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November 20, 2023

Supreme Court grants cert on application of Sixth Amendment rights for key issue for applying ACCA

In this post two weeks ago, I flagged the Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case in Erlinger v. US, No. 23-370.  In that post, I noted the feds wanted cert granted in this case:

Petitioner [contends] that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context.  This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires. 

This morning, via this order list, the Supreme Court granted cert in Erlinger. Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

And though this case deals with a relatively little issue in the application of ACCA, I cannot help but wonder if this case could prove to be a big Sixth Amendment case.  Notably, we have not had a significant Sixth Amendment case on sentencing issues before SCOTUS since Haymond, and that was before Justices Barrett and Jackson were member of the Court. Moreover, as I noted in my prior post, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

I assume Erlinger v. United States, will get argued in the spring and may end up one of the last (small?) cases to get decided by the Justices this Term.  I also expect that SCOTUS will end up appointing someone to defend the Seventh Circuit's decision below since both the feds and the defendant here have the same (pro-defendant) view of this issue.

November 20, 2023 at 10:16 AM | Permalink


Aside from the federal impact, this could have a lot of impact in state court practice. Most states have some form of habitual offender enhancement, and some of them do require two (or more) offenses committed on different occasions.

The traditional view has been that the Sixth Amendment right was satisfied in the prior case and that the finding that the defendant is subject to enhanced penalties merely involves a legal issue given the requirement of full faith and credit to the prior judgment. Barring jury nullification, in the ordinary case, the "right to jury finding" will simply involve a very short hearing followed by very short deliberations. But that added hearing will potentially add a degree of complexity to the criminal case. How do you voir dire on the jury's ability to follow the law on this issue without disclosing the prior conviction?

Posted by: tmm | Nov 20, 2023 11:46:31 AM

A little off to the side, but Indiana commits the habitual offender determination to the jury--unless the prosecution doesn't proffer sufficient evidence at trial that the habitual offender status is applicable--then the Indiana Supreme Court will cure the sufficiency problem by taking judicial notice on appeal. See Mayo v. State. What a joke of a decision.

Posted by: federalist | Nov 20, 2023 12:14:42 PM


Could you please link to the Indiana case?

Posted by: Respondent | Nov 20, 2023 3:14:02 PM

When you have lost Oregon…


Posted by: TarlsQtr | Nov 20, 2023 5:37:06 PM

Portugal is also struggling with decrim in light of modern drugs and markets: https://www.washingtonpost.com/world/2023/07/07/portugal-drugs-decriminalization-heroin-crack/

It will be interesting to see what path gets charted going forward in Oregon, especially since prohibition is generally not getting the job done in other states: https://www.commonwealthfund.org/blog/2023/overdose-deaths-declined-remained-near-record-levels-during-first-nine-months-2022-states

Posted by: Doug B | Nov 20, 2023 6:54:39 PM

Respondent: I assume federalist is referencing Mayo v. State, 681 N.E.2d 689 (Ind. 1997),

Posted by: Doug B | Nov 20, 2023 6:58:23 PM

Only slightly on topic but wonderfully happy news to me: My former Georgetown Law student, James A. Barta, has just be named Solicitor General of Indiana, so he might have a say in what becomes of this Mayo case.

James is all of 34 years old and a brilliant lawyer of the utmost integrity and character. My wife and I attended his wedding in September.


Posted by: Bill Otis | Nov 20, 2023 7:45:48 PM


“Getting the job done…” will never happen for your end of the spectrum. I am always amazed at how our best and brightest attorneys don’t know what a perfectionist fallacy is.

Drugs will always be a scourge and there is no good solution. The best of the bad solutions is not a 13X increase in overdose deaths.

Posted by: TarlsQtr | Nov 20, 2023 11:14:57 PM

So, Master Tarls, what is “the best of the bad solutions” as you see it? I do not think I have ever seen (or ever advocated for) any legal reform in any space as perfect. Indeed, I have little hope of achieving “the best,” though I do hope to advocate for a little better.

As for drug policy, I sense that most sober reform advocates share your sense that there are few good solutions. The "hot topic" for the last decade is to advocate for "harm reduction" --- which seems to acknowledge that harm in this space is a certainty, but some policy reforms can help reduce harms.

In the drug space, Portugal seemed to have reduced harms a bit better for a while, but the ground and people are always moving. Indeed, that is why sound data collection and analysis seems so important in this space and others. Oregon voters seemingly hoped they could find the success of Portugal, but I have not been that surprised that a different place at a different time with a different law has struggled to do better.

I am pretty confident, Master Tarls, that if you or anyone else could effectively make the case for “the best” in the drug space, many would follow. That's been an on-going challenging in the freedom-loving US since our founding. Indeed, it led to the only constitutional amendment that we repealed. I teach in this space in part to encourage students to not have perfectionist fantasies about our Constitution or any of our laws and legal reform movements.

Posted by: Doug B | Nov 21, 2023 9:15:02 AM


Your bringing up Prohibition whenever given the opportunity does not support your position. In fact, it supports mine.

The legality of alcohol was long established. It is always near impossible to close and lock the door when it is already open. It’s much easier to keep an already closed door locked. For example, try banning firearms. It’s not happening.

You have advocated for opening that door to drugs and America is worse for it.

Posted by: TarlsQtr | Nov 21, 2023 1:56:14 PM

Federalist/Bill, since Indiana currently does have habitual offender done by the jury, do you have any guidance on how this is handled during voir dire there?

