Pulsifer v. United States

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• 0:00Speaker 00

  We will hear argument this morning in case 22340, Pulsifer versus United States.

• 0:08Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Pulsifer v. United States, a case about the First Step Act, the 2018 criminal justice reform package passed during Trump's first term.

• 0:26Speaker 00

  Criminal justice reform is an incredible, beyond bipartisan signing. We'll be doing that in just a moment.

• 0:35Speaker 01

  One of the major reforms of the First Step Act addressed the issue of mandatory minimum sentences by allowing certain defendants to be sentenced according to points-based federal guidelines instead. This case, in which a defendant sought to reduce his prison sentence in accordance with the new rules, is about how that points-based system works and when it does and doesn't apply. As you'll hear, the case comes down to a question that at first glance seems nonsensical. Does "and" mean "and," or does "and" mean "or?" The court came up with a surprising answer. This is Five to Four, a podcast about how much the Supreme Court and/or mandatory minimums suck.

• 1:20Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have left our civil rights down bad, like a Norwegian biathlete. I'm Peter. I'm here with Michael.

• 1:31Michael Liroff?

  Hey, everybody.

• 1:32Peter Shamshiri?

  And Rhiannon.

• 1:33Michael Liroff?

  Hello.

• 1:34Peter Shamshiri?

  I'll let one of you guys tell this story, since you just told it to me.

• 1:38Michael Liroff?

  This guy, he won a bronze medal in the biathlon, which is the one where you ski and then shoot rifles. Fuckboy activity. Fuckboy, yeah. Admitted to fuckboy activity, which was, he was like, "Yeah, six months ago, I met the love of my life, and then three months ago, I treated on her. And I told her just recently, and she broke up with me, and I want her back," which is about as down bad as you can get.

• 2:02Peter Shamshiri?

  Brutal, dude.

• 2:03Michael Liroff?

  For claiming to the world your infidelity and...

• 2:07Michael Liroff?

  Yeah, and she was reached for comment. Isn't that right, Ree?

• 2:10Speaker 04

  That's right. She was reached for comment and she said, heard and received and declined. No, thank you.

• 2:18Michael Liroff?

  That's right.

• 2:19Speaker 04

  When I dumped your ass a few months ago, I was, I was serious about that.

• 2:23Peter Shamshiri?

  Yeah.

• 2:24Speaker 04

  Your little shooting in the winter, in the snow, pew pew, this bronze win, it's not impressive to me.

• 2:31Peter Shamshiri?

  You thought that being cheated on was bad? What if I told you that I'm third best at this skiing, shooting combo?

• 2:37Michael Liroff?

  Yeah, reached for comment. She said, if he'd gotten gold.

• 2:40Peter Shamshiri?

  The audacity to think that you can do this with a bronze medal. You're not the best in the world, and it's one of the biggest sports of all time. That said, I imagine he's like 22, you know, something like that, like just a little boy. I feel like everyone bases themselves in a situation like this at some point in their life, and we're all fortunate that we didn't have the opportunity to do it on international television, you know?

• 3:11Speaker 04

  On the world's biggest sports stage.

• 3:17Peter Shamshiri?

  Oh, man. There's something so good about getting bronze and being like, you know what I'm gonna do?

• 3:24Michael Liroff?

  I'm getting her back.

• 3:25Peter Shamshiri?

  Katie, come back to me. I've won the bronze like you asked.

• 3:32Peter Shamshiri?

  All right, today's case, Pulsifer v. United States. This is a case from 2024 about the First Step Act, the criminal justice reform law passed by the Trump administration in Trump's first term. Generally, if someone is convicted of a crime, the judge has the discretion to sentence them as he or she deems fit. But a lot of criminal laws include what are called mandatory minimum sentences, meaning that if someone commits a certain crime, the judge has discretion to sentence them, but there is a minimum, the judge can't go lower than that. The First Step Act allows for judges to deviate from those mandatory minimums

• 4:16Peter Shamshiri?

  in certain circumstances. One man, Mark Pulsifer, said that the mandatory minimum should not apply in his case. But the Supreme Court, in a six to three decision that does a lot of convoluted textual interpretation, said that actually it does.

• 4:35Speaker 04

  Yeah, that's right. So in Mark Pulsifer's case, he had been convicted and sentenced of a federal offense long before the First Step Act was passed. But then the First Step Act gets passed. It gives some people the right, the access to asking for resentencing under the new guidelines. And so he's saying, hey, mandatory minimum shouldn't have applied in my case. You know, by the way, I think like we, we should say up top, the First Step Act, probably the one good thing that Trump did.

• 5:05Peter Shamshiri?

  Yeah.

• 5:06Speaker 04

  In his first term, you know, but it's also like, we're going to get into it. It's also really incomplete and like, not even a half measure in many ways to like addressing the problem of mass incarceration.

• 5:17Peter Shamshiri?

  Yeah, but it's between this and the Muslim ban. It's the greatest things he ever accomplished. Yeah.

• 5:22Speaker 04

  It's a first place thing and then a really far down on everything else.

• 5:27Peter Shamshiri?

  Yeah, no, I think, you know, there are problems with the First Step Act, but those problems exist in the same kind of space that like, there were problems with all liberal reforms and, and you know, blah, blah, blah. Right?

• 5:38Speaker 04

  Totally.

• 5:39Peter Shamshiri?

  In, in terms of like Trump's output, it's crazy good.

• 5:43Speaker 04

  Right. Right, right. And we're going to talk about a special someone who really lobbied hard personally to Trump and in some reporting is, is given a good amount of credit for actually getting the First Step Act passed.

