The meaning of "and": Pulsifer v United States USSC 22-340

When a statutory exception is followed by a list of conditions, a court may have to decide whether the list is conjunctive or disjunctive. That is, must all the conditions be satisfied before the exception applies, or need only an individual condition be satisfied for the exception to apply?

This problem split the Supreme Court of the United States 6-3 in Pulsifer v United States USSC 22-340 (15 March 2024).

At issue was an exception to protection against imposition of a statutory minimum sentence. It was an issue that mattered “profoundly”, affecting the lives and liberty of thousands of individuals (per Gorsich J, joined by Sotomayor and Jackson JJ for the minority).

For lawyers, the point of construction at issue has an entertainment value that belies its seriousness. It is worth reading the provision first (set out in the Appendix to the judgment of the Court), to see what you think is its ordinary and natural meaning.

The majority, in a judgment delivered by Kagan J, did not consider that the provision was genuinely ambiguous, notwithstanding that, viewed in the abstract, two readings were grammatically permissible. Therefore the rule of lenity (which would favour the construction that was most favourable to a defendant) had no role here. The interpretation argued for on behalf of Mr Pulsifer, said the majority, created “glaring superfluity”. Considered in its legal context, the text must be construed to avoid superfluity, and further, the exception to protection against liability for a minimum sentence must as a matter of policy reflect the (relative lack of [1]) seriousness of defendants’ criminal records.

In the majority’s opinion, Mr Pulsifer”s argument was that to be included in the exception from protection against imposition of the minimum penalty a defendant would have to meet all three conditions, but this would mean that if conditions 2 and 3 were met, condition 1 would be superfluous.

The minority disagreed with this claim of superfluity as it depended on how prior offenses were counted, and held that the policy justification could not overcome the plain meaning of the text.

Anyway, students of statutory construction should read this case, if only for entertainment (but remembering the minority’s observation that statutes aren’t games or puzzles).

Fifty-nine and a half pages on the meaning of “and”. Who could resist?

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[1] I parenthesize "relative lack of" seriousness, because ironically the majority insist that only one of the disqualifying conditions needs to be met, whereas the minority would have required all the conditions - meaning a very serious record of offending - to be met before a defendant was disqualified from protection against imposition of the minimum sentence.

Dealing with jury misconduct: Campbell v R (No 2) (Jamaica) [2024] UKPC 6

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.

The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management?

The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was 

“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]

So the party that may have been prejudiced (the prosecution) could not waive the misconduct.

The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].

Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]

It was for the local courts to decide whether a retrial should be ordered [63]-[64].

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[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.