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Eats, Shoots and Leaves - SCOTUS Edition

A panda walks into a café. He orders a sandwich, eats it, then draws a gun and fires two shots in the air.

"Why?" asks the confused waiter, as the panda makes towards the exit. The panda produces a badly punctuated wildlife manual and tosses it over his shoulder.

"I'm a panda," he says at the door. "Look it up."

The waiter turns to the relevant entry in the manual and, sure enough, finds an explanation.

"Panda. Large black-and-white bear-like mammal, native to China. Eats, shoots and leaves."


Truss, Lynn, Eats, Shoots and Leaves back cover.

As a friend of, if not officially a member of, the grammar police, the joke never gets old. Aside from creating a great image, it is a wonderful example of the priceless nature of the Oxford comma. Use language well. If you don’t, the result may not be what you anticipated or wanted, and, well – bad things happen.

A confusion of language landed a case in the Supreme Court lately where the query presented was the placement of the word “and” in the United States Sentencing Guidelines (already a troubling, although well-meaning, force within federal criminal jurisprudence) in the matter of Pulsifer v. United States, No. 22-340 (March 15, 2024).  The background is not interesting: Mark Pulsifer pleaded guilty to distributing at least 50 grams of methamphetamine. This is a crime carrying a minimum mandatory term of 15 years imprisonment (which – okay  - that is the real issue, but we do not have time to delve into the machinations of a totally misguided body like Congress – or any legislature – when it comes to the random nature of their sentencing determinations). He anticipated taking advantage of the change in the “safety valve” provisions altered by the First Step Act of 2018. A “safety valve” allows a judge to sentence below even the minimum mandatory delegated sentence if certain conditions are met.

Teeny-tiny Pulsifer rabbit hole: Not really a rabbit hole so much as a place to put in that this case does not yet have a citation and I cannot tell which pages the quotes I am pulling appear on but the link above to the case is a .pdf and you can read the whole thing. I promise I am not misquoting even if I cannot tell you exactly where to find the quote. Apologies.

As a primer – the federal government loves, loves, loves to pretend like it does not interfere with state powers. That is completely untrue in the criminal justice arena where members of Congress, despite having no knowledge of how crime works or what kinds of reforms are effective, gets “tough on crime” to win elections. That is how the sentencing guidelines came to be. It was so “unfair” that some defendants convicted of identical crimes got lighter sentences than other defendants convicted of the same offense. So, they set up these guidelines with a convoluted and confusing chart and graph designed to treat everyone the same (equally not equitably). They also imposed utterly arbitrary and very, very harsh minimum mandatory sentences, particularly for narcotics offenses, to make sure that people spent a lot of time in prison (even though this is probably the worst way to help communities riddled with crime. But, again, we do not have time for that (actual) rabbit hole today.)

At issue was a portion of the statute that was ruled on differently by different courts and so it was taken up by the SCOTUS to clarify. Given this history, the portion of the statute must be ambiguous. It has to be ambiguous when courts are ruling differently and litigants are arguing so vociferously. It has to be ambiguous where three members of the highest Court dissented from the majority opinion. I mean, it has to be ambiguous. And, when criminal statutes are ambiguous, usually the rule of lenity applies. That means the defendant gets the benefit of any ambiguity. Usually.

Here, you know the majority opinion is full of argle bargle when it goes on for page after page about how, sure, you could read the section the way the defendant does, but no one would really do that (except three other courts and several other criminal defendants and three dissenting Justices. Other than those guys, absolutely no one). I mean, grammatically it is just as correct, but contextually…come on. It’s just not the case. Even though this change was part of the First Step Act that was designed to reduce mass incarceration in federal prisons and to find some tiny bit of sanity in individualized sentencing.  The majority opinion competes in this snarky mental gymnastic event and then has the audacity to say that the statute is not ambiguous at all and the rule of lenity does not apply.

