First Circuit uses Ice to cool claim that Apprendi applies to fine fact-findings

Hard-core fans (or should I say foes) of the Sixth Amendment jurisprudence of Apprendi get a little holiday present from a panel of the First Circuit today in US v. Southern Union Company, No. 09-2403 (1st Cir. Dec. 22, 2010) (available here), wherein the court addresses "whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines."  Here is part of the panel's extended discussion of this issue:

Southern Union argues that the question of whether Apprendi applies is resolved by the plain language of the Supreme Court's opinion in that case, which states that the rule covers "any fact that increases the penalty for a crime" beyond the statutory maximum. Apprendi, 530 U.S. at 490 (emphasis added).  If Apprendi applies only to facts increasing terms of incarceration, and not to criminal fines, Southern Union argues, the Court's use of the broad word "penalty" becomes superfluous, and corporations, which cannot be incarcerated, are left outside Apprendi's protection....

The prosecution argues that both the reasoning and the express language in Oregon v. Ice, 129 S. Ct. 711 (2010), mean that Apprendi does not apply to criminal fines, which have historically been within the discretion of judges, and not assigned to juries for determination....

The prosecution argues that we should follow not only the method of historical analysis endorsed by Ice but also the opinion's express language about criminal fines. The Court made an express statement in Ice, albeit in dicta, that it is inappropriate to extend Apprendi to criminal fines.  Observing that many states permit judicial factfinding on matters "other than the length of incarceration," the Court explained that "[t]rial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution." Id. at 719.  The Court warned that applying Apprendi to these types of determinations "surely would cut the rule loose from its moorings."...

Even assuming fines are similar to sentences of incarceration, this argument misses the point of the analogy and the flow of the logic used by the Ice majority.  The historical record presented in Ice showed that at common law, judges chose within their unfettered discretion whether to impose consecutive or concurrent sentences, and consecutive sentences were the default rule. Ice, 129 S. Ct. at 717.  The prosecution here presents strong evidence of historic practice that at common law, judges' discretion in imposing fines was largely unfettered.  The Court in Ice specifically cautioned that it would be senseless to use Apprendi to nullify sentencing schemes in which legislatures have curtailed the discretion judges had at common law....

To the extent that excluding criminal fines from Apprendi requires a more restrained view of the rule's scope than did the Court's previous Apprendi-line decisions, it is the Supreme Court in Ice that has imposed the restraint.