{"id":959,"date":"2024-01-15T03:26:50","date_gmt":"2024-01-15T03:26:50","guid":{"rendered":"https:\/\/aiecasia.org\/?page_id=959"},"modified":"2024-01-15T06:18:32","modified_gmt":"2024-01-15T06:18:32","slug":"criminal-justice_detail_8","status":"publish","type":"page","link":"https:\/\/aiecasia.org\/?page_id=959","title":{"rendered":"CRIMINAL JUSTICE_DETAIL_8"},"content":{"rendered":"\n<div class=\"wp-block-buttons is-layout-flex wp-block-buttons-is-layout-flex\">\n<div class=\"wp-block-button\"><a class=\"wp-block-button__link wp-element-button\">CRIMINAL JUSTICE<\/a><\/div>\n\n\n\n<div class=\"wp-block-button\"><a class=\"wp-block-button__link wp-element-button\"><strong>OCTOBER 3, 2023<\/strong><\/a><\/div>\n<\/div>\n\n\n\n<p><\/p>\n\n\n\n<h2 class=\"wp-block-heading\">Does \u201cAnd\u201d Mean \u201cAnd\u201d? Or \u201cOr\u201d? The Supreme Court Will Decide.<\/h2>\n\n\n\n<ul>\n<li>Administration had directed federal agencies to consider \u201csocial cost\u201d of emissions.<\/li>\n\n\n\n<li>KATE YODER<\/li>\n<\/ul>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"aligncenter size-full is-resized\"><img loading=\"lazy\" decoding=\"async\" width=\"768\" height=\"432\" src=\"http:\/\/aiecasia.org\/wp-content\/uploads\/2024\/01\/supreme-court-dictionary_2000.webp\" alt=\"\" class=\"wp-image-962\" style=\"width:760px;height:auto\" srcset=\"https:\/\/aiecasia.org\/wp-content\/uploads\/2024\/01\/supreme-court-dictionary_2000.webp 768w, https:\/\/aiecasia.org\/wp-content\/uploads\/2024\/01\/supreme-court-dictionary_2000-300x169.webp 300w\" sizes=\"(max-width: 768px) 100vw, 768px\" \/><figcaption class=\"wp-element-caption\"><strong>Mother Jones; Erin Schaff\/The New York Times\/AP; Unsplash<\/strong><\/figcaption><\/figure><\/div>\n\n\n<p><strong>It\u2019s a riveting, baffling,<\/strong>&nbsp;and\/or solemn day in this country when the highest court must step in to adjudicate a definitional dispute as basic as this: Does \u201cand\u201d mean \u201cand\u201d? Or does it mean \u201cor\u201d? Lower courts want to know. As do legal scholars, criminal defendants, and copy editors everywhere.<\/p>\n\n\n\n<p>The Supreme Court heard oral arguments yesterday in\u00a0<em>Pulsifer v. United States<\/em>, a case that turns on a federal law\u2019s use of \u201cand.\u201d Circuit courts are divided over what the word means in a statute aimed at reducing mass incarceration through an array of criminal justice reforms. For thousands of defendants, eligibility for relief from mandatoryminimum sentencing depends on whether \u201cand\u201d in a provision of the landmark First Step Act was deliberately or mistakenly written to conjoin requirements for reduced prison time\u2014and to what extent Congress\u2019 intent matters.<\/p>\n\n\n\n<p>Below is the fine print. Don\u2019t let your head spin. There\u2019s math involved, plus parsing of semicolons and em dashes. But one hopes the Supreme Court justices, in their nontrivial copy-edit wisdom, can swiftly untangle this knot. (\u201cPoints\u201d below refers to the system of sentencing based on points assigned to past crimes and current crimes being sentenced for.) A defendant is eligible for relief if:<\/p>\n\n\n\n<ul>\n<li>    the defendant does\u00a0not\u00a0have\u2014<\/li>\n\n\n\n<li>    (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;<\/li>\n\n\n\n<li>    (B) a prior 3-point offense, as determined under the sentencing guidelines;\u00a0and<\/li>\n\n\n\n<li>    (C) a prior 2-point violent offense, as determined under the sentencing guidelines;<\/li>\n<\/ul>\n\n\n\n<p>Taken at face value, defendants qualify for relief if they do not simultaneously meet all three conditions, because \u201cand\u201d bundles them. But read differently, \u201cand\u201d could be construed to mean that any of the conditions satisfies the \u201cdoes not\u201d test\u2014if \u201cdoes not\u201d distributes across them, and, by implication, if Congress meant \u201cand\u201d to function as \u201cor.