Ch. 10: Environmental Enforcement

Page 1072: Monitoring and Detecting Violations - The Volkswagen Scandal

EPA encourages the reporting of environmental violations by maintaining a tip line at Some of the most serious violations of the environmental laws are discovered as the result of whistleblowers.  A major exception was the Volkswagen diesel emissions scandal.  Volkswagen (VW) deliberately programmed turbocharged direct injection diesel engines on eleven million model year 2009 through 2015 vehicles worldwide to only operate certain emissions control devices during emissions testing.  The company believed that it was very unlikely that authorities could measure emissions while vehicles were operating on the road. However, John German, co-leader of the International Council on Clean Transportation (ICCT) was curious as to how diesel engines that produced high emissions in Europe were complying with more stringent U.S. standards for tailpipe emissions. Eschewing traditional emissions lab testing, they used a probe that could be placed in the vehicles’ tailpipes connected to a machine in the cars’ trunks that would measure actual emissions when the vehicles were on the road.  Coupled with data from other portable emission measurement systems, they found emissions that were five to 35 times higher than permissible.  The ICCT informed VW and turned its data over to EPA and the California Air Resources Board in May 2014.  In December 2014 EPA announced that VW had agreed to fi its software, but further testing in May 2015 showed that the supposed fix had not corrected the problem.  In September 2015 the company admitted the existing of a defeat device.  What is remarkable about this experience is the large number of VW employees who must have known about this intentional violation of the environmental laws without telling anyone.

Pages 1104: Criminal Enforcement of Fisheries Law: Yates v. United States

In Yates v. United States the Supreme Court considered whether the Sarbanes-Oxley Act of 2002, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object” with the intent to impede or obstruct an investigation, applies to a fisherman who threw undersized fish overboard after being told by a law enforcement officer to preserve them and proceed to port.  By a vote of 5-4, the Court reversed the conviction of the fisherman.  In a plurality opinion authored by Justice Ginsburg, four Justices concluded that the ”tangible object” in Sarbanes-Oxley must be one used to record or preserve information. Justice Alito concurred in the judgement on similar grounds.  Justices Scalia, Kennedy, and Thomas joined Justice Kagan’s dissenting opinion.  A copy of the decision is available online at:

NOTE 10, Pages 1120-1121: The Southern Union Decision

As discussed in the seventh edition of the casebook, in Southern Union Co. v. United States a company was convicted for a criminal violation of the Resource Conservation and Recovery Act (RCRA) for illegally storing hazardous liquid mercury without a permit “on or about September 19, 2002 to October 19, 2004.”  Violations of RCRA § 3008 are punishable by a fine or not more than $50,000 for each day of the violation.  At sentencing, a potential maximum fine of $38.1 million was calculated based on the 762 days from September 19, 2002 through October 19, 2004.  The company argued that imposing any fine greater than a one-day penalty of $50,000 would be unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury had not been instructed to find 762 separate days of violations.  Apprendi holds that the Sixth Amendment’s jury-trial guarantee requires that any fact other than a prior conviction that increases the maximum punishment authorized for a particular crime must be proved to a jury beyond a reasonable doubt.

The district court agreed that Apprendi applies to criminal fines, but concluded from the “content and context of the verdict all together” that the jury found a 762-day violation.  Thus, it imposed a fine of $6 million and a “community service obligation” of $12 million.  On appeal, the First Circuit concluded that the jury did not necessarily find a 762-day violation, but it upheld the fine because it held that Apprendi does not apply to criminal fines.

By a vote of 6-3 the Supreme Court reversed.  The Court held that Apprendi does apply to criminal fines, thus requiring a jury to find the length of the violation in order to support a fine premised on multiple days of a continuing violation.  For those interested in exploring this issue in more depth, an edited excerpt of the decision is reproduced below.

Southern Union Co. v. United States

132 S.Ct. 2344 (June 21, 2012)

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, GINSBURG, and KAGAN, JJ., joined. BREYER, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.

JUSTICE SOTOMAYOR delivered the opinion of the Court.

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.


Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Is-land. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mer-cury, and spread it around the facility and complex. The complex’s residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

In 2007, a grand jury indicted Southern Union on multiple counts of violating federal environmental statutes. As relevant here, the first count alleged that the company knowingly stored liquid mercury without a permit at the Pawtucket facility “[f]rom on or about September 19, 2002 until on or about October 19, 2004,” App. 104, in viola- tion of the Resource Conservation and Recovery Act of 1976 (RCRA). See 90 Stat. 2812, as amended, 42 U. S. C. §6928(d)(2)(A). A jury convicted Southern Union on this count following a trial in the District Court for the District of Rhode Island. The verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury “on or about September 19, 2002 to October 19, 2004.” App. 140.

