SUPREME COURT:

1994 shooting set up hazardous waste case now before justices

Early one morning in December 1994, Charles Apprendi fired several shots into the house of his new African-American neighbors in a previously all-white section of Vineland, N.J.

Within an hour of the shooting, Apprendi was under arrest and had admitted he was the gunman.

That was just the beginning.

Apprendi's legal battle, which went all the way to the Supreme Court, sent shock waves though the criminal justice system.

For some lawyers, the word "Apprendi" now denotes an area of the law focusing on the relative roles of judges and juries in sentencing.

That is why, 18 years after the shooting, a natural gas distribution company is citing Apprendi's case in hopes of avoiding an $18 million criminal penalty imposed for illegally storing mercury at a warehouse in Pawtucket, R.I.

The Supreme Court is set to hear Southern Union Co.'s argument Monday.

The legal issue in Southern Union v. United States is whether a jury has to play a role in deciding how much money the company should pay for violating the Resource Conservation and Recovery Act (RCRA). The mercury was stored on the site between 2002 and 2004.

Apprendi's case ended up hinging on a related issue of whether the judge decided a question that should have gone before the jury.

He won.

Southern Union is hoping for the same outcome.

Hate crime

It was a legal technicality that got Charles Apprendi to the Supreme Court.

In a statement given on the day of his arrest -- and later retracted -- Apprendi claimed to be motivated by racial bias, an admission that was to prove crucial because New Jersey has a hate crimes law that allows for sentences to be enhanced if there is proof the defendant was targeting a specific group.

Apprendi, who initially faced a 23-count indictment, made a deal with prosecutors in which he pleaded guilty to lesser offenses.

At the plea hearing, the judge found there was enough evidence to impose an enhanced sentence based on Apprendi's alleged racial bias. That took Apprendi's sentence above the maximum 10 years in prison that he thought he faced.

Apprendi objected, saying that under the due process clause of the Constitution, only a jury could decide whether he was guilty of racial bias.

The Supreme Court bought that argument when it ruled, 5-4, in Apprendi v. New Jersey that only juries can decide issues of fact that lead to an enhanced criminal penalty.

"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," Justice John Paul Stevens wrote in the majority opinion.

Douglas Berman, an expert on sentencing at Ohio State University's Moritz College of Law, said the ruling "challenged and changed the long-standing belief that judges were permitted to make any and all factual findings needed to justify various sentencing rulings."

The decision, in addition to a subsequent case that expanded on the holding, "forced many jurisdictions to revise or significantly rework the operation of their sentencing systems," Berman added.

Only a jury can decide

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA.

Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day.

The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product. The company maintained it had stored the mercury carefully and that it would eventually be recycled.

The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee.

Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals.

In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties. It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi.

A failure to reverse the appeals court "would deprive criminal defendants of their fundamental jury trial rights in cases involving fines," wrote the company's attorney, Carter Phillips of the Sidley Austin firm, in a brief.

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Ice ruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries.

"This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said.

Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."

Practical impact

Whatever the court rules, it is not likely to directly affect a large number of cases.

There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting.

"It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law.

Furthermore, in most criminal cases, the defendants enters a plea, and many courts already ask the jury to weigh in on the issue raised in the Supreme Court case, according to Jeffrey Fisher, a law professor at Stanford Law School who assisted on the amicus brief filed by the defense lawyers and the U.S. Chamber.

"In reality, if these cases go to trial, the factual issues are usually put to juries," Fisher said.

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendi was decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided.

As Scott put it, it is an "unusually difficult one to guess."

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