• 5:54Peter Shamshiri?

  A hero.

• 5:55Speaker 04

  Yeah.

• 5:56Peter Shamshiri?

  You're talking Tim Kardashian here?

• 5:58Speaker 04

  There's a couple celebrities involved.

• 5:59Peter Shamshiri?

  I thought we were talking Lil Jared.

• 6:01Speaker 04

  Jared Kushner. This is Lil Jared. So we'll get into that in a second, but you know, just to give listeners a sort of broad overview of mandatory minimums, right? Like the, the sort of system of mandatory minimums that existed before the passage of the First Step Act. In general, a mandatory minimum. Sentencing law means that if you're convicted of certain offenses, you know, it actually takes away discretion for the judge in sentencing, at least insofar as it means there is a mandatory minimum sentence that the judge has to give. Right? They can go above that, but they can't go below that. So it takes discretion away from judges to go lower on certain sentences.

• 6:47Speaker 04

  You know, the problem may be obvious at this point for for listeners and for people who sort of understand the problem with, you know, mass incarceration in general in the US. But I think it's worth saying mandatory minimums are cruel. They're disproportionate punishment, right? That many studies showed for years had no overall benefit to crime control or in improving recidivism rates, right?

• 7:12Peter Shamshiri?

  They create like an inflexibility in certain situations that just results in unjust punishments.

• 7:19Speaker 04

  Yes, exactly. Unjust punishments for those individuals who are punished under mandatory minimum sentencing schemes, but also, you know, the the harm to families and communities when people are punished in this way. Mandatory minimums have been shown to contribute to prison overcrowding, to prison, you know, worsening conditions in prison because people are less able to get out of prison. Right? Serving longer sentences. And mandatory minimums also exacerbate racial disparities. So a 2017 US Sentencing Commission report on drug sentences specifically showed that black people were the most likely to have been sentenced under a mandatory minimum than any other group.

• 8:02Speaker 04

  And that between black people and Hispanic people, even though there's equal rates of using drugs, black and Hispanic individuals comprise the majority of people who were convicted of drug-related offenses. Meaning then they're facing in some circumstances those mandatory minimums that other people, despite equal drug use, are not sort of exposed to. Right? In general, a little history on like the imposition of mandatory minimum sentencing schemes. By 1995, you know, tough on crime policies had permeated across the country. All 50 states and the federal government had some sort of mandatory minimum. Structure in place, you know, you can think of lots of examples when we say mandatory

• 8:45Speaker 04

  minimums, three-strikes laws, right? Quote-unquote, truth in sentencing laws, which require like, if you're sentenced to prison, there's no like, early release. You have to serve a certain, a certain amount, a certain proportion of that sentence before being eligible for release. And like Peter said, overall mandatory minimums limit a judge's discretion in sentencing, but on the other hand, they give even more discretion to prosecutors in terms of being able to predict or navigate a case from the prosecutor perspective in a way that is determinative of sentencing. Because prosecutorial discretion applies to what crime a defendant is charged with

• 9:30Speaker 04

  and what level of what crime, right? Am I going to charge the lower drug offense or the higher one that has a mandatory minimum? And so prosecutors are the ones then making the choice about the minimum sentences that people are going to be facing, based on how the prosecutor charges. And since mandatory minimums have been in place, data shows that like, instead of quote-unquote like, sweeping up more violent offenders and punishing those violent offenders more harshly, mass incarceration actually is, is like, supported booms as a result of charging drug offenses and nonviolent offenses in this more aggressive way under mandatory minimum provisions.

• 10:10Speaker 04

  So, you know, by 2018, obviously, we get the First Step Act passed in that year. It's a bipartisan piece of legislation, so like, the problems of mandatory minimum sentencing schemes had been like, like, everybody gets it kind of by that point, right? For sure, there were detractors. Tom Cotton, the little bitch, really didn't want the First Step Act passed, but Republicans and Democrats support this. And what does the First Step Act do? So it made several changes in federal criminal law. We are only talking about federal cases. This does not apply to state-level crimes and sentencing. But it made several changes to federal criminal law, to reform federal prisons and sentencing

• 10:54Speaker 04

  laws, with the idea being, let's reduce recidivism, let's get people out of federal prison. There's an overcrowding problem in federal prison, let's, let's reduce the prison population, right? And so the First Step Act has lots of provisions, but Title IV of the Act makes, you know, a bunch of these sentencing reforms. In general, without going into specifics of certain subsections of the, you know, federal criminal code, Title IV of the Act redefines, quote unquote, "serious offenses" so that, you know, it makes what's counted as a serious offense actually something that is quite serious rather than just over encompassing lots of different crimes into the category of serious. It also reduces mandatory minimums.

• 11:40Speaker 04

  In some circumstances, it creates a safety valve provision that applies in some situations where an individual could be sentenced below minimum guidelines, among a few other things. So that's what we get out of the First Step Act, these reforms to federal sentencing, which is what's relevant in our case here. I do want to mention Jared Kushner's role. Now Jared Kushner, a person who was personally affected by somebody serving federal prison time, that person being his father, did something, I think, like 11 or 13 months in a federal prison in the South. I want to say like Alabama or Georgia or something. Now, this was a while ago,

• 12:25Speaker 04

  maybe a decade prior to 2018. But it obviously was a sort of passion project for Jared Kushner. He reportedly like brought celebrities to talk to Trump about this. Kim Kardashian, Kanye West, also Fox News people and many others. And he pushed really hard for the First Step Act to like make it to the Senate floor, even though Mitch McConnell said he wasn't going to bring it to a vote. Jared Kushner convinced Trump far enough and convinced McConnell far enough to bring it to a vote, and it is passed.

