Jay C. Johnson | Venable
Everyone knows what “and” means. “And” is not a word you have to look up. So why did the use of “and” in a criminal sentencing statute divide the U.S. Supreme Court? Because the statute’s grammatical structure allowed “and” to be read in two ways. How the majority in Pulsifer v. United States chose between those two ways teaches litigants a lesson about structuring statutory arguments.
The statute in Pulsifer allowed judges to impose a sentence less than the mandatory minimum if:
The defendant does not have—
(A) more than 4 criminal history points…
(B) a prior 3-point offense…; and
(C) a prior 2-point violent offense….
By using the word “and” to link the elements of this list, the statute seems to allow a shorter sentence as long as the defendant “does not have” all three criteria listed in (A), (B), and (C)—a two-point violent offense, a three-point offense, “and” a total of four points. If Congress had wanted any one of the criteria to block a shorter sentence, the defendant in Pulsifer argued, it would have said “or,” not “and.”
The Supreme Court majority disagreed—but not because the defendant’s reading was grammatically wrong. Rather, the Court explained, there were “two grammatically permissible ways” to read the statute.
The defendant’s way of reading the statute would allow judges to impose sentences below the statutory minimum unless the defendant had all of (A), (B), and (C). The other way treated the statute like a checklist. Judges could impose shorter sentences only if the defendant did not have (A), did not have (B), and did not have (C). The majority found that the rules of grammar did not preclude either reading.
For present purposes, whether the Court was right about the grammar question is beside the point. It’s enough to know that the Court’s arguments rested on authorities ranging from Garner’s Dictionary of Legal Usage to a children’s book, The Very Hungry Caterpillar. The case did not turn on grammar rules or the meaning of “and.”
Since “the choice between the two” readings of the statute was “not a matter of grammatical construction,” what was left? According to the Court, understanding the statute required “considering the paragraph’s text in its legal context.” By looking at that context, the Court found two factors that made the statute’s meaning “clear.”
The first contextual factor involved the “canon against surplusage,” a commonsense rule of statutory interpretation that counsels against reading a statute in a way that makes some of the text meaningless. The Court explained that if the statute only barred shorter sentences when a defendant met all three criteria—a prior two-point offense, a prior three-point offense, and four total points—the criteria would be redundant. Any defendant who had a two-point offense and a three-point offense would always have five total points, and subpart (A)’s four total points requirement would become meaningless.
The second contextual factor also involved common sense. If the defendant were right, the Court explained, a person could receive a lower sentence even if he were convicted of five violent three-point offenses under criterion (B), so long as he didn’t have a less-serious two-point violent conviction under criterion (C). By contrast, a person with one three-point offense and one two-point violent offense could not receive a lower sentence. The Court found that such a scheme would lack “any rhyme or reason.”
The lesson here is that when grammatical battles are fought to a draw, common sense prevails. That lesson has two practical implications for litigants in statutory interpretation cases.
One: Always have a plausible argument that uses grammar rules. When the government argued in the court of appeals that “and” meant “or,” it lost. It got a different result in the Supreme Court because it made better grammatical points.
Two: Courts want the law to make sense. The defendant lost in the Supreme Court because he couldn’t explain why Congress would have enacted his rule. Grammar helps interpret texts, but judges need to understand the law too. So litigants should always try to appeal to a judge’s common sense.
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