This episode of the 5-4 podcast features hosts Peter, Rhiannon, and Michael analyzing Pulsifer v. United States, a 2024 Supreme Court case about the First Step Act's criminal justice reforms. The case centers on Mark Pulsifer, a federal drug offender seeking resentencing under the 2018 law's mandatory minimum exceptions.

The legal dispute involves whether the word 'and' in the statute actually means 'or' when determining eligibility for reduced sentences. Elena Kagan's majority opinion argues for this counterintuitive interpretation, while Neil Gorsuch's dissent maintains that Congress meant what it wrote. The case highlights broader issues with mandatory minimum sentencing and mass incarceration in federal courts.

The First Step Act's Limited Criminal Justice Reforms

The First Step Act, passed in 2018 during Trump's first term, represents bipartisan criminal justice reform allowing judges discretion below mandatory minimums in specific circumstances, though it applies to relatively few federal inmates.

Jared Kushner personally lobbied Trump and convinced Mitch McConnell to bring the bill to a Senate vote after his father's federal prison experience, making it 'probably the one good thing that Trump did in his first term' - Peter.

Mandatory minimums contributed to doubling the federal prison population in the years following their 1980s introduction, with the vast majority of new inmates being nonviolent drug offenders rather than violent criminals.

Elena Kagan Cites Children's Literature in Criminal Law

Kagan's majority opinion quotes The Very Hungry Caterpillar to argue that introductory phrases can apply to entire lists: 'on Saturday he ate through one piece of chocolate cake, one ice cream cone, one pickle...'

'Every time there's a lay person reading the opinion... there's a Supreme Court justice being like, consider the very hungry caterpillar' - Peter, highlighting the absurdity of citing children's books in criminal sentencing decisions.

Gorsuch responds dismissively to the literary citation: 'congrats on finding one book where this happens. That doesn't make it the best interpretation of the law.'

Textual Interpretation Battle Over 'And' Versus 'Or'

The statute requires defendants to lack three conditions (A, B, and C) to avoid mandatory minimums, but the majority reads this as lacking any one condition (A, B, or C).

Kagan argues the 'and' interpretation creates redundancy since having both a three-point and two-point offense would exceed four total criminal history points, but the dissent shows this isn't always true due to time-based point expiration.

Gorsuch's dissent includes visual edits showing how the majority 'rewrote the statute' with crossed-out text and bold additions, demonstrating the extent of judicial reinterpretation required.

The Ignored Rule of Lenity and Its Phantom Opposite

'The rule of lenity... when it comes to criminal laws, if they are ambiguous, they should generally be interpreted in a way that favors the defendant' - Rhiannon, though courts routinely ignore this principle.

The hosts identify a 'phantom constitutional norm in favor of prosecution' that operates as the opposite of lenity, with courts consistently interpreting ambiguity to favor incarceration over freedom.

With a 98% guilty plea rate in federal court, the system demonstrates systematic bias against defendants despite theoretical protections like the rule of lenity.

Real-World Impact on Federal Sentencing

The ruling makes 'thousands of people ineligible for re-sentencing that otherwise would have been' eligible under the plain statutory language - Michael.

A federal public defender reports that most clients face 5-15 years for nonviolent cases where 'nobody has been hurt,' often triggered by minor traffic stops revealing drugs and guns.

Even after the First Step Act's passage, DOJ and U.S. attorneys argued that people released under the law should be reincarcerated, demonstrating prosecutorial resistance to reform.