SUPREME COURT OF THE UNITED STATES
_________________
No. 22–340
_________________
MARK E. PULSIFER, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the eighth circuit
[March 15, 2024]
Justice Gorsuch, with whom Justice Sotomayor
and Justice Jackson join, dissenting.
The First Step Act of 2018 may be “ ‘the
most significant criminal justice reform bill in a
generation.’ ” Brief for Sen. Richard J. Durbin et al. as
Amici Curiae in
Terry v.
United States, O. T.
2020, No. 20–5904, p. 9. Through the 1980s and 1990s, Congress
adopted an ever-increasing number of ever-longer mandatory minimum
prison sentences. In part due to these policies, the federal prison
population grew by more than 100% in less than a decade. In the
First Step Act, Congress sought to recalibrate its approach. It did
so by promising more individuals the chance to avoid
one-size-fits-all mandatory minimums and receive instead sentences
that account for their particular circumstances and crimes.
This dispute concerns who is eligible for
individualized sentencing and who remains subject to mandatory
minimums after the First Step Act. Before the Act, a defendant
seeking to avoid a mandatory minimum had to satisfy five stringent
statutory tests. After the Act, all those tests remain, only the
first is now less demanding. As revised, it provides that a
defendant may be eligible for individualized sentencing if he “does
not have” three traits: (A) more than 4 criminal history points,
(B) a 3-point offense, and (C) a 2-point violent offense. In lower
court proceedings, the government admitted that this new test is
“most natural[ly]” read to mean what it says: A defendant may be
eligible for individualized sentencing unless he possesses all
three listed traits—A, B,
and C. Brief for United States in
No. 19–50305 (CA9), p. 7 (Government CA9 Brief );
id., at 10–11; accord, Brief for United States in No.
21–1609 (CA8), p. 11 (Government CA8 Brief ). Despite its
admission, however, the government urges us to adopt a different
construction. It asks us to read the First Step Act as promising a
defendant a chance at individualized sentencing only when he does
not have any of the three listed traits—A, B,
or C.
If this difference seems a small one, it is
anything but. Adopting the government’s preferred interpretation
guarantees that thousands more people in the federal criminal
justice system will be denied a chance—just a chance—at an
individualized sentence. For them, the First Step Act offers no
hope. Nor, it seems, is there any rule of statutory interpretation
the government won’t set aside to reach that result. Ordinary
meaning is its first victim. Contextual clues follow. Our
traditional practice of construing penal laws strictly falls by the
wayside too. Replacing all that are policy concerns we have no
business considering. Respectfully, I would not indulge any of
these moves.
I
A
In approaching the dispute before us, some
background helps. Before the 1980s, federal judges generally
enjoyed broad discretion at sentencing. Often, they could impose
punishments ranging from probation up to statutorily specified
maximum prison terms.
Mistretta v.
United States,
488 U.S.
361, 363 (1989). In exercising that discretion, judges had to
“consider every convicted person as an individual” and pick
punishments that “fit the offender and not merely the crime.”
Pepper v.
United States,
562
U.S. 476, 487–488 (2011).
Today, many defendants still receive
individualized sentences. In the mine run of federal cases, a court
will start with sentencing guidelines the United States Sentencing
Commission has prepared at Congress’s direction. The guidelines
help a court identify a range of presumptively reasonable sentences
tailored to the defendant and his crime. See
Rita v.
United States,
551 U.S.
338, 347 (2007). That range depends on an “offense level,” a
figure that takes into account the seriousness of the defendant’s
crime and his role in it, as well as the defendant’s “criminal
history” score, a tallying that accounts for his past misconduct.
United States Sentencing Commission, Guidelines Manual §§1B1.1,
4A1.1–4A1.2, ch. 5, pt. A (Nov. 2023) (USSG); see
Rosales-Mireles v.
United States, 585 U.S. 129,
133–134 (2018). The guidelines, however, are just that. A
sentencing judge may sometimes depart or vary from the guidelines’
recommended range, picking a lower or higher sentence if it best
fits the defendant and broader penological goals Congress has
instructed courts to consider. See
Gall v.
United
States,
552 U.S.
38, 46, 49–50 (2007); 18 U. S. C. §3553(a).
In the 1980s and 1990s, Congress pursued a
different approach for certain drug offenses. See Anti-Drug Abuse
Act of 1986, 100Stat. 3207–2 to 3207–4; Anti-Drug Abuse Act of
1988, 102Stat. 4370, 4377–4378. It required courts to impose
mandatory minimum prison terms based only on the kind and quantity
of the drugs involved in the defendant’s crime. A court “was
required to send the offender to prison” for a set period of years
“no matter how minor the offender’s participation in the offense
may have been, and no matter what mitigating circumstances might
have been present.” J. Rakoff, Why the Innocent Plead Guilty and
the Guilty Go Free 13 (2021). Under this regime, for example, a
defendant distributing 5 grams of crack cocaine faced a 5-year
mandatory prison term, and one with 50 grams faced a 10-year term.
100Stat. 3207–2 to 3207–3. Meanwhile, a defendant found with powder
cocaine confronted those same prison terms only if he distributed
100 times those amounts.
Ibid.
In short order, the federal prison population
exploded. In 1986, federal prisoners numbered 30,104, approximately
37.7% of whom were serving time for drug offenses. Dept. of
Justice, Sourcebook of Criminal Justice Statistics 519 (31st ed.
2003). By 1994, the federal prison population reached almost
74,000, with approximately 61.3% of inmates serving time for a drug
offense.
Ibid.
Calls for reform came quickly and grew with
time. See,
e.g., U. S. Sentencing Commission, Special
Report to the Congress: Mandatory Minimum Penalties in the Federal
Criminal Justice System iii (1991);
id., App. G (collecting
statements from the Judicial Conference and 12 circuits).
Eventually, Congress responded to these calls in various ways. In
one reform, for example, it prospectively reduced the crack-cocaine
disparity from 100:1 to 18:1. See Fair Sentencing Act of 2010,
124Stat. 2372. In another, it adopted §3553(f ), a provision
that came to be called the “safety valve” and that lies at the
heart of today’s case. See Violent Crime Control and Law
Enforcement Act of 1994, 108Stat. 1985–1986.
