Opinion analysis: Imposition of criminal fine implicates Sixth Amendment right to jury trial

In Southern Union Co. v. United States, by a vote of six to three, the Court held that the Sixth Amendment right to jury trial prohibits a court from basing the amount of a non-petty criminal fine on facts found by the court but not encompassed by the jury’s verdict.  The majority and dissent differed in their interpretations of the historical record regarding the comparative roles of judge and jury in determining the amount of fines in criminal cases, as well in the importance that should be placed on predicted effects of the holding.

A jury convicted Southern Union of storing liquid mercury without a permit in violation of the Resource Conservation and Recovery Act (RCRA).  The authorized punishment for an organizational defendant is “a fine of not more than $50,000 for each day of violation.” The verdict form indicated that Southern Union engaged in the prohibited behavior “on or about September 19, 2002 to October 29, 2004.”  Southern Union asserted that the court’s instructions allowed the jury to convict if it found even a one-day violation. It argued that Apprendi v. United States, which held that the Sixth Amendment “reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases” the maximum sentence, limited the fine to $50,000.  The District Court agreed that it was bound by Apprendi, but concluded that the “content and context of the verdict all together” supported a finding that the violation continued for 762 days.  This conclusion would have allowed a fine of $38.1 million, and the court imposed a fine of $6 million. On appeal, the First Circuit rejected the trial court’s interpretation of the jury findings but affirmed the sentence on the ground that Apprendi does not apply to criminal fines.

The majority and dissent agreed that to resolve whether Apprendi controlled who should determine the number of days of violation, the Court had to examine the historical roles of judge and jury in determining the amount of a criminal fine.  They disagreed, however, in two important respects.

First, the majority and dissent read the historical record differently.  The majority noted that some crimes imposed no upper limit on fines, while others capped the maximum fine by statute.  Judges exercised sentencing discretion under these statutes consistent with Apprendi as long as the judge stayed within the statutory range, if any.  Where the crime did require specific factual findings to support the amount of the fine, however, the predominant historical practice was to have the jury make those findings.  The dissent disagreed with this reading of history, asserting that the “relevant historical question” was whether, in general, judges or juries determined fine-related sentencing facts.  Distinguishing the cases where juries determined fines as being outside the normal criminal practice or the pertinent historical period, the dissent concluded that criminal fines were normally up to the court.

The majority and dissent also disagreed on the importance of considering the effects of applying Apprendi to fines.  Such practical effects had played a large role in the Court’s decision in Oregon v. Ice, and the dissent thought the same should be true here.  Thus, the dissent bolstered its position by predicting that applying Apprendi to fines would hinder legislative attempts to reduce sentencing disparity, cause confusion, and harm defendants in a variety of ways, and that these effects would particularly undermine state sovereignty.  The majority, in contrast, emphasized that legislatures can constrain sentencing discretion as long as they do so in conformance with constitutionalstandards.  It pointed out that previous cases in the Apprendi line had rejected concerns about harm to defendants.  And it saw any problems caused by its holding as falling equally on the states and the federal government.

Courts will have to resolve a number of potentially thorny issues as they begin to apply Apprendi to fines.  First, the Court noted that the Sixth Amendment right to jury trial does not apply to petty offenses, and courts will have to determine the line between insignificant and substantial criminal fines.  More significant, perhaps, is deciding whether Apprendi affects other monetary criminal sanctions such as restitution; the Court suggests that it does apply to any “penalt[y] inflicted by the sovereign for the commission of offenses,” and language in the dissent also may support extending Apprendi to restitution.  And then there are those practical effects mentioned by the dissent.  Courts and prosecutors will have to work out ways to get jury determination of salient facts, such as special verdicts or separate counts.  Juries will have to be instructed regarding evidence relevant to sentencing but not to guilt or innocence per se, or courts will have to bifurcate trials.  Prosecutors may have to delay bringing charges until they have the detailed evidence they need to get the fines they consider warranted.  There are many ways to address these practical problems, and we can expect an interesting variety of responses by courts and legislatures.

Plain English Summary:

The Court held, by a vote of six to three, that the Sixth Amendment right to jury trial requires a jury, not a judge, to determine facts that could increase a non-petty criminal fine above the amount warranted by the jury’s verdict alone.  Thus, where the jury’s verdict supported a fine of $50,000 for one day of violation but the court imposed a fine of $38.1 million for 762 days of violation, the case was remanded for further proceedings.