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January 17, 2012

Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines

All Apprendi/Blakely fans (and, for that matter, all Apprendi/Blakely haters) will want to check out this SCOTUS merits brief from the petitioner in Southern Union v. US, which was filed last week.  Here is the start of the brief's statement of the case

This case raises the question whether the principle that this Court recognized and applied to sentences of incarceration in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, applies equally to the imposition of criminal fines.  At the outset, the Court might wonder what the argument could be that the Apprendi principle does not apply to criminal fines, given that this Court’s explicit holding in Apprendi was that any fact that increases the “penalty” for a crime must be submitted to the jury and proved beyond a reasonable doubt, and criminal fines are unquestionably “penalties.”  Indeed, prior to the decision below, federal and state courts uniformly held (or assumed) that Apprendi applies to the imposition of criminal fines.  Even the United States agreed that the Apprendi principle applies to fines.

The decision below is the first to hold otherwise.  It did so based on the court of appeals’ view that this Court’s opinion in Oregon v. Ice, 555 U.S. 160 (2009), announced a whole new methodology that fundamentally narrowed the Apprendi doctrine and also suggested that a court can use non-jury fact-finding to impose a fine that exceeds the maximum fine set by the legislature, which is what happened in this case.  As shown below, this reading of Ice, a case which did not involve a criminal fine, is fundamentally flawed and ignores the fact that Ice was an exceedingly narrow ruling.  In particular, the court of appeals’ historical understanding was at a minimum incomplete, and in all events did not support its conclusion that fines are outside the scope of Apprendi.

This Court should reverse the court of appeals’ holding because it would deprive criminal defendants of their fundamental jury trial rights in cases involving fines, and should vacate the fine imposed in this case (which was 360 times greater than that authorized by the jury’s verdict).

Many hard-core Apprendi/Blakely fans were justifiably puzzled by Ice, and this new case presents the Court with its first opportunity to explain if and how Ice was meant to recast the Apprendi/Blakely Sixth Amendment rules.  Also, Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view Apprendi/Blakely Sixth Amendment rules, which could of course have profound long-term implications for all sorts of punishments beyond fines.

January 17, 2012 at 06:21 PM | Permalink

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Comments

Doug, I am curious about why you apparently do not distinguish between penalties and punishment.

Posted by: Tom McGee | Jan 18, 2012 1:18:08 AM

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