• 13:00Peter Shamshiri?

  Classic conservative.

• 13:01Speaker 04

  Yeah, I'm not going to go so far as to say shout out to Jared Kushner, but I just want to note his role, you know?

• 13:08Peter Shamshiri?

  It's actually funny that he's like a genocidal maniac, but then his dad spends a year in like a cushy white collar prison. And he's like, "Free Mamiya, free them all. Schools, not prisons."

• 13:20Speaker 04

  Exactly. Everybody deserves a second chance. Yeah.

• 13:23Michael Liroff?

  You can see how different Trump two is from Trump one, right? Where like libertarian streak in the Republican Party, that part of the coalition is clearly has a little more sway. And so something like this can, with enough, you know, help from people that are close to the president, actually get passed, that would never happen now, right? It just wouldn't. Those people are fully on the sidelines in the Republican coalition now. And it's all just the xenophobic racist freaks.

• 13:50Speaker 04

  Yeah. And so again, in terms of this case making it to the Supreme Court, this individual serving federal prison time for a drug conviction, Mark Pulsifer, he's asking to be resentenced under, you know, these newly passed provisions of the First Step Act. And he's saying, hey, these new sentencing guidelines should apply to me and takes that case all the way up to the Supreme Court.

• 14:14Peter Shamshiri?

  All right. So let's talk about the law here. This case is a matter of textual interpretation. And usually we hate doing these on the podcast because we have to convey textual disputes in the audio format, which is difficult and also boring.

• 14:31Speaker 04

  Yeah. What's the dictionary definition?

• 14:34Peter Shamshiri?

  Right. This one's actually pretty simple. The point of this law is to create reasonable avenues for leniency in criminal cases, right? Part of that is a point system where certain types of offenses are assigned points. More severe offenses assigned more points with the idea being that you keep your points low. If you get above X number of points, you cannot get leniency, right? So this particular part of the law is actually fairly simple. It says there are no mandatory minimum sentences if the defendant does not have, one, more than four total criminal history points, two, a prior three-point offense, and three, a prior two-point violent offense.

• 15:18Peter Shamshiri?

  The entire legal question in this case is, does the and in that sentence mean and? Or does it secretly mean or? Because Mark Pulsifer said, hey, I have more than four total points.

• 15:34Peter Shamshiri?

  And I have a prior three-point offense, but I don't have a prior two-point violent offense. And the statute says you need all three to get the mandatory minimum, right?

• 15:46Speaker 04

  Yeah, statute says you need number one, number two, and number three.

• 15:50Peter Shamshiri?

  And number three, right? A, B, and C.

• 15:55Michael Liroff?

  Right, so I should be exempted from the mandatory minimum. I should be allowed to be resentenced to a lower sentence. If a judge sees fit, right? A judge should just have discretion to sentence me to something shorter.

• 16:08Peter Shamshiri?

  Right, so if you're reading the plain language of the statute, that would be the end of it, right? But the majority opinion, written by Elena Kagan, says no. Even though the statute says "and", we're going to read it as if it says "or". So, just to again restate this problem, because it is annoying to convey textual issues over a podcast. The law says no mandatory minimum unless the defendant has A, B, and C. He's like, "Well, I have A and B, but not C." And then the government was like, "Well, it says A, B, and C, but what it really means is A, B, or C, and you've got A and B."

• 16:51Peter Shamshiri?

  They're literally just arguing about whether the "and" in the law actually means "or", right?

• 16:56Michael Liroff?

  Right.

• 16:57Peter Shamshiri?

  Now, usually the way courts analyze an issue like this is that they follow the plain language of the statute unless there's a specific and compelling reason not to. If the statute is unambiguous, you just follow the literal meaning, right? So first, the court argues that this is sort of ambiguous. And basically what Kagan starts off saying is, "Look, 'and' can mean 'or' sometimes." She uses the example of the Constitution. Article 3 says, quote, "The judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties." In that situation, the "and" really means "or". You can imagine other situations where you say "and",

• 17:42Peter Shamshiri?

  but you actually mean "or". Someone asks you what you do for fun, you might say, "reading, knitting, and cooking", right? You don't mean all at once, right? So she's right. Sometimes people say "and" when they mean "or." But the difference here is that this isn't you telling your coworker about your hobbies. This is Congress writing a law, knowing that their words are going to be analyzed carefully. There are congressional guidelines about writing laws that make it clear that you should use "and" and "or" distinctly, to avoid this kind of confusion. So, we can pretty safely say that if they wanted to say "or," they would have said "or," right?

• 18:26Peter Shamshiri?

  And one thing the dissent points out that I think is a good point, it's like the fact that you can theoretically interpret an "and" as an "or" is not a good reason to actually do it. It doesn't make it an equally valid interpretation of the words, right? Now, Kagan has one argument that appears compelling at first glance, so I'll address it. She says that it doesn't make sense to read this as an "and" because if you do, it makes the law redundant. The law says there are no mandatory minimums if you: 1. Don't have more than four total points; 2. Don't have a prior three-point offense; and 3. Don't have a prior two-point violent offense.

• 19:08Peter Shamshiri?