As originally enacted in 1994, the safety valve
provided modest relief. It exempted defendants who could meet five
statutory criteria from otherwise-applicable mandatory minimums,
directing instead that they should receive individualized
sentences.
Ibid. (codified as amended at 18
U. S. C. §3553(f )). But the first of the safety
valve’s five criteria, codified in paragraph (f )(1), was
especially demanding. It precluded relief for any individual with
“more than 1 criminal history point”—meaning that a defendant could
find himself ineligible for individualized sentencing if his
background included even a single 60-day prison term or two prior
offenses involving no prison term at all. 108Stat. 1985; see
§3553(f )(1) (1994 ed.); USSG §§4A1.1(b)–(c), 4A1.2 (Nov.
1994).
B
In the First Step Act of 2018, Congress
adopted an array of further reforms. Pub. L. 115–391, 132Stat.
5194. Passed with overwhelming majorities in both chambers of
Congress and with presidential support, the Act reduced the length
of some mandatory minimums by 25 percent. See §401,
id., at
5220–5221. It narrowed the circumstances under which a court could
“stack” certain mandatory minimums on top of one another. See
§403(a),
id., at 5221–5222; U. S. Sentencing
Commission, The First Step Act of 2018: One Year of Implementation
5 (2020). And it made Congress’s earlier amendment to the
crack-cocaine disparity retroactive, allowing individuals sentenced
before that amendment’s adoption a chance at resentencing. See
§404, 132Stat. 5222.
The First Step Act also revised the safety
valve’s first provision. Where paragraph (f )(1) once barred a
defendant with even a single criminal history point from receiving
an individualized sentence, Congress now chose a different course.
As amended, the full safety valve today instructs a court to afford
an individualized sentence “if [it] finds at sentencing
. . . that—”
“(1) 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
“(C) a prior 2-point violent offense, as
determined under the sentencing guidelines;
“(2) the defendant did not use violence or
credible threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so) in
connection with the offense;
“(3) the offense did not result in death or
serious bodily injury to any person;
“(4) the defendant was not an organizer,
leader, manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in . . . the
Controlled Substances Act; and
“(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided to the Government
all information and evidence the defendant has concerning the
offense or offenses that were part of the same . . .
common scheme or plan . . . .” 18 U. S. C.
§3553(f ).
C
The question we face concerns how the amended
safety valve works. Everyone agrees that a defendant must still
clear five daunting statutory hurdles. But the parties disagree
what the first entails after the First Step Act. Observing that the
word “and” connects each of the subparagraphs (f )(1)(A), (B),
and (C), Mark Pulsifer argues that the safety valve’s first
provision now operates to render ineligible one kind of defendant—a
defendant who bears all three enumerated traits, A, B,
and
C. Because he does not have all three, Mr. Pulsifer submits, he is
eligible for safety-valve relief as long as he can satisfy the
law’s four remaining provisions. Meanwhile, on the government’s
telling, paragraph (f )(1) renders three kinds of defendants
ineligible for relief—any defendant who has trait A, B,
or
C. And because Mr. Pulsifer has at least one of those traits, the
rest of the safety valve is irrelevant; paragraph (f )(1)
alone renders him ineligible for relief.
Disputes about the amended safety valve’s
operation have simmered for years in the lower courts and yielded
conflicting results.[
1] At
least one thing, though, is clear: The dispute before us matters
profoundly. According to a Sentencing Commission analysis based on
2021 data, about 33% of drug offenders were eligible for
safety-valve relief under the law’s old terms. See 88 Fed. Reg.
7186 (2023). Under Mr. Pulsifer’s understanding of the First Step
Act, about 66% would become eligible for individualized sentencing.
See
ibid. By contrast, under the government’s reading of the
Act, that number would shrink to around 44%. See
ibid. Our
decision today thus promises to affect the lives and liberty of
thousands of individuals.
II
Unless some feature of the law suggests that
one or another of its terms bears a specialized meaning, our duty
is to interpret Congress’s work as an ordinary reader would. See
Niz-Chavez v.
Garland, 593 U.S. 155, 163 (2021). At
the heart of today’s dispute lies no specialized term but perhaps
the most ordinary of words: Everything turns on what work the word
“and” performs in paragraph (f )(1), where a sentencing court
is tasked with determining whether “the defendant does not have”
three traits—A, B, “and” C.
A
In taking up the parties’ dispute, start with
a few simple and uncontested observations. First, as the Court
agrees, “and” is “a conjunction—a word whose function is to connect
specified items.”
Ante, at 7; see J. Opdycke, Harper’s
English Grammar 200 (rev. ed. 1966).
Second, and more specifically, “and” is an
“additive” conjunction, one often indicating that the words it
connects should be added together.
Id., at 200; The Chicago
Manual of Style §5.183, p. 191 (15th ed. 2003). As the Court
explains, when “and” performs that role, it means “[t]ogether
with,” “along with,” “in addition to,” or “as well as.” American
Heritage Dictionary 66 (5th ed. 2018); see
ante, at 7.
Third, in paragraph (f )(1) “and” connects
a list in a negative conditional statement (“if . . . the
defendant does not have”). Negative conditional “if . . .
not” statements often function like the word “unless.” See R.
Huddleston & G. Pullum, The Cambridge Grammar of the English
Language §14.3, p. 755 (2002). Consider the mother who tells her
child, “If you do not have any homework left, you can go play with
your friends.” The child would understand that he could play with
his friends
unless he had homework left to do.
Now apply those observations to paragraph
(f )(1). Given the meaning of “and,” an ordinary reader would
naturally understand that a defendant is eligible for
individualized sentencing if he “does not have” trait A, trait B,
together with trait C. Add to the mix what we know about the
interchangeability of “if . . . not” and “unless”: A
defendant may receive guidelines sentencing
unless he has
trait A, trait B,
together with trait C. Put the points
together, and the statute indicates that a court may issue an
individualized sentence unless the defendant has all three traits
listed in §3553(f )(1), just as Mr. Pulsifer contends.
B
What the language of paragraph (f )(1)
suggests, surrounding context confirms. When Congress uses
different terms in a statute, we normally presume it does so to
convey different meanings.
Southwest Airlines Co. v.
