LITIGATING HABITUAL CHARGES (AND BEYOND) UNDER ERLINGER

It has been nearly a quarter of a century since the Supreme Court decided Apprendi v. New Jersey, the landmark case holding the government must prove any fact that increases a person’s sentence to a unanimous jury beyond a reasonable doubt except the “fact of a prior conviction.”

    This so called “prior conviction exception” has been problematic since the moment it was adopted, and the United States Supreme Court dealt another serious blow to its continued vitality this past term in a case called Erlinger v. United States, where the Court applied the Apprendi Rule to a federal recidivist provision, the Armed Career Criminal Act, holding the ACCA’s requirement that prior convictions were committed on “different occasions” is a fact that triggers the right to a jury trial.

   In reaching this conclusion, the Supreme Court reiterated the exceedingly narrow scope of the prior conviction exception and hinted that the Court may be poised to eliminate the prior conviction exception altogether in the not-too-distant future.

   Erlinger naturally leads to questions about the constitutionality of Colorado’s habitual criminal sentencing scheme and the myriad of other recidivist laws in this state including habitual domestic violence, felony DUI, failure to register, and aggravated animal cruelty. It also raises questions about the constitutionality of sentencing schemes calling for increased sentences based on the existence of a prior conviction or related status like being on probation or parole at the time of the offense.   

   Erlinger’s implications, however, could far exceed Colorado’s habitual criminal statute. If you have a case involving any statute that elevates punishment based on recidivism or otherwise authorizes enhanced sentencing based on judicial fact finding the team at 2nd-Chair is here to help you navigate this evolving area of law and ensure that your client’s constitutional jury trial rights are protected along the way.