S.Ct. - Apprendi Applies to Restitution

Southern Union Co. v. United States, http://www.supremecourt.gov/opinions/11pdf/11-94a1b2.pdf


     Petitioner Southern Union Company was convicted of violating a statute that criminalized storing liquid mercury without a permit, punishable by fines of up to $50,000 per day of violation. The indictment covered a period of over 2 years, but the jury's verdict on the single count did not specify how many days. Southern Union had argued below that under Apprendi it could not receive more than a $50,000 fine. The judge below disagreed, found a maximum potential fine of $38.1 million, and imposed a combined fine and community service obligation of $18 million.

     As usual for an Apprendi case, an unusual majority (Sotomayor, joined by Roberts, Scalia, Thomas, Ginsburg, and Kagan) holds that there is no principled distinction between fines and imprisonment or the death penalty, and that Apprendi applies to fines "where a fine is substantial enough to trigger the 6th Amendment's jury trial guarantee." At common law, the majority says, juries routinely found facts that set the maximum criminal fines. It rejects an often advanced distinction between "elements" and "sentencing factors." Breyer, joined by Kennedy and Alito, dissents.

Claudia VanWyk, EDPA, Capital Habeas Unit