SOUTHERN UNION COMPANY v. UNITED STATES

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–94

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SOUTHERN UNION COMPANY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the first circuit

[June 21, 2012]

Justice Sotomayor delivered the opinion of the Court.

The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000) ; Blakely v. Washington, 542 U. S. 296 (2004) . We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does.

I

Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Is-land. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mer-cury, and spread it around the facility and complex. The complex’s residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

In 2007, a grand jury indicted Southern Union on multiple counts of violating federal environmental statutes. As relevant here, the first count alleged that the company knowingly stored liquid mercury without a permit at the Pawtucket facility “[f]rom on or about September 19, 2002 until on or about October 19, 2004,” App. 104, in violation of the Resource Conservation and Recovery Act of 1976 (RCRA). See 90Stat. 2812, as amended, 42 U. S. C. §6928(d)(2)(A). A jury convicted Southern Union on this count following a trial in the District Court for the District of Rhode Island. The verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury “on or about September 19, 2002 to October 19, 2004.” App. 140.

Violations of the RCRA are punishable by, inter alia, “a fine of not more than $50,000 for each day of violation.” §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the ver-dict form listed only the violation’s approximate start date (i.e., “on or about”), and argued that the court’s instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require factfinding by the court, in contravention of Apprendi.

The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the “content and context of the verdict all together” that the jury found a 762-day violation. App. to Pet. for Cert. 46a. The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligatio[n]” of $12 million. App. 154.

On appeal, the United States Court of Appeals for the First Circuit rejected the District Court’s conclusion that the jury necessarily found a violation of 762 days. 630 F. 3d 17, 36 (2010). But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. 630 F. 3d, at 33–36. Other Circuits have reached the opposite conclusion. See United States v. Pfaff, 619 F. 3d 172 (CA2 2010) (per curiam); United States v. LaGrou Distribution Sys., Inc., 466 F. 3d 585 (CA7 2006). We granted certiorari to resolve the conflict, 565 U. S. ___ (2011), and now reverse.

II A

This case requires us to consider the scope of the Sixth Amendment right of jury trial, as construed in Apprendi. Under Apprendi, “[o]ther 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.” 530 U. S., at 490. The “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not “inflic[t] punishment that the jury’s verdict alone does not allow.” Id., at 304.

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. See Cunningham, 549 U. S., at 274–275 (elevated “upper term” of impris-onment); United States v. Booker, 543 U. S. 220 – 227, 233–234 (2005) (increased imprisonment range for defendant under then-mandatory Federal Sentencing Guidelines); Blakely, 542 U. S., at 299–300 (increased im-prisonment above statutorily prescribed “standard range”); Ring v. Arizona, 536 U. S. 584 –589 (2002) (death penalty authorized upon finding existence of aggravating factors); Apprendi, 530 U. S., at 468–469 (extended term of imprisonment based on violation of a “hate crime” statute).

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 differ-ently. 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. 1 They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. 2 And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is of-ten calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; 3 under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. 4 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. E.g., Blakely, 542 U. S., at 304; Apprendi, 530 U. S., at 490; Ring, 536 U. S., at 589.

The Government objects, however, that fines are less onerous than incarceration and the death sentence. The Government notes that Apprendi itself referred to the physical deprivation of liberty that imprisonment occasions, see 530 U. S., at 484, and that we have placed more weight on imprisonment than on fines when construing the scope of the Sixth Amendment rights to counsel and jury trial. See Blanton v. North Las Vegas, 489 U. S. 538 –543 (1989) (jury trial); Scott v. Illinois, 440 U. S. 367 –374 (1979) (counsel). Therefore, the Government concludes, fines categorically “do not implicate” the “primary concerns motivating Apprendi.” Brief for United States 23–25.

This argument fails because its conclusion does not fol-low from its premise. Where a fine is so insubstantial that the underlying offense is considered “petty,” the Sixth Amendment right of jury trial is not triggered, and no Apprendi issue arises. See, e.g., Muniz v. Hoffman, 422 U. S. 454, 477 (1975) ($10,000 fine imposed on labor union does not entitle union to jury trial); see also Blanton, 489 U. S., at 541 (no jury trial right for “petty” offenses, as measured by the “severity of the maximum authorized penalty” (internal quotation marks omitted)). The same, of course, is true of offenses punishable by relatively brief terms of imprisonment—these, too, do not entitle a defendant to a jury trial. See id., at 543 (establishing a rebuttable presumption that offenses punishable by six months’ imprisonment or less are petty); Duncan v. Louisiana, 391 U. S. 145 –162 (1968).

But not all fines are insubstantial, and not all offenses punishable by fines are petty. See, e.g., Mine Workers v. Bagwell, 512 U. S. 821 , n. 5 (1994) (criminal contempt fine of $52 million imposed on union “unquestionably is a serious contempt sanction” that triggers right of jury trial). The federal twice-the-gain-or-loss statute, in particular, see 18 U. S. C. §3571(d), has been used to obtain substantial judgments against organizational defendants. See, e.g., Amended Judgment in United States v. LG Display Co., Ltd., No. 08–CR–803–SI (ND Cal.), pp. 1–2 ($400 million fine for conviction of single count of violating Sherman Antitrust Act); Judgment in United States v. Siemens Aktiengesellschaft, No. 08–CR–367–RJL (D DC), pp. 1–2, 5 ($448.5 million fine for two violations of Foreign Corrupt Practices Act); United States Sentencing Commission, 2010 Annual Report, ch. 5, p. 38 (noting fine of $1.195 billion imposed on pharmaceutical corporation for violations of food and drug laws). And, where the defendant is an individual, a large fine may “engender ‘a significant infringement of personal freedom.’ ” Blanton, 489 U. S., at 542 (quoting Frank v. United States, 395 U. S. 147, 151 (1969) ); see also 18 U. S. C. §3572(a)(2) (requiring court to consider “the burden that the fine will impose upon the defendant” in determining whether to impose a fine and in what amount).

The Government thus asks the wrong question by comparing the severity of criminal fines to that of other punishments. So far as Apprendi is concerned, the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee. Where a fine is substantial enough to trigger that right, Apprendi applies in full. As we said in Cunningham, “Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, . . . is the very inquiry Apprendi’s ‘bright-line rule’ was designed to exclude.” 549 U. S., at 291.

This case is exemplary. The RCRA subjects Southern Union to a maximum fine of $50,000 for each day of violation. 42 U. S. C. §6928(d). The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial. And the Government now concedes the District Court made factual findings that increased both the “potential and actual” fine the court imposed. Brief for United States 28. This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.

B

In concluding that the rule of Apprendi does not apply to criminal fines, the Court of Appeals relied on our decision in Ice. Ice addressed the question whether, when a defendant is convicted of multiple offenses, Apprendi forbids judges to determine facts that authorize the imposition of consecutive sentences. 555 U. S., at 164. In holding that Apprendi does not, Ice emphasized that juries historically played no role in deciding whether sentences should run consecutively or concurrently. See 555 U. S., at 168–169. The Court of Appeals reasoned that juries were similarly uninvolved in setting criminal fines. 630 F. 3d, at 35. 5

The Court of Appeals was correct to examine the histor-ical record, because “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Ice, 555 U. S., at 170. See also, e.g., Blakely, 542 U. S., at 301–302; Apprendi, 530 U. S., at 477–484. But in our view, the record supports applying Apprendi to criminal fines. To be sure, judges in the col-onies and during the founding era “possessed a great deal of discretion” in determining whether to impose a fine and in what amount. Lillquist 640–641; see also Preyer 350. Often, a fine’s range “was apparently without limit except insofar as it was within the expectation on the part of the court that it would be paid.” Ibid. For some other offenses, the maximum fine was capped by statute. See, e.g., id., at 333 (robbery, larceny, burglary, and other offenses punishable in Massachusetts Bay Colony “by fines of up to £5”); Act of Feb. 28, 1803, ch. 9, §7, 2Stat. 205 (any consul who gives a false certificate shall “forfeit and pay a fine not exceeding ten thousand dollars, at the discretion of the court”); K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (describing federal practice).