Violations of the RCRA are punishable by, inter alia, “a fine of not more than $50,000 for each day of violation.” §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, 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 that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation’s approximate start date ( i.e., “on or about”), and argued that the court’s instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require factfinding by the court, in contravention of Apprendi.

The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the “content and context of the verdict all together” that the jury found a 762-day violation. The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligatio[n]” of $12 million.

On appeal, the United States Court of Appeals for the First Circuit rejected the District Court’s conclusion that the jury necessarily found a violation of 762 days. 630 F. 3d 17, 36 (2010). But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. 630 F. 3d, at 33–36. Other Circuits have reached the opposite conclusion. . . .



This case requires us to consider the scope of the Sixth Amendment right of jury trial, as construed in Apprendi. Under Apprendi, “[o]ther 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.” 530 U. S., at 490. The “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not “inflic[t] punishment that the jury’s verdict alone does not allow.” Id., at 304.

Apprendi’s rule is “rooted in longstanding common-law practice.” Cunningham v. California, 549 U. S. 270, 281 (2007). It preserves the “historic jury function” of “determining whether the prosecution has proved each element of an offense beyond a reasonable doubt.” Oregon v. Ice, 555 U. S. 160, 163 (2009). We have repeatedly affirmed this rule by applying it to a variety of sentencing schemes that allowed judges to find facts that increased a defendant’s maximum authorized sentence. See Cunningham, 549 U. S., at 274–275 (elevated “upper term” of impris-onment); United States v. Booker, 543 U. S. 220, 226– 227, 233–234 (2005) (increased imprisonment range for defendant under then-mandatory Federal Sentencing Guidelines); Blakely, 542 U. S., at 299–300 (increased im-prisonment above statutorily prescribed “standard range”); Ring v. Arizona, 536 U. S. 584, 588–589 (2002) (death penalty authorized upon finding existence of aggravating factors); Apprendi, 530 U. S., at 468–469 (extended term of imprisonment based on violation of a “hate crime” statute).

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 differ-ently. 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. They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is of-ten calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. 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.

The Government objects, however, that fines are less onerous than incarceration and the death sentence. The Government notes that Apprendi itself referred to the physical deprivation of liberty that imprisonment occasions, see 530 U. S., at 484, and that we have placed more weight on imprisonment than on fines when construing the scope of the Sixth Amendment rights to counsel and jury trial. See Blanton v. North Las Vegas, 489 U. S. 538, 542–543 (1989) (jury trial); Scott v. Illinois, 440 U. S. 367, 373–374 (1979) (counsel). Therefore, the Government concludes, fines categorically “do not implicate” the “primary concerns motivating Apprendi.” Brief for United States 23–25.

This argument fails because its conclusion does not follow from its premise. Where a fine is so insubstantial that the underlying offense is considered “petty,” the Sixth Amendment right of jury trial is not triggered, and no Apprendi issue arises. See, e.g., Muniz v. Hoffman, 422 U. S. 454, 477 (1975) ($10,000 fine imposed on labor union does not entitle union to jury trial); see also Blanton, 489 U. S., at 541 (no jury trial right for “petty” offenses, as measured by the “severity of the maximum authorized penalty” (internal quotation marks omitted)). The same, of course, is true of offenses punishable by relatively brief terms of imprisonment—these, too, do not entitle a defendant to a jury trial. See id., at 543 (establishing a rebuttable presumption that offenses punishable by six months’ imprisonment or less are petty); Duncan v. Louisiana, 391 U. S. 145, 159–162 (1968).

But not all fines are insubstantial, and not all offenses punishable by fines are petty. The federal twice-the-gain-or-loss statute, in particular, see 18 U. S. C. §3571(d), has been used to obtain substantial judgments against organizational defendants. And, where the defendant is an individual, a large fine may “engender ‘a significant infringement of personal freedom.’ ” Blanton, 489 U. S., at 542 (quoting Frank v. United States, 395 U. S. 147, 151 (1969)); see also 18 U. S. C. §3572(a)(2) (requiring court to consider “the burden that the fine will impose upon the defendant” in determining whether to impose a fine and in what amount).

