If there is one thing that many trial court judges think they know how to do it is to fine people. Patricularly judges who serve in limited jurisdiction roles, fining is something that is done with great regularity. So the Supreme Court’s decision in Southern Union Co. v. United States could be one of the most significant  Apprendi cases.   SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

……… in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding — and if Apprendi applies to fines — the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines — the sanction for corporate “persons” — are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance ofOregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union’s guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court — going further than Smith — held Apprendi didn’t apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury’s role beyond what it has done in the past.

Southern Union and its supporters — which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief — say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi….

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. “This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty,” Verrilli said.

The former is a “deprivation of property,” while the latter is a “deprivation of liberty or life,” he said.  Verrilli delved into English common law in making the case that judges traditionally had “more discretion with respect to fines than they did in imposing terms of imprisonment or death.”…

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. “It’s a narrow category of cases,” said criminal law expert Ryan Scott, an associate professor at Indiana University’s Maurer School of Law….

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court whenApprendiwas decided and two — Justice Elena Kagan and Justice Sonia Sotomayor — have been appointed since Ice was decided.  As Scott put it, it is an “unusually difficult one to guess.”