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March 26, 2024

Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?

Though lots of other cases are, understandably, getting lots more attention this Term, I am still quite excited that the Supreme Court will hear tomorrow a notable (and big?) case about Apprendi rights in Erlinger v. United States, No. 23-370.  There are procedural and substantive issues that have my attention in this notable sentencing case.

Procedurally, the federal government not only requested certiorari along with the criminal defendant, but DOJ agrees with the defense's claim that the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were "committed on occasions different from one another" to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act, 18 USC § 924(e)(1).  Because DOJ and Erlinger have the same basic view on the law, SCOTUS appointed Nick Harper as an amicus to argue on behalf of the judgment below.  In this merits brief, the amicus ably argues that the "Constitution permits judges to determine whether a defendant’s prior offenses occurred on different occasions when imposing an enhanced sentence under ACCA."  Amicus Brief at 6 (emphasis added).  This Law360 article, headlined "In High Court Sentencing Case, It's Everyone V. Gibson Dunn," notes that nobody other than the court-appointed amicus contests the defendant's Sixth Amendment claim here.

Substantively, I am on record as thinking there is a sound textual basis in the Sixth Amendment for distinguishing between fact-finding of offense conduct and offender characteristics.  See Conceptualizing Blakely, 17 Federal Sentencing Reporter 89 (2004); see also Berman & Bibas, Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006).  But the Supreme Court in Cunningham v. California, 549 U.S. 270 (2007), rejected that distinction.  And the substantive constitutional issue in Erlinger has my attention for three additional reasons: (1) the Supreme Court has largely ignored or sought to avoid a range of Sixth Amendment jury/judge Apprendi issues over the last decade (see, e.g, acquitted conduct sentencing enhancements), (2) the topic at issue in Erlinger, namely the reach of a "prior conviction exception" to the Sixth Amendment jury rule, in a sense pre-dates even Apprendi, and (3) Justice Thomas has suggested since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  

I could write for days about all these substantive Apprendi matters (indeed, I have already written for years about them).  But it is item (3) above — Justice Thomas's view that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute" — that prompts the question in the title of this post.  Because it seems Justice Gorsuch and Barrett also consider themselves committed originalists, I am wondering if someone during oral argument might bring up the idea of entirely eliminating Apprendi's prior-conviction exception.  I do not believe the parties have advocated such a change to Apprendi jurisprudence, as DOJ and Erlinger just argue the excpetion should be limited to the bare fact of a prior conviction.  But if the Court is, or if at least some Justices are, inclined to take an originalist approach to this case, why further preserve an exception of the Sixth Amendment that lacks originalist support?

March 26, 2024 at 06:53 PM | Permalink

Comments

I am not sure that originalism gets you far here. And it is for the same reason that it does not get you far with many provisions. I am unaware of any statutes at the time of the framing that had recidivist components.

Recidivism statutes requires that there be some form of punishment between a short period of incarceration and execution. The Sixth Amendment dates from a time when most serious offenses were capital offenses. And the remaining statutes had enough of a range that prior offense status could be taken into account by the court at sentencing without the need to adjust the range of punishment.

My personal opinion is that the request here is a little like the request in Booker. If the Supreme Court finds that the "fact" of when the prior offenses occurred (even if one offense occurred in 2005 and the next offense occurred in 2020) must be found by the jury, many trials will include a second "recidivism" stage. And that will add to the time that each case takes to try. On the other hand, if that is something that the jury has to decide, the parties will need to voir dire on whether venirepersons will follow the law and find that the defendant committed offenses on multiple dates which will tell the jury that the defendant has priors. As such, a defense "win" here will make life harder for future defendants.

Posted by: tmm | Mar 27, 2024 5:55:12 PM

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