  But Kagan says, "Well, if you have a three-point offense and a two-point violent offense, you will always have more than four total points," which makes that part redundant. I can do math. So, what do you do to fix that redundancy? You read the "and" as an "or," and the redundancy goes away, right? This is sort of a standard method of interpreting laws. You read it in a way that avoids redundancy. The reason you do this is because you want to assume that Congress wrote the law very intentionally, very purposefully, so there shouldn't be any redundancies, right? Now, I think that doesn't really make a ton of sense in general, but in this particular case, it doesn't make sense at all because if you're assuming Congress wrote the law

• 19:51Peter Shamshiri?

  very purposefully and carefully, then they would have just said "or" when they mean "or." Right. And then on top of that, we don't have to get into the details, but the dissent points out that there likely are situations where the first provision isn't redundant. There are. Yeah. And the majority tries to nitpick this, but...

• 20:11Peter Shamshiri?

  It just seems like there are going to be situations where it's not redundant. And that should be that, right? Maybe, maybe Congress created a redundancy, maybe not. But like, what are we doing here? It seems weird that it like, we're, we're jumping through these hoops to read the word and as if it means or, right? Right.

• 20:29Speaker 04

  Yeah.

• 20:29Peter Shamshiri?

  Like, well, if you like, step back in this abstract, big picture way, maybe it's better to read it as or it's like, what are you talking about? Just, just read the fucking statute and move on, can we?

• 20:39Speaker 04

  And this redundancy point is like a big part of her argument. And the dissent is like, no, that's not right.

• 20:44Peter Shamshiri?

  It is a huge part of the argument.

• 20:47Speaker 04

  Yeah, but she doesn't address it. It's just like, no, it's redundant.

• 20:51Peter Shamshiri?

  I also want to bring up one part of this argument. Now, I think it's a little too convoluted to explain what she's arguing here exactly, but you need to hear it. She quotes the children's book, The Very Hungry Caterpillar. The book says, "On Saturday, he ate through one piece of chocolate cake, one ice cream cone, one pickle, one slice of Swiss cheese, one slice of salami, one lollipop, one piece of cherry pie, one sausage, one cupcake, and one slice of watermelon. The introductory words 'ate through' apply independently and equivalently to each of the 10 foodstuffs that follow."

• 21:31Peter Shamshiri?

  Now, again, she, she's trying to make this point about which phrases in the statute might apply to each bullet point in the statute. It's, it's, it's a little too convoluted to explain. I just want to point out that every time there's a plaintiff or, you know, criminal defendant in these cases, I always picture them reading the opinion, right? A layperson reading the opinion. And they're probably a little bit confused and frustrated if they lost, right? You're, you're reading the Supreme Court. Talk about your freedom. Yes. And there's a Supreme Court justice being like, consider the very hungry caterpillar.

• 22:11Michael Liroff?

  It's so, oh, it's like classic Kagan. She loves cutesy shit like this.

• 22:16Peter Shamshiri?

  Right.

• 22:17Michael Liroff?

  But it's so offensive in this context. It's just, it's wildly offensive in this context.

• 22:22Peter Shamshiri?

  We're not going to get into it too much, but she's basically trying to make this like convoluted point about like the, okay, the introductory words ate through applied to each of the 10 foodstuffs that follow, even though it doesn't say ate through one slice of Swiss cheese, ate through one slice of salami. She's making this like narrow textual point. Gorsuch responds to this by being like, congrats on finding one book where this happens.

• 22:45Peter Shamshiri?

  That doesn't make it the best interpretation of the law.

• 22:48Speaker 04

  Congrats on finding a list in a child's book that shows this.

• 22:52Peter Shamshiri?

  And the last thing I want to mention is that there's this idea that you learn about in law school and then never comes up again in any meaningful way called the rule of lenity. The idea behind the rule of lenity is that when it comes to criminal laws, if they are ambiguous, they should generally be interpreted in a way that favors the defendant. Right? This is something, yeah, that you learn in like in criminal law and it just sort of makes sense. Right? Uh, someone's freedom is at stake. And so if there's ambiguity, you would sort of resolve it in their favor naturally. You are sort of just erring on the side of caution, really.

• 23:27Michael Liroff?

  Right.

• 23:27Peter Shamshiri?

  Right? The only time the rule of lenity actually comes up in, in court cases is when a defense lawyer is like, and what about the rule of lenity? And then the court is like, great point. No.

• 23:39Speaker 04

  I heard about that in law school too, just like you.

• 23:42Peter Shamshiri?

  Right. Fascinating. Fascinating little idea. No.

• 23:45Michael Liroff?

  No, no.

• 23:46Peter Shamshiri?

  But like, it's just like, yeah, here, okay. So if you think this is convoluted enough that you need to invoke the very hungry caterpillar, then can't we just do rule of lenity on this and be like, all right.

• 23:59Speaker 04

  Yeah, then let's invoke the rule of lenity then, which is a rule that's like completely on point.

• 24:03Peter Shamshiri?

  It's also not ambiguous. It just says, and, and then she's like.

• 24:07Michael Liroff?

  But, but what if I don't like what that implies? Can we squint hard enough and tire ourselves into enough rhetorical pretzels that we can make it mean or?

• 24:17Peter Shamshiri?

  Right.

• 24:18Michael Liroff?

  So there's a dissent Peter has referenced a couple of times by Gorsuch. It's very good.

• 24:24Peter Shamshiri?

  Right up his alley, some textual bullshit.

• 24:26Michael Liroff?

  Yeah, textual bullshit. And he's like, you know, he's a self righteous prick, which one makes it a lot of fun when he's on your side and he's right. But it's also like something like this really lends itself to that, like his sort of like, he very methodically, he's like super pedantic about it in a way that I really enjoy.

• 24:44Peter Shamshiri?