\u201d And this isn\u2019t pedantic. Vastly different prison outcomes are at stake. More than\u00a010,000\u00a0people sentenced in recent years could be affected.<\/p>\n\n\n\n<p>Lawyers for the petitioner, Mark Pulsifer, who pleaded guilty to felony drug distribution with a prior conviction,\u00a0argued\u00a0he should be granted relief because \u201c\u2018and\u2019 is still conjunctive\u201d after the negative \u201cdoes not,\u201d much like \u201cDon\u2019t drink and drive\u201d would mean you could maybe do either but can\u2019t do both. His lawyers cited that analogy, but the First Step Act punctuates unclearly, as in \u201cDon\u2019t\u2014(A) drink; and (B) drive.\u201d Would that mean don\u2019t drink\u00a0<em>and<\/em>\u00a0don\u2019t drive, instead of merely not doing both at the same time?<\/p>\n\n\n\n<p>Justice Elena Kagan tackled that very example\u00a0during Monday\u2019s oral arguments, comparing it to a hypothetical medical test:<\/p>\n\n\n\n<ul>\n<li>So you\u2019re going in for a medical test and you receive something from the hospital, and it says, to receive this test, the patient should not, and then, you know, it has a list of things that the patient shouldn\u2019t do, and it says the patient shouldn\u2019t eat any food, drink any liquids,\u00a0<strong>and<\/strong>\u00a0smoke. So I\u2019m going to assume\u2026that you\u2019re not a smoker. Do you feel perfectly able to eat and drink as much as you want?<\/li>\n<\/ul>\n\n\n\n<p>Kagan suggested that this hypothetical hospital\u2019s use of the word \u201cand\u201d\u2014and perhaps, by extension, the First Step Act\u2019s \u201cand\u201d\u2014 would be \u201cdifferent from an example like\u00a0<em>drink and drive<\/em>\u201d because \u201cthere\u2019s something that connects those two [verbs] so that we know that the harm comes from the relationship between the two, whereas in this case we know that the harm follows from any one of the things. Either way you\u2019re using context to establish meaning, aren\u2019t you?\u201d<\/p>\n\n\n\n<p>Kagan\u2019s framing is the crux of the controversy: Appellate courts for the 4th, 9th, and 11th circuits have read \u201cand\u201d conjunctively, which would lighten prison sentences. But the 5th, 6th, 7th, and 8th circuits have come down differently, interpreting \u201cdoes not\u201d as distributive across the three conditions, which would deny relief to defendants who meet&nbsp;<em>any<\/em>&nbsp;of the provision\u2019s conditions. This approach would make mathematical sense of the First Step Act. The law\u2019s calculations are confusing because someone with both the 3-point offense from (B) and the 2-point violent offense from (C) would have at least 5 points and would automatically exceed the 4 criminal history points in (A)\u2014making (A) meaningless or extraneous. To give (A) meaning, some courts have said \u201cand\u201d has to mean \u201cor.\u201d But does it?<\/p>\n\n\n\n<p>I\u2019ve asked several legal scholars. (Disclosure: A family member of mine is a circuit court judge who has ruled on this law, but we have not discussed the case, the statute, this article, or theories of textualism, and I learned of&nbsp;<em>Pulsifer<\/em>&nbsp;only through a newsroom colleague.)<\/p>\n\n\n\n<p><em>Pulsifer<\/em>\u00a0presents, \u201cat least plausibly, a situation in which Congress simply misspoke\u201d by \u201csubstituting \u2018and\u2019 for \u2018or,\u2019\u201d says Harvard Law professor Ryan Doerfler in an email, \u201cbut because existing doctrine requires such linguistic mistakes (known as \u2018scrivener\u2019s errors\u2019) to be unmistakable, the government is forced to argue that Congress\u2019s wording in the statute is precise but that the statute is disjunctive nonetheless.