Pulsifer v. United States (22-340)

argument 22-340

Pulsifer v. United States

Supreme Court of the United States 1h 40m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the central legal question about interpreting “AND” in the safety‑valve statute?

John G. Roberts 0:00

We will hear argument this morning in case twenty two three

Benjamin D. O'Rourke 0:03

forty, Pulsar versus United States. Mr. Orevsky. Mr Chief Justice, and may it please the court. The natural reading of section thirty five fifty three F one is that and means and. It joins together enumerated criteria. To be safety valve eligible, a defendant must not have A, B, and C, all three. That's what ordinary grammar says, and the surrounding text confirms. Congress used AND to join F one A through C, just as it used AND to require a defendant to satisfy each of F one through five. This reading makes sense. The historic First Step Act made the safety valve available for many more nonviolent drug offenders. Taken together, A through C exclude violent recidivists with a history of committing serious crimes, while F two through F disqualify current violent offenders.

Benjamin D. O'Rourke 0:54

The government needs and to mean or, or it needs the court to insert the words does not have into the statute three times. But asking for a rewrite isn't statutory interpretation. The government's surplusage and policy arguments don't change that. There is no surplussage because the statute and the guidelines contemplate that not every sentence for a prior offense earns criminal history points. As for policy, the government focuses on whether someone with serial serious criminal history could still satisfy F one. But the safety valve isn't a get out of jail free card. Serious recidivists will likely have a career offender enhanced guidelines range at or above the mandatory minimum, and judges can and do exercise their discretion to impose appropriate sentences.

Benjamin D. O'Rourke 1:39

If Congress wanted to disqualify defendants for having any of A, B, or C, all it had to do was say or.

How does the government argue that “AND” should be read distributively rather than conjunctively?

Benjamin D. O'Rourke 1:46

that would have unequivocally expressed a distributive meaning, just as Congress did elsewhere in thirty five fifty three F. Letting the government get to ore when Congress said and would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context where fairness matters most. The Court should hold Congress to what it wrote. I welcome the Court's questions.

Clarence Thomas 2:12

Uh from your argument it appears you do not accept the uh argument that and could have a distributive effect uh reading and a joint reading.

Benjamin D. O'Rourke 2:22

Um not in this context, Justice Thomas. Not in the structure of a conjunctive negative proof like what we have here in this statute.

Clarence Thomas 2:32

In what context can it have a distributive meaning?

Benjamin D. O'Rourke 2:36

Um So I I think the the government gives a number of examples where, na again, not in a conjunctive negative proof context, you might hear and to be or. I think what's going on in a lot of those examples, it's almost like your brain is autocorrecting from and to or. The proper word actually would be or, because again, and ordinarily connects things together. But sometimes Sometimes people use English in a less precise way, and again, you you might understand that to mean or. That doesn't mean that it's syntactically correct, and that doesn't that's not the standard that Congress ought to be held to when it's writing a statute, let alone a criminal statute.

Elena Kagan 3:16

So is that what uh Uh I mean let me give you a hypothetical and tell me if you think it falls into that category. So you're going in for a medical test and you receive something from the hospital and it says uh to receive this test, uh the patient should not and then you know it has like A list of things that the patient shouldn't do and it says the patient shouldn't eat any food. drink any liquids.

What does Justice Kagan ask regarding the grammatical meaning of “AND” in this context?

Elena Kagan 3:43

and smoke. So I'm going to assume, Mr. Devaretsky, that you're not a smoker. Do you feel perfectly able to eat and drink as much as you want?

Clarence Thomas 3:53

Because

Elena Kagan 3:53

you don't smoke.

Benjamin D. O'Rourke 3:54

No, and that is a situation where I would hear that and to be an or. But there are a couple of things about that. First of all, in your hypothetical, that's all the text that we have to work with. Whereas in thirty thirty-five fifty three F.

Elena Kagan 4:10

Well let's keep it with uh my text because you have some arguments about other texts and the government has some arguments about superfluity and anomalies.