The Government thus asks the wrong question by comparing the severity of criminal fines to that of other punishments. So far as Apprendi is concerned, the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee. Where a fine is substantial enough to trigger that right, Apprendi applies in full. As we said in Cunningham, “Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, . . . is the very inquiry Apprendi’s ‘bright-line rule’ was designed to exclude.” 549 U. S., at 291.

This case is exemplary. The RCRA subjects Southern Union to a maximum fine of $50,000 for each day of violation. 42 U. S. C. §6928(d). The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial. And the Government now concedes the District Court made factual findings that increased both the “potential and actual” fine the court imposed. Brief for United States 28. This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.


In concluding that the rule of Apprendi does not apply to criminal fines, the Court of Appeals relied on our decision in Ice. Ice addressed the question whether, when a defendant is convicted of multiple offenses, Apprendi forbids judges to determine facts that authorize the imposition of consecutive sentences. 555 U. S., at 164. In holding that Apprendi does not, Ice emphasized that juries historically played no role in deciding whether sentences should run consecutively or concurrently. See 555 U. S., at 168–169. The Court of Appeals reasoned that juries were similarly uninvolved in setting criminal fines. 630 F. 3d, at 35.

The Court of Appeals was correct to examine the historical record, because “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Ice, 555 U. S., at 170. But in our view, the record supports applying Apprendi to criminal fines. To be sure, judges in the colonies and during the founding era “possessed a great deal of discretion” in determining whether to impose a fine and in what amount. Often, a fine’s range “was apparently without limit except insofar as it was within the expectation on the part of the court that it would be paid.” For some other offenses, the maximum fine was capped by statute.

The exercise of such sentencing discretion is fully consistent with Apprendi, which permits courts to impose “judgment within the range prescribed by statute.” 530 U. S., at 481 (emphasis in original). Nor, a fortiori, could there be an Apprendi violation where no maximum is prescribed. Indeed, in surveying the historical record that formed the basis of our holding in Apprendi, we specifically considered the English practice with respect to fines, which, as was true of many colonial offenses, made sentencing largely “dependent upon judicial discretion.” See id., at 480, n. 7; see also Jones v. United States, 526 U. S. 227, 244–245 (1999); 4 W. Blackstone, Commentaries on the Laws of England 372–373 (1769) (hereinafter Blackstone). And even then, as the dissent acknowledges, there is authority suggesting that English juries were required to find facts that determined the authorized pecuniary punishment.

In any event, the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property. Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury.

The rule that juries must determine facts that set a fine’s maximum amount is an application of the “two longstanding tenets of common-law criminal jurisprudence” on which Apprendi is based: First, “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” Blakely, 542 U. S., at 301 (quoting 4 Blackstone 343). And second, “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.’ ” 542 U. S., at 301–302 (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)). Indeed, Bishop’s leading treatise on criminal procedure specifically identified cases involving fines as evidence of the proposition that “the indictment must, in order to inform the court what punishment to inflict, contain an averment of every particular thing which enters into the punishment.” Id., §540, at 330 (discussing Clark and Garner). This principle, Bishop explained, “pervades the entire system of the adjudged law of criminal procedure. It is not made apparent to our understandings by a single case only, but by all the cases.” Criminal Procedure §81, at 51. . . .


The Government’s remaining arguments, echoed by the dissent, are unpersuasive. The Government first submits that, when it comes to fines, “the judicially found facts typically involve only quantifying the harm caused by the defendant’s offense”—for example, how long did the violation last, or how much money did the defendant gain (or the victim lose)?—“as opposed to de-fining a separate set of acts for punishment.” Only the latter determination, the Government contends, implicates Apprendi’s concerns.

This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an “element” of the offense and one that is a “sentencing factor.” Second, we doubt the coherence of this distinction. This case proves the point. Under 42 U. S. C. §6928(d), the fact that will ultimately determine the maximum fine Southern Union faces is the number of days the company violated the statute. Such a finding is not fairly characterized as merely “quantifying the harm” Southern Union caused. Rather, it is a determination that for each given day, the Government has proved that Southern Union committed all of the acts constituting the offense.

The Government next contends that applying Apprendi to fines will prevent States and the Federal Government from enacting statutes that, like §6928(d), calibrate fines to a defendant’s culpability, thus providing just punishment and reducing unwarranted sentencing disparity. But the Government presents a false choice. As was true in our prior Apprendi cases, and remains so here, legislatures are free to enact statutes that constrain judges’ discretion in sentencing— Apprendi requires only that such provisions be administered in conformance with the Sixth Amendment.