\u201d And the government\u2019s case is conceivable. It is possible \u201cthat Congress meant the statute to read \u2018the defendant does not have (A); (the defendant does not have) (B); and (the defendant does not have) (C).\u2019\u201d<\/p>\n\n\n\n<p>\u201cScrivener\u2019s errors\u201d are legislative drafting mistakes. It is widely accepted for courts to correct them if the mistakes are absolutely clear, Doerfler\u00a0has written. But the risk of courts rewriting law rather than correcting mere drafting mistakes is tremendous. That would constitute a staggering judicial overreach\u2014especially in a criminal context\u2014so the bar is purposefully high for courts to fix legislative errors. But is the bar too high? Doerfler has argued that the standard is indeed \u201cmuch too strict\u201d because it prevents judges from recognizing legislative typos. In their efforts not to rewrite law, courts can misinterpret text by failing to name drafting errors in the law, a pendulum swing past the best balance. So some courts assert themselves by interpreting \u201cand\u201d as \u201cor.\u201d<\/p>\n\n\n\n<p>\u201cI\u2019m sure [this legal dispute] seems strange to a copy chief,\u201d says professor Erica Zunkel of the University of Chicago Law School. \u201cHow crazy to ask whether \u2018and\u2019 actually means \u2018and\u2019 or if it means \u2018or.\u2019 Only in law\u2026(or if you\u2019re a\u00a0U.S. President).\u201d<\/p>\n\n\n\n<p>\u201cSometimes Congress doesn\u2019t do a great job drafting legislation that is clear and unambiguous and there can be serious implications for people\u2019s freedom when that happens,\u201d she says. \u201cOne of the reasons there\u2019s even purported \u2018ambiguity\u2019\u201d in&nbsp;<em>Pulsifer<\/em>&nbsp;\u201cis that there\u2019s an instinct to assume that Congress can\u2019t possibly have meant to expand relief for individuals charged with drug offenses so much.\u201d<\/p>\n\n\n\n<p>\u201cIn many charging contexts, \u2018and\u2019 is regularly interpreted as \u2018or,\u2019\u201d says Daniel Richman, a Columbia Law professor and former federal prosecutor. \u201cIt is also a world in which, not surprisingly, judges are quite open to interesting arguments that, if accepted, would increase judicial discretion to put aside mandatory minimums.\u201d<\/p>\n\n\n\n<p>The court has become \u201cmore and more obsessed with language and grammar in recent years,\u201d says Stanford Law professor Jeff Fisher. \u201cOral argument these days can seem like being in a sixth grade English class.\u201d<\/p>\n\n\n\n<p>\u201cThe Court has had cases, for example, that turned on the word \u2018so\u2019\u201d and \u201cthe use of a definite article instead of indefinite (\u2018the\u2019 instead of \u2018a\u2019),\u201d he says. \u201cThis is all a product of the ascendancy of \u2018textualism\u2019\u2014the theory of statutory construction that aims to discern precisely what the words Congress enacted mean, as opposed to what Congress probably intended to say.\u201d<\/p>\n\n\n\n<p><em>Pulsifer<\/em>\u00a0captures top-court attention \u201cin no small part because a majority of judges to address the issue have said that \u2018and\u2019 in fact does mean \u2018or,\u2019\u201d says professor Adam Davidson, also of the University of Chicago. The rise of textualism has led \u201csome conservative justices to liberal outcomes in recent cases.\u201d He cites\u00a0<em>Bostock v. Clayton County<\/em>, the civil rights case that centered on defining \u201csex\u201d;\u00a0<em>Niz-Chavez v. Garland<\/em>, the immigration case that atomized the single letter \u201ca\u201d; and\u00a0<em>Borden v. United States<\/em>, the sentencing case that parsed the word \u201cagainst\u201d in a federal statute.