Supreme Court Holds That The Government Must Prove To A Jury Beyond A Reasonable Doubt Any Fact That Increases The Maximum Available Criminal Fine

The Supreme Court held yesterday in Southern Union Company v. United States that the Sixth Amendment requires the government to prove to a jury beyond a reasonable doubt any fact that increases the maximum available criminal fine that may be imposed on a defendant, resolving a circuit split between the First, Second, and Seventh Circuits. The Southern Union decision will have a particularly significant impact on corporate prosecutions that could include substantial fines, such as prosecutions for violations of federal health care laws, securities laws, and the Foreign Corrupt Practices Act. (A full copy of the opinion can be found here.)

Twelve years ago, in Apprendi v. New Jersey, the Supreme Court 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." Over the next six years, the Supreme Court applied the so-called "Apprendi rule" to invalidate death sentences imposed on the basis of a judge's finding of "aggravating factors" (Ring v. Arizona), prison sentences enhanced on the basis of a judge's finding of "substantial and compelling" circumstances (Blakely v. Washington), and prison sentences imposed under the mandatory Federal Sentencing Guidelines (United States v. Booker). One question left unresolved, however, was whether the Apprendi rule "applies to sentences of criminal fines." The Supreme Court's decision in Southern Union resolves that question: "it does."

The facts in Southern Union are quite simple. In 2007, Southern Union was indicted for storing liquid mercury without a permit at a facility in Rhode Island, in violation of the Resource Conservation and Recovery Act ("RCRA"). Under the RCRA, Southern Union was subject to a penalty of up to $50,000 "for each day of violation." At trial, the government argued that Southern Union had illegally stored the mercury for 762 days. Neither the verdict form nor the trial court's instructions, however, "asked [the jury] to determine the precise duration of the violation." Instead, they "permitted conviction if the jury found even a 1-day violation."

The jury convicted Southern Union. At sentencing, the government asserted that the maximum available fine was "$38.1 million dollars, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004." Southern Union objected to the government's...

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