Last, the Government argues that requiring juries to determine facts related to fines will cause confusion (because expert testimony might be needed to guide the inquiry); or prejudice the defendant (who might have to deny violating a statute while simultaneously arguing that any violation was minimal); or be impractical (at least when the relevant facts are unknown or unknowable until the trial is completed). These arguments rehearse those made by the dissents in our prior Apprendi cases. Here, as there, they must be rejected. For even if these predictions are ac-curate, the rule the Government espouses is unconstitutional. That “should be the end of the matter.” Blakely, 542 U. S., at 313.

But here there is particular reason to doubt the strength of these policy concerns. Apprendi is now more than a decade old. The reliance interests that underlie many of the Government’s arguments are by this point attenuated. Nor, in our view, does applying Apprendi’s rule to criminal fines mark an unexpected extension of the doctrine. Most Circuits to have addressed the issue already embrace this position, as did the Government prior to Ice.  In light of the reasons given in this opinion, the dramatic departure from precedent would be to hold criminal fines exempt from Apprendi.

* * *

We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts—facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that “the finding of a particular fact” of this kind was ordinarily a matter for a judge and not necessarily “within ‘the domain of the jury.’ ” Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court’s contrary conclusion, I believe, is ahistorical and will lead to increased problems of unfairness in the administration of our criminal justice system. . . .


This case involves sentencing facts, not elements of a crime. The criminal statute at issue constitutes one part of the Resource Conservation and Recovery Act of 1976 (RCRA), which, among others things, authorizes the Environmental Protection Agency to create a list of hazardous wastes. 42 U. S. C. §6921. The criminal statute says:

“Any person who . . . knowingly treats, stores, or disposes of any hazardous waste identified or listed under [RCRA] . . . without [an RCRA-authorized] permit . . . shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed . . . five years . . . , or both.” §6928(d)(2)(A).

No one here denies that this statute creates a crime with four elements: (1) knowing treatment, storage, or disposal of a waste (2) that is hazardous, (3) without a permit, and (4) knowing that the waste has a substantial potential of causing harm to others or to the environment.

The number of “day[s] of each violation,” however, is not an additional element of the crime. The statute says that the number of days becomes relevant only “upon conviction” of the crime as previously defined. Moreover, the number of days is relevant to application of only one of two kinds of punishment that the statute mentions (fine and imprisonment); one cannot easily read this statute as creating two separate crimes identical but for the punishment. Finally, Congress did not include here, as it sometimes has done, statutory words such as “each day of violation shall constitute a separate offense.” E.g., 47 U. S. C. §223(b); see also 42 U. S. C. §4910(b). Rather, as in many other similar statutes, the statute here sets forth the crime and kinds of punishments (fine and imprisonment), while separately specifying facts that determine the maximum punishment of one kind (fines).

In this particular case, the indictment set forth a violation period of 762 days (from “on or about September 19, 2002 until on or about October 19, 2004”). App. 104. The jury’s guilty verdict did not specify the number of days on which the defendant committed the offense. Id., at 141. But after the conviction and sentencing hearing, the judge found that, among other things, the “clear and essentially irrefutable evidence” at trial supported the conclusion set forth in the presentence report, namely, that the maximum fine available amounted to $50,000 per day for 762 days—or $38.1 million. The judge imposed a fine of $6 million along with a $12 million community service obligation.


Apprendi says that “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.” 530 U. S., at 490. The number of days (beyond one) on which the defendant violated this criminal statute is such a fact. Nonetheless, like the majority, I believe that Apprendi’s rule does not automatically control the outcome in this case.

That is because this case concerns a fine, not, as in Apprendi, a term of imprisonment. And we made clear in Oregon v. Ice, 555 U. S. 160, that Apprendi does not encompass every kind of fact-related sentencing decision that increases the statutory maximum. In Ice, we considered Apprendi’s application to a sentencing decision about whether two prison sentences for conviction of two separate crimes ( e.g., illegal drug possession and illegal gun possession) would run concurrently or consecutively. 555 U. S., at 163. An Oregon statute required a concurrent sentence unless the sentencing judge found certain facts. Id., at 165. Those facts could make a large difference in a term of imprisonment. Their presence could mean that a 5-year sentence for illegal drug possession and a 5-year sentence for illegal gun possession would amount to 10 years of imprisonment rather than 5 (indeed, in Ice itself, the judge’s factfinding increased the sentence by 20 years, see id., at 166, and n. 5). Thus, the presence of those “fact[s]” could “increas[e] the penalty” beyond what would otherwise be “the prescribed statutory maximum.” Id., at 167 (internal quotation marks omitted). Nonetheless, we held that the Sixth Amendment permitted a judge—it did not require a jury—to make that factual determination. Id., at 164.