The exercise of such sentencing discretion is fully consistent with Apprendi, which permits courts to impose “judgment within the range prescribed by statute.” 530 U. S., at 481 (emphasis in original). Nor, a fortiori, could there be an Apprendi violation where no maximum is prescribed. Indeed, in surveying the historical record that formed the basis of our holding in Apprendi, we specifi-cally considered the English practice with respect to fines, which, as was true of many colonial offenses, made sentencing largely “dependent upon judicial discretion.” See id., at 480, n. 7; see also Jones v. United States, 526 U. S. 227 –245 (1999); 4 W. Blackstone, Commentaries on the Laws of England 372–373 (1769) (hereinafter Blackstone). And even then, as the dissent acknowledges, post, at 11–12 (opinion of Breyer, J.), there is authority suggesting that English juries were required to find facts that determined the authorized pecuniary punishment. See 1 T. Starkie, A Treatise on Criminal Pleading 187–188 (1814) (In cases “where the offence, or its defined measure of punishment, depends upon” property’s specific value, the value “must be proved precisely as it is laid [in the indictment], and any variance will be fatal”); see also id., at 188 (“[I]n the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value” (emphasis in original)); 2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 25, §75, pp. 234–235 (3d ed. 1739) (doubting whether “it be need-ful to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine”).

In any event, the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property. See Apprendi, 530 U. S., at 502, n. 2 (Thomas, J., concurring). Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury. See, e.g., Commonwealth v. Smith, 1 Mass. 245, 247 (1804) (declining to award judgment of treble damages for all stolen items in larceny prosecution when indictment alleged value of only some of the items); Clark v. People, 2 Ill. 117, 120–121 (1833) (arson indictment must allege value of destroyed building because statute imposed “a fine equal in value to the property burned”); State v. Garner, 8 Port. 447, 448 (Ala. 1839) (same in malicious mischief prosecution where punishment was fine “not exceeding four fold the value of the property injured or destroyed”); Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (same in arson prosecution because, “[i]n addition to imprisonment in the penitentiary, the guilty person is liable to a fine not exceeding double the value of the property destroyed”); Hope v. Commonwealth, 50 Mass. 134, 137 (1845) (the “value of the property alleged to be stolen must be set forth in the indictment” in part because “[o]ur statutes . . . prescribe the punishment for larceny, with reference to the value of the property stolen”); State v. Goodrich, 46 N. H. 186, 188 (1865) (“It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring the [value of the stolen items] to be stated [in the indictment]”); United States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (“[T]he defendant is entitled to his constitutional right of trial by jury” to ascertain “the exact sum for which a fine may be imposed”). 6

The rule that juries must determine facts that set a fine’s maximum amount is an application of the “two longstanding tenets of common-law criminal jurisprudence” on which Apprendi is based: First, “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” Blakely, 542 U. S., at 301 (quoting 4 Blackstone 343). And second, “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.’ ” 542 U. S., at 301–302 (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)). Indeed, Bishop’s leading treatise on criminal procedure specifically identified cases involving fines as evidence of the proposition that “the indictment must, in order to inform the court what punishment to inflict, contain an averment of every particular thing which enters into the punishment.” Id., §540, at 330 (discussing Clark and Garner). This principle, Bishop explained, “pervades the entire system of the adjudged law of criminal procedure. It is not made apparent to our understandings by a single case only, but by all the cases.” Criminal Procedure §81, at 51. See also Ap-prendi, 530 U. S., at 510–511 (Thomas, J., concurring) (explaining that Bishop grounded this principle in “well-established common-law practice . . . and in the provisions of Federal and State Constitutions guaranteeing notice of an accusation in all criminal cases, indictment by a grand jury for serious crimes, and trial by jury”).

As counterevidence that juries historically did not determine facts relevant to criminal fines, the Government points to two decisions from this Court. One is United States v. Murphy, 16 Pet. 203 (1842), which considered whether an interested witness was competent to testify in a larceny prosecution brought under a provision of the Crimes Act of 1790. Murphy’s only relevance to this case is that the Crimes Act authorized a fine of up to four times the value of the stolen property, and the Court remarked that “the fine is, as to its amount, purely in the discretion of the Court.” Id., at 209. But this statement is best read as permitting the court to select a fine from within the maximum authorized by jury-found facts—a practice, as noted, that accords with Apprendi. Such a reading is consistent with the fact that the indictment in Murphy alleged the value of the stolen items, see 16 Pet., at 207–208, and with the practice of contemporary courts addressing the same statute, see United States v. Holland, 26 F. Cas. 343, 345 (No. 15,378) (CC SDNY 1843) (trial court instructs jury “to assess the value of the property taken” in order to determine maximum fine); Pye v. United States, 20 F. Cas. 99 (No. 11,488) (CC DC 1842) (value of stolen items alleged in indictment).

The Government and dissent place greater reliance on United States v. Tyler, 7 Cranch 285 (1812). But like Murphy, this decision involved no constitutional question. Rather, it construed a federal embargo statute that imposed a fine of four times the value of the property intended to be exported. The indictment identified the property at issue as “pearl-ashes,” but the jury’s guilty verdict re-ferred instead to “ ‘pot-ashes [that] were worth two hundred and eighty dollars.’ ” Tyler, 7 Cranch, at 285. 7 The question was whether the discrepancy rendered the verdict “not sufficiently certain as to the value of the property charged in the indictment,” i.e., pearl-ashes. Ibid. The Court held that the discrepancy was immaterial, on the ground that “under this law, no valuation by the jury was necessary to enable the Circuit Court to impose the proper fine.” Ibid. The Court’s reasoning is somewhat opaque, but appears to rest on the text of the embargo statute, which directed that the defendant “shall, upon conviction, be . . . fined a sum by the Court.” Ibid. In any event, nothing in the decision purports to construe the Sixth Amendment. And, insofar as Tyler reflects prevailing practice, it bears noting that both the indictment and ver-dict identified the value of the property at issue. See Tr. 2 in Tyler, 7 Cranch 285, reprinted in Appellate Case Files of the Supreme Court of the United States, 1792–1831, National Archives Microfilm Publications No. 214 (1962), roll 18 (indictment: “nineteen barrels of pearlashes, which were then and there of the value of six hundred dollars”). Whatever the precise meaning of this decision, it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines.

III

The Government’s remaining arguments, echoed by the dissent (see post, at 23–28), are unpersuasive. The Government first submits that, when it comes to fines, “the judicially found facts typically involve only quantifying the harm caused by the defendant’s offense”—for example, how long did the violation last, or how much money did the defendant gain (or the victim lose)?—“as opposed to de-fining a separate set of acts for punishment.” Brief for United States 25. Only the latter determination, the Government contends, implicates Apprendi’s concerns.

This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an “element” of the offense and one that is a “sentencing factor.” See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605. Second, we doubt the coherence of this distinction. This case proves the point. Under 42 U. S. C. §6928(d), the fact that will ultimately determine the maximum fine Southern Union faces is the number of days the company violated the statute. Such a finding is not fairly characterized as merely “quantifying the harm” Southern Union caused. Rather, it is a determination that for each given day, the Government has proved that Southern Union committed all of the acts constituting the offense.

The Government next contends that applying Apprendi to fines will prevent States and the Federal Government from enacting statutes that, like §6928(d), calibrate fines to a defendant’s culpability, thus providing just punishment and reducing unwarranted sentencing disparity. But the Government presents a false choice. As was true in our prior Apprendi cases, and remains so here, legislatures are free to enact statutes that constrain judges’ discretion in sentencing—Apprendi requires only that such provisions be administered in conformance with the Sixth Amendment.

Last, the Government argues that requiring juries to determine facts related to fines will cause confusion (because expert testimony might be needed to guide the inquiry); or prejudice the defendant (who might have to deny violating a statute while simultaneously arguing that any violation was minimal); or be impractical (at least when the relevant facts are unknown or unknowable until the trial is completed). 8 These arguments rehearse those made by the dissents in our prior Apprendi cases. See Booker, 543 U. S., at 329 (Breyer, J., dissenting in part); Blakely, 542 U. S., at 318–320 (O’Connor, J., dissenting); id., at 330–340 (Breyer, J., dissenting); Apprendi, 530 U. S., at 555–559 (same). Here, as there, they must be rejected. For even if these predictions are ac-curate, the rule the Government espouses is unconstitutional. That “should be the end of the matter.” Blakely, 542 U. S., at 313.

