The Courts Are at It Again. It was the Oxford Comma, Now It’s the Meaning of “And.”

By K.M. Rockwood 

In 2014, the United States Court of Appeals for the First Circuit decided that the lack of an Oxford comma in state regulations would cost a Maine dairy five million dollars in overtime pay to truck drivers.

Maine law requires time-and-a-half pay for each hour worked after 40 hours, but it carved out exemptions for:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

which exempted most employers in agricultural fields from the need to pay overtime.

At issue was the listing of tasks covered. The workers claimed that, while packing for shipment or distribution was covered, the actual shipping or distribution was not. Since the truck drivers did no packing, they should be entitled to overtime pay.

Had there been a comma after “shipment,” the meaning would have been clear. David G. Webbert, a lawyer who represented the drivers, stated it plainly. “That comma would have sunk our ship.”

The state did revise the regulation, but not by adding the Oxford comma. Now it reads:

The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Perhaps the addition of semi-colons was overkill, but the meaning is now clear.[i]

On October 2^nd, the beginning of the present session of the Supreme Court, the court agreed to hear a case which hinges on the meaning of the word “and.”

“It’s hard to imagine a less contentious or more innocent word than ‘and.’”

But how to interpret that simple conjunction has prompted a complicated legal fight that landed in the Supreme Court on Oct. 2, the first day of its new term. What the justices decide could affect thousands of prison sentences each year.

Federal courts across the country disagree about whether the word, as it is used in a bipartisan 2018 criminal justice overhaul, indeed means “and” or whether it means “or.” Even an appellate panel that upheld a longer sentence called the structure of the provision “perplexing.”[ii]

In 2018, in response to what was perceived as harsh mandatory minimum sentences for non-violent drug offenders, Congress passed, and then-President Trump signed, “safety valve” legislation that excepts defendants who meet certain criteria from those mandatory minimums. The court’s explanation of the case before it is:

“Issue: Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).”[iii]

What does the safety valve provision mean when it promises shorter sentences to offenders who do not have: 1) a lengthy criminal history, 2) a prior serious offense, “and” 3) a prior violent offense?

In 2020, an Iowa court convicted Mark Pulsifer for distribution of methamphetamine. Is he eligible to receive a shorter sentence because it is undisputed that he meets only two of the three listed conditions that would limit sentencing leniency? Pulsifer has a prior serious felony convictions and a lengthy criminal history but no prior violent offense.

He was given a mandatory minimum sentence of fifteen years, and is now petitioning the Supreme Court for relief in a case which could affect thousands of incarcerated non-violent drug offenders.

Does “and” always mean “and”? Or could it sometimes mean “or”?[iv]

The ruling will come later in this court session.

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[i] Suit Over Oxford Comma Is Settled, for $5 Million and a Slew of Semicolons. New York Times, Feb. 10, 2018, sec. A, pg. 11

[ii] Tang, Aaron, “The Supreme Court’s First Case Is a Brutal Grammatical Test,” Slate, Oct. 1, 2023, Yahoo, The Supreme Court will hear a case with a lot of 'buts' & 'ifs' over the meaning of 'and' (yahoo.com)

[iii]Justices Hear Debate on Act That Reduces Prison Terms. New York Times, Oct. 3, 2023, sec. A, pg. 10 

[iv] https://www.scotusblog.com/case-files/cases/pulsifer-v-united-states/