“The Impact of United States v. Erlinger on State Recidivist Sentencing Laws”

The title of this post is the title of this notable new essay authored by Chad Flanders just posted to SSRN.  Here is its abstract:

In Erlinger v. United States, the U.S. Supreme Court ruled that finding that an offender had committed two felonies “on separate occasions” under the Armed Career Criminal Act had to be made by a jury, not a judge.  In one respect, the decision is narrow and straightforward: it merely 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 paper 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.