But here there is particular reason to doubt the strength of these policy concerns. Apprendi is now more than a decade old. The reliance interests that underlie many of the Government’s arguments are by this point attenuated. Nor, in our view, does applying Apprendi’s rule to criminal fines mark an unexpected extension of the doctrine. Most Circuits to have addressed the issue already embrace this position, see Pfaff, 619 F. 3d, at 175–176; LaGrou Distribution Sys., 466 F. 3d, at 594; United States v. Yang, 144 Fed. Appx. 521, 524 (CA6 2005), as did the Government prior to Ice, see Brief in Opposition 11, n. 2. In light of the reasons given in this opinion, the dramatic departure from precedent would be to hold criminal fines exempt from Apprendi.

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We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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1  See Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982) (hereinafter Preyer); see also Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621, 640–641 (2004) (hereinafter Lillquist); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 290 (1989) (O’Connor, J., concurring in part and dissenting inpart) (fines were “the preferred penal sanction” in England by the 17th century). “Imprisonment,” in contrast, “although provided for as a punishment in some colonies, was not a central feature of criminal punishment until a later time.” Preyer 329; see also Lillquist 641–643.

2  In 2011, a fine was imposed on 9.0% of individual defendants and on 70.6% of organizational defendants in the federal system. See United States Sentencing Commission, 2011 Annual Report, ch. 5, pp. 34, 40.

3  See, e.g., 12 U. S. C. §1467a(i)(1); 15 U. S. C. §717t(b); 16 U. S. C. §825o(b); Cal. Health & Safety Code Ann. §25515(a) (West Supp. 2012); Colo. Rev. Stat. Ann. §§25–7–122.1(1)(b) and (c) (2011); Mass. Gen. Laws, ch. 21, §34C (West 2010); N. J. Stat. Ann. §13:1E–99.89(f) (West Supp. 2012).

4  See, e.g., 18 U. S. C. §3571(d) (fine “not more than the greater of twice the gross gain or twice the gross loss”); Fla. Stat. §775.083(1)(f) (2010) (same); Tex. Parks & Wild. Code Ann. §12.410(c) (West 2002) (same); see also 18 U. S. C. §645 (fine for embezzlement by officers of United States courts of up to twice the value of the money embezzled); §201(b) (fine for bribery of public officials of up to three times the value of the bribe).

5  Ice also stated in dicta that applying Apprendi to consecutive-versus-concurrent sentencing determinations might imperil a variety of sentencing decisions judges commonly make, including “the imposition of statutorily prescribed fines.” 555 U. S., at 171. The Court of Appeals read this statement to mean that Apprendi does not apply to criminal fines. 630 F. 3d, at 34. We think the statement is at most ambiguous, and more likely refers to the routine practice of judges’ imposing fines from within a range authorized by jury-found facts. Such a practice poses no problem under Apprendi because the penalty does not exceed what the jury’s verdict permits. See 530 U. S., at 481. In any event, our statement in Ice was unnecessary to the judgment and is not binding. Central Va. Community College v. Katz, 546 U. S. 356, 363 (2006) .

6  The dissent believes these decisions are inapposite because some of them arose in States that authorized juries, rather than judges, to im-pose sentence. See post, at 18–20. But this fact was not the basis ofthe decisions; rather, the courts required value to be alleged and proved to the jury because “the extent of the punishment . . . depend[s] upon the value of the property consumed or injured.” Ritchey, 7 Blackf.,at 169; see also, e.g., Clark, 2 Ill., at 120–121 (same). And as Bishop explained, this requirement of proof originated not from a unique fea-ture of jury sentencing, but from longstanding common-law princi-ples—a point to which the dissent notably does not respond. 1 J. Bishop, Criminal Procedure §§81, 540 (2d ed. 1872). See infra, at 12. Nor, for that matter, do larceny cases “presen[t] a special circumstance.” Post, at 20. Such decisions invoked the same reasoning as the other cases just mentioned. See, e.g., Hope, 50 Mass., at 137 (value must be proved because, among other things, “[o]ur statutes . . . prescribe the punishment for larceny . . . with reference to the value of the property stolen”); Goodrich, 46 N. H., at 188 (same). Bishop made this point explicit: “[Value] must be alleged wherever it is an element tobe considered by the court in determining the punishment, and it is immaterial whether the particular crime is larceny or any other crime.” Criminal Procedure §541, at 331 (footnote omitted and emphasis added). At the end of the day, the only evidence the dissent musters that judges found fine-enhancing facts are United States v. Tyler, 7 Cranch 285 (1812), and one lower-court decision restating Tyler’s holding. See post, at 15–17. We address Tyler below. See infra, at13–14.

7  We will not keep the reader in suspense: pot-ash and pearl-ash are alkaline salts of differing causticity that “for a long time . . . [were] amongst the most valuable articles of manufacture and commerce”in parts of early America. D. Townsend, Principles and Observations Applied to the Manufacture and Inspection of Pot and Pearl Ashes 3 (1793). See also Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., 563 U. S. __, __ (2011) (slip op., at 6).

8  In this vein, the dissent speculates that today’s decision may “nudg[e] our [criminal justice] system” further in favor of plea bargains at the expense of jury trials. Post, at 28. But groups representing the interests of defendants—whom the dissent’s rule purportedly favors—tell us the opposite is true. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 5 (“[E]xempting criminal fines from Apprendi makes innocent defendants more likely to plead guilty”).

SUPREME COURT OF THE UNITED STATES

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No. 11–94

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SOUTHERN UNION COMPANY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the first circuit

[June 21, 2012]

Justice Breyer, with whom Justice Kennedy and Justice Alito join, dissenting.

Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts—facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that “the finding of a particular fact” of this kind was ordinarily a matter for a judge and not necessarily “within ‘the domain of the jury.’ ” Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court’s contrary conclusion, I believe, is ahistorical and will lead to increased problems of unfairness in the administration of our criminal justice system.

I

Although this dissent does not depend upon the dissents in Apprendi v. New Jersey, 530 U. S. 466 (2000) , and its progeny, summarizing those earlier dissents will help the reader understand this one. See id., at 523–554 (O’Connor, J., dissenting); id., at 555–556 (Breyer, J., dissenting); see also United States v. Booker, 543 U. S. 220, 327 (2005) (Breyer, J., dissenting in part) (citing cases); Blakely v. Washington, 542 U. S. 296, 329 (2004) (Breyer, J., dissenting) (same). The Apprendi dissenters argued that the law had long distinguished between (1) facts that constitute elements of the offense and (2) facts relevant only to sentencing. The term “elements of the offense” means “constituent parts of a crime . . . that the prosecution must prove to sustain a conviction.” Black’s Law Dictionary 597 (9th ed. 2009). The statute that creates the crime in question typically sets forth those constituent parts. And a jury must find the existence of each such element “beyond a reasonable doubt.” See, e.g., United States v. Gaudin, 515 U. S. 506, 510 (1995) ; In re Winship, 397 U. S. 358, 364 (1970) .

Thus, a bank robbery statute might prohibit an offender from (1) taking by force or by intimidation (2) in the presence of another person (3) a thing of value (4) belonging to, or in custody of, a bank. In that case, the jury can convict only if it finds the existence of each of these four factual “elements” beyond a reasonable doubt. But it need not find other facts beyond a reasonable doubt, for these four factual elements alone constitute the crime.

Other facts may be relevant to the length or kind of sentence the court will impose upon a convicted offender. These sentencing facts typically characterize the manner in which the offender carried out the crime or set forth relevant features characterizing the offender. For example, in respect to manner, an offender might have carried out a particular bank robbery

“with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers . . . .” United States Sentencing Commission, Guidelines Manual §1A1.3, p. 3 (Nov. 2011) (USSG).

In respect to characteristics of the offender, a current bank robbery conviction might be that offender’s first (or his fourth) criminal conviction.

Traditionally, sentencing facts help the sentencing judge determine where, within say a broad statutory range of, say, up to 20 years of imprisonment, the particular bank robber’s punishment should lie. The Apprendi dissenters concluded that the Constitution did not require the jury to find the existence of those facts beyond a reasonable doubt. Rather the law, through its rules, statutes, and the Constitution’s Due Process Clause would typically offer the defendant factfinding protection. See, e.g., Fed. Rule Crim. Proc. 32 (federal presentence report prepared by probation office sets forth facts, which defendant may contest at sentencing proceeding); Almendarez-Torres v. United States, 523 U. S. 224 –247 (1998) (constitutional inquiry).

