OPINION ANALYSIS

Supreme Court limits “safety valve” in federal sentencing law

Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.

This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.

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.

The opinion is lengthy, and doubtless will be cited frequently for its treatment of the meaning of “and” and “or” when used in lists like this. But the basic point is that we can discern the meaning of the statute’s “and” only by examining the context and structure of the text in question. Among the examples Kagan uses to support her understanding are such diverse items as a lengthy quote from The Very Hungry Caterpillar and a quote from Article III of the Constitution. To illustrate briefly, that last example suggests that the extension of the “judicial Power … to all Cases … arising under this Constitution, the Laws of the United States, and Treaties” plainly applies to cases arising under any one of the three listed bodies of law. It necessarily applies, for example, to cases arising under the Constitution, even if they do not also arise under a Treaty.

In the end, Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity. Specifically, the first of the three tests (subparagraph A) would under the defendant’s view lack “any operative significance. That is because if a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C he will always have more than four criminal-history points under Subparagraph A.”

Hence, under the government’s view, each of the three subparagraphs bears weight, because each defines a separate reason for denying application of the safety valve. Under Pulsifer’s view, though, subparagraph A is entirely superfluous. Kagan points out that “[w]hen a statutory construction … renders an entire subparagraph meaningless, … the canon against surplusage applies with special force.” Principally for that reason, she rejects the defendant’s view and limits application of the safety valve to defendants who satisfy each of the three subparagraphs.

The case resolves a conflict among the lower courts, adopting the view that will lead to more frequent use of the mandatory minimum sentencing provisions. Only time will tell whether Congress wishes to respond by relaxing those provisions still further.