Pulsifer v. United States

We will hear argument this morning in case 22-340, Pulsiver v. United States. Hey everyone, this is Leon from Prologue Projects. On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about Pulsiver v. United States, a case about the First Step Act, a 2018 criminal justice reform package passed during Trump's first term. Criminal justice reform is an incredible, beyond bipartisan signing. We'll be doing that in just a moment. 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 5 to 4, a podcast about how much the Supreme Court and or mandatory minimums suck. Welcome to 5 to 4, 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. Hey, everybody. And Rhiannon. Hello. I'll let one of you guys tell this story since you just told it to me. 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 cheated 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. Brutal, dude. Proclaiming to the world your infidelity. And yeah, and she was reached for comment. Isn't that right, Rhi? That's right. She was reached for comment, and she said, heard and received and declined. No, Well, thank you. That's right. When I dumped your ass a few months ago, I was serious about that. Yeah. Your little shooting in the winter, in the snow, pew, pew, this bronze win, it's not impressive to me. You thought that being cheated on was bad. What if I told you that I'm third best at this skiing shooting combo? Yeah. Reach for comments. She said, if you'd gotten gold. 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 debases 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? On the world's biggest sports stage. Oh, man. There's something so good about getting bronze and being like, you know what I'm going to do. I'm getting her back. Katie, come back to me. I've won the bronze like you asked. 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 in certain circumstances. One man, Mark Pulsifer, said that the mandatory minimum should not apply in his case. But the Supreme Court, in a 6-3 decision that does a lot of convoluted textual interpretation, said that actually it does. 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 should say up top the First Step Act, probably the one good thing that Trump did 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. Yeah, but it's between this and the Muslim ban, which is the greatest things he ever accomplished. Yeah. It's a first place thing and then a really far down on everything else. 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, you know, blah, blah, blah. Right. It's totally in terms of like Trump's output. It's crazy good. 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 given a good amount of credit for actually getting the First Step Act passed. A hero. Yeah. Talking Tim Kardashian here. There's a couple celebrities involved. I thought we were talking little Jared. Jared Kushner. This is little Jared. So we'll get into that in a second, but just to give listeners a sort of broad overview of mandatory minimums, like 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. You know, the problem may be obvious at this point for listeners and for people who sort of understand the problem with, you know, mass incarceration in general in the U.S., 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 rights, right? They create like an inflexibility in certain situations that just results in unjust punishments. Yes, exactly. Unjust punishments for those individuals who are punished under mandatory minimum sentencing schemes, but also, you know, 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 U.S. 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, 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 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 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 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 like supported booms as a result of charging drug offenses and nonviolent offenses in this more aggressive way. under mandatory minimum provisions. 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 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 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 federal criminal code, Title IV of the Act redefines quote-unquote serious offenses so that 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 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, maybe a decade prior to 2018, but it obviously was a sort of passion project for Jared Kushner he reportedly 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 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. Classic conservative. Yeah, I'm not going to go so far as say shout out to Jared Kushner, but I just want to note his role, you know. 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 momia, free them all. Schools, not prisons. Exactly. Everybody deserves a second chance. Yeah. 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 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. 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 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. 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. Yeah. What's the dictionary definition? 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. 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, 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? Yeah, statute says you need number one, number two, and number three. And number three, right. A, B, and C. 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. 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 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. They're literally just arguing about whether the and in the law actually means or, right? Right. 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, 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, right? This is Congress writing a law, right? 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, right? 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? Yeah. 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? Yeah. 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, one, don't have more than four total points, two, don't have a prior three-point offense, and three, don't have a prior two-point violent offense. 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 very purposefully and carefully then they would have just said or when they mean or right 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 yeah i mean and the majority sort of tries to nitpick this, but it just seems like there are going to be situations where it's not redundant and that should be that, right? Maybe Congress created a redundancy, maybe not. But like, what are we doing here? It seems weird that we're jumping through these hoops to read the word and as if it means or, right? 