The dispute in Apprendi and its line of cases arose after Congress and many States codified these sentencing facts during the sentencing reform movement of the 1970’s and 1980’s. Congress, for example, concluded that too many different judges were imposing too many different sentences upon too many similar offenders who had committed similar crimes in similar ways. It subsequently enacted the Sentencing Reform Act of 1984, creating a federal Sentencing Commission which would produce greater uniformity in sentencing through the promulgation of mandatory uniform Guidelines structuring how judges, in ordinary cases, should typically use sentencing facts to determine sentences. 28 U. S. C. §§991, 994 (2006 ed. and Supp. IV); see also 18 U. S. C. §§3553(b)(1), 3742(e). The Apprendi-line majority agreed that, where a statute set a higher maximum sentence, a Commission might structure how a judge found sentencing facts relevant to the sentence imposed below that otherwise applicable maximum, at least if the resulting guidelines were not mandatory. See Booker, 543 U. S., at 245. But the majority held that where a sentencing fact increased the otherwise applicable maximum penalty, that fact had to be found by a jury. Apprendi, 530 U. S., at 490.

As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress’ or a State’s desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements?

Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi’s jury trial requirement. Alternatively, Congress might enact statutes that more specifically tied particular punishments to each crime (limiting or removing judicial discretion), for example, mandatory minimum statutes. But this system would threaten disproportionality by insisting that similar punishments be applied to very different kinds of offense behavior or offenders. Apprendi’s jury trial requirements might also prove unworkable. Consider the difficulty of juries’ having to find the different facts in the bank robbery example I have set forth above. Moreover, how is a defendant, arguing that he did not have a gun, alternatively to argue that, in any event, he did not fire the gun?

Finally, the dissenters took a different view of Sixth Amendment history. They believed that under the common law and at the time the Constitution was ratified, judges, not juries, often found sentencing facts, i.e., facts relevant only to the determination of the offender’s punishment. See, e.g., Booker, supra, at 329 (Breyer, J., dissenting in part); Apprendi, 530 U. S., at 527–529 (O’Connor, J., dissenting).

The dissenters lost the argument. The Court in Apprendi held that (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.” Id., at 490. But the dissenters’ views help to explain why I continue to believe this Court should not extend Apprendi’s rule beyond “ ‘the central sphere of [its] concern.’ ” Ice, 555 U. S., at 172 (quoting Cunningham v. California, 549 U. S. 270, 295 (2007) (Kennedy, J., dissenting)). That is the Court’s view, too, as set forth in Ice. And I base my dissent here primarily upon Ice.

II

This case involves sentencing facts, not elements of a crime. The criminal statute at issue constitutes one part of the Resource Conservation and Recovery Act of 1976 (RCRA), which, among others things, authorizes the Environmental Protection Agency to create a list of hazardous wastes. 42 U. S. C. §6921. The criminal statute says:

“Any person who . . . knowingly treats, stores, or disposes of any hazardous waste identified or listed under [RCRA] . . . without [an RCRA-authorized] permit . . . shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed . . . five years . . . , or both.” §6928(d)(2)(A).

No one here denies that this statute creates a crime with four elements: (1) knowing treatment, storage, or disposal of a waste (2) that is hazardous, (3) without a permit, and (4) knowing that the waste has a substantial potential of causing harm to others or to the environment. App. 129–130; see Brief for Petitioner 30.

The number of “day[s] of each violation,” however, is not an additional element of the crime. The statute says that the number of days becomes relevant only “upon conviction” of the crime as previously defined. Moreover, the number of days is relevant to application of only one of two kinds of punishment that the statute mentions (fine and imprisonment); one cannot easily read this statute as creating two separate crimes identical but for the punishment. Finally, Congress did not include here, as it sometimes has done, statutory words such as “each day of violation shall constitute a separate offense.” E.g., 47 U. S. C. §223(b); see also 42 U. S. C. §4910(b). Rather, as in many other similar statutes, the statute here sets forth the crime and kinds of punishments (fine and imprisonment), while separately specifying facts that determine the maximum punishment of one kind (fines).

In this particular case, the indictment set forth a violation period of 762 days (from “on or about September 19, 2002 until on or about October 19, 2004”). App. 104. The jury’s guilty verdict did not specify the number of days on which the defendant committed the offense. Id., at 141. But after the conviction and sentencing hearing, the judge found that, among other things, the “clear and essentially irrefutable evidence” at trial supported the conclusion set forth in the presentence report, namely, that the maximum fine available amounted to $50,000 per day for 762 days—or $38.1 million. App. to Pet. for Cert. 47a–48a. The judge imposed a fine of $6 million along with a $12 million community service obligation. App. 162–163.

III

Apprendi says that “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.” 530 U. S., at 490. The number of days (beyond one) on which the defendant violated this criminal statute is such a fact. Nonetheless, like the majority, I believe that Apprendi’s rule does not automatically control the outcome in this case.

That is because this case concerns a fine, not, as in Apprendi, a term of imprisonment. And we made clear in Oregon v. Ice, 555 U. S. 160 , that Apprendi does not encompass every kind of fact-related sentencing decision that increases the statutory maximum. In Ice, we considered Apprendi’s application to a sentencing decision about whether two prison sentences for conviction of two separate crimes (e.g., illegal drug possession and illegal gun possession) would run concurrently or consecutively. 555 U. S., at 163. An Oregon statute required a concurrent sentence unless the sentencing judge found certain facts. Id., at 165. Those facts could make a large difference in a term of imprisonment. Their presence could mean that a 5-year sentence for illegal drug possession and a 5-year sentence for illegal gun possession would amount to 10 years of imprisonment rather than 5 (indeed, in Ice itself, the judge’s factfinding increased the sentence by 20 years, see id., at 166, and n. 5). Thus, the presence of those “fact[s]” could “increas[e] the penalty” beyond what would otherwise be “the prescribed statutory maximum.” Id., at 167 (internal quotation marks omitted). Nonetheless, we held that the Sixth Amendment permitted a judge—it did not require a jury—to make that factual determination. Id., at 164.

We consequently concluded that Apprendi does not encompass every kind of fact-related sentencing decision that increases the statutory maximum. In doing so, we wrote that the “animating principle” of Apprendi’s rule “is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” 555 U. S., at 168. And we refused to extend Apprendi’s rule to a new category of sentence-related facts for two basic reasons.

First, we considered a historical question, namely, whether “the finding of a particular fact was understood as within ‘the domain of the jury . . . by those who framed the Bill of Rights.’ ” 555 U. S., at 168 (quoting Harris, 536 U. S., at 557). And we read the “historical record” as showing that “in England before the founding of our Nation, and in the early American States,” the jury “played no role in the decision to impose sentences consecutively or concurrently.” 555 U. S., at 168–169 (footnote omitted). Rather, that decision “rested exclusively with the judge.” Id., at 168.

Second, recognizing that “administration of a discrete criminal justice system is among the [States’] basic sovereign prerogatives,” we considered the need to “respect . . . state sovereignty.” Ibid. We expressed concern lest application of Apprendi to this kind of decision inhibit state legislative efforts to establish a fairer sentencing system by helping to bring about more uniform sentencing. Ice, 555 U. S., at 171. We concluded that “[n]either Apprendi nor our Sixth Amendment traditions compel straitjacketing the States” in this respect. Ibid.

This case presents another new category of fact-related sentencing decisions, namely, decisions about the amount of a fine. Thus, as the majority recognizes, we must begin with a historical question. Ante, at 8. Who—judge or jury—found the facts that determine the amount of a criminal fine “in England before the founding of our Nation, and in the early American States?” Ice, supra, at 169 (footnote omitted). Unlike the majority, I believe the answer to this question is that, in most instances, the judge made that determination.