  It could have been a three page opinion, right? Where you're just like, it says, and you guys are dumb as shit. But he does, he does 30 pages.

• 24:52Michael Liroff?

  I'm going to highlight a few things he does that I really like. One is, you know, his main point is like, let's just read the statute as written and interpret it the way it's written. And there's a very clear answer, simple enough. But then he's like, well, if we want to read it like the majority does, if we want to distribute this phrase to various items or whatever, he's like, the statute would actually look like this. And he takes the text of the statute and like crosses out some of it and then replaces, like puts it in new words and bold. He's like, this is what the statute would look like under the majorities.

• 25:26Peter Shamshiri?

  This is how the government wants you to read the statute. And it's just like this fucking red lined.

• 25:31Michael Liroff?

  Yeah, it's like, exactly like edits from your editor. And then like later on, he's like, and for the, you know, for the superfluous, and we'll talk a little bit about this for this idea that, you know, we don't want to make any part of the statute superfluous. It's like, you gotta add in more stuff. So he takes his old edits and adds more edits to them. And he's like, puts in more words and he does it twice. He does, he's like, let's go back to our edited statute and edit it some more with some more bold words we're adding in. And it's such like a good dickish little like. What the fuck are you doing? You're rewriting the statute. And here's how obvious it is that you're rewriting the statute to mean something different than what it does. It's well done and I enjoyed it.

• 26:13Michael Liroff?

  And so to explain, you know, if you're wondering why two plus three doesn't equal five, why a three-point offense, a two-point violent offense, isn't always greater than four points. The provision that says four points, says four points of criminal history. And that's not the same as having a three-point offense. Because when you're calculating the criminal history, sometimes the old offenses get dropped. If it's been 10 years after some offenses, they don't add up to your criminal history anymore. If it's been 15 years for other more serious offenses, they don't add anymore. So if you had a two-point violent offense 20 years ago, that doesn't add to your criminal history.

• 26:55Michael Liroff?

  So even if you have a two-point and a three-point offense, if they're old enough, you might have zero points in your criminal history.

• 27:01Peter Shamshiri?

  Right.

• 27:02Michael Liroff?

  Or you might only have three, or you might only have two.

• 27:04Speaker 04

  This is relevant to a lot of people. Like, it depends on, you know, your criminal history, your history, right? It depends on like time passing. This applies to a lot of people.

• 27:14Michael Liroff?

  And only one of these three provisions references criminal history. The other just says has a three-point offense, has a two-point offense. So it's like, again, if Congress is being careful in their drafting, and it certainly seems like they are.

• 27:27Speaker 04

  Yeah.

• 27:28Michael Liroff?

  That is a relevant distinction where they're saying, treat this provision different from these other provisions. In A, we're looking at criminal history. In B, we're just asking if you've ever had one of these offenses at all. Those are separate questions. So there is no redundancy here, right? You have to write in a redundancy by pretending like actually what it says is a three-point offense, that counts towards your criminal history.

• 27:54Peter Shamshiri?

  Right, right. You're so far afield by the time you're doing this analysis.

• 27:59Michael Liroff?

  Right.

• 27:59Peter Shamshiri?

  It's like the law says and.

• 28:02Michael Liroff?

  Right, yeah, and that's

• 28:03Peter Shamshiri?

  Unless like you can find, like unless Congress has like, you know, passed another law saying that was a typo, then I feel like that should be the end of it.

• 28:12Michael Liroff?

  Right, like they use or, you know, in similar situations within these provisions, right?

• 28:19Speaker 04

  In the first

• 28:19Michael Liroff?

  You know, the same very, very same list, like within, you know, point A and point B, like point C, they use or as a disjunctive. It's a good dissent and he also like hits the point that I think is important to reiterate, which is, well, there are a couple of points he hits that are important to reiterate, which is, one, this is still only one piece of the puzzle. There's like, what we're discussing here is prong one of a five-pronged text. So even if Pulsifer satisfies this, he still has to satisfy four other prongs. Like, it's very hard to get this exception to the mandatory minimums. And on top of that, even if you get this exception,

• 29:01Michael Liroff?

  all that does is give a judge the opportunity to resentence you. It doesn't require them to resentence you to below the mandatory minimums. It just gives them the freedom to, right? This is just about creating space for, for more discretion, for judges to depart below the mandatory minimums. And he had some numbers about it, like this ruling will make like thousands of people ineligible for resentencing that otherwise would have been under Pulsifer's reading, under the natural reading, I'd go so far as to say, under the law as written. They would have been eligible and instead Elena Kagan decided to rewrite the law with the backing of five conservatives to make them ineligible.

• 29:45Michael Liroff?

  Gorsuch is very good on that and he has the right amount of just like indignation about how tortured their language is here and how bullshit it is and towards what ends? Like, what are we doing here?

• 29:57Peter Shamshiri?

  Right.

• 29:57Michael Liroff?

  We're just making it harder for people to get out of prison just a few years earlier, you know?

• 30:04Peter Shamshiri?

  What crimes are justified by a judge citing The Very Hungry Caterpillar?

• 30:12Peter Shamshiri?

  If a judge was explaining to me that I needed to do like five more years in prison and was like, well, if you see here in The Very Hungry Caterpillar, guess what? You better have a gun. You better have a gun before you say some shit like that to me.

• 30:23Speaker 04

  Go ahead and give me life, Judge, for what I'm about to do. Yeah.

• 30:31Peter Shamshiri?

  About to moot this whole argument, Your Honor.

• 30:35Speaker 04

  Let's go ahead and take this one off the bench and outside. Yeah.

