Erlinger v. U.S.: Juries, not judges, must decide if prior convictions happened at separate times
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The Sixth Amendment right to a jury trial requires that juries, not judges, decide if prior convictions happened at separate times to trigger lengthier prison terms under the Armed Career Criminal Act, the U.S. Supreme Court held June 21 in Erlinger v. United States.
The opinion also calls into question how much reliance can be placed on court documents to establish prior convictions.
Facts
If a defendant has three prior convictions for violent felonies or serious drug offenses that were “committed on occasions different from one another,” the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e)(1), increases the mandatory prison term from a minimum 15 years to a maximum of life in prison.
Paul Erlinger was charged with being a felon in possession of a firearm.
The Government sought to increase his penalty under ACCA by alleging he had four prior burglary convictions committed at different times. The Government alleged that more two decades ago, within a span of days, Erlinger burglarized a pizza shop, a sporting good store, and two restaurants.
Erlinger argued the burglaries had not occurred on four separate occasions, but were part of a single criminal episode. He claimed the question of whether the burglaries occurred at different times required an assessment of the facts surrounding the offense, which had to be made by a jury under the Fifth Amendment’s due process clause and the Sixth Amendment’s right to a jury trial.
The District Court rejected Erlinger’s claim, and proceeded to find that the burglaries occurred on separate occasions itself.
The Seventh Circuit affirmed.
Holding
The Supreme Court, in a 6-3 opinion by Justice Gorsuch, held that whether the prior burglaries happened at different times must be decided by a jury, not a judge.
The opinion rejected the contrary holdings of all twelve circuits of the Court of Appeals.
The Fifth Amendment right to due process and Sixth Amendment right to a jury trial “placed the jury at the heart of our criminal justice system,” the Court said.
Apprendi v. New Jersey, in 2000, held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
“Virtually ‘any fact’ that ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’ must be resolved by a unanimous jury”, the Court said. “Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-the-evidence standard.”
“Really, this case is nearly on all fours with Apprendi”, the Court said.
“Here, the sentencing court’s factual finding that Mr. Erlinger’s offense occurred on at least three separate occasions had the effect of increasing both the maximum and minimum sentences he faced”, the Court said.
Mr. Erlinger was entitled to have a jury resolve that factual issue unanimously beyond a reasonable doubt, the Court said.
“Presented with evidence about the times, locations, purpose, and character of those crimes, a jury might have concluded that some or all occurred on different occasions”, the Court said. “Or it might not have done so.”
“All we can say for certain is that the sentencing court erred in taking that decision from a jury of Mr. Erlinger’s peers.”
The Court went on to note that it may have recognized a narrow exception to the Apprendi rule in Almendares-Torres v. United States. There, the Court approved a judge’s factfinding that a noncitizen had previously been removed from the country after a conviction for an aggravated felony.
But Almendares-Torres is “at best an exceptional departure from historic practice”, the Court said. Since then, “a number of Justices have criticized Almendares-Torres” and called for it to be overruled.
“Still, no one in this case has asked us to revisit Almendarez-Torres”, the Court said. “Nor is there need to do so today.”
The Court further noted that facts regarding prior convictions are often found using prior court documents, such as judicial records, plea agreements and transcripts.
But such documents can be “prone to error”, the Court said.
The Court suggested that reliance on such documents alone may be insufficient to prove prior facts beyond a reasonable doubt.
“As a matter of fair notice alone, old recorded details, prone to error, sometimes untested, often inessential, and the consequences of which a defendant may not have appreciated at the time, should not come back to haunt [him] many years down the road by triggering a lengthy mandatory sentence”, the Court said.
“There is no efficiency exception to the Fifth and Sixth Amendments”, the Court said. A “criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury regardless of how overwhelmin[g] the evidence may seem to a judge.”
Lastly, the Court rejected the argument that factfinding by juries will prejudice defendants by having jurors hear about prior convictions.
“[T]raditional tools exist to address the prejudicial effect evidence about a defendant’s past crimes can have on a jury”, the Court said. “Most obviously, a court can bifurcate the proceedings.”
The jury can first be tasked with assessing guilt for the underlying offense, and only if it finds the defendant guilty will the jury turn to considering evidence regarding whether defendant’s prior convictions occurred on different occasions, the Court said.
Concurring and Dissenting Opinions
Chief Justice Roberts concurred, but wrote separately to say that violations of the right to jury factfinding should be subject to harmless error analysis on appeal.
Justice Thomas concurred, but wrote separately that Almendarez-Torres should be overruled. He urged the Court to grant a cert. petition posing that question.
Justice Kavanaugh, joined by Justice Alito, dissented. The Court’s precedents allow a judge to make the different-occasion determination, they said. They believed the issue should be subject to harmless error on appeal.
They also said they were “strongly opposed” to overruling Almendarez-Torres on grounds of stare decisis.
Justice Jackson dissented. She said Apprendi itself was “wrongly decided”, but given the “reality” that Apprendi has “now defined the relevant legal regime for nearly a quarter century”, “untangling the knots Apprendi has tied is probably infeasible at this point”.
“But considering the flaws inherent in Apprendi’s approach, I cannot join today’s effort to further extend Apprendi’s holding”.
The Sixth Amendment right to a jury protects against “conviction” without jury factfinding, not “against being sentenced to a certain level of punishment”, Jackson said.
“I recognize that many criminal defendants and their advocates prefer the Apprendi regime”, Jackson said. But she said Apprendi has prevented legislative efforts to create sentencing laws “that would mandate more similar treatment of like offenders” and “diminish sentencing disparity”.
“In my view”, Jackson said, “the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought, when compared to the greater fairness of a sentencing system that a more uniform correspondence between real criminal conduct and real punishment helps to create.”
She noted Apprendi was used by the Court to invalidate mandatory Federal Sentencing Guidelines that sought to reduce sentencing disparities.
As a result, “sentencing disparities of all manner have increased significantly”, she said. “Otherwise similarly situated defendants appear to receive vastly different sentences depending on the court in which they are prosecuted and what judge is assigned to their case.”