Supreme Court Watch: Extending The Role Of Juries To Criminal Fines

The Supreme Court decides that under the Sixth Amendment criminal fines, like imprisonment and death sentences, are covered by the Apprendi rule; the jury must decide the facts which are used to increase a criminal fine beyond the maximum statutory amount, in Southern Union Co. v. United States, 567 U.S. _, 132 S.Ct. 2344, 183 L.Ed.2d 318 (June 21, 2012) (No. 11-94)

On June 21, 2012, the Supreme Court decided an important case which gives juries the chance to determine the facts which support criminal fines over the maximum statutory amount under the Sixth Amendment. In a six to three opinion authored by Justice Sonia Sotomayor, the decision extends to criminal fines the rule in Apprendi v. New Jersey, in which the Supreme Court held that under the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S. 466, 490 (2000).

Summary Facts

Under the Resource Conservation and Recovery Act of 1976 (RCRA), Southern Union, a diversified natural gas company, was prosecuted and convicted on one count of knowingly storing mercury without a permit in violation of 42 U.S.C. § 6928(d)(2)(A). The jury did not decide the number of days of any violation which affected the fine amount. The applicable fine provision under the statute provided for a fine of “not more than $50,000 for each day of violation.” 42 U.S.C. § 6928(d). The district court imposed a fine of $18 million. The First Circuit affirmed, concluding that while the application of Apprendi presented a “close” issue, a more recent decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), “leads us to hold that the Apprendi rule does not apply to the imposition of statutorily prescribed fines. If, however, we were wrong in our assessment of the Apprendi issue, we would find that any error under Apprendiwas not harmless and that the issue of the fine would need to be remanded.” United States v. Southern Union Co., 630 F.3d 17, 34-36 (1st Cir. 2010).

The Supreme Court reversed the judgment of the First Circuit:

Under 42 U. S. C. § 6928(d), the fact that will ultimately determine the maximum fine Southern Union faces is the number of days the company violated the statute. Such a finding is not fairly characterized as merely “quantifying the harm” Southern Union caused. Rather, it is a determination that for each given day, the Government has proved that Southern Union committed all of the acts constituting the offense.
Southern Union, 567 U.S. at _, 132 S.Ct. at 2356.

Holding Underscores Jury’s Role

The Court concluded that while the Apprendi rule had been applied to cases involving “imprisonment or a death sentence,” there was “no principled basis under Apprendi for treating criminal fines differently.” Southern Union, 567 U.S. at _. The Apprendi rule is founded on the role of the jury under the Sixth Amendment:

[R]equiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.”
Southern Union, 567 U.S. at _ (quoting Oregon v. Ice, 555 U. S. 160, 168 (2009).

As the Court explained:

Apprendi’s “core concern” is to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense.” [Oregon v.] Ice, 555 U. S. [160,] 170 [(2009)]. That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sover­eign for the commission of offenses.
Southern Union, 567 U.S. at _.

Under recent data, the Court noted that fines were imposed in nine percent of cases involving individual defendants and slightly more than seventy percent involving organizations. See Southern Union, 567 U.S. at _ n.2 (citing 2011 data from United States Sentencing Commission, 2011 Annual Report, ch. 5, pp. 34, 40). One key fine criminal statute noted by the Court is 18 U. S. C. §3571(d) in which the fine may be “not more than the greater of twice the gross gain or twice the gross loss”. Case examples were noted in which the fine ranged from $400 million dollars to more than $1 billion.

Trial Judge’s Role Contrasted With The Jury’s

In respecting the right to a jury determination, the Court noted the limits on the role of the sentencing judge. The judge has discretion to impose a sentence “within the range prescribed by statute.” Southern Union, 567 U.S. at _ (quoting Southern Union, 530 U. S. at 481). However, the Sixth Amendment right under Southern Union “guards against … judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.” Southern Union, 567 U.S. at _. Therefore, the discretion of the trial court is limited by the role of the jury: specifically, a judge may “impos[e] fines from within a range authorized by jury-found facts.” Southern Union, 567 U.S. at _ n.5.

