We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS TO REVIEW “DRUG SAFETY VALVE”

The Supreme Court last week granted review to Pulsifer v, United States  to decide an 18 USC § 3553(f) “drug safety valve” question.

The “safety valve” provides a second chance for nonviolent offenders who do not have “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense… (B) a prior 3-point offense… AND (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” (The emphasis is mine, not the statute’s).

If an offender qualifies, he or she can be sentenced without regard to statutory mandatory minimum sentences and with a special 2-level Guidelines “discount” on his or her total offense level.

The question is whether the “and” in 18 USC § 3553(f)(1) means “and” or just “or.” In other words, do defendants qualify for the “safety valve”: as long as they do not have ALL of (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense, or do defendants satisfy the provision only so long as they do not have (A) more than 4 criminal history points OR (B) a 3-point offense OR (C) a 2-point offense.

The interpretation is currently subject to a deep circuit split. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that resolution of Pulsifer “will impact thousands of drug defendants sentenced in federal courts every year.”

Pulsifer v. United States, Case No. 22-240 (certiorari granted February 27, 2023)

Sentencing Law and Policy, SCOTUS grants certiorari to review reach of First Step Act’s expansion of statutory safety valve (February 27, 2023)

– Thomas L. Root