Currently, in Missouri, we have jury sentencing unless they are a prior offender. I am trying to give a prewarning to practitioners in case (as often happens) the Supreme Court took this case to reverse the lower court. While I think that we still will not have to discuss range of punishment (as the jury would not determine that), I think we will need to discuss the defendant's priors in voir dire and whether the jury could follow the instructions and determine if the offenses occurred at different times.

Posted by: tmm | Nov 21, 2023 2:07:52 PM

tmm --

Although I know the Indiana SG, alas I don't know any Indiana state law. Sorry.

Posted by: Bill Otis | Nov 21, 2023 2:59:04 PM

Thanks Doug. That is the case.

Posted by: federalist | Nov 21, 2023 3:00:38 PM

Master Tarls, you have not explained what you view as “the best of the bad solutions” here. My advocacy is that we try to find ever more ways to treat local public health problems primarily as local public health problems rather than as federal criminal issues. I await hearing more about your suggested approach.

As for bringing up Prohibition, I see alcohol's history (and now modern US drug policy) as just the canary in the collectivist coal mine. A century ago, Progressives urged more state power over the individual in many realms, with a particular focus on alcohol. If you think greater collectivism and greater state power is the “the best of the bad solutions” for drug issues, do not expect such a "solution" will stay confined to drugs. Prohibition led to a massive reordering of state and federal powers, the modern drug war does not appear as disruptive to our constitutional order only because Prohibition massively grew state/federal powers and made the collectivist coal mine feel more comfortable.

That's the big story: we realized a constitutional amendment was needed to justify federal alcohol prohibition, whereas modern federal drug prohibition is viewed as a norm. It is a shame the current Supreme Court's commitment to originalism has a drug exception. It is also a shame that, in a country supposedly committed to individual liberty, we look to criminal prohibition as a first resort to problems. But perhaps hurting certain people who use certain drugs is the best we can do.

Posted by: Doug B | Nov 21, 2023 3:15:04 PM


I’m beginning to wonder if you are even capable of honest debate.

You are moving the goalposts.

The article I linked to was about Oregon, not the federal system. You do this because you want to use your line about “collectivist” thinking and can try to accuse me of wanting big federal government. You have not merely argued against drugs being a “federal criminal issue.” You have argued against it being a LOCAL criminal issue as well. As I said in another thread, be better.

Although the feds have a role in drug enforcement, I’ll be the first to say that it has overreached its law enforcement powers in the constitution, at least the intent. Sure, the state governments cannot handle the Mexican cartels and the feds are necessary, but not for local drug issues.

My position is that drugs are a state issue and that they should be illegal with stiff penalties. You and your ilk have sold us a bill of goods for at least a decade with none of those promises coming true. Tax revenue has not kept up with treating the problem of addiction. Cartels are still involved in even marijuana sales. State agencies are still paying cops to bust down doors because the government is as addicted to the tax money as people are to the drugs.

You sold a lie, I told you it was a lie back then, and I continue to be vindicated.

Posted by: TarlsQtr | Nov 22, 2023 2:09:58 AM

Master Tarls, I am not moving the goal posts, I am explaining reasons I worry about any regimes in which the public health harms of addictive items (including, eg, alcohol and prescription drugs and tobacco and social media) are addressed in our laws with, in your words, "stiff [criminal] penalties" rather than alternatives.

Have you asked yourself why the feds have "overreached its law enforcement powers"? As I see it, alcohol Prohibition and then the federal drug war. Also, as go the feds, so go the states in modern times. Do you realize most states have their drug prohibitions regimes (except marijuana lately) expressly pegged to federal laws? (And, returning to alcohol Prohibition, the "drys" started advocating for federal involvement once they realized state-level prohibitions were ineffective whenever neighbor states did not have comparable laws and enforcement.)

Given that millions of people (including millions of teenagers) illegally use drugs even in prohibition (and even legalization) regimes, I want to hear more about how you think states should make (all?) drugs "illegal with stiff penalties." Does this include tobacco and alcohol? How about prescription drugs when used off-label? Does "stiff penalties" include mandatory prison terms for underage drinkers and smokers? How will we fund "stiff penalties" for millions of illegal drug users --- do you know the "drys" played a big role in the federal income tax constitutional amendment? --- and does the inevitability of unequal enforcement (and corruption) worry you at all? (Data on teen drug use indicates than roughly 7 million+ use alcohol monthly, and well over another million use other federally illegal drugs monthly. Are they all to get "stiff penalties" or only the poor ones who cannot buy their way out of enforcement?)

I have not "sold" anything, but I do highlight what I see as all the challenges, contradictions, costs and consequences in the history and modern enforcement of US prohibition regimes. The reform of alcohol Prohibition and the marijuana reform movement (and decrim effort) garner public support because people are troubled by the realities of prohibition regimes as they function in the US, and they wish for alternatives. I'd welcome hearing more from you about any improved approach to prohibition --- how best to make (all?) drugs "a state issue ... that they should be illegal with stiff penalties." I am eager to consider your vision with an open mind, though I wonder what drugs are to be covered, what activities are subject to "stiff penalties" --- possession, use, giving away drugs, selling, prescribing off-label? --- and what exact kinds of "stiff penalties" do you have in mind for various activities?

As I noted before, I generally share your sense that there are few good solutions, and I certainly do not mean to claim any are perfect. I am eager to give open-minded consideration to your vision of how drug policy should work in the US (which, as I understand it so far, would call for a huge reductions in current federal drug enforcement and perhaps even the release of some federal drug prisoners?)

Posted by: Doug B | Nov 22, 2023 10:48:19 AM

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