IV A

Apprendi relied heavily upon the fact that in “England before the founding of our Nation” the prescribed punishment for more serious crimes, i.e., felonies, was typically fixed—indeed, fixed at death. 530 U. S., at 478–480; see J. Baker, An Introduction to English Legal History 512 (4th ed. 2007); J. Beattie, Crime and the Courts in England, 1660–1800, pp. 409, 450–451 (1986) (hereinafter Beattie); Langbein, The English Criminal Trial on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, pp. 13, 16, 36–37 (A. Schioppa ed. 1987). The facts related to the application of that punishment were typically elements of the crime. And the jury, not the judge, determined the existence of those facts. See 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone); see also Baker, supra, at 512–518 (in practice, the jury or judge could ameliorate capital punishment through application of doctrines such as “pious perjury,” “benefit of clergy,” and reprieves, or the King could grant a royal pardon); Beattie 419–435 (same).

Punishment for lesser crimes, however, included fines. And under the common law, the judge, not the jury, determined the amount of the fine and the sentencing facts relevant to the setting of that amount. See Baker, supra, at 512; Beattie 459. Pertinent sentencing facts typically concerned the manner in which the offender committed the crime and the characteristics of that offender. See id., at 456–460. Thus, in 1769, Blackstone wrote:

“Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it directing such an offense to be punished by fine, in general, without specifying the certain sum.” Blackstone 372 (emphasis added).

That is because

“the quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law. The value of money itself changes from a thousand causes; and, at all events, what is ruin to one man’s fortune, may be a matter of indifference to another.” Id., at 371.

Moreover, the “quantum” of pecuniary fines

“must frequently vary, from aggravations or otherwise of the offense [i.e., the manner in which the crime was committed], the quality and conditions of the parties [e.g., the offender’s characteristics], and from innumerable other circumstances.” Ibid.

Similarly, the 18th-century statesman and treatise-writer Baron Auckland pointed out that in 10th-century England pre-Norman law had attached a fixed financial penalty to each specific crime. Principles of Penal Law 69 (2d ed. 1771). That law, for example, imposed a penalty of 3 cows for perjury and 12 cows for the rape of a maid. Ibid. This system, Baron Auckland added, ignored variations in, for example, the differing value of a fixed fine, say a cow, over time and among individuals; it also ignored the manner in which the offense was committed and the characteristics of the offender. Id., at 69–72. For those reasons, 18th-century English law ordinarily left “the quantum of the fine” to “the discretion of the Judges.” Id., at 68 (emphasis deleted).

“[Because t]he enormity and tendency of the crime, the malice and wilfulness of the intention, the inconsiderateness and suddenness of the act, the age, faculties, and fortune of the offender, form a chain of complex questions; which can be resolved only by the evidence of each separate charge, and for which no human foresight can provide . . . then arises a necessary appeal to the breast of the judge.” Id., at 72 (emphasis added).

The only generally applicable limitations on the judge, when imposing the fine, were those contained in the English Bill of Rights and the Magna Carta. 1 W. & M., ch. 2, §11, in 3 Eng. Stat. at Large 440 (forbidding “excessive Fines”); Magna Carta §20, 9 Hen. III, §14, in 1 Eng. Stat. at Large 5 (1225) (fine cannot deprive offender of means of livelihood); see Auckland, supra, at 73 (so interpreting Magna Carta); Blackstone 372–373 (same).

To be sure, the jury, not the judge, would determine the facts that made up the elements of the crime, even though those elements might be relevant to whether a fine could apply and, if so, the amount of the fine imposed as well. The common law, for example, defined larceny as the theft of goods that had some intrinsic value and divided the offense into grand larceny, which was theft of goods valued at more than a shilling, and petit larceny, which was theft of goods worth less than a shilling. Blackstone 229–234; Langbein, supra, at 16–17; see also Beattie 424 (whether “benefit of clergy” was available depended on value stolen). Consequently, the jury would determine the value of the goods in question. In doing so, the jury might “manipulate the sentence by valuing the goods at under a shilling and thereby spare the defendant the capital sanction.” Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621, 636 (2004). But otherwise “the jury could not influence what other penalties” like fines the defendant might face because in “non-capital criminal cases” the amount of punishment “was left solely in the hands of the justices.” Ibid.

I cannot determine with any certainty the extent to which 18th-century law placed other relevant limitations upon the judges’ authority to determine fine-related sentencing facts. I have found an 1814 English treatise on criminal pleading that says, unlike in cases “where to constitute the offence the value must [only] be of a certain amount,” in cases “where the offence, or its defined measure of punishment, depends upon the quantity of that excess . . . a variance from the amount averred . . . will be fatal.” 1 T. Starkie, A Treatise on Criminal Pleading 187–188 (emphasis deleted). It then adds that “in the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value.” Id., at 188. And an 18th-century treatise says that it is questionable whether it is necessary “to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine.” 2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 25, §75, pp. 234–235 (3d ed. 1739) (emphasis added). One might read these statements as supporting the majority, for they might indicate that, where a statute sets forth facts that determine a pecuniary penalty, then a jury, not judge, would determine those facts.

But whether that is the correct reading is unclear. For one thing, prosecutions for economic crimes were usually brought by injured parties and the “fine” in such cases went in whole or in part to compensate that party for damages. See Beattie 35–36, 192. For example, immediately following the sentence I have just quoted, Hawkins wrote that it is questionable whether it is necessary “to set forth the Value of the Goods . . . in an Indictment of Larceny for any other Purpose than to sh[o]w that the Crime amounts to grand Larceny, and to ascertain the Goods, thereby the better to [e]ntitle the Prosecutor to a Restitution.” Hawkins, supra, at 234–235 (emphasis added; footnote omitted). Likewise, Blackstone dated English usury law back to a 1545 statute that provided as the penalty that the offending lender shall both “make f[i]ne . . . at the King’s will and pleasure” and forfeit “treble value” of the money borrowed—with half to the King and the other half “to him or them that will sue for the same.” 37 Hen. VIII, ch. 9, in 3 Stat. of Realm 997 (emphasis added); see Blackstone 156; see also M. Ord, An Essay on the Law of Usury 122–123 (3d ed. 1809) (treble-value forfeitures recovered through information qui tam but discretionary fines recovered through criminal indictment). Thus, the statutes at issue were what American courts would later call quasi-civil statutes—part civil, part criminal; see also Beattie 457.

Parliament consequently would have had a special reason for requiring jury determinations of the amount of the pecuniary penalty. And Parliament had the authority to depart from the common law and to insist that juries determine sentencing facts without establishing a generally applicable principle. The relevant question here is how often and for what purposes Parliament did so. Blackstone himself wrote that such statutes fixing fines in amounts were both in derogation of the common law and uncommon. Blackstone 372. Finally, no one here argues that we adopt the rule actually suggested by the treatises. That rule is not that sentencing is to be done according to value found by the jury but instead that a discrepancy between the value alleged and value found by the jury might render the entire case fatal. See Starkie, supra, at 188.

Thus, I cannot place great weight upon these statutes. The parties did not refer to them in their briefs. And in any event, the historical sources taken together make clear that the predominant practice in 18th-century England was for a judge, not a jury, to find sentencing facts related to the imposition of a fine.

Indeed, the Court in Apprendi conceded the point. It distinguished 18th-century punishments for greater crimes (fixed punishments) from punishments for lesser crimes (included fines). 530 U. S., at 480, n. 7. And it wrote that “judges most commonly imposed discretionary ‘sentences’ of fines . . . upon misdemeanants.” Ibid. (emphasis added). Insofar as 18th-century English practice helps determine what the Framers would have thought about the scope of the Constitution’s terms—here, the Sixth Amendment’s right to trial by an impartial jury—that practice suggests they would not have expected that right to include determination of sentencing facts relevant only to the imposition of a fine.

B

Practice in the “early American States” is even less ambiguous. In the colonial era, judges would normally determine the amount of a fine (within an unlimited or otherwise broad range) while also determining related sentencing facts (say, about the manner in which the offender committed the crime and the offender’s characteristics). Legal historians tell us that in the American colonies a criminal fine was “overwhelmingly the most common of the non-capital punishments,” that in most instances the range of the fine was “apparently without limit except insofar as it was within the expectation of the court that it would be paid,” that the judge established the precise amount of the fine, and that the amount was “tailored individually to the particular case.” Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982). “[C]olonial judges, like their English brethren, possessed a great deal of discretion” and could set the amount of fine “depending upon the nature of the defendant and the crime.” Lillquist, 82 N. C. L. Rev., at 640–641.

