The U.S. Supreme Court has reversed a First Circuit decision that imposed an $18-million criminal fine under the Resource Conservation and Recovery Act (RCR A) on Southern Union Co., ruling 6-3 that the Sixth Amendment reserves to juries the determination of any fact, other than a prior conviction, that increases a criminal defendant’s maximum potential sentence. S. Union Co. v United States, No. 11-94 (U.S. 6/21/21).

A federal jury convicted defendant on one count of violating RCR A for having knowingly stored liquid mercury without a permit from September 19, 2002, to October 19, 2004. Under RCR A, knowing violations are punishable by a fine of not more than $50,000 per day of violation. 42 U.S.C. § 6928(d). At sentencing, the probation office calculated a maximum fine of $38.1 million, based on 762 days of violation. Defendant argued that imposing a fine of more than the one-day $50,000 penalty would violate his Sixth Amendment right under Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that the jury must decide the facts that increase a criminal defendant’s sentence. Here, according to defendant, the jury made no finding as to the duration of the violation. The district court imposed a fine of $6 million and $12 million in charitable contributions, although noting that it could have imposed a $38-million fine. On appeal, the First Circuit disagreed with the district court that the jury necessarily found a violation of 762 days, but upheld the $18-million penalty, ruling that Apprendi did not apply to criminal fines.  

According to the U.S. Supreme Court, Apprendi does apply to criminal fines and, under the Sixth Amendment, the jury must determine the relevant facts. In a dissenting opinion, Justice Stephen Breyer wrote that the Sixth Amendment permits a sentencing judge to determine sentencing facts that are relevant to the amount of the fine the judge will impose. Justices Anthony Kennedy and Samuel Alito joined Justice Breyer’s dissent.