Thursday, June 21, 2012

Southern Union Co. - Apprendi Applies to Fines - But Will it Matter?

The Supreme Court issued an opinion in Southern Union Co. v. United StatesThe company was convicted of a RCRA violation, which carries a penalty of a fine of not more than $50,000 for each day that there is a violation. Justice Sotomayor, writing the opinion for the Court, considered whether juries need to decide the fine given, in order to comply with the Court's prior decisions in Apprendi and Blakely that "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."

The Court held that "where a fine is so insubstantial that the underlying offense is considered 'petty' the Sixth Amendment right of jury trial is not triggered and no Apprendi issue arises."  But the Court then went on to say that "not all fines are insubstantial, and not all offenses punishable by fines are petty."  The final ruling was that "Apprendi applies to the imposition of criminal fines."  And it applied here.

A dissent by Justice Breyer, that was joined by Justices Kennedy and Alito, argued that "the Sixth Amendment permits 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." They believed that the Court's position would "lead to increased problems of unfairness in the administration of our criminal justice system."  They discuss the existing high rate of plea agreements in the case.

The real question here is whether this decision will matter. As noted by the dissent, 97% of federal convictions result from guilty plea.  But what went unnoticed is that very few companies - the object of many fines - go to trial.  Often these cases are resolved with non-prosecution and deferred prosecution agreements.  So will it really make any difference that juries can determine these fines, when the corporation in a post Arthur Andersen LLP world will seldom be going to trial.

(esp)

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Comments

It will matter for cases that may be affected by the alternative fine clause under 18 U.S.C. 3571(d) that allows a fine of "not more than twice the gross gain or twice the gross loss..."

Posted by: Dan Scott | Jun 25, 2012 4:00:27 PM

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