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March 19, 2012
Report on Southern Union argument suggests SCOTUS will apply Apprendi to fines
This AP report on today's oral argument in Southern Union, the Apprendi fines case before the US Supreme Court, indicates that "several justices sounded skeptical of the government's case for upholding the penalty against Texas-based Southern Union Co. over its improper storage of mercury in a building in Pawtucket." Here is more from the press account:
Unlike other Supreme Court disputes involving corporations, this case does not appear to divide the justices along ideological lines. In the sentencing cases, conservative Justice Antonin Scalia has been the most forceful advocate for reining in judges and requiring juries to find any facts that could lead to a longer sentence.
Scalia said he sees the Southern Union case as a logical extension of the court's earlier rulings. He said it would be odd to require a jury to establish facts that lead to even the shortest jail term, yet give judges freedom to decide on fines that "will make a pauper of you."
But another conservative justice, Samuel Alito, seemed more open to the administration's argument. Alito, a former prosecutor, has been more supportive of the government's side in sentencing cases.
Joyfully, we can all now read the oral argument transcript ourselves in Southern Union because it is now posted here at the Supreme Court's official website. I hope to have time later today to read and provide further comments on the full argument.
Some recent related posts:
- SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union
- Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation
- Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines
- How might newer Justices take on Apprendi jurisprudence in Southern Union?
- Seeking early predictions on Southern Union (and Apprendi's future)
UPDATE: The transcript reveals every Justice played their expected role, with Justice Alito and Breyer continuing to have a very hard time accepting Apprendi and Justice Scalia continue to stress its import. I expect there are five votes (and perhaps more) for Southern Union to prevail, but I also expect we will see a narrow opinion in order to garner the most votes and reduce multiple opinions.
March 19, 2012 at 03:14 PM | Permalink
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Comments
"MR. DREEBEN: ... This Court in United States v. Watts has recognized that judges can find facts that the jury may have rejected under the higher standard.
JUSTICE SCALIA: That is the whole problem. That is indeed the whole problem."
Posted by: anon | Mar 19, 2012 3:32:41 PM
Quick question, does Apprendi apply to Sentencing Guidelines enhancements?
Posted by: NickS | Mar 19, 2012 4:01:01 PM
NickS:
No, the guidelines are advisory. "Other 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." Sentencing guideline enhancements cannot increase the statutory maximum. See, USSG 5G1.1(c)If an advisory guideline sentence is in excess of the statutory maximum, the statutory maximum becomes the maximum advisory guideline sentence. See, USSG 5G1.1(a)
Posted by: ? | Mar 19, 2012 4:49:30 PM
Doug, a very quick skim promises a lot of interesting reading in the quiet of the night.
As an aside, (or maybe as a crux of the matter) your caption contributes to the confusion over this issue. I think rather than saying "does Apprendi apply to fines", the precise way to frame the issue is ,"Does Apprendi require that facts which establish the maximum fine which a judge can choose to impose be found by a jury"?
That is a completely different, and in my opinion, more accurate, statement of the issue.
bruce
Posted by: bruce cunningham | Mar 19, 2012 5:14:07 PM
?: Then what's to stop them from setting the maximum really high, the recommended really low, and the enhancements really high? That way they'd be able to claim the guidelines are reasonable while still being draconian.
Wait, they already do that...
Posted by: NickS | Mar 19, 2012 9:28:37 PM
Doug, here are some comments, but first a prediction. Six to two for Southern Union, with Alito and Breyer dissenting. Ginsburg too close to call.
The highlight was Scalia's dagger thrust straight into Alito's heart.
"Alito: So if it's totally up to the discretion of the judge, that's fine. But if Congress enacts a statute that structures the fine and says, if this is the case then so much, if that is the case, then so much more, then you have a jury trial?
Phillips: Absolutely.
Alito: What sense does that make?
Scalia: Isn't that precisely what Apprendi said?"
----------------------------------------
Sotomayor: "I thought it was a fairly simple algorithm. It says if a judge's fact finding can increase the statutory penalty, then that's a violation of the Sixth Amendment."
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Roberts: "It's a very simple matter for the government to ask for jury findings on the question at issue in this case, right>"
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Thomas said, "........" and will vote with Scalia.
Breyer and Alito just can't bring themselves to accept Apprendi.
Bruce
Posted by: bruce cunningham | Mar 19, 2012 10:21:56 PM
