The Court’s decision in Erlinger v. United States sends an unambiguous message against watering down the rights of the accused.
The Court’s decision in Erlinger v. United States sends an unambiguous message against watering down the rights of the accused.
T hursday and Friday saw the Supreme Court clear its docket of most of the remaining criminal law-related cases; all that remain are the two Trump and January 6-related cases and Snyder v. United States, a case involving the federal gratuity statute. Thursday’s decisions included two wins for civil lawsuits against wrongful arrest and prosecution. Friday featured a victory for federal prosecutors against people who possess guns while under a domestic-violence order of protection.
Friday’s decisions in Erlinger v. United States and Smith v. Arizona brought more good news for the rights of criminal defendants to a fair trial. While that is balanced by a more disappointing but narrow decision on Thursday in Diaz v. United States, the overall record is still a positive one for the rule of law. Today, I’ll take a look at Erlinger.
Law and Order
“Law and order” has long been a rallying cry for conservatives, and rightly so. Public order and safety are the prerequisites for a liberal society, or indeed for any sort of civilization. Family life, education, commerce, and a democratic public square depend upon them. The law should be enforced with vigor, and that should result in hardened criminals being removed from society where they can do no further harm. Some kinds of particularly public offenses demand exemplary punishment in order to deter their repetition.
But we must never forget the law part of the law-and-order formulation. Before we throw the book at miscreants, we should be sure that what we’re throwing is actually in the book. The law, to be law, must be clear — clear enough that the average citizen knows what’s against the rules; clear enough that the beat cop knows when he’s got enough to bring somebody in or kick down a door; clear enough that we can summon twelve random citizens into a courtroom and ask them to decide whether the fellow at the table violated it or not.
Clear, specific laws make for fair trials, because they allow the charges to be both known in advance (so that the defendant can prepare to mount a defense) and falsifiable. A charge is falsifiable if the evidence can show the defendant did the crime or didn’t, or if it can leave the jury with reasonable doubt between the two. Because everybody knows what the rules are, it’s easier to draw clear lines between the people who broke them and the people who didn’t. That is done by one side presenting its best evidence, and the other side doing its best to poke holes in that evidence. All of this is true of civil trials as well, but it assumes even greater importance in the criminal process.
In an age when most criminal cases don’t go to trial, the fairness of the trial process becomes more rather than less vital. We want guilty people to plead guilty; we don’t want innocent people to feel compelled by pressure to do so. If defendants believe that the trial system is fair, a guilty defendant will be less likely to conclude that there are good odds on rolling the dice on an unfair acquittal; an innocent defendant will be less likely to fear an unfair conviction and take a plea. If the law is vague and complex enough, even the defendant may not know for certain if he or she is guilty.
The shadow of Alvin Bragg’s prosecution of Donald Trump looms long at the moment, and that should be a teachable moment about law and fair trials. Some of the tactics used by Bragg and blessed by Acting Justice Juan Merchan were flatly illegal; some were probably illegal; some were more in the nature of abuses of a prosecutor’s broad discretion. But while Bragg’s abuses of the legal system were extreme, much of what he did was simply taking the existing bag of prosecutors’ tricks and pushing them all to their furthest limits simultaneously.
That’s what we have a Supreme Court for — not to invent new rights for criminals, but to insist upon the particulars of clear laws and fair trials that are firmly rooted in our constitutional tradition so that we can tell who the criminals are.
Tell It to the Jury
Erlinger involved yet another review by the Court of the Armed Career Criminal Act, a 1984 tough-on-crime statute whose complexity has been a continual headache for the justices. The Court has decided over two dozen ACCA cases in the past four decades, including holding that a key part of the statute was unconstitutionally vague.
The core concept of the ACCA is sensible enough. A federal statute, 18 U.S.C. § 922(g) (the same one whose various provisions were at issue in United States v. Rahimi and in Hunter Biden’s gun conviction), criminalizes the possession of a gun by certain felons and other dangerous people. Congress wanted to provide that anyone convicted under Section 922(g) who had three prior felony convictions for certain types of violent, dangerous, and/or drug crimes would be treated as a career criminal and be locked up for a minimum of 15 years — much longer than the sentence for people convicted under Section 922(g) who did not fit the ACCA’s categories.
The devil, as always, is in the statutory text (found at 18 U.S.C. § 924(e)). I will quote the definitions here (not even including everything they incorporate by reference from other statutes) with emphasis added just to give the reader a sense of how many contested questions have turned up in applying the ACCA (don’t worry; there won’t be a quiz later):
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. . . .
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
The fact that the statute attempts to incorporate the elements of dozens of crimes from the laws of each of the 50 states has been the source of a lot of the complexity. It’s the residual “otherwise involves” clause in Section 924(e)(2)(B)(ii) that the Court found unconstitutional in 2015. But Erlinger involved a different question: Are the terms of the ACCA just a sentence-enhancement factor to be considered by a judge, or are they elements of a criminal offense that must be found by the jury under the Fifth and Sixth Amendments to the Constitution?
In Erlinger, the Court chose the latter answer. Its decision followed a line of cases dating back to Apprendi v. New Jersey that have held that any fact that enhances a criminal sentence must be found by a jury beyond a reasonable doubt. Apprendi involved a sentence enhancement for a hate crime; the Court has since followed its reasoning to strike down federal and state mandatory-sentencing guidelines and judge-imposed death sentences.
