statutory language introducing the list of disqualifying conditions (“does not have”) applies to each item in the list separately, effectively converting “and” to an “or.”

The stakes are high for Pulsifer and others. For one, he was sentenced at age 60. Whether the safety valve applies to him could dictate whether he leaves prison in his early 70s or in his mid-70s. And criminal history points add up fast, meaning a narrow reading of the revised safety valve could automatically exclude thousands. Under the U.S. Sentencing Guidelines, an individual receives 2 points for any sentence of 60 days or more, including misdemeanor sentences. And as pointed out in a friend-of-the-court brief filed by FAMM Foundation, 3-point offenses (entailing a prior sentence of more than 13 months) are also very common, covering nearly 40 percent of federal defendants sentenced last year.

The basic rules of grammar seem to be in Pulsifer’s favor. The Senate’s own legislative drafting manual instructs drafters to “use ‘and’ to indicate that a thing is included in the class only if it meets all of the criteria.” In other words, “and” means “and.”

The basic principles of criminal law and the First Step Act’s legislative history also favor Pulsifer. During the debates on the bill, Sens. Cory Booker (D-NJ) and Bill Nelson (D-FL) emphasized respectively that the First Step Act aimed to provide greater discretion to “judges who sit and see the totality of the facts,” allowing them to “craft an appropriate sentence to fit the crime.” Similarly, Sen. Dick Durbin (D-IL), one of the bill’s architects, specifically described the First Step Act as a corrective to “inflexible” mandatory minimums that “don’t allow judges to distinguish between drug kingpins” and “lower-level offenders.” Shutting thousands off from the safety valve would run directly contrary to those goals.

Further, a legal principle of statutory interpretation called the rule of lenity suggests that the safety valve provision be applied more broadly. The rule says that ambiguities in criminal laws should be resolved in favor of a defendant. The justices did seem to have this principle in mind at oral argument. There, Justice Ketanji Brown Jackson rightfully questioned why the Supreme Court should interpret an alleged ambiguity as narrowly as possible, stating, “I appreciate that ‘and’ can sometimes mean ‘or,’ but this is not a conversation. This is a statute. And it’s a criminal statute with huge implications for the lives and well-being of the people who come through the system.”

Some may worry about a wider safety valve resulting in sentences that are too lenient. But it is important to remember that people who qualify for the safety valve do not automatically receive a lower sentence. It simply means federal judges are no longer required to impose the mandatory minimum. However, judges must still follow the procedures and consider the factors set forth by laws and in the U.S. Sentencing Guidelines when determining sentences. During that process, they maintain the discretion to impose a long sentence if they deem it necessary and appropriate.

The First Step Act’s safety valve provision aimed to provide federal judges greater flexibility in sentencing. Adopting a narrow interpretation of the provision would limit the crucial discretion of judges, who are in the best position to determine an appropriate sentence. Further, interpreting the provision narrowly could deprive thousands of people of relief, undermining the law’s intent and restricting the ability of judges to craft just sentences.