Justices: Must a company's criminal fine be imposed by a jury?

By Kimberly Atkins

The Daily Record Newswire

BOSTON -- The justices of the U.S. Supreme Court considered on Monday whether a judge-imposed fine against a company convicted of environmental violations violated the Fifth and Sixth Amendments because it wasn't determined by a jury.

The case of Southern Union Co. v. U.S. involves the criminal conviction by a jury of Southern Union Company for violating federal environmental regulations.

The jury was not asked to determine how many days the violation existed, only if it occurred.

The judge in the case determined that the violation existed for the entire 762 days that the company improperly stored mercury on a property without a permit and imposed an $18 million fine.

The company appealed, arguing that the fine violated Apprendi v. New Jersey, which held that any fact used to increase the criminal penalty for a jury-imposed conviction must be determined by a jury beyond reasonable doubt, not a judge by the preponderance of the evidence. The 1st Circuit, relying on the 2008 ruling in Oregon v. Ice, which said that Apprendi does not apply to criminal fines, rejected the argument and affirmed the ruling.

The U.S. Supreme Court granted certiorari.

'A single day's violation?'

Carter Phillips, managing partner of the Washington office of Sidley Austin, argued on the company's behalf that that the judge dramatically increased the fine despite a lack of a jury finding that the violation lasted beyond one day.

"In this particular case, the defendant was fined a total of an $18 million penalty," Phillips said. "Congress is quite explicit that the maximum fine for a single day's violation is $50,000."

"The jury didn't say the defendant was in violation for only one day," Justice Ruth Bader Ginsburg pointed out. "It just didn't focus on the number of days."

"[B]ecause [the jury] was not asked the question, the most you could read out of [its verdict] was that there was a single day of a violation," Phillips said.

"You can't say that for sure," Justice Antonin Scalia said. "But one thing you can say for sure is that they found that it violated it [for at least] one day."

Justice Stephen Breyer noted that, as in Ice, courts have long given judges the ability to levy fines.

"If you go back to the 18th Century or earlier, what you will discover is that the judge has always had a much greater role in deciding what the amount of a fine should be," Breyer said.

"There is no history that suggests that judges had the authority to impose fines beyond whatever the maximum statutory limit ... was," Phillips said.

'Pure dicta?'

Michael Dreeben, deputy solicitor general, argued that "this case, like Oregon v. Ice, involves the kind of finding that the common law never entrusted to the jury."

Chief Justice John G. Roberts wasn't so sure.

"You agree, don't you, that the statement in Oregon v. Ice was pure dicta?" Roberts asked.

"[Ice] was part of the Court's rationale in adopting a different take on the meaning of the Apprendi line of cases," Dreeben said.

Scalia wondered about the practical effect of ruling on the government's side.

"Why should we adopt the strange rule that the jury has to find the fact if you go to jail for two weeks, but doesn't have to find the fact if the amount of fines [is] multiplied by" the number of days the rule was violated, Scalia asked.

Dreeben tried to make his argument plain: the judge was carrying out a common duty, not serving as the imposer of a heightened sentence.

"[The company] is guilty of a felony by virtue of the jury verdict. That imposes the stigma of being a felon," Dreeben said. "The judge's role is then to decide what was charged in the indictment and what was the length of that violation, not to find [the company] guilty of numerous additional violations."

A ruling is expected before the Court's term ends in June.

Published: Fri, Mar 23, 2012

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