• 30:40Peter Shamshiri?

  So yeah, I guess it's worth talking about the elephant in the room here, which is that this case features both dark Kagan and woke Gorsuch at the same time. The rare combo, usually you get one or the other. They did a little trade here.

• 30:54Speaker 04

  We need the laser eyes Gorsuch, dark Kagan meme. Someone could go ahead and run that up.

• 31:01Peter Shamshiri?

  Now, I don't usually like to do this analysis because it's very shallow, but a lot of Kagan's shortfalls are in the sort of like wealthy white liberal lady sort of vibe, you know, like all of her blind spots mimic sort of wealthy liberals.

• 31:22Speaker 04

  What if I talk to you like you were a child? Do you get it now?

• 31:26Peter Shamshiri?

  Right, right. That's sort of like a little too educated condescension that people love coming from liberals. And look, I, I, I do enjoy some condescension. I think you guys all know that.

• 31:40Peter Shamshiri?

  But if you direct it towards me, I will kill you. I have, I have a brutal double standard.

• 31:48Peter Shamshiri?

  Now Gorsuch, of course, has just like, it's similar to like, you know, he's very famously woke on tribal issues on Indian law. And it really just feels to me like over the course of his life, he's read a lot of shit and a couple of things just kind of stuck with him. He sort of has, to a much lesser degree, but sort of has a libertarian bent on some criminal justice stuff, right? Which like Scalia did, right? This isn't totally uncommon in the, in the conservative brain. And so I think that's really what's happening here. He's very textualist and that might be part of it, but he's also just sort of a little

• 32:31Peter Shamshiri?

  bit more inclined to adopt libertarian positions in this context.

• 32:36Michael Liroff?

  Like, I think it comes through in the dissent. Like, it doesn't seem insincere to me when he brings up like the number of people who will be denied eligibility for, you know, a lower sentence here. Like, he genuinely seems upset, not just at the torture of language here that, by the majority. But about the practical impact of that torture of language, which is that fewer people have a chance to be free sooner, right? Like, it comes off as sincere. Like, it comes off as sincere that, like, he thinks too many people are in prison for too long for not serious offenses, and we need to be better about giving them a chance to get out. Like, I think that comes across.

• 33:18Speaker 04

  You know, I think he views himself as kind of like a traditionalist, like a quote-unquote "real textualist," right? And I think, like, the strong argument that comes out of the dissent here, you know, what he's saying in, like, so many words, is that, like, in Kagan and, you know, the majority's, like, twisted textualism, what they're actually doing is favoring, like, punitive policy outcomes, right? Instead of just doing strict textualism and, like, adhering to, like, traditional canons, like the rule of lenity, right? Like, these kinds of things are important to Gorsuch, and I think in the dissent, like you said, Michael, like, you get out of it, his takeaway, that the application of, you know, what he thinks are these traditional, like, strict adherence to textualism and canons

• 34:01Speaker 04

  like lenity, by doing that, you get to the intended purpose of Congress in passing the law, which is eligibility for release for more federal prisoners.

• 34:12Michael Liroff?

  Right. Like, it's not a surprise that he mentions with the problems with mandatory minimums, like, the crack cocaine versus powder cocaine sentencing disparities, right? Which were 100 to 1, were eventually reduced to 18 to 1. But, like, he's not just playing to a liberal audience there. Like, I think it's something that, like, he cares about. He's like, "This is fucked. Like, this was fucked, and it remains fucked, and this was a small step towards unfucking it," right? And here we are, putting, you know...

• 34:46Michael Liroff?

  A tripping block in front of that small step and making it even harder.

• 34:50Peter Shamshiri?

  If you're a little younger, your exposure to conservatives is like MAGA. This type of guy might not be familiar to you, but there is like a slightly older Gen X and above type of conservative who was like anti-drug war, right? Who, who thought of that as like, as overreach and is very libertarian minded in like domestic politics, right?

• 35:14Speaker 04

  Yeah.

• 35:15Peter Shamshiri?

  I think Gorsuch fits into that mold at times, but you know, he's got like, he probably like watched The Wire and was like,

• 35:26Peter Shamshiri?

  we failed these people, you know?

• 35:28Speaker 04

  SMH, yeah.

• 35:30Michael Liroff?

  SMH, SMDH.

• 35:33Speaker 04

  He's posting on Facebook, SMH.

• 35:35Peter Shamshiri?

  He was good, he was going nuts on a message board after watching The Wire.

• 35:45Speaker 04

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• 36:28Speaker 04

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• 37:10Speaker 04

  Back to just like what the holding is and the effect of this case of the majority opinion, bottom line, fewer federal drug offenders especially can avoid long mandatory minimum sentences, right? That's what comes out of this case, including many people who have relatively limited criminal histories, even though the First Step Act was aimed at, you know, broadening this sentencing scheme and giving some lenity, honestly, right? I do want to make a point, we want to talk always about how everything that we're talking about and everything that gets so abstracted and ticky tack in Supreme Court cases, how this stuff actually affects real people. There are problems with the First Step Act.

• 37:55Speaker 04

  This is not a perfect piece of legislation, like, you know, like we said up top. And the First Step Act, I just want to emphasize like how limited its applicability is. It doesn't apply to like a majority or like a huge amount of people in federal prison to begin with. And so the point I want to make about the Supreme Court case here, what you get out of Pulsifer is a squeezing of like an accelerated limitation, right? It now applies to even fewer federal inmates because of this case. Sonia Sotomayor has written in a different case about how the First Step Act should be expanded and that Congress should move to broaden its applicability.