So what are we talking about? The portion of the law in question is 18 U.S.C. § 3553(f) which allows for a departure from a minimum mandatory term – in addition to four other criteria not here relevant -  if the court finds at the time of sentencing the following:

the defendant does not have—

(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 (this is the pivotal “and” for those scoring at home)

(C) a prior 2-point violent offense, as determined under the sentencing guidelines.


In Pulsifer’s case, he had more than 4 criminal history points and he had a prior 3-point offense, but he had no 2-point violent offenses. Therefore, he argued that he should be able to be exempted from the (draconian and irrational) 15-year minimum mandatory term. The majority opinion had the nerve to quote a children’s book (and it was not Dr. Seuss which is the only acceptable children’s literature to use in a court opinion) AND use math formulations to make its point (which – okay to disagree on grammar, but once you add in math I am out even if I would otherwise agree with you. Everyone knows that we became lawyers because we did not like math.) So, you know I am going to be with the dissent regardless -- just on principle alone. Admitting that there are two valid ways to read the portion of the statute, the Court averred:


Much as a student would solve “5 - (2 + 1)” by first adding 2 and 1 and then subtracting the sum from 5, so Pulsifer wants a court first to combine A, B, and C and then to determine whether the defendant has the total. By contrast, the Government reads the statute without parentheses, and so arrives at a different conclusion. On its view, the “does not have” language operates on A, and on B, and on C consecutively, rather than on the three combined. So the “and” connects three criminal-history conditions, all of which must be satisfied to gain safety-valve relief. Or said another way, Paragraph (f)(1) requires that the defendant does not have A, and also does not have B, and finally does not have C. If he has even one, he cannot complete the requisite checklist and so cannot gain the safety valve’s benefits.



Spoiler alert – the majority is going with the government’s interpretation even though that would act to veer from the intent of the First Step Act which was to reduce the prison population and seek to advance more individualized sentencing for criminal defendants in the federal system. Also, it did not put in a comma after the word "so" which, grammatically, it should have --as well as probably after the word "or" but that is a little more nit-picky (I did not see any grammatical errors in the dissent. Just saying).

They go with the government’s interpretation even though there is another word, the word “or”, which could have assisted with the government’s view. The Court even dismisses that this would clear up the ambiguity (which it will later determine does not exist at all anyway). So, what does this mean? In the case at bar it means that Mark Pulsifer is going to do 15 years for a non-violent offense, one at most – at absolute most – was valued at $20,000, but realistically was more like $5000, at street level distribution. Fifteen years. Just think about how different the world was in 2009 to get a sense of how much time that is (hint: the year began with the inauguration of Barack Obama and his Vice President, Joe Biden.)

Love the “war on drugs” or hate it; no matter where you fall, this is an unbearable casualty because it is not just Mark Pulsifer. It is thousands of other people similarly situated who, if we are honest, do not benefit society by serving lengthy prison terms and who, again if we are honest, Congress probably intended to help out.


So, the Court found the ambiguity and decided that the government had the better argument under the circumstances. Okay – but there is still ambiguity, right? And so there must be an analysis under the rule of lenity (which essentially says that when there is a question of interpretation, the defendant gets the benefit of any ambiguity in a criminal statute). Not so fast says the Court. Sure, there are two interpretations, both plausible, but there is no “genuine ambiguity”:


The problem is that we do not view Paragraph (f)(1) as genuinely ambiguous. There are, to be sure, two grammatically permissible readings of the statute when viewed in the abstract. It may be read Pulsifer’s way—as stating that a defendant can get safety-valve relief so long as he does not have the combination (A, B, and C). Or it may be read the Government’s way—as stating that a defendant can get safety-valve relief only if he does not have A, does not have B, and does not have C. But the difficulty in choosing between those two constructions falls away once we consider the content of Subparagraphs A, B, and C: more than four criminal-history points (excluding points from a one-point offense), a prior three-point offense, and a prior two-point violent offense, all as determined under the Sentencing Guidelines. Then we discover that Pulsifer’s view creates glaring superfluity, whereas the Government’s view does not. And we discover that only the Government’s view renders the provision capable of sorting more serious from less serious criminal records, consistent with both the statute’s and the Guidelines’ designs. The two possible readings thus reduce to one—leaving no role for lenity to play.