We consequently concluded that Apprendi does not encompass every kind of fact-related sentencing decision that increases the statutory maximum. In doing so, we wrote that the “animating principle” of Apprendi’s rule “is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” 555 U. S., at 168. And we refused to extend Apprendi’s rule to a new category of sentence-related facts for two basic reasons.

First, we considered a historical question, namely, whether “the finding of a particular fact was understood as within ‘the domain of the jury . . . by those who framed the Bill of Rights.’ ” 555 U. S., at 168 (quoting Harris, 536 U. S., at 557). And we read the “historical record” as showing that “in England before the founding of our Nation, and in the early American States,” the jury “played no role in the decision to impose sentences consecutively or concurrently.” 555 U. S., at 168–169 (footnote omitted). Rather, that decision “rested exclusively with the judge.” Id., at 168.

Second, recognizing that “administration of a discrete criminal justice system is among the [States’] basic sovereign prerogatives,” we considered the need to “respect . . . state sovereignty.” We expressed concern lest application of Apprendi to this kind of decision inhibit state legislative efforts to establish a fairer sentencing system by helping to bring about more uniform sentencing. Ice, 555 U. S., at 171. We concluded that “[n]either Apprendi nor our Sixth Amendment traditions compel straitjacketing the States” in this respect.

This case presents another new category of fact-related sentencing decisions, namely, decisions about the amount of a fine. Thus, as the majority recognizes, we must begin with a historical question. Who—judge or jury—found the facts that determine the amount of a criminal fine “in England before the founding of our Nation, and in the early American States?” Ice, supra, at 169 (footnote omitted). Unlike the majority, I believe the answer to this question is that, in most instances, the judge made that determination. . . .


The upshot is that both 18th-century English common law and 18th-century American law typically provided judges with broad discretion to assess fines. The judge, not the jury, would normally determine fine-related sentencing facts. In this respect, ordinary 18th-century sentencing practice related to fines was unlike sentencing practice in respect to felonies. In the latter case, in Apprendi’s view, punishment was normally “fixed” and the judge’s sentencing role was consequently minimal. 530 U. S., at 478–480. In the former case, namely fines, the judge’s role was not normally minimal, but the opposite. For these reasons, I believe that allowing a judge to determine sentencing facts related to imposition of a fine does not invade the historic province of the jury. The historical test that we set forth in Ice is satisfied.


. . . In the 1950’s and thereafter, States as well as the Federal Government recognized a serious problem in respect to the sentencing of corporations. Fines, imposed as a punishment upon corporate offenders, were both nonuniform (treating identical offenders differently) and too often they were set too low. Judges would frequently fine corporations in amounts that failed to approximate the harm a corporation had caused or the gain that it had obtained through its illegal activity, both because often the statutory maximums were low and because often the fines imposed tended to be substantially lower than those maximums. Consequently, the authors of the Model Penal Code adopted a model provision stating that, in respect to offenses involving financial gain, a court could impose an alternative “higher” fine “equal to double the pecuniary gain derived from the offense by the offender.” Model Penal Code §6.03(5), 10A U. L. A. 259 (2001). New York soon thereafter adopted such a provision. N. Y. Penal Law Ann. §80.10(2)(b) (West 2009). And other States followed New York’s example with similar provisions permitting judges to set fines equal to twice the gain to the offender or twice the loss to the victim, thereby helping to diminish disparity while helping potential victims by increasing deterrence. E.g., Conn. Gen. Stat. Ann. §53a–44 (West 2007); Fla. Stat. §775.083(1)(f) (2010). Many of these statutes say in particular that the “court” shall make the finding of gain or loss, in a separate hearing if necessary. E.g., N. Y. Penal Law Ann. §80.00(3) (West 2009); N. J. Stat. Ann. §2C:43–3(e) (West 2005).

