How High Court Reading Of 'And' Could Affect Many Drug Inmates

The Supreme Court kicked off the first day of its term Monday with a schoolhouse classic: conjunction junction.

“I thought there was an established rule in English grammar of how to read ‘and,’” Justice Brett Kavanaugh said. The nearly two-hour argument session had the justices offering differing grammatical theories in their attempt to get to the bottom of what lawmakers meant in 2018 when enacting the First Step Act's safety valve provision on mandatory minimum sentences for drug offenders, reports Courthouse News Service..

“Does Congress really focus as we have today on the grammar?” Chief Justice John Roberts asked. Speaking for the government, Frederick Liu of the Solicitor General's office said, “'And' is conjunctive … the question is what does 'and' join?”

How the justices interpret "and" is not merely a grammar exercise; it has the potential to alter prison sentences for many drug offenders. One such person is Mark Pulsifer, who is facing over a decade in prison for selling methamphetamine in 2020. The law excludes some nonviolent drug offenders from mandatory minimum sentences. Congress assigned a point value to various offenses and said a defendant must not have more than four criminal history points, a prior three-point offense, and a prior two-point offense.

The key to the case is the "and." "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)?,” said Pulsifer's attorney, Shay Dvoretzky, in his brief. Pulisfer’s prior conviction qualified him for a statutory minimum term of 15 years in prison, but he argued he met the requirements for safety-valve relief under the First Step Act. Dvoretzky argues that as long as defendants do not meet all the criteria — A, B and C — they are eligible for relief.

“Plain meaning, context, and purpose — not to mention Occam’s razor — all point to the same conclusion: ‘and’ means ‘and,’” Dvoretzky wrote. The majority of justices were skeptical of this reading.