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? And this redundancy point is like a big part of her argument. And the dissent is like, no, that's not right. It is a huge part of the argument. Yeah, but she doesn't address it. It's like, no, it's redundant. 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. Now, again, she's trying to make this point about which phrases in the statute might apply to each bullet point in the statute. It's a little too convoluted to explain. I just want to point out that every time there's a plaintiff or a criminal defendant in these cases, I always picture them reading the opinion, right? A lay person reading the opinion. and they're probably a little bit confused and frustrated if they lost, right? 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. It's so, oh, it's like classic Kagan. She loves cutesy shit like this, but it's so offensive in this context. It's just, it's wildly offensive in this context. We're not going to get into it too much, but she's basically trying to make this convoluted point about, 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 narrow textual point. Gorsuch responds to this by being like, congrats on finding one book where this happens. That doesn't make it the best interpretation of the law. Congrats on finding a list in a child's book that shows this. 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 that you learn in like in criminal law. And it just sort of makes sense. Right. 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? Right. Right. The only time the rule of lenity actually comes up 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. I heard about that in law school, too. Just like you. Right. Fascinating. Fascinating little idea. No, no, no. 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. Yeah. Then let's invoke the rule of lenity then, which is a rule that's like completely on point. It's also not ambiguous. It just says and. And she's like, but, but what if I don't like what that implies? can we squint hard enough and tie ourselves into enough rhetorical pretzels that we can make it mean or right so there's a descent peter has referenced a couple times by gorsuch it's very good right up his alley some textual bullshit 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 it could have been a three-page opinion right where you're just like it says and you guys are dumb as shit um but he does he does 30 pages i'm gonna 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 It'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 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 majority this is how the government wants you to read the statute and it's just like this fucking red lined 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 statutes superfluous. He's like, you got to 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'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. 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. 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. Or you might only have three, or you might only have two. This is relevant to a lot of people. It depends on you know, your criminal history, your history, right? It depends on like time passing. This applies to a lot of people. 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, 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. Right, right. You're so far afield by the time you're doing this analysis. Right. It's like the law says and. Right. Yeah. And that's like you can find like unless Congress has like, you know, pass another law saying that was a typo, then I feel like that should be the end of it. Right. Like they use or, you know, in similar situations within these provisions. Right. Like in the first, 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 descent. 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 prong 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, 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 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. 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 bullshitty it is and towards what ends. Like, what are we doing here? We're just making it harder for people to get out of prison just a few years earlier, you know? what crimes are justified by a judge citing the very hungry caterpillar 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 go ahead and give me life judge for what i'm about to do yeah yeah i'm about to moot this whole argument your honor let's go ahead and take this one off the bench and outside yeah 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 we need the laser eyes gorsuch dark kagan name if someone could go ahead and run that up. Now, I don't usually like to do this analysis because it's very shallow, but a lot of Kagan's shortfalls are in this sort of like wealthy white liberal lady sort of vibe, you know, like all of her blind spots mimic sort of wealthy liberals. What if I talked to you like you were a child? Do you get it now, right? Right, right. that's sort of like a little too educated condescension that people love coming from liberals and look I I do enjoy some condescension I think you guys all know that but if you direct it towards me I will kill you I have a brutal double standard now Gorsuch of course has just like it's similar to 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 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 bit more inclined to adopt libertarian positions in this context. 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 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. You know, I think he views himself as kind of like a traditionalist, like a quote-unquote real textualist, right? And I think the strong argument that comes out of the dissent here, what he's saying in so many words is that in Kagan and the majority's twisted textualism, what they're actually doing is favoring punitive policy outcomes, right? Instead of just doing strict textualism and adhering to traditional canons like the rule of lenity, right? These kinds of things are important to Gorsuch. And I think in the dissent, like you said, Michael, you get out of it his takeaway that the application of what he thinks are these traditional strict adherence to textualism and canons like lenity. By doing that, you get to the intended purpose of Congress and passing the law, which is eligibility for release for more federal prisoners. Right. Like, it's not a surprise that he mentions with the problems with the 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, 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 a tripping block in front of that small step and making it even harder. If you're a little younger and 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 thought of that as like as overreach and is very libertarian minded in like domestic politics, right? Yeah. I think Gorsuch fits into that mold at times. But, you know, he probably like watched The Wire and