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October 3, 2012

"A Demise Greatly Exaggerated — Apprendi Is Extended to Criminal Fines"

The title of this post is the title of this notable new piece authored by David Debold and Matthew Benjamin appearing in a recent issue of Bloomberg BNA’s Criminal Law Reporter.  The piece discusses the Supreme Court's Sixth Amendment work last Term in Southern Union, and here are two notable paragraphs from the piece's introduction:

Although relatively straightforward in its reasoning, the Southern Union holding has potentially farreaching consequences.  As Apprendi and later cases did with respect to sentences of imprisonment or death, Southern Union will strengthen the relative bargaining position of criminal defendants in plea negotiations over fines.  This is particularly true for corporations and other organizational defendants, for whom the most potent available punishment is a large fine and for whom the most likely resolution of criminal misconduct allegations is a settlement agreement.

Southern Union also can be expected to usher in new battles regarding the admissibility at trial of evidence that the decision now makes relevant to establishing a defendant’s maximum fine.

Finally, Southern Union suggests that the court — including its two newest members, Justices Sonya Sotomayor and Elena Kagan, both of whom joined the majority — is firmly committed to Apprendi and may consider recognizing that its constitutional protection extends to another financial penalty in criminal cases: restitution.  In short, reports of Apprendi’s possible demise — which started circulating after the court’s 2009 decision in Oregon v. Ice — appear to have been greatly exaggerated.

October 3, 2012 at 02:28 PM | Permalink


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