Saxon, 596 U.S. 450, 457–458 (2022). We sometimes call this
presumption the “meaningful-variation canon.”
Id., at 457.
Here, we see just such a meaningful variation. When Congress sought
a single word to indicate that one trait among many is sufficient
to disqualify an individual from safety-valve relief, it chose an
obvious solution: not the conjunctive “and,” but the disjunctive
“or.”
In fact, Congress used “or” this way no fewer
than three times. Paragraph (f )(2) specifies that, for a
defendant to be eligible for individualized sentencing, a court
must find that “the defendant did not use violence
or
credible threats of violence
or possess a firearm
or
other dangerous weapon (
or induce another participant to do
so) in connection with the offense.” (Emphases added.) Paragraph
(f )(3) premises eligibility on a finding that a defendant’s
“offense did not result in death
or serious bodily injury to
any person.” (Emphasis added.) And paragraph (f )(4) provides
that eligibility for relief turns on whether the defendant “was not
an organizer, leader, manager,
or supervisor of others in
the offense.” (Emphasis added.)
The fact that Congress repeatedly used “or” when
it wanted relief to turn on a single trait among many suggests that
the “and” in paragraph (f )(1) performs different work. Even
the government once acknowledged as much, conceding below that the
“and” in paragraph (f )(1) is “most natural[ly]” read as
requiring a sentencing court to find that a defendant possesses all
three listed traits before holding him ineligible for relief.
Government CA9 Brief 7;
id., at 10–11; accord,
e.
g., Government CA8 Brief 11. Nor is the government
alone in this unsurprising understanding: A study involving
ordinary Americans found that the largest share of participants
understood a sentence tracking paragraph (f )(1)’s structure
to trigger ineligibility only if all three conditions are
satisfied. See Brief for Thomas R. Lee et al. as
Amici
Curiae 15, 18.
III
A
The government disputes none of this evidence
about the law’s ordinary meaning. Instead, it begins with a theory.
Maybe, the government says, there is another “permissible” way to
read paragraph (f )(1).
Ante, at 7; Brief for United
States 18, 37. Maybe Congress implicitly wanted a reader to
“distribut[e]” the “verb phrase” “does not have” among each
subparagraph.
Ante, at 8–9 (internal quotation marks
omitted); Brief for United States 14–18. Maybe, then, we should
effectively read the statute to work this way, with deleted words
stricken and new ones added in bold:
(1) the defendant
does not have —
(A)
does not have more than 1 criminal
history point . . . ;
(B)
does not have a prior 3-point
offense . . . ; and
(C)
does not have a prior 2-point violent
offense.
Yes, the government’s implicit distribution
theory requires a reader to delete words before the em dash. Yes,
it requires a reader to reinsert them in three different places
where they do not appear. But maybe, the government suggests,
Congress implicitly intended for a reader to do all that. Even
though what it wrote is susceptible to a far more natural
construction requiring none of these gymnastics.
That is not how statutory interpretation usually
works. Statutes aren’t games or puzzles but “instruments of a
practical nature, founded on the common business of human life,
. . . and fitted for common understandings.” 1 J. Story,
Commentaries on the Constitution of the United States §451, p. 437
(1833). For that reason, we usually presume that Congress “employed
words in their natural sense, and . . . intended what
[it] said.”
Gibbons v.
Ogden, 9 Wheat. 1, 188 (1824).
And once we have identified the most natural sense of the law’s
terms, as we have here, our interpretive task is usually at an end.
See,
e.
g.,
Barnhart v.
Sigmon Coal Co.,
534 U.S.
438, 461–462 (2002).
The government’s implicit distribution theory is
so far from the most natural reading of the law that its many and
able lawyers didn’t even stumble on it until late in the game. In
litigation below, the government started by arguing primarily that
paragraph (f )(1) “must be read in the disjunctive”—a fancy
way of saying that “and” means “or.” Government CA8 Brief 4; see
United States v.
Garcon, 54 F. 4th 1274, 1280 (CA11
2022) (en banc). In early cases, that was the government’s only
argument. See,
e.g., Sentencing Tr. in No. 3:19–cr–207 (ED
Tenn.), ECF Doc. 176, p. 4 (“I think the Department of
Justice’s position as well as our position here today is
. . . that it should be read disjunctively”); see also
Tr. of Oral Arg. 103. Only after a resounding loss on that
argument, see
United States v.
Lopez, 998 F.3d 431,
435–443 (CA9 2021), did the government shift to its implicit
distribution theory, stressing that its new offering does not
require courts to “transform” “and” into “or,” see Brief for United
States 42–43.
The government’s implicit distribution theory
may be a “convenient litigating position,”
Bowen v.
Georgetown Univ. Hospital,
488 U.S.
204, 213 (1988), but it does not come close to respecting the
most natural construction of the law. It may have the benefit of
leaving “and” alone, but it comes at the cost of rearranging so
much else in the statute. One way or another, the government cannot
get where it wishes to go without tinkering with the law. And to
know that much should be enough to bring this case to a close:
“Crimes are supposed to be defined by the legislature, not by
clever prosecutors riffing on equivocal language.”
Dubin v.
United States, 599 U.S. 110, 129–130 (2023) (internal
quotation marks and alteration omitted).
B
How does the government reply? It insists that
contextual clues support its implicit distribution theory. These
clues are so compelling, it says, any other construction of the law
isn’t “plausible” or “possible.”
Ante, at 16, 27; Brief for
United States 18–19. It is a bold claim, not only because the
government overlooks all the evidence of the statute’s meaning
outlined above, but also because it overlooks one piece of
contextual evidence after another weighing against its implicit
distribution theory.
Start with this one: The statute before us
stands far afield from classic cases that invite questions about
implied distribution. In everyday speech, the government stresses,
a listener may appreciate the need to “distribut[e]” what this
Court has called “several antecedents” to “several consequents.”
Encino Motorcars, LLC v.
