« Muted version of "Caylee's Law" becomes reality in Florida | Main | "Breakthrough Science and the New Rehabilitation" »

March 9, 2012

How might newer Justices take on Apprendi jurisprudence in Southern Union?

A helpful e-mail from a reader reminded me that I have not blogged enough about the exciting Apprendi doctrine case that the Supreme Court will hear upon its return to oral argument action on March 19. The question presented in Southern Union v. US (SCOTUSblog coverage here) is simple enough: "Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines."  What is not simple is figuring out what the newer SCOTUS justices, particularly Justices Sotomayor and Kagan, think about the Supreme Court's somewhat tortured Apprendi jurisprudence and its application in this setting.

Notably, Chief Justice Roberts has been a consistent vote with those Justices inclined to expand Apprendirights (of which only Scalia and Thomas are still on the Court), as evidenced most clearly by his votes in Cunningham (with the majority) and Ice(with the dissent).  Meanwhile, Justice Alito has been a consistent vote with those inclined to limit Apprendi rights, as evidenced most clearly by his votes in Cunningham (with the dissent) and Ice(with the majority).  Justice Breyer and Kennedy have been consistent Apprendi haters, but maybe the doctrine will bother them less in this context.  And who knows what to expect of Justice Ginsburg in this arena in the wake of Booker and Ice.

Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view ApprendiFifth and Sixth Amendment rules.  If they both join the Roberts, Scalia, Thomas troika in Apprendi-land, Southern Union could possibly have profound long-term implications for all sorts of (financial and other) punishments beyond fines.

March 9, 2012 at 06:15 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference How might newer Justices take on Apprendi jurisprudence in Southern Union?:


"Justice Alito has been a consistent vote with those inclined to [rule against criminal defendants]"
But then again...
"Justice Alito has been a consistent vote with those inclined to [rule in favor of corporations and business]"
What's a Justice to do?

Posted by: anon | Mar 9, 2012 8:29:26 PM

Doug, it seems to me that Southern Union illustrates the difficulties that arise when folks do not differentiate between a penalty to which a defendant is EXPOSED, versus the penalty which is actually IMPOSED.

In my opinion, the statute provides for a fine UP TO $50,000.00 per day. It is a factual dispute how many days the violation continued. So, I think that before a defendant can be exposed to a fine in excess of $50,000.00, a jury must find the facts, other than recidivism in the form of repeat violations, which exposes Southern Union to the fine imposed by the judge. Which is how many days did the violation continue.

I don't think we should be talking in terms of "imposition of fines". We should be talking in terms of how much the def is exposed to in terms of the fine and as long as the jury finds all facts necessary to expose a defendant to a certain level of fines, a judge may decide where within that range a fine may be selected.

It is like this situation. Suppose Armed Robbery carries a sentence of up to ten years and the lesser offense of Common Law Robbery carries a sentence up to five years. The jury convicts a def of Common Law Robbery. The judge looks at the clerk and says "madam clerk, I believe the def used a gun, so I will find him guilty of Armed Robbery and sentence him to five years." Is there an Apprendi violation, since five years is within the range allowed for the crime the jury convicted the def of? Yes. Because the judicial factfinding increased the crime the def was convicted of, despite the fact that the sentence could have been imposed within the Blakely max for the crime which the jury convicted the def of.

Remember Thomas' great statement inApprendi about what Apprendi was about, "simply put" Apprendi is about "what is a crime?' As Scalia said in Ring, the decision had "nothing to do with jury sentencing.

So, I vote for Southern Union


Posted by: bruce cunningham | Mar 10, 2012 3:11:11 PM

This is a chance for the court to distinguish between a crime and offense. Apprendi will continue to be an enigma until they figure this out. We penalize people for committing crimes and punish them for committing offenses. Penalties are fixed by law before the fact at a time when the problem is not fully knowable. Punishments are fixed after the fact when the problem is fully knowable, but within a range that was established before the fact for the purpose of giving prior notice. In this case the fine was clearly a punishment, making Apprendi inapplicable. Penalties and punishments have different objectives

I doubt very much that the court will sort this out.

Posted by: Tom McGee | Mar 11, 2012 5:18:37 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB