On June 21, 2012, the U.S. Supreme Court decided Southern Union Co. v. United States (No 11-94), holding that the Sixth Amendment guarantee of trial by jury applies to imposition of criminal fines, meaning that a jury must determine any fact necessary to increase a fine beyond the maximum a judge may impose based on the facts necessarily reflected in the jury's verdict or admitted by the defendant.

Southern Union Company was convicted of criminally violating the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d)(2)(A), by improperly storing mercury on its property. The indictment alleged that the improper storage occurred "on or about September 19, 2002 until on or about October 19, 2004." The statute authorized a fine of $50,000 per day of violation, and the probation office calculated a maximum fine of $38.1 million based on 762 days of violation. The district court rejected Southern Union's argument that the jury's general verdict required that it find only one day of violation, and it imposed a total of $18 million in fines and related monetary sanctions. The First Circuit affirmed, adopting Southern Union's argument that the jury's verdict required a finding of only one day's violation but holding that the Sixth Amendment did not apply to fines.

The U.S. Supreme Court reversed, holding that the Sixth Amendment applies to setting the amount of fines and requires a jury determination of any fact necessary to increase the fine beyond the amount the judge is permitted to impose based on facts implicit in the verdict or admitted by the defendant. This holding preserves the jury's historic function of determining whether the prosecution has proved every element of an offense beyond a reasonable doubt, the Court stated. In  Apprendi v. New Jersey, 530 U.S. 466 (2000) and other cases, the Court had already applied the Sixth Amendment to determinations of facts allowing a judge to increase a maximum authorized penal sentence, and the Court found no principled basis to distinguish the amount of fines from the length of incarcerations. It rejected the government's contention that fines are less onerous than incarcerations and engaged in a lengthy historical discussion of the role of juries in determining facts on which fines were predicated.

Justice Sotomayor delivered the Court's opinion, which was joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, and Kagan. Justice Breyer dissented, joined by Justices Kennedy and Alito.

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