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Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States The First Step Act of 2018 clarifies an ambiguity that existed in federal sentencing laws, and comes down strongly on the side of government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve is a list of five rules that the defendant must follow.
This case involves the first of those rules, which assesses the defendant’s criminal history. The provision’s general purpose is to ensure that defendants who have a serious criminal record are not eligible for safety valve and must therefore serve the mandatory minimum sentence. The criminal history provision was a provision that excluded defendants who had more than one point in their criminal record. However, the First Step Act loosened this provision because it felt that the safety valve was too narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal…
