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November 28, 2011

SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union

Sentencing fans have their SCOTUS cups running over this morning: in addition to the cert grants on a pair of cases dealing with the application of the statutory crack sentences in Dorsey and Hill (basics here), the Supreme Court also grant cert on a long-simmering Apprendi issue: namely whether standard of proof jury trial rights set forth in Apprendi and its progeny apply to the imposition of criminal fines.   This issue is to be reviewed in Southern Union Company v. United States, No. 11-94.  Wowsa!

With the juve LWOP homicide cases of Jackson and Miller to give more content to the Eighth Amendment, and now this Southern Union case to further unpack the meaning and reach of Apprendi and Blakely, the current SCOTUS Term is shaping up to be huge for sentencing fans.  Can you tell I am already giddy with anticipation?

P.S.: On the Sixth Amendment front, the Supreme Court also granted cert today on a case dealing with the application of harmless error review for the admission of hearsay statements in a case named Vasquez v. US.  I am not sure Vasquez has any likely sentencing bite, but I am sure the Justices seem interested in resolving a significant number of criminal justice issues this Term.)

November 28, 2011 at 10:33 AM | Permalink


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J. Alito's head just might explode. Who does he side with? The pro-business holding (i.e. the entities most concerned about fines, see the amicus brief filed by Chamber of Commerce), or the pro-government holding (i.e. limiting Apprendi's and the Sixth Amendment reach)?

I bet Alito will really lose sleep over this one where his result-orientedness in favor of government criminal prosecutions and in favor of big business contrast. I feel bad for the guy.

Posted by: anon | Nov 28, 2011 1:16:27 PM

If Apprendi applies to fines, and the failure to buy health insurance leads to the imposition of a fine, then does that potentially lead to some really strange jury trials for failure to purchase health insurance?

Posted by: Scott | Nov 28, 2011 2:43:31 PM

I think the answer to your question, Scott, is that the issue in Southern Union deals with "criminal fines" (i.e. penalties that are imposed after being found guilty of a crime), while the fine found in AHCA does not require a conviction or criminal violation.

Posted by: anon | Nov 28, 2011 3:36:53 PM

Not sure that I disagree. But is this issue so easy as to be decided by simply saying that it is a fine with no conviction? In Bagwell v. UMW (1994 I think) the Court said that civil contempt fines that were criminal (they could not be purged) required criminal due process.

Posted by: scott | Nov 28, 2011 3:47:27 PM

this seems like an easy issue, if one accepts the proposition that Apprendi is about "what is a crime" (as Thomas said in his Apprendi concurrence) rather than bestowing on the jury a constitutional role to play in the sentencing process. Fines have to do with sentencing, not with the definition of crimes.

As is no secret on the blog, I side with Scalia in his Ring v Arizona concurring opinion, "unfortunately, (for justice breyer) today's decision has nothing to do with jury sentencing."

I have said many times that Apprendi/Blakely is at bottom about whether there can be a bench trial for a greater offense following a jury trial for a lesser offense.


Posted by: bruce cunningham | Nov 28, 2011 5:55:17 PM


Nailed it (re J. Alito). LOL.

Posted by: britt | Nov 28, 2011 7:17:34 PM

Re criminal penalties (as in prison) for failing to buy health insurance, I know that the AHCA doesn't include them now, but Congress could certainly include them in the future. The Supreme Court has recognized sweepingly broad Commerce Clause authority to make things federal crimes. As long as the Commerce Clause authorizes Congress to require citizens to buy health insurance, Congress can make failure to do so a crime.

Posted by: tpart | Nov 28, 2011 7:24:05 PM

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