Navarro, 584 U.S. 79, 87
(2018) (quoting 2A N. Singer & S. Singer, Sutherland Statutes
and Statutory Construction §47:26, p. 448 (rev. 7th ed. 2014)
(internal quotation marks omitted)). In its brief before us, the
government leads with this example of the phenomenon: someone who
says, “I sell red, white, and blue caps.” See Brief for United
States 14. That statement, the government observes, contains an
ambiguity. One listener might think that the seller offers caps
bearing all three colors. But another listener might wonder if the
seller implicitly means to “distribute” different colors to
different caps—so that she really means to say she sells red caps,
she sells blue caps, and she sells white caps. Only context, the
government insists, can resolve the ambiguity and reveal which
understanding best reflects the seller’s meaning.
Id., at
16.
If context suggests anything, however, it is
that this observation has little to offer when it comes to the
statute before us. The First Step Act does not contain several
“antecedents” (many caps, for example) that might or might not
distribute among several “consequents” (say, colors). Instead,
paragraph (f )(1) speaks of a single person—“the defendant”
presently before the sentencing court—who must not have three
specified traits (A, B, and C). And that “singular” construction
“tends to avoid the ambiguity” about distribution that a “plural”
construction can invite. M. Kirk, Legal Drafting: The Ambiguity of
“And” and “Or,” 2 Tex. Tech. L. Rev. 235, 239–240 (1971); see also
Huddleston, Cambridge Grammar §1.3.1, at 1280–1281.
Drafting experts illustrate the point with this
phrase: “charitable and educational institutions.” R. Dickerson,
The Fundamentals of Legal Drafting §6.2, pp. 109–110 (2d ed.
1986); Kirk, 2 Tex. Tech. L. Rev., at 239–241. The phrase is
ambiguous. The multiple “institutions” might distribute across the
multiple listed traits to describe both “charitable institutions
and educational institutions.” Dickerson, Fundamentals of Legal
Drafting §6.2, at 110; Kirk, 2 Tex. Tech. L. Rev., at 240. Or
the term “institutions” might not distribute, so the phrase
describes only institutions that are both charitable and
educational.
Id., at 240–241. But if there is just a single
“institution,” any ambiguity dissipates: “A charitable and
educational institution”
is an institution with both traits.
The same holds true when a saleswoman offers “the red, white, and
blue cap”: In that case, a buyer knows with certainty that the
seller offers one kind of cap bearing all three colors.
This contextual clue poses the government with a
serious problem. When Congress wrote paragraph (f )(1), it
employed a singular construction that tends to avoid the ambiguity
about distribution that plural constructions invite. The statute
before us thus bears no resemblance to the government’s lead
illustration involving multiple caps and colors. Nor does it bear
any resemblance to the government’s various illustrations from
statutory and constitutional law involving multiple “offenses” that
fall into multiple classes, see
ante, at 11; Brief for
United States 17–18 (discussing 34 U. S. C.
§20101(f )); multiple “Cases” that meet multiple descriptions,
see
ante, at 8–9; Brief for United States 40 (quoting
Art. III, §2, cl. 1); or the many kinds of “Commerce”
Congress can regulate, see
ante, at 9; Brief for United
States 39–40 (quoting Art. I, §8, cl. 3).[
2]
Sensing the government’s difficulty, the Court
struggles for an example of its own involving a singular person or
thing that does generate an ambiguity about distribution.
Eventually, it lands on Eric Carle’s story about a caterpillar who
“ ‘ate through’ ” (among so many other things)
“ ‘one sausage, one cupcake, and one slice of
watermelon.’ ”
Ante, at 8; see also
ante, at 9,
n. 3. Mission accomplished: One child might implicitly
distribute the phrase “ate through” to each foodstuff, while
another might read the list without implicit distribution to mean
the caterpillar ate through a “combination” that includes them all.
Ante, at 9.
But what does that prove? “[T]o acknowledge
ambiguity is not to conclude that all interpretations are equally
plausible.”
Gwaltney of Smithfield, Ltd. v.
Chesapeake
Bay Foundation, Inc.,
484 U.S.
49, 57 (1987). And an example of ambiguity about distribution
in a children’s book does nothing to prove that the federal
criminal statute before us is most plausibly read to require
implicit distribution. Add some of paragraph (f )(1)’s salient
features into the illustration and that much becomes clear. As the
story goes, the caterpillar is in the process of becoming a
butterfly. So suppose the story said the caterpillar “will remain a
caterpillar if he does not eat (A) one sausage, (B) one cupcake,
and (C) one slice of watermelon.” I suspect most ordinary readers
(and children) would have little trouble concluding that the
sentence means that the caterpillar will remain a caterpillar
unless he eats all three things; one alone will not do.
C
Here’s another problem with the government’s
theory: If in some contexts a speaker might intend for a listener
to distribute words implicitly, the context before us counsels
against attributing any such intention to Congress. It does because
a careful look at the safety-valve statute reveals that, when
Congress wanted to distribute a phrase in this law, it did not
leave the matter to implication. It did not depend on the reader’s
imagination. Instead, Congress distributed phrases expressly.
Twice, in fact. In paragraph (f )(4),
Congress took the trouble to distribute expressly the phrase “was
not,” permitting relief only if “the defendant
was not an
organizer, leader, manager, or supervisor of others . . .
and
was not engaged in a continuing criminal enterprise.”
(Emphases added.) Likewise, in paragraph (f )(1) itself
Congress expressly distributed the phrase “as determined under the
sentencing guidelines” three times, in each of subparagraphs (A),
(B), and (C). All the contextual evidence before us thus suggests
that, in a statute carrying grave criminal consequences, Congress
was careful with its words and concerned with clarity. It did not
leave ambiguities about distribution to be resolved by implication.
Instead, it resolved them expressly, even at the cost of
repetition.
Once more, the government’s examples only serve
to illustrate its problem. It imagines a speaker who says,
“ ‘I didn’t like his mother and father.’ ”
Ante,
at 10; Brief for United States 39. The government suggests that a
listener would “probably” understand the sentence as implicitly
distributing the phrase “I didn’t like his,” so that it really
means, “I didn’t like his mother and
I didn’t like
his father.”
Ante, at 10 (emphasis added); Brief for
United States 39. But as the hedge (“probably”) indicates, an
ambiguity lurks here. The sentence could also be understood without
any distribution to convey the idea that “I didn’t like his mother
and father” as a couple, even if I liked each individually well
enough. See Huddleston, Cambridge Grammar §2.2.2, at
1298–1299.[
3] Only context, the
government concedes, can clarify which meaning is more apt. See
ante, at 15; Brief for United States 16. Yet somehow, the
government neglects that same message when it comes to the statute
before us—where context reveals that Congress did not leave
questions of distribution to implication but resolved them
expressly.
