Abstract
In Erlinger v. United States, the United States Supreme Court ruled that finding that an offender had committed two felonies “on separate occasions” under the Armed Career Criminal Act had to be done by a jury, not a judge. In one respect, the decision is narrow: it is an extension of the Court’s Apprendi jurisprudence. But in another respect, the decision is far-reaching. As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge—rather than the jury—the power to decide whether someone is a “persistent” or “habitual” offender based on whether a defendant’s felonies occurred at “different times” or on “separate occasions.” This Article is a call for lawyers and scholars to pay attention to Erlinger. It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.
Recommended Citation
Chad Flanders, The Impact of Erlinger v. United States on State Recidivist Sentencing Laws, 82 Wash. & Lee L. Rev. Online 456 (2025), https://scholarlycommons.law.wlu.edu/wlulr-online/vol82/iss6/2
Included in
Criminal Law Commons, Criminal Procedure Commons, Supreme Court of the United States Commons