Small Drafting Confusions “and/or” Big Consequences: Pulsifer v. United States

By:  Jack Easterbrook, Esq.


As aptly stated by Daniel King in Mother Jones, “[it’s] a riveting, baffling and/or solemn day in this country when the highest court must step in to adjudicate a definitional dispute as basic as this:  does “and” mean “and”? Or does it mean “or”?”   This was the question presented and taken up by the Supreme Court in a case heard on the first day of its fall 2023 session, titled Pulsifer v. United States.  It involves a matter of statutory interpretation; the statute involving sentencing guidelines as set forth in the First Step Act of 2018 and codified as 18 U.S.C. 3553(f)(1).  The case has significant implications as it may affect the sentences handed out to over 10,000 individuals during the past few years, but it also serves as a reminder to any attorney drafting documents of any kind of the potential for disputes that may arise as fallout from careless writing.

The Ambiguous Sentencing Guideline

The First Step Act modified an exception to the mandatory minimum sentences imposed on defendants found guilty of certain drug offenses.  A defendant is eligible for the exception if the defendant does not have – –

  1. More than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
  2. A prior 3-point offense, as determined under the sentencing guidelines; and
  3. A prior 2-point violent offense, as determined under the sentencing guidelines;

(The term “points” refers to a scheme for sentencing based on the classification of certain crimes.)

Petitioner Mark Pulsifer pleaded guilty to a charge of felony drug distribution.  He also had a prior conviction.  Pulsifer maintained that he qualified for relief because “and” as used in the statute is a conjunctive and he did not have all three of required elements.  Accordingly, he falls within the “does not have” exception.  Three federal circuit courts of appeal have agreed with Pulsifer’s position, but four others have gone the other way on the and/or question, determining that “does not” as used in the statute is meant to be distributive among each of the three factors, which has the effect of changing the “and” in the section to an “or.”

Various courts and commentators have tossed out numerous theories about what happened here and in similar cases and how to interpret the statute.  Arguments have taken up everything from textual reading, to principles of statutory construction, to a simple mistake of Congress, to congressional intent, to usage in other common situations.  At this point, if you find your head spinning you are not alone!

The Take-Away

We are curious to see how the Supreme Court adjudicates this case, but closer to home is the reminder of the ramification of ambiguity in the documents we are regularly drafting on behalf of clients.  One sure way of generating disputes in agreements, which, in the worst case, end up in litigation, is to employ careless language!  Our clients normally are not helped by vague, ambiguous wording in documents – a good lesson to keep in mind.


This blog is written as of October 2023.  Recommendations and legal requirements are changing rapidly, so please continue to review our legal updates or review postings on relevant government websites.

All blogs on this site are for educational purposes only, do not constitute legal advice or opinion, and should not be applied to your situation, or any specific situation, without consultation with counsel. Strategy Law, LLP does not provide any legal advice concerning any matter discussed in a blog except upon formal engagement including, without limitation, execution of Strategy Law, LLP’s formal legal services agreement, and with respect to specific factual situations.  No blog constitutes a guaranty, warranty, or prediction regarding the result of any legal matter discussed in the blog or any representation.