D
Context exposes yet another flaw in the
government’s implicit distribution theory. If, as the government
imagines, Congress was determined to find an “efficient” way to
disqualify a defendant bearing any one of the three traits listed
in paragraph (f )(1),
ante, at 8, 13; see Brief for
United States 18, it had an obvious solution before it: the word
“or.” As we have seen, Congress employed exactly that approach
three times in the safety valve: Paragraphs (f )(2),
(f )(3), and (f )(4) all premise disqualification for
relief on the presence of one trait
or another. See Part
II–B,
supra. In this way, too, context confirms that, when
Congress wanted to make one trait among many disqualifying, it
proceeded expressly (and often efficiently)—but never by
implication.
After disregarding others, the government at
least acknowledges this particular complication for its theory. It
responds this way: Even substituting “or” for “and,” it says, would
not “delive[r] us from interpretive controversy.”
Ante, at
12; Brief for United States 26. It would not because replacing
“and” with “or” in paragraph (f )(1) still would not answer
the question whether a single trait alone is enough to render a
defendant ineligible for relief.
Ante, at 12; Brief for
United States 26. As evidence of the malleability of the word “or”
in some contexts, the Court cooks up various illustrations
involving a hypothetical chef.
Ante, at 12, n. 5.
It is a remarkable response. At argument, the
government acknowledged that “or” “might have been a clearer way to
express” that a single trait is disqualifying in paragraph
(f )(1). Tr. of Oral Arg. 98. Below, the government initially
pushed for treating “and” as meaning “or” precisely because it knew
that doing so would mean that a defendant is ineligible for relief
if he has even one of its listed traits. See
id., at 101;
Government CA9 Brief 11–13; Government CA8 Brief 7–8. And everyone,
the Court included, concedes that Congress’s use of the word “or”
in paragraph (f )(4) means that a defendant meeting any one of
several criteria is disqualified from relief.
Ante, at 25.
Simply put, “we wouldn’t be sitting here if Congress had used the
word ‘or’ ” in paragraph (f )(1). Tr. of Oral Arg. 97.
Whatever ambiguity “or” might carry in other contexts, it carries
none in §3553(f ). Throughout the safety valve, Congress used
it to indicate that a single trait among many is
disqualifying.[
4]
Finding the government on its back foot, the
Court again comes to its defense, this time by trying to change the
rules of play. Perhaps, the Court speculates, Congress’s choice of
“and” rather than “or” in paragraph (f )(1) was the product of
careless drafting. See
ante, at 11–12. Perhaps, too, those
two conjunctions are “versatile” words not entitled to the respect
we usually pay Congress’s variations in usage—a respect, the Court
suggests, that is due only “to terms with some heft and
distinctiveness, whose use drafters are likely to keep track of and
standardize.”
Ante, at 23, 25.
Consider how far we have now retreated. Lower
courts rejected the government’s and-means-or argument. In
response, the government introduced its implicit distribution
theory. Before us, the government stresses that its new theory does
not depend on “transform[ing]” “and” into “or.” Brief for United
States 42; see also
id., at 15, 25. At first, the Court
seems to proceed on the same premise. See
ante, at 7–8. But
now it reverses course. Resuscitating an argument the government
itself has abandoned, the Court contends not just that the terms
“and” and “or”
are interchangeable, but that we need not
even rely on our usual rules of interpretation when faced with
them.
This argument was a loser below and it should be
here. When Congress employs “differing language in . . .
two subsections,” we start from a presumption that it meant to
convey a difference in meaning, not a presumption that it made “a
simple mistake in draftsmanship.”
Russello v.
United
States,
464 U.S.
16, 23 (1983). Never, to my knowledge, has this Court suggested
that we may turn our back on this approach when conjunctions or
other putatively “indistinctive” words are in play. Nor have we
deployed that approach for “hefty” words alone—as if we were
picking paper towels instead of interpreting statutes. To the
contrary, our cases begin (and often end) with the presumption that
Congress is careful in all its word choices and afford variations
between terms like “and” and “or” the same respect due others. See,
e.
g.,
United States v.
Palomar-Santiago, 593 U.S. 321, 326 (2021) (reversing the
lower court for failing to give effect to a statute’s use of “the
conjunctive ‘and’ ”);
Encino Motorcars, 584 U. S.,
at 87 (resting a reading of the relevant statute on “the ordinary,
disjunctive meaning of ‘or’ ”);
Loughrin v.
United
States,
573 U.S.
351, 357 (2014) (rejecting an argument that would “disregard
what ‘or’ customarily means”);
Reiter v.
Sonotone
Corp.,
442 U.S.
330, 338–339 (1979) (similar);
Rumsfeld v.
Padilla,
542 U.S.
426, 434 (2004) (giving weight to the federal habeas statute’s
“consistent use of the definite article”).[
5]
Nor could the premise latent in the Court’s
argument be further from the truth. The difference between words
like “and” and “or” often cannot be easily dismissed as meaningless
when it comes to settling legal rights. Just imagine if the Sixth
Amendment gave the accused a “right to a speedy
or public
trial.” Rather than getting a both timely and transparent trial, a
defendant would be forced to choose which feature he prefers.
Because the difference between “and” and “or” so regularly proves
dispositive of important legal rights, drafting manuals for legal
text from contracts to congressional legislation warn about the
need to deploy the terms with care. See,
e.
g., Senate
Office of the Legislative Counsel, Legislative Drafting Manual
64–65 (1997); K. Adams, A Manual of Style for Contract Drafting
§§11.9–11.11, p. 211 (3d ed. 2013). And here, of course, the
difference between “and” and “or” affects the lives of thousands,
see
supra, at 7—a fact so inconvenient for the Court that
the Court says to ignore it as well, see
ante, at
26.[
6]
IV
So far, things look bleak for the government.
Mr. Pulsifer offers a perfectly natural reading of the law. In
response, the government offers a theory that it says rises or
falls based on context. See
ante, at 15; Brief for United
States 11, 16. Yet, as it turns out, not one but three contextual
clues array against its theory.
