Sentencing—Apprendi Applies to Criminal Fines

The Supreme Court has extended the rule in Apprendi  v. New Jersey, 530 U.S. 466 (2000). Apprendi held that the Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence.

In Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), the question presented was whether the same rule applied to sentences of criminal fines. Southern Union, a natural gas company, was convicted of violating a federal statute, 42 U.S.C. § 6928(d) (2) (A), by knowingly storing liquid mercury without a permit. The jury verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury "on or about September 19, 2002 to October 19, 2004." 132 S. Ct. at 2349. Violations of the statute are punishable, inter alia, by "a fine of not more than $50,000 for each day of violation." 42 U.S.C. § 6928(d) (2) (A). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union had violated the statute for each of the 762 days from September 19, 2002 through October 19, 2004. Southern Union objected that the calculation violated Apprendi because the jury had not been asked to determine the precise duration of the violation.

Further arguing that the verdict form and the court's instructions permitted conviction if the jury found even a one-day violation, Southern Union maintained that the only violation the jury necessarily found was for one day and that imposing any fine greater than the single-day penalty of $50,000 would require fact finding by the court, in contravention of Apprendi. While acknowledging that the jury had not been asked to specify the duration of the violation, the Government argued that Apprendi did not apply to criminal fines.

The district court held that Apprendi applied, but it concluded from the verdict that the jury had found a 762-day violation. The court therefore set a maximum potential fine of $38.1 million and imposed a fine of $6 million and a community service obligation of $12 million. On appeal, the First Circuit rejected the district court's conclusion that the jury had necessarily found a violation of 762 days, but it affirmed the sentence, holding, in conflict with other circuits, that Apprendi did not apply to criminal fines.

The Supreme Court reversed the First Circuit and held that Apprendi did apply to criminal fines. The Court stated that it had applied Apprendi to a variety of sentencing schemes involving imprisonment or a death sentence and could see no principled basis under Apprendi for treating criminal fines differently. The Court also rejected the Government's argument that fines are less onerous than incarceration and the death sentence and thus do not implicate the primary concerns motivating Apprendi. Not all fines are insubstantial, however. Moreover, the relevant question is the significance of the fine from the perspective of the Sixth Amendment's jury trial guarantee. "Where a fine is substantial enough to trigger that right, Apprendi applies in full." 132 S. Ct. at 2352. The Court remanded the case for further proceedings.

Mark Rieber—Senior Attorney