• 38:38Speaker 04

  There's a 2020 case called Terry v. United States in which this man Terry had been sentenced to more than 15 years for crack cocaine possession. Now, that was before the First Step Act was passed, and under the First Step Act, this specific crime that he was convicted of had been re-categorized, basically, and he would have been sentenced to a much lower sentence had this happened after the First Step Act. So, you know, in this case, he asked for resentencing under the First Step Act, but still in Terry v. United States, the Supreme Court ruled that the First Step Act, you know, kind of by its text, it only applies to certain cases. Where someone was sentenced under a mandatory minimum scheme.

• 39:20Speaker 04

  Mr. Terry specifically actually wasn't sentenced under a mandatory minimum, under a different provision, was given the 15 years. And so, you know, this really shows the limitations of the First Step Act in its applicability. And Sotomayor, in that case, writes this concurrent saying, you know, Congress should be including a lot more stuff in this legislation. Because, look at this case, it is completely unjust that for, you know, crack cocaine possession in the amount of something that weighs less than four paper clips, she says, this man was sentenced to 15 years. And now that crime is completely re-categorized and he wouldn't have gotten sentenced to that amount. So I just want to make the point about the First Step Act. It's very limited. It doesn't apply to a ton of people.

• 40:06Speaker 04

  And in this case, Hulstfer, Kagan and the majority are making sure it applies to even fewer.

• 40:11Michael Liroff?

  It is worth mentioning that just as a policy, mandatory minimums have, I think, in terms of reducing crime, have been a failure. But in terms of increasing the prison population, it's been a massive success. In the few years after mandatory minimums were introduced in the eighties, the federal prison population doubled, like doubled. And the vast majority of the new, these new inmates were nonviolent drug offenses. So what we're talking about here is not just people's freedom, but it's people who maybe shouldn't have been imprisoned in the first place, right? Who in a previous era, without mandatory minimums, wouldn't have been imprisoned at all.

• 40:53Michael Liroff?

  And now we're just talking about maybe getting them out earlier, right? It's a shitty policy. It's an incomplete solution to that policy. And the Supreme Court won't even stand for that.

• 41:06Peter Shamshiri?

  Right.

• 41:08Peter Shamshiri?

  It's a social reaction, a social political reaction to a period of high crime that is now 40 years behind us, right? That it feels like our political environment is still shaped by.

• 41:19Speaker 04

  Yeah.

• 41:20Peter Shamshiri?

  You know, the murder rate spiked for a year and a half following COVID and the media freaked out like as if the crime of the mid 80s was back, right? A lot of our, a lot of our prison systems excesses, to put it lightly, can just be traced back to a moral panic about crime in the 1980s when crime was bad, but that period is just so far behind us right now.

• 41:48Speaker 04

  Yeah.

• 41:48Michael Liroff?

  Yeah. And because so many of our politicians, we're still politicians in the 80s. They're fucking good. It's the same people. It's the same people who freaked out then are still freaking out about it from their, from their hospice bed.

• 42:03Speaker 04

  Yeah.

• 42:04Peter Shamshiri?

  It's September 12th, 2001, but it's also 1986 in all of their minds.

• 42:09Speaker 04

  Exactly, exactly. You know, I talked to my friend who is a federal public defender, you know, represents people now who are charged with federal crimes. And she was talking about, you know, just like this continued grind of the federal sentencing schemes and this kind of prosecutorial discretion that still exists, right? She said like in her perspective, when she thinks about the first step act, she actually like gets sad because it doesn't apply to a lot of cases. It doesn't apply to certain charges, right? And the guidelines that are in place are horrific, she says, because it roots everyone in those guideline

• 42:50Speaker 04

  ranges that can allow for variances up or down. But at the end of the day, it's people being sentenced to prison, right? It's guidelines about how much time you are doing in prison with no consideration about like, wait a minute, just being convicted of this crime, just doing this crime warrants a prison sentence, right? Forget the guidelines, you know? There's almost no room to say like, hey, maybe something other than a felony conviction and prison time is appropriate. When you're in the federal sentencing guidelines world, you're not like saying like, hey, can we get probation? Right? Like

• 43:26Peter Shamshiri?

  Yeah.

• 43:26Speaker 04

  Prison is going to be imposed on you.

• 43:28Peter Shamshiri?

  A lot of this policy is good boy, bad boy stuff.

• 43:31Speaker 04

  Yes, 100%.

• 43:32Peter Shamshiri?

  There are a lot of policymakers, especially in like the law enforcement adjacent space, who believe that like the main problem with crime is that there are a finite number of bad guys and liberals are letting them run free. Right? And if you think of it that way, then all of this stuff makes sense. Right? You want to get those bad guys off the streets and into prison so that the rest of us can thrive. But if you like have ever read a book before or something, if you're, if you're someone who has imbibed information at any point in your life,

• 44:13Peter Shamshiri?

  you're, and you, you might think, oh, is putting a person in prison at a young age, perhaps resulting in a worse outcome later on? Are we creating cycles of criminal conduct? Those, those sorts of things might pop into your head.

• 44:30Michael Liroff?

  You sound like a pussy.

• 44:32Peter Shamshiri?

  I'm sorry, I'm sorry for being gay for a second there.

• 44:37Speaker 04

  You girly boy.

• 44:39Michael Liroff?

  Okay, mom, I guess we should think about the future.

• 44:44Michael Liroff?

  Whether this really helps.