Unable to muster a convincing response to any of
that, the government pivots. Even if its implicit distribution
theory suffers so many flaws, the government urges us to adopt it
anyway because Mr. Pulsifer’s reading of the law would introduce a
superfluity into the safety-valve statute. It is a resourceful
reply. The government has many. But it, too, falls flat.
A
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 (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.
Even putting that small irony aside, the
government has a bigger problem: Mr. Pulsifer’s reading leaves no
provision in this statute superfluous. As the government sees it, a
defendant who has both the prior 3-point offense required by
subparagraph (B), and the 2-point violent offense required by
subparagraph (C), will necessarily have more than the 4 criminal
history points required by subparagraph (A). Because of this, the
government submits, subparagraph (A) has no work to perform on Mr.
Pulsifer’s reading: “Remove it from the statute, and what is left
will make the exact same people eligible (and ineligible) for
relief.”
Ante, at 17; Brief for United States 19–20. Only
its implicit distribution theory, the government contends, can cure
the problem by allowing one subparagraph to “disqualif[y]
defendants from relief even when the others would not.”
Ante, at 16; Brief for United States 19–20.
It’s a nice argument, but it rests on a faulty
premise. As it happens, a defendant who has a 3-point offense under
subparagraph (B) and a 2-point violent offense under subparagraph
(C) often will
not have “more than 4 criminal history points
. . . under the sentencing guidelines” for purposes of
subparagraph (A). And in cases like that, subparagraph (A) performs
vital work under Mr. Pulsifer’s reading of the law by ensuring that
the defendant remains eligible for relief. There is simply no
surplus here for the government’s implicit distribution theory to
cure.
To appreciate why this is so, consider the
sentencing guidelines Congress cross-referenced in subparagraphs
(A) through (C). They set forth a two-step process for calculating
a defendant’s criminal history. At the first step, discussed in
§4A1.1 of the guidelines, a judge assigns points to the defendant’s
prior offenses. Usually, the points correspond to the length of the
defendant’s previous sentences. So, for example, three points
normally attach to an offense carrying a sentence longer than 13
months, two points to an offense with a sentence shorter than that
but at least 60 days long, and one point to any other sentence.
At the second step, described in §4A1.2 of the
guidelines, a judge then computes the defendant’s criminal history.
But during this process, a judge doesn’t just tote up all the
points assigned to each offense. Under a variety of circumstances,
the guidelines instruct a judge
not to count points assigned
to one offense or another. Points associated with hitchhiking,
public intoxication, and fish and game offenses, for example, “are
never counted.” §4A1.2(c)(2). Nor are points associated with
sentences imposed by a court-martial, a foreign court, or a tribal
court. §§4A1.2(g)–(i). The guidelines also instruct judges not to
count points associated with offenses of a certain age. So, by way
of illustration, if the defendant finished his sentence for a
3-point offense more than 15 years ago, those points are not
counted. Likewise, if the defendant finished his sentence for a
2-point offense more than 10 years ago, those points do not count.
§§4A1.2(e)(1)–(3). Courts thus perform “a single calculation” of a
defendant’s criminal history score.
Ante, at 19, n. 6.
But in doing so, they routinely distinguish between the points an
offense carries and a defendant’s ultimate, countable criminal
history points.[
7]
Now return to subparagraph (A). It provides that
the defendant must not have “more than 4 criminal history points,
excluding any criminal history points resulting from a 1-point
offense, as determined under the sentencing guidelines.”
§3553(f )(1)(A) (emphasis added). As the italicized language
demonstrates, when adopting the First Step Act Congress fully
appreciated the distinction between what points an offense carries
and whether those points contribute to a defendant’s criminal
history score. And because of that very distinction, it
is
possible for a defendant to have a prior 3-point offense and a
prior 2-point violent offense without having more than 4 criminal
history points. Most obviously, as Chief Judge Pryor, former Acting
Chair of the Sentencing Commission, has observed, a defendant may
have a 3-point offense and a 2-point violent offense but both
offenses are so old that he scores no criminal history points at
all. See USSG §§4A1.2(e)(1)–(3);
Garcon, 54 F. 4th, at 1281.
As Judge Wood has noted, there are a variety of other situations as
well in which a defendant will have both a 3-point offense and a
2-point violent offense but still not have more than four criminal
history points. See
United States v.
Pace, 48 F. 4th
741, 763–764 (CA7 2022) (dissenting opinion).
To know that is to know no superfluity problem
exists—and thus no need to resort to the government’s implicit
distribution theory to solve it. On Mr. Pulsifer’s reading of the
law, a court applying subparagraph (A) will consult the sentencing
guidelines’ methodology for scoring criminal history points set
forth in §4A1.2. In doing so, the court may find that, while the
defendant has a prior 3-point offense and a prior 2-point violent
offense for purposes of subparagraphs (B) and (C), one or another
is too old or suffers from some other flaw so that he does not have
more than four criminal history points. In all these cases,
subparagraph (A) does significant work by making clear that,
despite having a prior 3-point offense and a prior 2-point violent
offense, the defendant remains eligible for relief. See
Garcon, 54 F. 4th, at 1281–1282;
Pace, 48 F. 4th, at
763 (opinion of Wood, J.).
B
The government does not contest the central
observation that defeats its superfluity argument. It
admits
that certain past offenses “ad[d] zero points to [a defendant’s]
criminal-history score.” Brief for United States 32, n. 2;
ante, at 17. So what exactly is the problem here?
To complain about a superfluity problem, it
turns out the government must create one. It does so this way. As
written, subparagraphs (B) and (C) require a sentencing court to
ask whether the defendant “ha[s]” a “3-point offense, as determined
under the sentencing guidelines,” and “a 2-point violent offense,
as determined under the sentencing guidelines.” But, the government
suggests, we should read those provisions differently. We should
read them to require a sentencing court to ask the further question
whether the defendant’s offenses
also score criminal history
points. As the government candidly admits, its superfluity argument
depends on reading subparagraphs (B) and (C) as “car[ing] only
about offenses that
do score . . . criminal-
history points.” Brief for United States 28–29;
ante, at
19–20. Only then might subparagraph (A) be left without work to
perform, for indeed an offense that scores three criminal history
points under subparagraph (B) and a violent offense that scores two
criminal history points under subparagraph (C) will always score
more than four criminal history points under subparagraph (A).