What is so insane, so absolutely ridiculous, is that judges, generally HATE minimum mandatory terms and generally HATE the sentencing guidelines. They appreciated the introduction of the safety valve provision because -- at least in certain circumstances --they could do what they believed was their job – not rubber stamp some arbitrary and often draconian sentence imposed by lawmakers who think being “tough on crime” will get them re-elected – but instead sentence the person in front of them as a human being. The dissent, and normal people, therefore, take issue with this dismissive rendering of an insanely harsh criminal sentence for less than a pocketful of meth.


What does the dissent have to say for itself? Quite a lot, actually. It takes issue with a key provision of the majority decision. That decision requires the reader of the statute to remove language where it exists and to insert it where it does not and to convert an “and” to an “or”. It comes out swinging with, “[t]his argument was a loser below and it should be here.” Which, to be fair, is a pretty strong opening salvo. The next jab connects so squarely, it should have been a knockout punch:


Without question, the canon against superfluity can be a useful tool when seeking the meaning of a statute. It rests on the same principle as the canon of meaningful variation: the presumption that Congress is a careful drafter and each word it chooses “is there for a reason.” Advocate Health Care Network v. Stapleton, 581 U.S. 468, 477, 137 S.Ct. 1652, 198 L.Ed.2d 96 (2017). But that fact also makes the government’s choice to rest its case on the superfluity canon a curious one. As we have seen, the government’s implicit distribution theory depends on the assumption that Congress was not a careful drafter. It requires us to assume Congress left a distribution implicit in one section of paragraph (f)(1), even as it made others express elsewhere in paragraphs (f)(1) and (f)(4). It requires us to assume Congress meant for “and” in paragraph (f)(1) to do the same work as “or” in paragraphs (f)(2)–(f)(4). Sometimes, it seems, we are supposed to assume Congress was sloppy, other times careful. The only common thread seems to be what benefits the government in the moment.




The dissent ends with this thoughtful and thought-provoking section which bears repeating in full:


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.


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.


The dissent, even if it is an odd assortment of bedfellows: Justice Gorsuch, Justice Sotomayor, and Justice Jackson, is well reasoned, powerful, and correct. It is heartbreaking not only for Mark Pulsifer and his family and friends. It is heartbreaking because it so limits the universe of people who can take advantage of one of the few good things to come out of the four chaotic years of the Trump Administration. And it is heartbreaking because the easiest thing to do would be to rule in favor of the defendant under the rule of lenity. If Congress did not like that ruling, it could change the language of the statute. In the meantime, judges could be real judges and sentence people as individuals; people who have made mistakes could have a chance at shorter sentences. Note that this would also build credibility in American institutions like Congress for passing the law, like the president for signing the law, and like courts for implementing laws fairly (see what I did there – left nothing to chance in the “distribution” interpretation…it’s pretty easy to do).  Now Congress knows it can be as sloppy as it wants to be and the Court will always just make up its own interpretation regardless. And that interpretation will usually champion authoritarian rule at the expense of the most vulnerable.


A panda is a kind of animal that eats shoots and leaves. Better phrased, they eat shoots and they eat leaves. Only a misplaced comma turns a panda into a cute, but gun-toting, animal that eats, shoots and leaves. Grammar matters. In some cases more than others. In this case, a friendly amendment, meant to help the criminal justice system function a little more as it was intended to function with individualized sentences and hope, was weaponized. The eligible group of candidates for the safety valve today is a fraction of what it should be and only slightly larger than it was before the very hard-fought criminal justice reform bill of 2018.



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