The U.S. Supreme Court recently gave more responsibility to juries in the calculation of fines for environmental criminal violations and increased the burden on prosecutors. In Southern Union Co. v. United States, No. 11-94 (June 21, 2012), the Court expanded to criminal fines the holding of Apprendi v. New Jersey, which provided that 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.
Southern Union is a natural gas distributor, whose subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. Youths from a nearby apartment complex broke into the facility, played with the mercury, 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. Southern Union was prosecuted for, among other things, allegedly knowingly storing liquid mercury without a permit at the Pawtucket facility “[f ]rom on or about September 19, 2002 until on or about October 19, 2004,” in violation of the Resource Conservation and Recovery Act of 1976 (RCRA). A jury convicted Southern Union on this count following a trial; the verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury “on or about September 19, 2002 to October 19, 2004.
RCRA violations are punishable by “a fine of not more than $50,000 for each day of violation.” 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. The District Court ruled that Apprendi applied but also 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 obligation” of $12 million. On appeal, the First Circuit Court of Appeals upheld the sentence on different reasoning: that Apprendi does not apply to criminal fines. The U.S. Supreme Court granted certiorari to resolve the issue of whether Apprendi applied to criminal fines.
The Sixth Amendment provides as follows: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Interpreting the Sixth Amendment, the U.S. Supreme Court held in Apprendi and cases that followed that criminal sentences must be based upon the jury’s findings of fact:
“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 admittedby 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.”
The Southern Union Court ultimately held that the rule in Apprendi applied to criminal cases in which fines (not prison time) would be the sentence, as is often the case in environmental criminal cases. The Court saw “no principled basis . . . for treating criminal fines differently” from imprisonment, because Apprendi‘s “core concern” is to “reserve to the jury ‘the determination of facts that warrant punishment for a specific statutory offense’.” That concern, the Court held, applies whether the sentence is a criminal fine or imprisonment or death. For each of those three criminal sentences, “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.’”
What will be the impact of Southern Union? In the environmental criminal context, a prosecutor must now convince a jury, beyond a reasonable doubt, that a defendant criminally violated an environmental statute on each day for which the Government seeks a criminal fine. This will make the case more complicated and increase the burden on prosecutors. This will also give defendants a way to narrow the potential fine that could be assessed by the judge.
An interesting issue will arise immediately on remand: will the District Court order a new trial, or will it affirm its previous ruling that the jury found a 762-day violation? My guess is that the District Court will order a new trial, but that remains to be seen.
Stay tuned to the Illinois Environmental Law Blog for more news and developments. To subscribe to this blog and sign up for my free newsletter, go to http://illinoisenvironmentallaw.com/subscribe/. To set up a free initial consultation to discuss your legal matter, please contact Chicago environmental attorney Dave Scriven-Young at (312) 239-9722 or firstname.lastname@example.org.