Put plainly, for the government’s superfluity
argument to gain any traction, we must read
still more words
into the First Step Act, construing it now this way:
(1) the defendant
does not have —
(A)
does not have more than 4 criminal
history points, excluding any criminal history points resulting
from a 1-point offense, as determined under the sentencing
guidelines;
(B)
does not have a prior 3-point
offense
that scores 3 criminal history points, as determined
under the sentencing guidelines; and
(C)
does not have a prior 2-point violent
offense
that scores 2 criminal history points, as determined
under the sentencing guidelines.
It is one more remarkable request. Last I heard,
the canon
against assuming Congress has adopted superfluous
words is not a license for judges to
create a superfluity by
inserting new words into a law. Let alone do so simply to help the
government make its implicit distribution theory seem just a little
less implausible.
V
At this stage, the government withdraws to its
final redoubt: a policy argument. In the government’s view, the
only “function” Congress gave paragraph (f )(1) was the task
of separating “more from less serious prior offenders.”
Ante, at 21–22; Brief for United States 21. Affording the
statute’s terms their ordinary meaning, the government asserts,
would not allow the law to perform that “purpose” adequately. Brief
for United States 20. By contrast, its implicit distribution theory
would enable the law to fulfill its intended “role” “unerringly.”
Ante, at 21, 22, n. 7; Brief for United States 21.
If this policy argument sounds familiar, it is
because we have time and again rejected ones just like it. We do
not presume that a law performs only one “function” or “role,” but
recognize that almost every piece of legislation seeks to serve
many competing purposes. See
Luna Perez v.
Sturgis Public
Schools, 598 U.S. 142, 150 (2023);
Barnhart, 534
U. S., at 461;
Chicago v.
Environmental Defense
Fund,
511 U.S.
328, 339 (1994). We do not suppose that a law pursues any of
those competing purposes to its logical end, acknowledging instead
that almost every law is the product of compromise.
Luna
Perez, 598 U. S., at 150. And we do not displace ordinary
statutory terms with judicial “speculation as to Congress[’s]
intent,”
Magwood v.
Patterson,
561 U.S.
320, 334 (2010), because the American people have consented to
be governed by the written laws their elected representatives
adopt, not by the conjecture of others, see
United States v.
Bass,
404 U.S.
336, 348 (1971). For all these reasons and more, “it is quite
mistaken to assume,” as the government does, “that whatever might
appear to further the statute’s primary objective must be the law.”
Henson v.
Santander Consumer USA Inc., 582 U.S. 79,
89 (2017) (internal quotation marks and alterations omitted).
Perhaps recalling our frequent admonition that
policy talk cannot overcome plain text, the government tries a bit
of rebranding. Although it refers occasionally to the First Step
Act’s “purpose,” Brief for United States 20–21, 34, 48, for the
most part it frames its argument in terms of rationality. When we
measure the competing interpretations before us against how well
they perform the statute’s only job, the government insists, we
will find that the law’s ordinary meaning invites “arbitrar[y]”
results and “nonsensical” implications.
Id., at 22, 34, 36,
48. The Court buys into this thinly disguised policy appeal, see
ante, at 20–22, and n. 7, even as it forcefully (and
without a trace of irony) faults Mr. Pulsifer for appealing to
statutory “purpose,”
ante, at 26. New framing or old,
however, we have no business entertaining the government’s
ramshackle argument.
If anything, the government’s attempt at
rebranding only makes matters worse for it. When a statute produces
a truly irrational result, we have a doctrine to deal with the
dilemma: absurdity. In narrow circumstances, a simple and
“eas[ily]” fixed statutory error that “no reasonable person could
intend” may be amenable to judicial correction under this Court’s
traditional absurdity doctrine. See A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 234, 237 (2012);
Story, Commentaries §427, at 411. It is a highly demanding
doctrine—deliberately so, for judges have no license to rewrite a
law’s terms just because they happen to think different ones more
sensible. And, tellingly, no one thinks this law produces anything
like an absurd result that might call for a judicial remedy. In
fact, the government affirmatively
disavows any reliance on
absurdity doctrine. See Brief for United States 36. Instead, it
only gestures vaguely in the direction of “nonsensical” results and
asks us to run with the idea. As if we could tinker with Congress’s
work on the basis of some newly fashioned “absurdity-lite”
doctrine.
There is a reason why the government does not
attempt an argument actually grounded on absurdity doctrine. Its
core complaint is that the natural reading of the law does not,
with sufficient precision, separate “more from less serious prior
offenders.”
Ante, at 22; Brief for United States 21. But, of
necessity, Congress often deploys “standardized formula[s]” or
checklists, like the one found in paragraph (f )(1), that “are
by their nature over- and under-inclusive.”
Ransom v.
FIA
Card Services, N. A.,
562 U.S.
61, 78 (2011). And because Congress may rationally prefer these
approaches for various reasons, including their ease of
administration, this Court has long held that we will not
second-guess them merely because they may produce some “oddit[ies]”
or “anomalies.”
Ibid.; see
Rodriguez v.
United
States,
480 U.S.
522, 526 (1987) (
per curiam) (“Deciding what
competing values will or will not be sacrificed to the achievement
of a particular objective is the very essence of legislative
choice”).[
8]
If, as the government supposes, a seemingly
anomalous result alone could unsettle a statute, it would face its
own troubles, too. Under its implicit distribution theory, an
individual who previously committed a nonviolent offense and
received a sentence longer than 13 months (
i.e., a 3-point
offense) is categorically ineligible for relief. Meanwhile, an
individual who committed the same crime but received a sentence
equal to or one day less than 13 months (
i.e., a 2-point
offense) thanks to a slightly more lenient sentencing judge remains
eligible for relief. Rather than “unerringly” enable the safety
valve to “separat[e] more serious prior offenders from less serious
ones,”
ante, at 21, the government’s approach thus leaves
much to happenstance and luck—an anomalous result indeed.
