The Supreme Court ruled on June 21 that juries, rather than judges were responsible for determining facts that support enhanced sentences for criminals possessing firearms.
The case—Erlinger v. United States—centered on the application of a three-strike law known as the Armed Career Criminal Act. That federal law mandates a 15-year minimum in sentencing for individuals who had prior convictions on three separate occasions of either violent felonies or “serious” drug offenses.
Paul Erlinger had asked the court to overturn his sentencing from a lower court judge, who determined that he had enough separate occasions of the types of crimes needed to reach the 15-year minimum.
According to Mr. Erlinger, the court improperly counted four burglaries he committed as occurring on separate occasions. Instead, he argued, they were all part of a single criminal episode and that the jury, rather than the judge, should make that determination.
A 6–3 majority of the court agreed with Mr. Erlinger, citing the Fifth and Sixth Amendments to the U.S. Constitution. Justice Neil Gorsuch wrote the majority opinion, which was joined by Chief Justice John Roberts as well as Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.
In doing so, they broke with 12 courts of appeals that said judges could make determinations about different occasions.
“The Fifth and Sixth Amendments’ jury trial rights provide a defendant with entirely complementary protections at a different stage of the proceedings by ensuring that, once a jury is lawfully empaneled, the government must prove beyond a reasonable doubt to a unanimous jury the facts necessary to sustain the punishment it seeks,” Justice Gorsuch wrote in his majority opinion.
Constraining the Judicial Branch
Justice Gorsuch’s opinion emphasized the importance of juries to the founding era and argued that their role helped counter judicial overreach.“By requiring a unanimous jury to find every fact essential to an offender’s punishment, those amendments similarly seek to constrain the Judicial Branch, ensuring that the punishments courts issue are not the result of a judicial ‘inquisition’ but are premised on laws adopted by the people’s elected representatives and facts found by members of the community,” he wrote.
He added that 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.”
In a concurring opinion, Justice Roberts said he agreed with Justice Gorsuch’s conclusion about juries but urged the lower court to consider whether the error in this case was “harmless.” He referred to a legal concept known as “harmless error review” in which appeals courts discern whether an error was significant enough to warrant a new trial or reversal of the judgment.
In Justice Kavanaugh’s dissent, he wrote that remanding to the lower court was unnecessary as they would, in his view, eventually agree the error was harmless.
“Here, the relevant facts are simple and undisputed: Erlinger committed three burglaries of three different businesses on three different days, with several days separating each burglary,” Justice Kavanaugh wrote in his opinion, which was joined in full by Justice Alito and partially by Justice Jackson.
“I would resolve the harmless-error issue in this case now rather than subjecting the parties to a pointless remand to the Court of Appeals and another round of briefing and argument, when the Court of Appeals’ decision is a foregone conclusion.”
Both he and Justice Jackson argued in their dissents that judges enjoyed more power than the majority suggested.
Gorsuch and Jackson Differ
Justice Gorsuch’s opinion leaned heavily on another precedent—Apprendi v. New Jersey—wherein the Supreme Court struck down a judge’s decision to impose a sentence beyond the maximum allowed under state law. The lower court in that case had enhanced the sentence based on the judge’s determination that the offender was motivated by racial bias.The Supreme Court held in that case that enhancements beyond the statutory maximum could only come from factual determinations made by a jury. Justice Stephen Breyer, for whom Justice Jackson clerked, wrote the dissent and also penned the majority opinion in Almendarez-Torres.
In her dissent on June 21, Justice Jackson criticized the Apprendi decision, saying it created a “flawed” rule, and argued that the majority “establishes a procedural requirement that is likely impossible to implement in real life.”
She added that “a sentencing judge has always been expected to consider a wide range of information—really, anything relevant to assessing the appropriate penalty—when determining a sentence.”
Citing Justice Breyer’s dissent in Apprendi, she suggested that practical considerations like administrability were part of the Constitution’s demand for fairness in the judicial system.
A lengthy footnote from Justice Gorsuch explained that he thought Justice Jackson placed too high a priority on efficiency in the legal system. He asked: “[D]oes Justice Jackson really think it too much to ask the government to prove its case ... with reliable evidence before seeking enhanced punishments under a statute like ACCA [Armed Career Criminal Act] when the [reality] for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?”
Quoting former Justice Antonin Scalia, Justice Gorsuch later added: “The jury trial may have ‘never been efficient’ ... [b]ut the right to a jury trial ‘has always been’ an important part of what keeps this Nation ‘free.’”