Enactment of the Constitution and Bill of Rights did not change this practice. Some early American statutes specified that the judge has discretion to set the amount of the fine while saying nothing about amount. E.g., Crimes Act of 1790, ch. 9, §21, 1Stat. 117 (any person who bribes a judge “on conviction thereof shall be fined and imprisoned at the discretion of the court”); §28, 1Stat. 118 (any person who does violence to an ambassador or public minister, “on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court”). Others set only a maximum limitation. E.g., Act of Mar. 3, 1791, ch. 15, §39, 1Stat. 208 (officer of inspection convicted of oppression or extortion “shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of the court”). In respect to these statutes, Justice Iredell wrote in 1795 that the “common law practice . . . must be adhered to; that is to say, the jury are to find whether the prisoner be guilty, and . . . the court must assess the fine.” United States v. Mundell, 27 F. Cas. 23, 24 (No. 15,834) (CC Va.).

Still other statutes, as in England, specifically keyed the amount of the fine to a specific factual finding. A section of the Crimes Act of 1790, for example, said that any person who upon United States property or the high seas “shall take and carry away, with an intent to steal or purloin the personal goods of another . . . shall, on conviction, be fined not exceeding the fourfold value of the property so stolen.” §16, 1Stat. 116. This crime has several elements: (1) taking and (2) carrying away (3) with intent to steal (4) personal goods (5) belonging to another (6) on United States property or the high seas. The jury must find the existence of these facts beyond a reasonable doubt to establish a conviction. But the statute also says that the fine cannot exceed “the fourfold value of the property so stolen.” And it thereby requires the finding of a sentencing fact, namely the value of the stolen property. Who would make this determination—judge or jury?

Unlike in 18th-century England, in the United States there is case law directly answering the question. In United States v. Tyler, 7 Cranch 285 (1812), this Court considered a federal embargo statute making it a crime to “put” certain “goods” on board a ship with intent to “export” them outside of the United States. See Act of Jan. 9, 1809, ch. 5, §1, 2Stat. 506. The statute also provided that an offender’s “goods” and ship “shall be forfeited,” and the offender, “shall, upon conviction,” be “fined a sum, by the court before which the conviction is had, equal to four times the value of such specie, goods, wares and merchandise.” Ibid. The statute thereby required determination of a sentencing fact, namely “the value of such . . . goods.” Was the finding of this sentencing fact for the judge or for the jury?

In Tyler, the defendant had been indicted for attempting to export 19 barrels of pearl-ashes, valued at $600. Ante, at 13–14. The jury convicted the defendant, but when doing so, it said that it found the defendant guilty of having tried to export “ ‘pot-ashes . . . worth two hundred and eighty dollars.’ ” 7 Cranch, at 285 (emphasis deleted). The defendant appealed, claiming a difference between the jury’s basis for conviction and the crime as charged in the indictment. The difference between the words “pearl-ashes” and “pot-ashes” is unlikely to have mattered, for pearl-ash is simply a refined grade of pot-ash (potassium carbonate). See T. Barker, R. Dickinson, & D. Hardie, Origins of the Synthetic Alkali Industry in Britain, 23 Economica 158, 163 (1956). Thus, the defendant did not focus upon that difference. Rather, he claimed that the jury’s verdict “was not sufficiently certain as to the value of the property charged in the indictment.” Tyler, 7 Cranch, at 285 (emphasis added). Because $280 differs from $600, the jury had not found him guilty of the crime charged.

The Supreme Court, however, found that the jury’s finding as to valuation was not relevant. It upheld the conviction because it was “of the opinion that, under this law, no valuation by the jury was necessary to enable the Circuit Court to impose the proper fine.” Ibid. (emphasis added). The Court did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sentencing fact. See ante, at 14. But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a different interpretation.

Nor can we say that the Court did not fully consider the matter. Justice Story later authoritatively interpreted Tyler. Sitting as a Circuit Justice in United States v. Mann, 26 F. Cas. 1153 (No. 15,717) (CCNH 1812), he considered the same judge/jury question in respect to the same embargo statute. His court wrote that in “Tyler, 7 Cranch 285, in a prosecution on this same clause, the court held that the fine and quadruple value must be assessed and adjudged by the court, and not by the jury.” Id., at 1153 (emphasis added); see also 26 F. Cas. 1153, 1155 (No. 15,718) (CCNH 1812) (Story, J.) (noting that the Supreme Court would not have reached its result unless satisfied “that the fine was to be imposed by the court, and not found by the jury”).

Thus, nothing in early American practice suggests that the Framers thought that the Sixth Amendment jury trial right encompassed a right to have a jury determine fine-related sentencing facts. But, to the contrary, there is a Supreme Court opinion, namely Tyler, that holds, or at least strongly indicates, the opposite.

C

The majority reaches a different conclusion. But the majority does not pose what I believe to be the relevant historical question, namely whether traditionally “in England before the founding of our Nation, and in the early American States,” see Ice, 555 U. S., at 169 (footnote omitted), judges, not juries, normally determined fine-related sentencing facts. Instead, it asks whether a jury, rather than the judge, found those facts in that subclass of cases where a statute “peg[ged] the amount of a fine to the determination of specified facts.” Ante, at 10. It concludes that “the predominant practice was for such facts to be alleged in the indictment and proved to the jury.” Ibid.

Putting the question this way invites a circular response. As is true of the English usury cases, nothing prohibits a legislature from requiring a jury to find a sentencing fact in a particular subset of cases. And obviously when a State does so, the jury will indeed have to find those facts. Thus, if, say, 10 States decide to make juries find facts that will set the fine for, say, simple larceny, then jury practice in those States (during, say, the 19th century) will include the jury’s finding of those sentencing facts. But that circumstance tells us only that in those 10 States for those specific statutes the legislatures so required. It tells us little, if anything, about practices in most States, and it tells us nothing at all about traditional practice in England or 18th-century America. Nor does a discovery that, say, 10 state legislatures once required juries, rather than judges, generally to set fines tell us about the scope of the Sixth Amendment’s constitutional right to trial by jury. The matter is important because the majority rests its conclusion almost exclusively upon reports of mid-19th-century jury trials in a handful of States, namely Alabama, Illinois, Indiana, Massachusetts, and New Hampshire, and a treatise that bases its statements upon those cases. Ante, at 10–12.

Scholars tell us that in fact there were about 10 States—including Alabama, Illinois, and Indiana—that (after ratification of the Sixth Amendment) enacted statutes that required juries, not judges, to determine a defendant’s punishment, including not only the length of a prison term but also the amount of a fine. See Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311, 317 (2003); King, Origins of Felony Jury Sentencing in the United States 78 Chi.-Kent L. Rev. 937, 963 (2003). The courts that considered this practice, however, did not believe that the constitutional right to jury trial compelled it.

Alabama’s Supreme Court, for example, explained that its State’s jury-sentencing system, which allowed the jury “to determine both the fine and imprisonment,” was in derogation of, and created “an innovation upon[,] the rules of the common law, so far as it transfers [those] powers from the court to the jury.” Hawkins v. State, 3 Stew. & P. 63 (1832). Thus, in State v. Garner, 8 Port. 447 (1839), see ante, at 10, the malicious mischief statute at issue said that the offender would “ ‘be fined in such sum as the jury trying the same may assess, not exceeding four fold the value of the property injured or destroyed.’ ” 8 Port., at 448 (emphasis added). The statute, in other words, transferred all sentencing facts to the jury and was not illustrative of 18th-century practice. Further, the statute said that the “ ‘fine shall be paid to the party injured.’ ” Ibid. The court held that it was consequently proper to allege the amount of the property’s value in the indictment, not because the State’s constitution required any such thing, but because “the fine thus assesse[d] is for the benefit of the injured party”; the case “is, therefore, a quasi civil proceeding”; and for that reason “it would be more consonant to the rules of pleading, and to the principles which govern analogous cases, that the indictment should contain an averment of the value of the property.” Ibid.; Ord, Law of Usury, at 122–123 (usury as quasi-civil proceeding).