Return, then, to our
actual absurdity
doctrine and consider the government’s argument in its light. The
government worries that respecting paragraph (f )(1) as
written would treat “more serious” offenders too leniently. But in
doing so, the government ignores what follows. A defendant who
satisfies paragraph (f )(1) must still go on to satisfy
paragraphs (f )(2)–(5). And those provisions collectively
operate to deny relief to virtually anyone whose current offense
involves any trace of violence.
Even if a “more serious” offender could somehow
thread his way through all those needles, too, another would await.
The safety valve instructs a sentencing court to fashion a sentence
“pursuant to [the] guidelines.” §3553(f ). The guidelines
expressly account for a defendant’s criminal history, and few would
accuse them of leniency toward those with a history of serious
offenses. In fact, defendants with significant criminal histories
often wind up with a recommended guidelines sentence
higher
than the otherwise-applicable mandatory minimum. See Brief for
National Association of Federal Defenders as
Amicus Curiae
7–8. Sentencing courts may have the discretion to vary or depart
from the guidelines’ recommended ranges. But Congress could have
rationally trusted courts to exercise that discretion with an
appreciation for the fact that individuals with serious criminal
histories—such as the government’s hypothetical defendant with many
prior three-point violent offenses, see
ante, at 21–22;
Brief for United States 23—warrant equally serious sentences. So,
looking to the law as a whole (as we must) and appreciating that
Congress often legislates using standardized formulas or checklists
that may be over- and under-inclusive (again, as we must), there is
nothing approaching an absurdity that might license us to rewrite
the First Step Act.[
9]
In a final effort to bolster the government’s
case, the Court professes an entirely different concern of its own.
It claims to worry that the natural reading of the law would
sometimes be too
harsh in operation. Holding a defendant
ineligible for safety-valve relief based on offenses that score
“zero points,” we are told, would be “out-of-sync” with the law’s
purpose.
Ante, at 20. But there is nothing absurd here
either. Subparagraph (A) provides that defendants are eligible for
relief as long as their past convictions do not yield more than
four criminal history points—a calculation that, as we have seen,
does not include points associated with old crimes and certain
other offenses. Subparagraphs (B) and (C) provide that other
defendants with more than four criminal history points are eligible
for relief too as long as they don’t have anywhere in their past a
serious (3-point) offense and a weighty (2-point) violent
offense—even if those offenses are (say) too old to contribute to
their criminal history scores. So whatever unfairness the Court may
perceive in one part of the safety valve (here, subparagraphs (B)
and (C)) is diminished when considered in light of another (here,
subparagraph (A)). Some might prefer a different arrangement, but
the one Congress ordained is hardly absurd.
If any law demonstrates the wisdom of our usual
rules against elevating policy appeals over plain text, it is this
one. Under the ordinary meaning of the statute, it is possible some
“more serious” offenders may make it past paragraph (f )(1),
and perhaps even end up receiving an individualized sentence under
guidelines that hardly exhibit solicitude for those with “more
serious” criminal histories. Under the implicit distribution
theory, in contrast, the availability of individualized sentencing
may depend on the happenstance of one extra day in prison. In the
end, attempting to pick between these two outcomes proves nothing
more than the futility of the exercise. However artfully the
government frames its dissatisfaction with the text of the statute,
we have neither the institutional competence nor the constitutional
mandate “to assess the relative merits of different approaches”
Congress could have taken.
Hartford Underwriters Ins. Co. v.
Union Planters Bank, N. A.,
530 U.S.
1, 13 (2000). Our role is a more modest one: “[W]hen the
statute’s language is plain” and “the disposition required by the
text is not absurd,” “the sole function of the courts
. . . is to enforce it according to its terms.”
Id., at 6 (internal quotation marks omitted). Because that
is undoubtedly the case here, we must apply the safety valve as
written.
VI
As I see it, the government hasn’t come close
to supplying a lawful basis for departing from the law’s ordinary
meaning. Suppose, though, at the end of this long march through its
inventive theories you remain unsure. Suppose you are left with a
reasonable doubt about whether Mr. Pulsifer or the government has
the better reading of the law. In circumstances like that, another
rule of construction supplies an answer. It is lenity.
The rule of lenity “is perhaps not much less old
than construction itself.”
United States v.
Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.); see
Wooden v.
United States, 595 U.S. 360, 388 (2022)
(Gorsuch, J., concurring in judgment) (citing
The Adventure,
1 F. Cas. 202, 204 (No. 93) (CC Va. 1812) (Marshall, C. J.)). It
requires courts to interpret ambiguous “penal laws,” including
those concerning sentencing, in favor of liberty, not punishment.
Wiltberger, 5 Wheat., at 95;
United States v.
Batchelder,
442 U.S.
114, 121 (1979);
Bifulco v.
United States,
447 U.S.
381, 387 (1980).
This rule enforces weighty constitutional
values. Courts construe ambiguous penal laws with lenity because a
free nation operates against a background presumption of individual
liberty. See
Wooden, 595 U. S., at 391–392 (opinion of
Gorsuch, J.). We resolve doubts about a criminal law’s reach in
favor of lenity, too, because in our federal government only the
people’s elected representatives, not their judges, are vested with
the power to “define a crime, and ordain its punishment.”
Wiltberger, 5 Wheat., at 95; accord,
Crandon v.
United States,
494 U.S.
152, 158 (1990);
Wooden, 595 U. S., at 391–392
(opinion of Gorsuch, J.).
Lenity protects vital due process interests, as
well, by ensuring individuals fair notice of the consequences of
their actions.
United States v.
Lanier,
520 U.S.
259, 266 (1997); see
McBoyle v.
United States,
283 U.S.
25,
27
(1931);
Wooden, 595 U. S., at 389–391 (opinion of
Gorsuch, J.). And lenity performs still further work, guarding
against the possibility that judges might condemn unpopular
individuals to punishment on the strength of their own views about
common sense, good public policy, or “no more than a guess as to
what Congress intended.”
Ladner v.
United States,
358 U.S.
169, 178 (1958).
So suppose you thought a reasonable doubt
remained about how best to construe the First Step Act. In those
circumstances, the answer cannot be to adopt an interpretation that
restricts safety-valve relief to thousands more individuals. The
only permissible answer is one that favors liberty.
VII
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.