Argument recap: Jury determination of facts supporting fines? And restitution? And forfeiture?

Southern Union was fined a little over $18 million after the jury returned a general verdict convicting it of a felony under the Resource Conservation and Recovery Act.  The statute provided for a fine of $50,000 per day of violation.  The jury was not asked to determine the number of days that Southern Union had violated the law; the judge then determined that the violation had occurred for 762 days, the range alleged in the indictment.  The issue is whether determination of the days of violation should have been made by the jury pursuant to the so-called Apprendi rule:  “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.”  At oral argument on Monday, March 19, the Court’s questions alternated frequently among a small group of focal issues.

Central to resolving the question is Oregon v. Ice, where the Court declined to apply Apprendi to the imposition of consecutive sentences for two separate convictions. Arguing on behalf of Southern Union, Carter Phillips insisted that multiple offenses present an entirely different problem, distinguishing Ice; he urged the Court to apply Apprendi and limit Southern Union’s sentence to a fine based on one day’s violation. Deputy Solicitor General Michael R. Dreeben asserted that the United States is not asking the Court to reconsider the Apprendi rule, but urged that the analysis in Ice set limits on the extension of the rule to new situations and prevents Apprendi’s application to fines.

Some of the Justices searched for a way to tie the sentence to the jury’s verdict or to support a finding of waiver, but these attempts were half-hearted, and most of the argument addressed the merits according to the playbook established by Apprendi and Ice.  (Ice contains dictum suggesting that the Court might also decline to apply Apprendi to fines, but questions posed to Dreeben suggest that this dictum will not be influential.)

History and Tradition.  Sentencing history was crucial to the analysis in Apprendi and Ice, and so several Justices searched for a definitive historical view of the judge’s role in imposing fines.  Justices Breyer, Alito, and Kagan seemed sympathetic to an interpretation supporting the government’s position, while Justices Scalia and Sotomayor seemed more open to the opposite view. But in posing questions, Justices Breyer and Scalia assumed that the history is ambiguous, and Justice Sotomayor expressed outright her view that it is. A firm commitment to a clear historical vision did not emerge on either side.

Ease of Administration. The challenge of implementing jury fact finding was an issue in both   Apprendi and Ice, and it was a recurring theme at oral argument here. Some of the Justices asserted that jury fact finding would be easy to administer in the case of fines that are levied per day, for example through special verdicts or separate counts. However, Justice Breyer suggested that the Apprendi rule would present problems for defendants who wanted to argue both that they had not committed the offense and that, if they had, they had only committed it for a few days.  Phillips replied that the defense could waive jury trial or make strategic decisions in a case where such a dilemma would arise. At a later point in the argument, raising complications on the other side, Chief Justice Roberts pointed out that if Apprendi applies to imprisonment but not to fines, problems might occur when the increase in each is based on the same facts. Mr. Dreeben surmised that courts would interpret such a statute to require a jury determination of the facts at issue. The Chief Justice observed, however, that in finding facts, judges are constrained by reason in a way that juries are not, and he suggested that such jury freedom is part of the protection provided by the right to jury trial.  Dreeben replied that the Court assumes that the jury is rational, and it does not recognize “jury nullification as a constitutionally protected right.” However, picking up on the differences between judge and jury later in the argument, Justice Scalia pointed out that the judge, with using a preponderance standard applicable to fines, could second-guess facts that the jury had rejected on the ground that they had not been proven beyond a reasonable doubt.

Some members of the Court were also concerned about extending the Apprendi rule beyond per-day fines, in particular to fines based on the value of the gain to the defendant or the loss to victims. One issue involves possible difficulty in ascertaining the facts before trial, and the attorneys disagreed on whether such obstacles present a serious problem. Justice Breyer added that in 18 U.S.C. § 3571(d), Congress acknowledged that establishing the value of profit or loss might be too complex even for judges.  Phillips responded that the Constitution sometimes requires toleration of complexity.  But Justice Breyer suggested that complexity is relevant to the question of what the Constitution does, in fact, require. When Justice Ginsburg raised the issue of complexity again on rebuttal, Phillips argued that the experience of many states and the Antitrust Division, which have applied Apprendi to fines, suggests that prosecutors and juries can handle the issues effectively.

A related issue is just how far an extension of Apprendi would have to go.  Justice Sotomayor suggested that it would be difficult to extend Apprendi to fines but not to restitution. Phillips countered that restitution falls outside the scope of Apprendi; lower courts agree that it is not “punishment,” and besides, its indeterminate nature takes it outside Apprendi’s scope.  But Sotomayor pointed out that the number of days and the value of loss are also indeterminate.  And Dreeben argued that the Court’s precedent treats restitution as a criminal penalty.  He also suggested that any extension of Apprendi would also have to apply to forfeitures.

Broader Issues of Justice.  Justice Scalia, in particular, took care to establish that the rule adopted by the Court would apply to individuals faced with fines as well as to corporations.  He pointed out that large fines can result in impoverishment and that facts relevant to fines are “very important.” Indeed, Chief Justice Roberts noted, a fine can sometimes be “more serious than . . . time in prison.”  Several Justices also questioned the broader constitutional implications posed by the fines issue.  The right to jury trial applies for crimes punishable by more than six months’ imprisonment, so do corporations (which cannot be imprisoned) have a right to a jury trial at all?   Similarly, the right to counsel applies in misdemeanors only when the court actually imposes imprisonment, so do corporations have a right to counsel in misdemeanor cases? Is liberty, in the sense of freedom from incarceration, of a different constitutional order than property, regardless of the amount of the fine?  Some Justices, at least, seemed skeptical of the difference.

The Bottom Line. Assuming a lack of consensus on the lessons of history, the Court will have to resolve the tensions between the type of justice provided by jury fact finding and the administrative complexities of extending that protection to imposition of fines.  Court observers who try to count votes may have a difficult time predicting the outcome.  Justice Breyer, who dissented in Apprendi, opposed the extension of that rule to the Federal Sentencing Guidelines in United States v. Booker and supported the restriction imposed in Ice.  Not surprisingly, he seemed sympathetic to the limiting concerns that emerged at oral argument.  Justices Scalia and Thomas have been consistent supporters of the Apprendi principle; not surprisingly, Scalia seemed open to reasons for extending it to fines.  Justice Kennedy sided with Breyer in Apprendi, Booker, and Ice, but at oral argument he appeared to be searching for a guiding principle. Justice Ginsburg has come out on both sides of the issue, depending upon the context (imprisonment for a single offense in Booker versus consecutive sentence for multiple offenses in Ice). The Chief Justice and Justice Alito were on opposite sides in Ice, and Justices Sotomayor and Kagan joined the Court after Ice was decided.  At the end of the argument, it remained unclear whether the Court would extend the Apprendi rule, decline to do so, or find a principle that limits Apprendi’s extension to some, but not all, property-based penalties.