Supreme Court Says Juries Must Determine Facts Affecting Criminal Fines in Sentencing

Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.

Southern Union Co. v. United States, U.S., No. 11-94, 6/21/12

Key Holding: U.S. Supreme Court says that under the Sixth Amendment, defendants have a right to a jury trial when questions of fact must be decided that are likely to enhance a criminal fine.

Potential Impact: The dissent suggests the ruling will increase the proportion of criminal cases decided by plea agreements, which already account for more than 90 percent of convictions.

By Robert C. Cook  

The U.S. Supreme Court held June 21 that juries, not judges, should make the determination on any fact in a criminal case, other than a prior conviction, that could increase a defendant's maximum potential criminal fine (Southern Union Co. v. United States, U.S., No. 11-94, 6/21/12).

Justice Sonia Sotomayor delivered the 6-3 opinion of the court in a case involving alleged illegal storage of mercury by Southern Union, a Texas-based natural gas company. Justice Stephen G. Breyer dissented, joined by Justices Anthony M. Kennedy and Samuel A. Alito.

The majority reversed and remanded the sentence of Southern Union for of a criminal violation of the Resource Conservation and Recovery Act.

The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial. The Supreme Court relied on its opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that in most cases juries must decide the facts of sentencing enhancement beyond a reasonable doubt.

Case Involves Mercury Storage.

The case involved the conviction of Southern Union for illegal storage of mercury in violation of RCRA between Sept. 19, 2002, and Oct. 19, 2004.

Carter G. Phillips, of Sidley Austin LLP, who argued the case for the company, said in an email, “Southern Union obviously is ecstatic about the result. But more broadly, the decision is extremely important to corporations charged with criminal offenses because they can only be punished by fines. So having the protections of the Sixth Amendment apply to them is critical.”

The conviction was handed down by a jury in the U.S. District Court for the District of Rhode Island. The pre-sentence report determined the potential fine should be about $38 million at a maximum penalty of $50,000 per day. District Judge William E. Smith imposed $18 million in penalties, but Southern Union argued that it should have faced a criminal fine of only $50,000 for a single incident.

The $18 million included a $6 million criminal fine and $12 million in payments for community projects (40 ER 2354, 10/9/09).

Supreme Court Reverses First Circuit.

After Smith imposed the Southern Union penalty, Southern Union appealed, and the U.S. Court of Appeals for the First Circuit upheld the conviction, fines, and penalties for the illegal storage of mercury (United States v. Southern Union Co., 630 F.3d 17, 72 ERC 1262 (1st Cir. 2010)).

In reversing the First Circuit, the Supreme Court wrote, “We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does.”

The court stated that “the Government now concedes the District Court made factual findings that increased both the 'potential and actual' fine the court imposed.”

“This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury's verdict or the defendant's admissions allow.”

The Supreme Court concluded that applying the Apprendi rule to criminal fines does not mark an unexpected extension of the doctrine.

Dissenters Fear Unfairness in Courts.

Breyer rejected the reasoning of the majority opinion, calling it “ahistorical” and stating that it will lead to increased problems of unfairness in the administration of criminal justice, especially in cases involving environmental pollution.

“This case involves sentencing facts, not elements of a crime,” Breyer wrote.

The dissent examined the law of England and the American States in the 18th century and concluded that the “upshot is that both 18th century English common law and 18th century American law typically provided judges with broad discretion to assess fines.”

Majority Relies on Apprendi Case.

Southern Union argued, based on Apprendi, that it should have faced a criminal fine of only $50,000 for a single incident of illegally storing mercury at the Rhode Island site--the maximum criminal fine allowed under the statute for one violation.

The court in Apprendi ruled that “any fact” other than 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.”

At oral argument on March 19, the Supreme Court was asked by one side to protect the Sixth Amendment right to a jury trial and asked by the other side to recognize that criminal fines handed down by judges are a primary way environmental laws are enforced.

During briefing and oral argument, the government relied on Oregon v. Ice, 555 U.S. 160 (2009).

That case states: “Members of this Court have warned against wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”

Dissenters Concerned About Complexity.

While the majority found the Oregon v. Ice case to be inapplicable, the dissenters asserted that fine determinations for environmental crimes would be especially complicated under the majority's ruling.

This is true because of potential difficulty defining and computing loss, the dissent stated.

Additionally, the dissent stated, many states will be forced to change their statutes in various areas to allow the proving of fine-related sentencing facts to a jury.

The Apprendi case involved a New Jersey hate crime statute. The defendant had fired shots into the home of an African American family. The New Jersey Supreme Court judgment was reversed by the U.S. Supreme Court when it found the jury should have made the determination on increased penalties due to the hate crime designation.

The Oregon v. Ice case involved consecutive sentences for burglary and sexual assault based on facts found by the judge rather than the jury. The defendant argued that the issue of consecutive sentences could only be determined by the jury. The Supreme Court of Oregon vacated the sentence and the state appealed. The U.S. Supreme Court reversed and remanded Oregon v. Ice.

The Southern Union dissent asserted that the majority's holding on June 21 will “likely diminish the fairness of the criminal trial process.”

“A defendant will not find it easy to show the jury at trial that (1) he committed no environmental crime, but (2) in any event, he committed the crime only on 20 days, not 30,” the dissent cited as an example of potential unfairness.

Michael R. Dreeben, deputy solicitor general, argued the case for the Department of Justice. A DOJ spokesman declined comment June 21.

By Robert C. Cook  

The opinion by the U.S. Supreme Court in Southern Union Co. v. United States is available at