Illinois law was similar. Illinois became a jury-sentencing State in 1831. See Iontcheva, supra, at 317, n. 28 (citing Act of Feb. 15, 1831, §42, 1830 Ill. Laws 103, 113). The Illinois Supreme Court subsequently wrote that, even though “at common law . . . juries . . . never were invested with the power of determining the character or extent of the punishment . . . , we are to be governed entirely the provisions and enactments of our code of criminal jurisprudence.” Blevings v. People, 1 Scam. 172 (1835). And in Clark v. People, 1 Scam. 117 (1833), see ante, at 10, the court made clear that the arson statute at issue

“ha[d] changed the common law, . . . [that the] fine equal in value to the property burne[d] is imposed as part of the punishment[; hence,] [t]he indictment . . . should have charged the value of the property destroyed, [for] otherwise it could not properly have been inquired into by the jury.” 1 Scam., at 117.

Indiana was another jury-sentencing State. Iontcheva, supra, at 317, n. 28; King, supra, at 937. Indiana case law decided before Indiana changed its system indicates that the judge could decide certain facts required to set the applicable maximum fine. E.g., Morris v. State, 1 Blackf. 37 (1819). But after Indiana became a jury-sentencing State, its courts held, not surprisingly, that under Indiana law the jury must determine sentencing facts. See Ritchey v. State, 7 Blackf. 168, 169 (1844); ante, at 10.

Massachusetts presents a special circumstance. The two Massachusetts cases that the majority cites, ante, at 10–11, are larceny cases. Value traditionally was an element of the crime of larceny—both because larceny was theft of goods that had some intrinsic value and because value distinguished grand larceny from petit larceny—and thus juries traditionally had to determine at least some facts about the value of the property stolen. See Blackstone 229, 234. Massachusetts had abolished the distinction between grand and petit larceny before its courts decided the two cases the majority cites. See Commonwealth v. Smith, 1 Mass. 245, 246 (1804). But those decisions nonetheless rest in significant part upon the jury’s traditional larceny factfinding role. In Hope v. Commonwealth, 9 Metcalf 134 (1845), for example, the Massachusetts Supreme Judicial Court wrote:

“The well settled practice, familiar to us all, has been that of stating in the indictment the value of the article alleged to have been stolen. . . . The reason for requiring this allegation and finding of value may have been, originally, that a distinction might appear between the offences of grand and petit larceny . . . . Our statutes . . . prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment.” Id., at 136–137.

The “long established practice” to which the court refers is larceny case practice, not practice in all criminal cases.

The New Hampshire case to which the majority refers, State v. Goodrich, 46 N. H. 186 (1865), ante, at 11, is also a larceny case that relied on the “established” larceny case practice. The court explained:

“The indictment ought to state the value of the articles stolen that it may appear whether the offence be grand or petit larceny, and such we believe is the settled practice. . . . It has been held in some jurisdictions, that, in case no value is alleged, the offence charged may be regarded as simple larceny, and a conviction be had accordingly . . . but we think it best to adhere to the well established doctrine in such cases . . . . It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring the character of the offence to be stated.” 46 N. H., at 187–188.

The court wrote nothing to suggest that its holding rested on generally applicable constitutional grounds. And it was in the New Hampshire federal circuit court a half-century earlier when Justice Story had indicated that the Federal Constitution did not impose any such requirement. See Mann, 26 F. Cas., at 1155 (No. 15,718).

That leaves the majority’s puzzling 1895 Federal District Court case from Kansas. United States v. Woodruff, 68 F. 536 (D. Kan. 1895); ante, at 11. The circumstances of this case are highly unusual, and the District Court’s reasoning as to why no fine could be set seems to have rested on a combination of statutory construction and constitutional principle. See Woodruff v. United States, 58 F. 766, 767–768 (CC Kan. 1893); Woodruff, 68 F., at 538–539. Still, I concede this case to the majority—as the lone swallow that cannot make the majority’s summer.

Taken together, the 19th-century cases upon which the majority rests its holding do not show anything about practice in the vast majority of States. They concede that common-law practice was to the contrary. And they tell us little about the meaning of the Sixth Amendment. Even were that not so, I do not understand why these mid-19th-century cases should tell us more about the Constitution’s meaning than, say, the common 20th-century practice of leaving sentencing fact determinations to the judge. This Court apparently once approved the latter practice as constitutional. E.g., McMillan v. Pennsylvania, 477 U. S. 79 (1986) ; Almendarez-Torres, 523 U. S. 224 . And these cases seem more closely related to the present topic.

D

The upshot is that both 18th-century English common law and 18th-century American law typically provided judges with broad discretion to assess fines. The judge, not the jury, would normally determine fine-related sentencing facts. In this respect, ordinary 18th-century sentencing practice related to fines was unlike sentencing practice in respect to felonies. In the latter case, in Apprendi’s view, punishment was normally “fixed” and the judge’s sentencing role was consequently minimal. 530 U. S., at 478–480. In the former case, namely fines, the judge’s role was not normally minimal, but the opposite. For these reasons, I believe that allowing a judge to determine sentencing facts related to imposition of a fine does not invade the historic province of the jury. The historical test that we set forth in Ice is satisfied.

V

In Ice, we also took account of the practical extent to which extending Apprendi’s rule beyond the “ ‘central sphere of [its] concern’ ” would “diminish” the States’ “role” in “devising solutions to difficult legal problems . . . absent impelling reason to do so.” 555 U. S., at 171–172. In particular, we feared that insisting that juries determine the relevant sentencing facts (concerning concurrent, as opposed to consecutive, punishment) would unjustifiably interfere with a State’s legislative efforts “to rein in the discretion judges possessed at common law to impose consecutive sentences at will.” Id., at 171. It would inhibit (indeed “straightjacke[t]”) States seeking to make “concurrent sentences the rule, and consecutive sentences the exception.” Ibid. We said that we were “unclear how many other state initiatives would fall” if Apprendi were extended, and that expansion would be “difficult for States to administer.” Id., at 171–172. We believed that these considerations argued strongly against any such “expansion.”

Here, the same kinds of considerations similarly argue against “expansion” of Apprendi’s rule. Today’s decision applies to the States. In the 1950’s and thereafter, States as well as the Federal Government recognized a serious problem in respect to the sentencing of corporations. Fines, imposed as a punishment upon corporate offenders, were both nonuniform (treating identical offenders differently) and too often they were set too low. Judges would frequently fine corporations in amounts that failed to approximate the harm a corporation had caused or the gain that it had obtained through its illegal activity, both because often the statutory maximums were low and because often the fines imposed tended to be substantially lower than those maximums. See Gruner, Towards an Organizational Jurisprudence: Transforming Corporate Criminal Law Through Federal Sentencing Reform, 36 Ariz. L. Rev. 407, 408 (1994); Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. Chi. L. Rev. 423, 435, n. 55 (1963); Nagel & Swenson, Federal Sentencing Guidelines for Corporations: Their Development, Theoretical Underpinnings, and Some Thoughts About Their Future, 71 Wash. U. L. Q. 205, 215 (1993).

Consequently, the authors of the Model Penal Code adopted a model provision stating that, in respect to offenses involving financial gain, a court could impose an alternative “higher” fine “equal to double the pecuniary gain derived from the offense by the offender.” Model Penal Code §6.03(5), 10A U. L. A. 259 (2001). New York soon thereafter adopted such a provision. N. Y. Penal Law Ann. §80.10(2)(b) (West 2009). And other States followed New York’s example with similar provisions permitting judges to set fines equal to twice the gain to the offender or twice the loss to the victim, thereby helping to diminish disparity while helping potential victims by increasing deterrence. E.g., Conn. Gen. Stat. Ann. §53a–44 (West 2007); Fla. Stat. §775.083(1)(f) (2010). Many of these statutes say in particular that the “court” shall make the finding of gain or loss, in a separate hearing if necessary. E.g., N. Y. Penal Law Ann. §80.00(3) (West 2009); N. J. Stat. Ann. §2C:43–3(e) (West 2005).

The Federal Government followed suit. In some instances, such as RCRA, where environmental harm likely varies with the length of the violation period, Congress advanced its uniformity and deterrence goals by tying a dollar-limited fine to the length of time during which that violation took place. 42 U. S. C. §6928(d)(2)(A). In other instances, it did so through a new general gain-or-loss provision, applying to all offenses, including such crimes as corporate fraud, antitrust violations, and environmental pollution. That provision says:

“Alternative Fine Based on Gain or Loss.—If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.” 18 U. S. C. §3571(d).