• 44:47Speaker 04

  Just last thing I'll say about, um, you know, what my friend said about like the vast majority of cases. She says like, for the vast majority of her clients, no one has been hurt by them. These are nonviolent cases. Nobody has been hurt in the vast majority of people that she represents who are charged with federal crimes, you know? She says like you have drugs and guns in a car. The car gets pulled over because of like an allegation that your window tint is too dark. And they're talking five, 10, 15 years, you know? She talks about in some cases where having a gun enhances the seriousness of the other crime that you're charged with.

• 45:30Speaker 04

  She says, we're lucky, really lucky to get 10 or 12 years when literally like nobody was hurt. And so this is, this is the reality. Yes, we have the First Step Act and it helped a lot of people. I think in the first year after the passage of the First Step Act, something like 3,000 people were released from federal prison. But, but the system we have is not sort of like now just because of that law, there's still like so much work to do. In a lot of cases, remember prosecutorial discretion. In a lot of cases, the DOJ and US attorneys were, were arguing that even those people who had been released under the First Step Act should be reincarcerated.

• 46:09Peter Shamshiri?

  It's interesting that there's a rule of lenity, this canon of construction that's like, you should interpret things to favor defendants. And then in practice, the actual opposite canon exists, right? Like, is there any question that judges from like the lowest state court to the Supreme Court favor prosecutions? Like it, I don't even, I don't know how you would go about gathering this, that sort of data, but surely if any principle here exists, it's like, ooh, let's not let anybody out of a prison.

• 46:41Speaker 04

  Yeah.

• 46:42Peter Shamshiri?

  That could be dangerous, right?

• 46:43Speaker 04

  Yeah.

• 46:44Peter Shamshiri?

  It's the opposite of the rule of lenity.

• 46:45Speaker 04

  Yeah, we have a conviction rate, a guilty plea rate of 98% that we know how the system works.

• 46:50Peter Shamshiri?

  Right, right. Teaching students the rule of lenity is almost propaganda.

• 46:57Peter Shamshiri?

  Like just teaching them this thing that does not really exist to make it seem like the system is more fair than it is.

• 47:02Speaker 04

  There's fairness, I promise, you know?

• 47:06Peter Shamshiri?

  Yeah. Right, right.

• 47:09Peter Shamshiri?

  I'm sure someone, someone, some nerd has written about that. Maybe not. Maybe once again, we're the first to think of it.

• 47:15Michael Liroff?

  Yeah, yeah. Well, no, there's like, I mean, there is like a concept in academia called like phantom constitutional norms. That's like the idea that you're kind of getting at, which is you can tease out from sort of repeated rulings, like constitutional norms that they're never explicitly stated, but like they're norms against indefinite detention. For example, like courts generally blanch at arguments that lead to indefinite detention. And I think, I think you can make an argument that there's a phantom constitutional norm in favor of prosecution. Right? Like that goes directly against something like the rule of lenity.

• 47:52Peter Shamshiri?

  Right.

• 47:52Michael Liroff?

  If that hasn't been written, it could be, it should be.

• 47:55Peter Shamshiri?

  Yeah.

• 47:55Michael Liroff?

  Some nerd out there should write it up.

• 47:57Peter Shamshiri?

  Yeah, write it. We've got a lot of listeners. Sometimes we get cited in, in larva articles, but it's usually like a see also.

• 48:05Peter Shamshiri?

  I'd like to.

• 48:07Speaker 04

  I'd like it to be a street.

• 48:09Michael Liroff?

  Thanks up top for inspiring this.

• 48:12Peter Shamshiri?

  Yeah, I'll take a fucking thank you.

• 48:14Michael Liroff?

  Yeah.

• 48:18Speaker 04

  You know how footnote one will often be like, yeah, thank you to my professor.

• 48:22Peter Shamshiri?

  Thank you, my research assistant.

• 48:23Speaker 04

  Research assistant. Yeah, absolutely.

• 48:25Michael Liroff?

  So and so for their helpful notes.

• 48:27Peter Shamshiri?

  Footnote one.

• 48:28Michael Liroff?

  Yeah. Yeah.

• 48:30Peter Shamshiri?

  If you, if you reach out to us saying that you cited us in your article and it's lower than footnote one, don't reach out to us. I don't want to hear that shit anymore.

• 48:43Peter Shamshiri?

  All right, folks. Next week, premium episode about the Attorney General, Pam Bondi. Been in the news quite a bit. She's kind of in charge of the executive branch's legal arm. So we thought we would dive in because there's been a lot of public attention on her. And, you know, it should kind of go without saying, but she is an incredibly weird freak and a complete lunatic. And when reporters write bad stuff about her, she calls them crying.

• 49:12Michael Liroff?

  That's right. That's right.

• 49:15Peter Shamshiri?

  A move that I respect deeply.

• 49:19Speaker 04

  I don't want to say anything to both of them.

• 49:21Peter Shamshiri?

  To be the, to be the Attorney General of the United States and then it's like, and then you just call a reporter literally sobbing, like, please don't publish this about me. God, what a move. What a move.

• 49:34Peter Shamshiri?

  I don't even think it's manipulation. I think, just think she's like, she's just having emotional outbursts all the time. Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to our in-game episodes, next week's episode, ad-free episodes, special events, our Slack, all sorts of shit. See you next week.

• 49:58Michael Liroff?

  Bye, everybody.

• 50:00Michael Liroff?

  Five to Four is presented by Prolog Fajitas. This episode was produced by Alison Rogers. Leon Nefok provides editorial support. Our website was designed by Peter Murph. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Revolutions.

• 50:20Speaker 05

  Maybe there is a chance she will show, see what she really means to me. And maybe not.