The Federal Government followed suit. In some instances, such as RCRA, where environmental harm likely varies with the length of the violation period, Congress advanced its uniformity and deterrence goals by tying a dollar-limited fine to the length of time during which that violation took place. 42 U. S. C. §6928(d)(2)(A). In other instances, it did so through a new general gain-or-loss provision, applying to all offenses, including such crimes as corporate fraud, antitrust violations, and environmental pollution. That provision says:

“ALTERNATIVE FINE BASED ON GAIN OR LOSS.—If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.” 18 U. S. C. §3571(d).

To apply Apprendi’s rule to the fines set forth in such statutes, no less than in Ice, would weaken or destroy the States’ and Federal Government’s efforts “to rein in the discretion judges possessed at common law,” Ice, 555 U. S., at 171, over fines. Congress, in enacting such statutes, expected judges, not juries, to determine fine-related sen- tencing facts because doing so will often involve highly complex determinations. Where, say, major fraud is at issue, the full extent of the loss (or gain) may be unknown at the time of indictment or at any other time prior to the conclusion of the trial. And in an antitrust or an environmental pollution case, the jury may have particular difficulty assessing different estimates of resulting losses.

The consequence of the majority’s holding, insisting that juries make such determinations, is likely to diminish the fairness of the criminal trial process. A defendant will not find it easy to show the jury at trial that (1) he committed no environmental crime, but (2) in any event, he committed the crime only on 20 days, not 30. Moreover, the majority’s holding will sometimes permit prosecutors to introduce newly relevant evidence that would otherwise have been kept from the jury on the ground that it was cumulative or unduly prejudicial. If victims’ losses are relevant, the prosecutor may be able to produce witness after witness testifying only about the amount of life savings lost to the fraud. The defendant in this case, for example, thought the introduction of evidence about the discovery of mercury and remediation and evacuation of a nearby apartment complex was unduly prejudicial. But even if that were so, that evidence might now be admitted as showing the amount of harm caused or the number of days upon which the defendant’s unlawful activity took place.

Administrative problems here may prove more serious than where, as in Apprendi, prison terms were at stake. In part, that is because corporate criminal cases often focus upon complex frauds, criminal price fixing, extended environmental pollution, food-and-drug safety violations, and the like. Both Congress and the Sentencing Commission have recognized as much. The federal criminal fine statute to which I earlier referred specifically creates an exception where assessing total loss or gain “would unduly complicate or prolong the sentencing process.” 18 U. S. C. §3571(d). Similarly, Sentencing Guidelines applicable to corporations exclude fine provisions for environmental crimes (along with most crimes involving export violations, food-and-drug safety, agricultural-and-consumer products, and RICO violations) because of the “potential difficulty . . . of defining and computing loss.” Nagel & Swenson, supra, at 256; see USSG §8C2.1, and comment., §8C2.10. Where the defendant is a human being, the Government can avoid problems of proof simply by abandoning any effort to obtain a fine; instead, perhaps to the individual defendant’s dismay, the prosecution can seek a longer prison term. Where the criminal defendant is a corporation, however, no such possibility exists.

If, as seems likely, it becomes too difficult to prove fine-related sentencing facts to a jury, legislatures will have to change their statutes. Some may choose to return to highly discretionary sentencing, with its related risks of nonuniformity. Others may link conviction with fines specified in amount, rather like the 10th-century pre-Norman system of three cows for perjury or more modern mandatory minimum penalties. As Blackstone pointed out, those systems produce sentences that are not proportionate; they tend to treat alike offenders who committed the same crime in very different ways. See 4 Blackstone 371–372.

The majority believes that 10 years of experience with Apprendi “attenuate[s]” any legal claim of reliance on different rule of constitutional law here. Perhaps so. Perhaps that experience shows that Apprendi’s jury trial requirement is workable. But there is another less optimistic possibility.

Perhaps that experience, like the canary in a mine-shaft, tells us only that our criminal justice system is no longer the jury-trial-based adversarial system that it once was. We have noted that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” have added that today “ ‘plea bargaining” is “not some adjunct to the criminal justice system; it is the criminal justice system.’ ” And in such a system, complex jury trial requirements may affect the strength of a party’s bargaining position rather than the conduct of many actual trials.

At the same time, the prosecutor in such a system, perhaps armed with statutes providing for mandatory minimum sentences, can become the ultimate adjudicator. The prosecutor/adjudicator plays an important role in many “European inquisitorial” systems. But those prosecutors, unlike ours, typically are trained formally to be more like neutral adjudicators than advocates. Today’s holding, by unnecessarily complicating the trial process, may prove workable only because it nudges our system slightly further in this direction. I see no virtue in doing so.

For these reasons, with respect, I dissent.


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