was like. If we failed these people, you know. SMH. Yeah. SMH. SMDH. He's posting on Facebook. SMH. He was going nuts on a message board after watching The Wire. Uh-huh. Hey, everyone. We're in a new year. and as 2026 kicks off, I'm really trying to simplify everything that I can, including dinner time. I'm podcasting left and right. I'm running around all over town. So having Home Chef deliver fresh pre-portioned meals takes a really big weight off of my plate every day. People really love it. Home Chef is rated number one by users of other meal kits for quality, convenience, value, taste, and recipe ease. I was just looking at the menu for this upcoming week and there's options like sheet pan pesto butter chicken, chicken with lemon garlic butter, and easy chicken heroes all looking really good. So for a limited time, Home Chef is offering listeners of 5-4 50% off and free shipping for your first box plus free dessert for life. So go to homechef.com slash 5-4. That is 5-4 all spelled out. Homechef.com slash 5-4 for 50% off your first box and free dessert for life. Homechef.com slash 5-4. You have to be an active subscriber to receive free dessert. 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 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 talking about and everything that gets so abstracted and ticky in Supreme Court cases how this stuff actually affects real people there are problems with the First Step Act This is not a perfect piece of legislation like we said up top And the First Step Act, I just want to emphasize how limited its applicability is. It doesn't apply to a majority or 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. 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 recategorized, 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. 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 concurrence 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 paperclips, she says, this man was sentenced to 15 years. And now that crime is completely recategorized 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. And in this case, Hulsifer, Kagan and the majority are making sure it applies to even fewer. 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 80s, the federal prison population doubled, like doubled. And the vast majority of 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. 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. Right. And 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. Yeah. 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 prison system's 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. Yeah. Yeah. And because so many of our politicians, we're still politicians in the 80s. They're fucking bitches. It's the same people. It's the same people who freaked out then are still freaking out about it from their hospice bed. Yeah, yeah. It's September 12th, 2001, but it's also 1986 in all of their minds. 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 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 warrant 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 prison is going to be imposed on you. A lot of this policy is good boy, bad boy stuff. Yes, 100%. 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, I've ever read a book before or something. If you're someone who has imbibed information at any point in your life, and 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 sorts of things might pop into your head. You sound like a pussy. I'm sorry. I'm sorry for being gay for a second there. You girly boy. Okay, mom. I guess we should think about the future. whether this really helps. Just last thing I'll say about, 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. 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 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 U.S. attorneys were arguing that even those people who had been released under the First Step Act should be reincarcerated. 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, I don't know how you would go about gathering that sort of data, but surely, if any principle here exists, it's like, ooh, let's not let anybody out of prison. Yeah. That could be dangerous, right? Yeah. It's the opposite of the rule of vanity. Yeah, we have a conviction rate, a guilty plea rate of 98% that we know how the system works. Right, right. Teaching students the rule of vanity is almost propaganda. Right? Right. Like just teaching him this thing that does not really exist to make it seem like the system is more fair than it is. There's fairness. I promise, you know? Yeah. Right. Right. I'm sure someone's someone some nerd has written about that. Maybe not. Maybe once again, we're the first to think of it. 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 their norms against indefinite detention, for example, like courts generally blanch at arguments that lead to indefinite detention. And 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. If that hasn't been written, it could be. It should be. Some nerd out there should write it up. Yeah, write it. We've got a lot of listeners. Sometimes we get cited in law review articles, but it's usually like a see also. I'd like to be a straight-up. I'd like a thanks up top for inspiring this. Yeah, I'll take a fucking thank you. Yeah. Yeah. You know how footnote one will often be like, yeah, thank you to my professor. Thank you to my research assistant. Thank you to the research assistant. Yeah, absolutely. So and so for their helpful notes. Let's put us in footnote one. Yeah. Yeah. 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. all right folks next week premium episode about the attorney general cam bondy she's 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 uh because there's been a lot of public attention on her and you know it should kind of go without saying but uh she is an incredibly weird freak uh and and when reporters write bad stuff about her, she calls them crying. That's right. That's right. A move that I respect deeply. That's rocked to hard. Be the attorney general of the United States, and then you just call a reporter literally sobbing, like, please don't publish this about me. God, what a move. What a move. I don't even think it's manipulation. I just think she's like, she's just having emotional outbursts all the time. Follow us on social media at 5 4 Pod. Subscribe to our Patreon, patreon.com slash 5 4 Pod. All spelled out for access to any of my episodes. Next week's episode, ad-free episodes, special events, our Slack, all sorts of shit. See you next week. Bye, everybody. 5 to 4 is presented by Prologue Fogges. This episode was produced by Allison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murfer. Our artwork is by Teddy Blanks at Chips NY. And our theme song is by Spatial Relations. Maybe there is a chance that she will show, see what she really means to me. And maybe not...