22 June 2012
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that under the Sixth Amendment “any fact,” other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum “must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. On June 21, 2012, in Southern Union Co. v. United States, No. 11-94, the Supreme Court ruled that this constitutional right extends to criminal fines.
This decision will enable companies to invoke Apprendi when they face criminal fines substantial enough to trigger the Sixth Amendment right to a jury trial.
Southern Union Co., a natural gas distributor, was found guilty by a jury of knowingly storing liquid mercury without a permit in violation of the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6928(d). The RCRA imposes “a fine of not more than $50,000 for each day of violation.” Id.. At sentencing, the maximum fine was set at $38.1 million on the basis that Southern Union had violated the RCRA for 762 days, as stated on the verdict form. Southern Union argued that this violated Apprendi because the jury was not asked to determine the precise duration of the violation. The government acknowledged that this fact had not been submitted to the jury, but argued that Apprendi does not apply to criminal fines. The district court held that Apprendi does apply to fines, but that the jury had made the requisite factual determination. The First Circuit affirmed, but on the ground that Apprendi was inapplicable to criminal fines, creating a circuit split.
The Supreme Court reversed. In an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts as well as Justices Scalia, Thomas, Ginsburg, and Kagan, the Court held that Apprendi’s “core concern” with “reserv[ing] to the jury the determination of facts that warrant punishment for a specific statutory offense” applied “whether the sentence is a criminal fine or imprisonment or death.” Slip op. 4. The Court rejected the government’s argument that Apprendi’s reference to the “physical deprivation of liberty” limited its scope to imprisonment. The relevant distinction, it held, was not between criminal fines and other types of punishment, but rather between punishments that are sufficiently severe to trigger the Sixth Amendment right to a jury trial and those that are not. Thus, “[w]here a fine is substantial enough to trigger that right, Apprendi applies in full.” Id. at 7. The Court based its decision largely on the historical role that juries played in prosecutions for offenses that “peg[ged] the amount of a fine to the determination of specified facts.” Id. at 10.
Justice Breyer, joined by Justices Kennedy and Alito, dissented. In addition to taking a different view of juries’ historical role and of the distinction between a fact that is an “element” of the offense and one that is merely a sentencing factor, the dissent warned of practical difficulties that it believed would flow from the Court’s holding.