ILNews

US Supreme Court: Criminal fines require jury finding

Back to TopCommentsE-mailPrintBookmark and Share

An end-of-term U.S. Supreme Court decision did far more than reduce a penalty in a federal criminal environmental judgment from $18 million to $50,000. It created a new reality for how the government will have to pursue such prosecutions in the future, experts say.

A rare coalition of conservative and liberal justices ruled 6-3 in Southern Union Co. v. United States, 11–94, that the Sixth Amendment right to a jury trial requires a jury to determine facts to support a sentence imposed after a guilty verdict.

A jury found Houston-based utility company Southern Union guilty of improperly storing mercury in violation of the Resource Conservation and Recovery Act. The Supreme Court of the United States ruled that the jury verdict that proved guilt beyond a reasonable doubt was established for just one day rather than the hundreds of days the government alleged, and the award was reduced to the maximum penalty for a single-day violation.
 

ryan-scott-mug.jpg Scott

Indiana University Maurer School of Law associate professor Ryan Scott watched the case and narrated a podcast for the Federalist Society website that analyzed the Southern Union opinion. He said the justices extended to federal criminal fines the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), that states, “Other 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.”

“This is definitely a win for the defendants,” Scott told the Indiana Lawyer. “That said, the history of Apprendi is one of the Supreme Court recognizing more and more expansive jury rights and the government responding with great resilience.”

In essence, experts said, juries will have to determine factors such as lengths of violations for sentences involving fines on a “per day/per violation” basis, or losses and potential penalties in federal fraud cases. A simple guilty verdict such as that in Southern Union no longer is sufficient to allow a judge to use his or her discretion in levying criminal fines.

“I think the public assumes that the right to ‘trial by jury’ has already been fully defined by the federal courts. But we continue to discover new aspects to this constitutional guarantee,” said Jeff Lorenzo, a Seymour attorney who writes the Indiana Environmental Law Report blog.

He said the decision was overshadowed by SCOTUS rulings on health care and immigration, but, “this is one those cases that talks about issues that are essential to the disposition of justice.”

Southern Union is important for a couple of reasons. It represents an important win for corporate defendants in criminal cases. Since corporations can’t be imprisoned, they are more likely to be punished by large fines. This is particularly true in the environmental practice area because the potential damages to land, air and water are so significant and cleanup costs so imposing,” Lorenzo explained. 

“Beyond that, prosecutors (and courts) will have to ascertain the appropriate mechanisms to obtain a jury decision on the most important and critical facts relevant to augmented sentences,” he said.

That’s likely to mean that prosecutors will have to seek a special verdict from juries that makes specific findings on each count in which a guilty verdict is rendered, Scott and Lorenzo said. It also might require bifurcated trials involving jury determinations of guilt followed by proceedings to determine sentencing criteria on which a judge will rule.

The decision in Southern Union affects a small number of cases, according to Scott, but they often are high-profile matters where potential fines are great. “The distribution of who makes a determination (of sentencing criteria) is very significant,” he said.

Scott believes potentially protracted jury proceedings required under the ruling also might give defendants more leverage.

“You can bet defendants will use the fact that this is an inconvenience,” he said. But he noted the government has been quick to respond to requirements of Apprendi.


lorenzo-jeff-mug.jpg Lorenzo

“I think what’s most likely to happen is the government will continue to charge in a case just as it’s always done, and this will be a feature of discussion,” he said of the rule of Apprendi. Because most cases settle, “it will become the sort of thing the government negotiates.”

In cases that do proceed to trial, judges might find themselves unable to constitutionally impose a fine greater than that allowed under a jury’s general verdict of guilty, Scott said. They’ll have to determine whether further jury determination is warranted, given the time and cost involved. “They may not feel it’s worth the candle and impose a smaller fine.”

But Southern Union also is likely to sharpen the government’s focus in prosecuting environmental and fraud cases. “I expect indictments will be a little more refined,” Scott said.

Jon Laramore, a partner with Faegre Baker Daniels LLP in Indianapolis, said the ruling was a logical extension of Apprendi.

“Now that we know there are these requirements for fines, prosecutors will be able to take some relatively simple measures to anticipate this issue and in many cases keep it from becoming a problem,” he said.

Lorenzo predicted that the difficulty of proving facts beyond a reasonable doubt relevant to sentencing could pose practical hardships.

“Prosecutors may consider delaying filing until they have the evidence they are going to need to get the fines they consider appropriate,” he wrote. 

Lorenzo said a new body of caselaw might develop from the Southern Union decision, and legislation will likely be introduced in Congress and state legislatures in response to the ruling.

Scott said the case also provided an intriguing glimpse at how the newest justices ­– President Barack Obama’s appointees Elena Kagan and Sonia Sotomayor – would rule on a case involving Apprendi, which the court decided in a 5-4 ruling with a majority across the political spectrum in 2000.

Sotomayor wrote the opinion that was joined by Kagan and Justice Ruth Bader Ginsburg from the court’s liberal wing, along with Chief Justice John Roberts and conservative justices Antonin Scalia and Clarence Thomas.

Scott said the government had hoped that Apprendi had hit a high-water mark in 2009. That’s when a 5-4 Supreme Court appeared to set back the Apprendi rule in Oregon v. Ice, 07-901. There, the court ruled judges were not prohibited from finding facts to determine whether sentences on different offenses should be served concurrently or consecutively.

“Nothing surprises me in the Apprendi line of cases,” Scott said. “You have such a scramble of justices. … They don’t break down on predictable ideological lines.”

Lorenzo said justices left open other questions. Southern Union seems to suggest that Apprendi may apply to any penalties inflicted by the government for the commission of offenses, he explained. Also left for future consideration: “When does an offense rise beyond the level of ‘non-petty’ and become substantial enough to invoke the Apprendi rule?”

Scott also sees more Apprendi questions arising. The jury trial right could be a matter for the courts to decide in cases involving restitution determinations and in matters where asset forfeiture is ordered, he said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

  2. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

ADVERTISEMENT