<\/p>\n\n\n\n<p>The Supreme Court hears \u201clots of cases [that] turn on the meaning of a single (common) word,\u201d says Aziz Huq, also a University of Chicago law professor. \u201cThere\u2019s a famous case that all law students read in contracts about what the word \u2018chicken\u2019 means; I used to teach a class on what \u2018fruit\u2019 meant in a federal statute.\u201d\u201cOral argument these days can seem like being in a sixth grade English class.\u201d<\/p>\n\n\n\n<p>\u201cAnd\u201d clashes are not new. Justice Department litigators have long seen this day coming and kept a department playbook for defining the word. The Criminal Resource Manual, now\u00a0archived, says exactly how and when to deploy certain interpretations of \u201cand\u201d for preferred outcomes. And grammatical lawsuits are increasingly common, from the $5 million settlement in a\u00a0serial comma\u00a0clash to an attempt to overturn Obamacare based on an apparent\u00a0drafting error; the wrangling over the Second Amendment\u2019s\u00a0syntax; and the\u00a0comma\u00a0collision in a federal robocall ban.<\/p>\n\n\n\n<p>This is all a big problem, Doerfler says, not because precise word choice isn\u2019t important for encoding policies in law, but because written language invites competing interpretations. Linguistic analysis only gets you so far. Atomization of words cannot resolve every textual dispute, but \u201cbecause the Court today feels either compelled or entitled to pretend that legal [linguistic] analysis can resolve every dispute it is presented with, the Court\u2019s linguistic analysis is, in my view, frequently stilted as it attempts to present statutory language as linguistically clear when, in reality, multiple readings are entirely plausible,\u201d he says.<\/p>\n\n\n\n<p>As you were, copy editors. Your democratic duty is robust and\/or recognized.\u00a0Listen\u00a0to the arguments,\u00a0read\u00a0the transcript, and send outcome predictions to\u00a0<em>styleguide@motherjones.com<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Does \u201cAnd\u201d Mean \u201cAnd\u201d? Or \u201cOr\u201d? The Supreme Court Will Decide. It\u2019s a riveting, baffling,&nbsp;and\/or solemn day in this country when the highest court must step in to adjudicate a definitional dispute as basic as this: Does \u201cand\u201d mean \u201cand\u201d? Or does it mean \u201cor\u201d? Lower courts want to know. As do legal scholars, criminal&hellip;&nbsp;<a href=\"https:\/\/aiecasia.org\/?page_id=959\" class=\"\" rel=\"bookmark\">Read More &raquo;<span class=\"screen-reader-text\">CRIMINAL JUSTICE_DETAIL_8<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":477,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"neve_meta_sidebar":"","neve_meta_container":"","neve_meta_enable_content_width":"","neve_meta_content_width":0,"neve_meta_title_alignment":"","neve_meta_author_avatar":"","neve_post_elements_order":"","neve_meta_disable_header":"","neve_meta_disable_footer":"","neve_meta_disable_title":"on","_themeisle_gutenberg_block_has_review":false,"_ti_tpc_template_sync":false,"_ti_tpc_template_id":"","footnotes":""},"_links":{"self":[{"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/pages\/959"}],"collection":[{"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/aiecasia.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=959"}],"version-history":[{"count":7,"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/pages\/959\/revisions"}],"predecessor-version":[{"id":971,"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/pages\/959\/revisions\/971"}],"up":[{"embeddable":true,"href":"https:\/\/aiecasia.org\/index.php?rest_route=\/wp\/v2\/pages\/477"}],"wp:attachment":[{"href":"https:\/\/aiecasia.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=959"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}