SUPREME COURT:

In hazardous-waste case, justices rule juries must decide criminal fines

The Supreme Court ruled today that a jury should get to decide how much a natural gas distribution company should have to pay in criminal fines for illegally storing mercury at a Rhode Island facility.

Split 6-3, the court found that juries, not judges, have to make factual findings that determine how much a criminal fine will be. That includes the question of how long a violation occurred in situations in which fines are imposed on a per-day basis.

The case, which involves a prosecution under the Resource Conservation and Recovery Act (RCRA), is likely to affect the way the government handles prosecutions of companies under a wide range of statutes, including other environmental laws such as the Clean Water Act.

Southern Union Co. was convicted of one violation of RCRA for storing mercury at a Pawtucket, R.I., site between 2002 and 2004.

A jury deliberated over the company's guilt. But U.S. District Judge William Smith of the District of Rhode Island did not ask for the jury's input when he imposed $18 million in fines and fees, a finding that was based in part on how many days the government said the mercury was illegally stored.

The company said the jury should also have decided how many days Southern Union was in violation of the law, citing a 2000 Supreme Court decision on the role of juries. Under RCRA, the company faced a financial penalty of up to $50,000 a day.

In today's ruling, the Supreme Court agreed with the company's argument.

Justice Sonia Sotomayor, writing for the majority, said the court had little option but to rule for Southern Union based on the 2000 Apprendi v. New Jersey ruling, in which the Supreme Court held that juries were responsible for deciding on any facts that lead to an enhanced criminal penalty.

Although previous cases dealt with terms of imprisonment or death sentences, "we see no principled basis under Apprendi for treating criminal fines differently," Sotomayor wrote.

The majority rejected the government's argument that fines do not lead to a deprivation of liberty, which Apprendi was primarily concerned with.

As Sotomayor said, "Not all fines are insubstantial and not all offenses punishable by fines are petty."

Justice Stephen Breyer wrote a dissenting opinion, in which he was joined by Anthony Kennedy and Samuel Alito. He reiterated observations made at the oral argument about the historical tradition of judges imposing fines without the assistance of juries (Greenwire, March 19).

In English common law, historical evidence suggests people "would not have expected" the right to jury trial "to include determination of sentencing facts relevant only to the imposition of a fine," Breyer wrote.

Carter Phillips, the veteran Supreme Court advocate at Sidley Austin who argued the case for Southern Union, said the ruling "is important to corporations charged with criminal offenses" because fines are the only way they can be punished.

In the future, prosecutors "will have to prove to the jury all of the facts necessary to justify the magnitude of a particular fine," he added.

The case would therefore affect other prosecutions under environmental statutes. Most of those cases do not end up going to trial, but, as Phillips noted, the Supreme Court's decision "will affect the plea process by imposing more of a burden on the government to prove the size of the fine and thus should make it easier for defendants to reach an agreement on more favorable terms."

In the context of environmental violations, "it may be more difficult to obtain large fines, because it may be difficult for the government to prove specific days when violations occurred," said former environmental crimes prosecutor David Uhlmann, a law professor at University of Michigan Law School.

Click here to read the ruling.