Sentencing Statutes and Logic for Lawyers

Statutes are generally drafted by lawyers on legislators’ staffs. Unfortunately, too many lawyers did not take basic logic as undergraduates, and it is not generally taught in law school. The U.S. Supreme Court has now taken up a case to unravel the logic of a bit of statutory drafting that could have been written more clearly.

In 2018, Congress passed the First Step Act. I suggested at the time that it be called the Faux Pas (false step) Act. Among its provisions was a rewrite of 18 U.S.C. section 3553(f)(1). Section 3553 governs imposition of sentence, and subsection (f) provides a “safety valve” of exceptions to certain mandatory minimums in drug cases. Subsection (f) has 5 numbered paragraphs listing conditions to be met for the exception, joined by “and” to indicate that the defendant must meet all of them to qualify.

Before the amendment, paragraph (1) was simply “the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines,” meaning only people with a minimal history of priors could qualify. After the amendment, paragraph (1) reads:

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

That “not … and” is tricky. The amendment certainly does open the exception to a wider class of repeat criminals, but did the drafter open it to an even wider group than one might think on a quick reading? Does a criminal with a prior 2-point violent offense and no others qualify?

Deep at the base of all of our digital electronic gadgets are on-off switches. A switch with two inputs and one output, called a gate, can be one of several different types.

An AND gate is on only if both of its inputs are on.

An OR gate is on if either or both of its inputs are on.

A NOR gate is on only if neither of its inputs is on.

An XOR (exclusive or) gate is on only if one or the other but not both of its inputs is on.

A NAND (not and) gate is on if neither or one of its inputs is on but not if both are on.

Did the drafter of the new paragraph (f)(1) really intend to write a three-way NAND gate, so that a repeat criminal is disqualified for the safety valve only if he meets all three of the (A)-(C) subparagraphs? Did the members of Congress who voted for the act understand it to mean that? Or was this really supposed to be a three-way NOR gate, so that any one of the three would disqualify the defendant from the exception?

Rather than “not … and,” the drafter should have written “the defendant does not have any of the following” joined with an “or,” if that is what was intended, as I suspect it was.

The U.S. Courts of Appeals for the Eighth and Ninth Circuits have decided the question differently. The Supreme Court will give us the answer. The April calendar for this term is already set, so this argument will likely be next fall.

We could be in for another debate about strictly following the text versus looking to other sources. Stay tuned.

Update: BTW, in case anyone is under the mistaken impression that the First Step Act is a carefully drafted law, consider the bill‘s description of itself at the very top: “To reauthorize and amend the Marine Debris Act to promote international action to reduce marine debris, and for other purposes.” See Pub. L. 115-391, 132 Stat. 5194.