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High Court Sentencing Case Involves Interpreting The Word 'And'

A dispute over how to interpret the word "and" lands lands in the Supreme Court on Oct. 2, the first day of its new term. The decision could affect thousands of prison sentences. Federal courts disagree about whether the word, as it is used in the 2018 First Step Act means “and” or whether it means “or.” An appellate panel that upheld a longer sentence called the structure of the provision “perplexing,," reports the Associated Press. The case requires the parsing of a part of the law that aimed to reduce mandatory minimum sentences and give judges more discretion. The justices will examine a so-called safety valve provision meant to spare low-level, nonviolent drug dealers who plead guilty and cooperate with prosecutors from having to face often longer mandatory terms.


Nearly 6,000 people convicted of drug trafficking in the 2021 budget year are in the pool of those who might be eligible for reduced sentences, according the U.S. Sentencing Commission. More than 10,000 people sentenced since the law took effect could be affected, says Ohio State law Prof. Douglas Berman. The provision lists three criteria for allowing judges to forgo a mandatory minimum sentence. Congress did not make it easy by writing the section in the negative so that a judge can exercise discretion in sentencing if a defendant “does not have” three sorts of criminal history. The question is how to determine eligibility for the safety valve — whether any of the conditions is enough to disqualify someone or whether it takes all three to be ineligible. Lawyers for Mark Pulsifer, the inmate whose challenge the court will hear, say all three conditions must apply before a longer sentence can be imposed. The government says just one condition is enough to merit the mandatory minimum.

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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