Southern Union Company v. United States, USSC No. 11-94, 6/21/12, reversing 630 F.3d 17 (1st Cir 2010)
Criminal fines, no less than length of imprisonment, come within the “Apprendi” doctrine, such that a fine beyond the maximum statutory amount must be based on facts decided by the jury. Southern Union was tried for violating environmental laws carrying a fine of up to $50,000 per day in violation. Both indictment and verdict form read that the violations ran from “or or about” September 19, 2002, to October 19, 2004 – there were 762 days between these dates, and at 50k per day for this period of time, the maximum fine would be $38.1 million. The district court imposed a fine of $6M, with an additional community service obligation of $12M. But the “on or about” language means that the jury didn’t have to determine the precise duration: a single day of violation would have supported the verdict. Thus, the Court now holds, the fine exceeded the maximum supported by the jury determination:
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. Apprendi v. New Jersey, 530 U. S. 466 (2000) ; Blakely v. Washington, 542 U. S. 296 (2004) . 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.
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While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis under Apprendi for treating criminal fines differently. Apprendi’s “core concern” is to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense.” Ice, 555 U. S., at 170. That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America. 1 They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. 2 And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; 3 under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. 4 In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 U. S., at 168. In stating Apprendi’s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]”—terms that each undeniably embrace fines. E.g., Blakely, 542 U. S., at 304; Apprendi, 530 U. S., at 490; Ring, 536 U. S., at 589.
Impact on state practice will probably be limited, at least with respect to offenses under the criminal code – see §§ 939.50 – .51, which specify maximum fine amounts depending on class of felony or misdemeanor. The fine amount maximum for any given offense simply doesn’t fluctuate, in contrast to this case example. But scattered instances exist – e.g., § 346.65(2)(f) (OWI fine increased if minor passenger) – and Southern Union should make it plain, if it wasn’t already, that a fine can’t exceed the maximum supported by the jury’s determination of relevant facts. (Federal practice in this Circuit is consistent with result and therefore will be unchanged, United States v. LaGrou Distrib. Sys., Inc., 466 F.3d 585, 594 (7th Cir.2006) (“absent a jury finding beyond a reasonable doubt, the district court had no authority to sentence LaGrou in excess of the default statutory maximum of $500,000”).) Challenge to a fine thus will be generally limited to sentencing discretion, State v. Ramel, 2007 WI App 271, ¶¶14-15, 306 Wis. 2d 654, 743 N.W.2d 502 (“[U]nder Gallion some explanation of why the court imposes a fine is required. It is also necessary that a sentencing court determine at the time of sentencing whether a defendant has the ability to pay a fine if the court intends to impose one.”)
I f you think restitution might be something else, guess again. Binding caselaw establishes that “restitution is not punishment,” State v. Dugan, 193 Wis. 2d 610, 623, 534 N.W.2d 897 (Ct. App. 1995), which throws restitution out of Apprendi analysis. Compare, Lagrou, 466 F.3d at 593 (“this Court has consistently held that restitution is a civil remedy, not penal, and therefore the Sixth Amendment and Booker do not apply”).
