Earlier this summer, in Southern Union Co. v. United States (No. 11-94), the Supreme Court seemed to reverse course yet again in its on-and-off revolution in the area of jury-trial rights at sentencing. The revolution began with Apprendi v. New Jersey (2000), which held that a jury, and not a judge, must find the facts that increase a statutory maximum prison term. The revolution seemed over two years later, when the Court decided in Harris v. United States that no jury was required for mandatory minimum sentences. But, another two years after that, in Blakely v. Washington, the revolution was back on, with the Court extending Apprendi rights to sentencing guidelines. Blakely was especially notable for its hard-nosed formalism: Apprendi was said to have created a bright-line rule firmly grounded in the framers’ reverence for the jury; we are not in the business, declared Justice Scalia for the Blakely majority, of carving out exceptions to such clear rules in the interest of efficiency or other contemporary policy concerns.
Then came Oregon v. Ice in 2009, which seemed to signal that the Court had again grown weary of the revolution.
Holding that judges may find the facts that are necessary to support consecutive, in lieu of concurrent, sentences, the Ice Court emphasized administrability concerns and indicated a desire to support state experimentation in the sentencing field. Scalia sourly, but not unfairly, observed:
The rule of Apprendi is clear: Any fact—other than that of a prior conviction—that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since. The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases.
Now, Southern Union, with Scalia in the majority, seems a return to the spirit of Blakeley and an implicit repudiation of Ice.
In Southern Union, the Court extended the Apprendi jury-trial right to facts that increase the amount of a fine that a defendant faces. Southern Union was convicted of criminal environmental violations in federal court. Under the governing statute, the company then faced a fine of not more than $50,000 for each day it was in violation. The sentencing judge determined that the violations extended for 762 days, which exposed Southern Union to a fine of up to $38.1 million; the actual fine imposed was $6 million, along with a community service obligation of $12 million. This, the Supreme Court held, was improper; Southern Union was entitled to a jury determination of how many days it was in violation.
Justice Sotomayor’s opinion for the majority sounded much like Scalia’s dissent in Ice, treating the case as a straightforward application of a clear, historically established rule:
Apprendi’s rule is “rooted in longstanding common-law practice.” Cunningham v. California, 549 U. S. 270, 281 (2007). It preserves the “historic jury function” of “determining whether the prosecution has proved each element of an offense beyond a reasonable doubt.” Oregon v. Ice, 555 U. S. 160, 163 (2009). We have repeatedly affirmed this rule by applying it to a variety of sentencing schemes that allowed judges to find facts that increased a defendant’s maximum authorized sentence. . . .
While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis under Apprendi for treating criminal fines differently. Apprendi’s “core concern” is to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense.” Ice, 555 U. S., at 170. That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America. They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 U. S., at 168. In stating Apprendi’s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]”—terms that each undeniably embrace fines. (3-5)
Although the Court cited Ice a few times, it gave very short shrift to the practical concerns that had been relied on by Ice and that were urged by the Southern Union dissenters. Indeed, Justice Breyer, writing in dissent, could quite justifiably claim that his views were based “primarily upon Ice.” He emphasized the importance of flexible fine-stetting procedures for corporation-defendants, who cannot be imprisoned and whose crimes often involve complex regulatory violations whose scope and impact are difficult for juries to sort out.
Although Southern Union does not overturn Ice, it does suggest that the pragmatic approach of Ice to jury rights at sentencing does not command a stable majority on the Court. This may have important implications for future cases, particularly those involving other sorts of nonincarcerative punishments. From the start of the Apprendi revolution, one of the big questions has been what impact it would have on the wide range of nonincarcerative sanctions used in criminal cases. Southern Union tells us that punishment is punishment–it’s all the same for Apprendi purposes. (At the same time, though, the Court did make a nod to pre-Apprendi cases that carved out an exception to jury-trial rights for “petty crimes”–sorting out the precise scope of this exception may become an important focus of litigation after Southern Union.)
What caused the change from Ice to Southern Union? A shift in personnel may have contributed to the switch. Justice Stevens sided with Breyer in the Ice majority, but his successor, Justice Kagan, sided with Scalia in the Southern Union majority. But, even without Kagan, Scalia probably would have had his majority in Southern Union anyway–the final vote was 6-3. The other “flip” was from Justice Ginsburg–the only justice who was in the majority in both cases. It’s hard to know how she would reconcile those votes because she did not write in Southern Union.
Ginsburg’s position here recalls her (also unexplained) flip between the Scalia and Breyer camps in United States v. Booker, which applied Blakely to the federal sentencing guidelines. She is apparently not a purist either in favor of or in opposition to the Apprendi revolution, but makes fine-grained distinctions on a case-by-case basis. If she continues to serve as a key swing vote in Apprendi cases, the revolution seems likely to continue on its unpredictable path.
On the other hand, if the Southern Union votes of Kagan and Sotomayor–the Court’s newest members–indicate that they are firmly in the Scalia camp (along with Thomas and Roberts), then Ginsburg’s flip-flops may no longer matter.