The Apprendi doctrine has always produced strange ideological bedfellows even by the standards of criminal cases. The original decision was written by Justice John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg, but also by Justices Antonin Scalia and Clarence Thomas; Chief Justice William Rehnquist was joined in dissent by Justices Sandra Day O’Connor, Anthony Kennedy, and Stephen Breyer. Breyer, the architect of the federal sentencing guidelines, became the doctrine’s most vocal critic, and he declined to recuse himself when the Court invoked the doctrine to strike down his handiwork. That cudgel has been carried to the Court by his replacement, Justice Ketanji Brown Jackson, a former Breyer clerk and member of the U.S. Sentencing Commission. The 6–3 Erlinger opinion was written by Justice Neil Gorsuch; Jackson was joined in dissent by Justices Brett Kavanaugh and Samuel Alito. That unusual lineup put the typically pro-defendant Jackson and pro-prosecutor Alito on the same side.
Jackson, alone, argued that Apprendi had been wrong from the outset, that all of its progeny should be overruled, and that the finding of facts relating to sentencing should be for the judge. Channeling Breyer, she complained of how handing sentencing-related fact-finding to juries “has prevented legislatures from developing innovative methods to achieve fairness in sentencing and thus, in my view, has stunted our collective pursuit of justice” and ousted the role of judges as “experts” who can provide “more nuanced, creative approaches to factfinding at sentencing that better reflect the differing competencies of jurors and judges.” Like the progressive she is, she noted that she preferred the “flexible” standards of the due-process clause and the Eighth Amendment’s elastic rules for “cruel and unusual punishments” as tools for judicial creativity in placing their own limits on sentencing — rather than the bright-line legal standards of the Fifth and Sixth Amendments that appeal to originalists such as Gorsuch and Thomas. But this time, even Justices Elena Kagan and Sonia Sotomayor were unswayed by the appeal to “experts.”
As Gorsuch noted, quoting Justice Scalia: “The jury trial may have never been efficient,” but “there is no efficiency exception to the Fifth and Sixth Amendments.”
Different Occasions
Erlinger involved the provision of the ACCA requiring that the three prior convictions be derived from felonies “committed on occasions different from one another.” The defendant had to stretch to make an argument, claiming that a series of prior burglaries on different dates with different victims were still part of a single criminal episode rather than different “occasions.” That led Kavanaugh, in dissent, and Roberts, in his concurrence, to suggest that any violation of Erlinger’s right to a jury trial may have been harmless.
But the Court nonetheless held that the occasions question was properly one for a jury, because Wooden v. United States (2022) had held that the “ACCA’s occasions inquiry can require an examination of a range of facts, including whether the defendant’s past offenses were committed close in time, whether they were committed near to or far from one another, and whether the offenses were similar or intertwined in purpose and character” — all of which requires an “intensely factual” inquiry on which the defense has a right to a jury. The Court left standing a more limited exception for proving the very basics of a prior conviction that doesn’t require looking past the official court record.
That right is foundational, and it’s explicit in our Constitution. The opinion rang with odes to the jury system and its crucial importance to the Founders. Gorsuch noted that the right to a criminal jury was the only right to appear in every new state constitution. He quoted John Adams as saying that, without juries, citizens “have no other fortification . . . against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”
Bragging Rights
It is hard to read Erlinger without thinking of what happened in the Bragg case. One of the most abusive elements of Bragg’s approach to the Trump hush-money trial was how the prosecution handled the statutory requirement of proving that the defendant sought to cover up an “other crime” in order to enhance the misdemeanor false-records charge into a felony. The indictment never specified what the other crime was; Bragg’s “bill of particulars” six weeks later recited a laundry list of laws including the entire federal campaign-finance code. In response to a motion to dismiss the indictment, Merchan allowed the prosecution to proceed on a theory of three different “other crimes;” only at the time of closing arguments did the prosecution narrow the list to one, and that one in turn specified only that the defendant acted by “unlawful means,” citing three different “unlawful means,” some of which incorporated still other crimes. Merchan then allowed the case to go to the jury with an instruction that the jurors “need not be unanimous as to what those unlawful means were.”
Consider one strand of that daisy chain. Merchan let Bragg’s team argue to the jury that Trump’s crime was a felony because he sought to cover up a state election-law conspiracy, which just says don’t use “unlawful means.” One of the “unlawful means” argued and instructed to the jury was . . . a different falsification of business records! To cover up another “other crime!” We’re now two stages removed from the indictment voted for by the grand jury, and we still haven’t found the crime yet. What was that other crime? A violation of federal campaign-finance laws completely separate from, and never referenced in, the original false records. But if some of the jurors found that and others found a completely different federal campaign-finance-law theory (different law, different facts), that could be enough to convict. Among other things, this kneecapped the Trump defense’s capacity to focus on the fact that the “other crimes” involved were things that were not even against the law.
In Erlinger’s case, while the prosecution didn’t engage in that kind of gamesmanship, the three felonies cited by the prosecutors changed over the course of the case after an intervening appeal found that two of them hadn’t qualified under the ACCA’s definitions of prior felonies.
Because the justices can read the papers, too, one wonders if the Bragg case was on Gorsuch’s mind. But even if it wasn’t, it is full of usable quotations for Trump’s appeal brief:
From the start, [the Fifth and Sixth Amendments] were understood to require the government to include in its criminal charges all the facts and circumstances which constitute the offence. . . . Should an indictment or accusation . . . lack any particular fact which the laws made essential to the punishment, it was treated as no accusation at all. . . . And at all times the truth of every accusation against a defendant had to be confirmed by the unanimous suffrage of twelve of his equals and neighbours. . . .
By requiring the Executive Branch to prove its charges to a unanimous jury beyond a reasonable doubt, the Fifth and Sixth Amendments seek to mitigate the risk of prosecutorial overreach and misconduct, including the pursuit of pretended offenses and arbitrary convictions. . . . 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. . . . Only a jury may find facts that increase the prescribed range of penalties to which a criminal defendant is exposed.
Whether or not those passages help Trump, they are good news for those facing criminal charges everywhere in these United States, now and in the future. That’s a good thing. Adams would approve.