The Court also emphasized the “constitutionally significant difference between a fact that is an ‘element’ of the offense and one that is a ‘sentencing factor’” which can be decided by the trial court for sentencing purposes. Southern Union, 567 U.S. at _ (quoting Apprendi, 530 U. S., at 478).

Congressional Role Noted

The Court dismissed the government’s argument that the extension of Apprendi to criminal fines would discourage the Legislative Branch from including aggravating statutory factors tied to punishment. As the Court noted, “legislatures are free to enact statutes that constrain judges’ discretion in sentencing — Apprendi requires only that such provisions be administered in conformance with the Sixth Amendment.” Southern Union, 567 U.S. at _.

When Is Apprendi Triggered?

The Court noted some limits on the Apprendi rule in criminal cases involving petty offenses. The Sixth Amendment right of jury trial under Apprendi is not triggered “[w]here a fine is so insubstantial that the underlying offense is considered ‘petty,’” or for “offenses punishable by relatively brief terms of imprisonment.”

Southern Union, 567 U.S. at _. In determining where the right to a jury under Apprendi applies, “the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee.” Southern Union, 567 U.S. at _. However, the Court did not clarify where the Apprendi line is drawn or when a petty offense or insubstantial punishment becomes substantial. Given the facts of this case, it was unnecessary for the Court to do so. Where the line is applied may be the subject of future cases.

Other Issues

A large part of the case turned on the application of Oregon v. Ice, 555 U. S. 160, 168 (2009), which the First Circuit had relied upon. In Ice, the Supreme Court had held that Apprendi did not require a jury to determine whether sentences should run consecutively or concurrently. Id. at at 168–169. In dicta, the Court noted:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi. As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. See Brief for State of Indiana et al. as Amici Curiae 11. IntrudingApprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.
Ice, 555 U.S. at __ . The Court confirmed in Southern Union that the “ambiguous” passage was “was unnecessary to the judgment and is not binding.” Southern Union, 567 U.S. at _ n.5.

Other cases cited by the government (from 1842 and 1812) either could be understood within the Apprendi framework or did “not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines.” Southern Union, 567 U.S. at _ (distinguishing United States v. Murphy, 16 Pet. 203 (1842) and United States v. Tyler, 7 Cranch 285 (1812)).

The Court dismissed the government claim that “requiring juries to determine facts related to fines will cause confusion (because expert testimony might be needed to guide the inquiry); or prejudice the defendant (who might have to deny violating a statute while simultaneously arguing that any violation was minimal); or be impractical (at least when the relevant facts are unknown or unknowable until the trial is completed).” Southern Union, 567 U.S. at _. The Court noted that practical considerations could not be used to bypass the constitutional requirement and that experience under Apprendi had shown that these concerns were unfounded.

Dissent

Justice Stephen G. Breyer authored the dissent, contending that the Sixth Amendment allowed “a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose.” Further, he believed that the majority opinion was “ahistorical and will lead to increased problems of unfairness in the administration of our criminal justice system.” Southern Union, 567 U.S. at _ (Breyer, dissenting). The dissent was largely based upon the decision in Oregon v. Ice, 555 U. S. 160 (2009).

Ramifications

As noted in the opinion, there are many varied criminal fine provisions. Following Southern Union, a jury will need to decide the facts beyond a reasonable doubt. Where the fine turns on specific facts, the jury must determine the facts to support the fine as part of the sentence. If not, the sentencing court will have discretion to impose a sentence up to the maximum statutory fine. One key criminal fine, which was noted in the opinion, is 18 U.S.C. § 3571(d), which provides:

(d) Alternative Fine Based on Gain or Loss. — If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.
In March 2012, after considering evidence in a price-fixing antitrust prosecution, a jury in the Northern District of California expressly found in a special verdict that the amount of the gross gain was at least $500 million in United States v. AU Optronics Corporation et al, No. CR-09-0110-SI (NDCA 2012). See generally Trial Verdict Press Release; Superseding Indictment ¶ 23 (sentencing fine allegation). Ironically, the special jury verdict in this case was provided before the guidance was given in the Southern Union decision.

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For more on this case, including the briefs filed in the Supreme Court, see Supreme Court Watch: Review Of Oral Argument On Southern Union Fines Case.

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