In Colorado, someone can be sentenced as a “habitual criminal” if they have been convicted of three previous crimes stemming from separate incidents. Habitual charges lead to much harsher punishments. For the past few decades in Colorado, a judge has been the one to decide whether prior convictions can sustain a habitual charge.
However, in June 2024, the U.S. Supreme Court issued its decision in Erlinger v. United States, 602 U.S. 821 (2024), holding that the Fifth and Sixth Amendments require a jury—not a judge—to unanimously decide, beyond a reasonable doubt, whether the defendant’s past crimes stemmed from separate incidents before an enhanced sentence can be imposed. The Erlinger decision made clear what the U.S. Supreme Court had previously decided in Apprendi v. New Jersey 530, U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013): defendants have a constitutional right to a jury determination on sentence enhancements.
In April 2024, a Mesa County jury found Andrew Gregg guilty of two felonies. After the trial, the state asked the court to sentence him as a habitual criminal, exposing him to a much longer sentence, based on three previous felony convictions. But the state had not proven to the jury that those earlier convictions were from separate incidents, as required under Erlinger. The state moved to empanel a new jury to adjudicate Mr. Gregg’s habitual charge, but Mr. Gregg asserted this would violate his rights under the Double Jeopardy Clause, which protects against being tried twice for the same crime. The judge agreed with Mr. Gregg and dismissed the habitual criminal charges, citing Erlinger.
The state asked the Colorado Supreme Court to review the district court’s decision, arguing that Colorado’s habitual criminal scheme, which requires a judge to rule on habitual criminal charges, is still constitutional under Erlinger. The state also argued that empaneling a second jury would not violate the Double Jeopardy Clause. In October 2024, the Colorado Supreme Court agreed to review the case.
We filed an amicus brief in support of Mr. Gregg with Spero Justice Law and the Office of the Alternate Defense Counsel. In our brief, we argued that the state may not ask a jury to convict a person of one crime and then ask a judge to sentence that person for another, more serious crime. The Fifth and Sixth Amendments guarantee the right to have a jury find any fact that increases exposure to punishment beyond a reasonable doubt. Habitual sentencing schemes that permit judges to find these facts, like Colorado’s, are unconstitutional.
Colorado’s habitual sentencing scheme has deprived people accused of these crimes of their right to factfinding by a jury, a violation with particular implications for accused people of color. Representative juries are a vital protection against racial bias. In fact, Black people in Colorado are disproportionately charged with and sentenced under habitual charges. We also argued that like the constitutional right to a jury trial, the constitutional protection against double jeopardy applies to habitual charges, and a second jury may not be empaneled in Mr. Gregg’s case.
