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The law lists three types of criminal history among its criteria for eligibility. The justices were asked to decide whether just one type of criminal history disqualifies a person from a lighter sentence, or whether all three must be present for a disqualification.
Like the arguments, which were focused on grammar — basically, what does “and” mean in a list — Justice Kagan’s opinion adopted the tone of an English teacher. The opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh and Amy Coney Barrett, was peppered with examples of sentence structure, pulling from childhood classics.
“Consider this perhaps half-remembered line from childhood: ‘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,’” Justice Kagan wrote, citing the book “The Very Hungry Caterpillar.”
The use of the word “and” meant that the caterpillar ate each one of the foods, she wrote.
In dissent, Justice Neil M. Gorsuch, who was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, emphasized the purpose of the First Step Act. The legislation, he wrote, promised to give “more individuals the chance to avoid one-size-fits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.”
The case, Pulsifer v. United States, No. 22-340, involved Mark E. Pulsifer, who had been accused of twice selling methamphetamine to a confidential informant in southwest Iowa.
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