To apply Apprendi’s rule to the fines set forth in such statutes, no less than in Ice, would weaken or destroy the States’ and Federal Government’s efforts “to rein in the discretion judges possessed at common law,” Ice, 555 U. S., at 171, over fines. Congress, in enacting such statutes, expected judges, not juries, to determine fine-related sentencing facts because doing so will often involve highly complex determinations. Where, say, major fraud is at issue, the full extent of the loss (or gain) may be unknown at the time of indictment or at any other time prior to the conclusion of the trial. And in an antitrust or an environmental pollution case, the jury may have particular difficulty assessing different estimates of resulting losses.

The consequence of the majority’s holding, insisting that juries make such determinations, is likely to diminish the fairness of the criminal trial process. A defendant will not find it easy to show the jury at trial that (1) he committed no environmental crime, but (2) in any event, he committed the crime only on 20 days, not 30. Moreover, the majority’s holding will sometimes permit prosecutors to introduce newly relevant evidence that would otherwise have been kept from the jury on the ground that it was cumulative or unduly prejudicial. If victims’ losses are relevant, the prosecutor may be able to produce witness after witness testifying only about the amount of life savings lost to the fraud. The defendant in this case, for example, thought the introduction of evidence about the discovery of mercury and remediation and evacuation of a nearby apartment complex was unduly prejudicial. Brief for United States 51 (citing App. 15 (defendant’s motion in limine to exclude such evidence)). But even if that were so, that evidence might now be admitted as showing the amount of harm caused or the number of days upon which the defendant’s unlawful activity took place.

Administrative problems here may prove more serious than where, as in Apprendi, prison terms were at stake. In part, that is because corporate criminal cases often focus upon complex frauds, criminal price fixing, extended environmental pollution, food-and-drug safety violations, and the like. Both Congress and the Sentencing Commission have recognized as much. The federal criminal fine statute to which I earlier referred specifically creates an exception where assessing total loss or gain “would unduly complicate or prolong the sentencing process.” 18 U. S. C. §3571(d). Similarly, Sentencing Guidelines applicable to corporations exclude fine provisions for environmental crimes (along with most crimes involving export violations, food-and-drug safety, agricultural-and-consumer products, and RICO violations) because of the “potential difficulty . . . of defining and computing loss.” Nagel & Swenson, supra, at 256; see USSG §8C2.1, and comment., §8C2.10. Where the defendant is a human being, the Government can avoid problems of proof simply by abandoning any effort to obtain a fine; instead, perhaps to the individual defendant’s dismay, the prosecution can seek a longer prison term. Where the criminal defendant is a corporation, however, no such possibility exists.

If, as seems likely, it becomes too difficult to prove fine-related sentencing facts to a jury, legislatures will have to change their statutes. Some may choose to return to highly discretionary sentencing, with its related risks of nonuniformity. Others may link conviction with fines specified in amount, rather like the 10th-century pre-Norman system of three cows for perjury or more modern mandatory minimum penalties. As Blackstone pointed out, those systems produce sentences that are not proportionate; they tend to treat alike offenders who committed the same crime in very different ways. See 4 Blackstone 371–372.

The majority believes that 10 years of experience with Apprendi “attenuate[s]” any legal claim of reliance on different rule of constitutional law here. Ante, at 16. Perhaps so. Perhaps that experience shows that Apprendi’s jury trial requirement is workable. But there is another less optimistic possibility.

Perhaps that experience, like the canary in a mine-shaft, tells us only that our criminal justice system is no longer the jury-trial-based adversarial system that it once was. We have noted that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Missouri v. Frye, 566 U. S. ___, ___ (2012) (slip op., at 7). We have added that today “ ‘plea bargaining” is “not some adjunct to the criminal justice system; it is the criminal justice system.’ ” Ibid. (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992)). And in such a system, complex jury trial requirements may affect the strength of a party’s bargaining position rather than the conduct of many actual trials.

At the same time, the prosecutor in such a system, perhaps armed with statutes providing for mandatory minimum sentences, can become the ultimate adjudicator. The prosecutor/adjudicator plays an important role in many “European inquisitorial” systems. But those prosecutors, unlike ours, typically are trained formally to be more like neutral adjudicators than advocates. Cf. Langbein & Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L. J. 1549, 1559 (1978); see, e.g., Ècole Nationale de la Magistrature. Today’s holding, by unnecessarily complicating the trial process, may prove workable only because it nudges our system slightly further in this direction. I see no virtue in doing so.

For these reasons, with respect, I dissent.

Print this transcript Transcript: 

ORAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 11-94, Southern Union Co. v. The United States.

Mr. Phillips.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

In its landmark decision in Apprendi, this Court announced as a fundamental principle of Fifth and Sixth Amendment jurisprudence that every fact necessary to increase the punishment beyond that which is otherwise maximally provided for must be presented to the jury and must be decided by the jury beyond a reasonable doubt.

In this particular case, the defendant was fined a total of an $18 million penalty in the context of a jury finding that there was a single day of violation under the RCRA provision.

Congress is quite explicit that the maximum fine for a single day's violation is $50,000.

Justice Antonin Scalia: Was that jury trial constitutionally required?

Mr. Phillips: Yes, I believe the jury trial was constitutionally required, Justice Scalia.

The cutoff between what's a petty offense not subject to jury trial and what is beyond that, I think you could get there two ways.

This is a crime that Congress attaches a 5-year penalty to if it's against an individual, which suggests that it is a very serious crime.

And the maximum fine under the district judge's interpretation of this would have been $38 million, even though the judge chose only to impose an $18 million penalty under the circumstances.

So, either way, it seems to me clearly a serious offense.

Justice Anthony Kennedy: What have we said is the a standard for fines?

Mr. Phillips: I'm sorry?

Justice Anthony Kennedy: What have we said with reference to a jury trial when fines are involved?

Does it have to be a substantial fine or do we have a word that we use?

Mr. Phillips: Well, you haven't used the word -- I mean, the distinction is between a serious offense and a petty offense and the places where you have drawn the line to conclude that a fine was too small to be worried about was $10,000 in the Muniz case.

You recognized in Bagwell that $52 million was way beyond what would be appropriate under those circumstances.

I think the Court benefits most if it just focuses on the potential penalties that Congress has adopted and use that as the guidepost, because if Congress has said that this is something for which someone could be punished--

Justice Antonin Scalia: Well, you have to do that because you have to know whether -- whether to impanel a jury before the jury comes in or before the jury comes in with a penalty, right?

Mr. Phillips: --Right, absolutely.

And we asserted our right to a jury trial.

And the government didn't contest our right to a jury trial.

And I don't actually read their brief--

Justice Samuel Alito: Do we assume for purposes of this case that your client, a corporation, has a Sixth Amendment right to a jury trial?

Mr. Phillips: --I think the language of the Sixth Amendment couldn't be clearer, that it says in all criminal prosecutions the -- the accused is entitled to a jury trial, and all -- and you know, Article III, section 2, says in all jury trial -- in criminal prosecutions there's a jury trial.

So there is no effort whatsoever to limit the -- the individual, or in any way to -- the person or persons or entities that are entitled to those rights.

Justice Samuel Alito: What are the peers of the Southern Union Company that would sit on the jury, other railroads?

Mr. Phillips: Well, that would have been -- we'd probably have had a different outcome if that had been the case.

But no, Your Honor, obviously "peers" in that context is -- is derived from the citizenry in the State or the district in which the prosecution is brought.

I mean, obviously we don't get corporate peers in that sense, but that -- but no one has ever doubted that an ordinary jury would be a suitable jury of peers for corporations, and candidly, corporations are tried all the time.

And no one has doubted it.

And I don't think it -- you know, first of all, it seems clear under the language of the Sixth Amendment and Article III that corporations are entitled to a jury, and that no one is -- in anything that is a serious offense, and that clearly is what we have here.

And so what we've got is a decision by the jury that there was at a -- at a single point in time a violation of RCRA.

Justice Ruth Bader Ginsburg: But it's not -- the jury didn't say that the defendant was in violation only 1 day.

It said it was in violation within this span of many months, and it didn't say how many days.

It didn't say whether it was every day or 1 day or 10 days.

It just didn't focus on the number of days.

But it didn't find that they were in violation only 1 day, which is what your opening statement was.

Mr. Phillips: Right.

But what the -- what the First Circuit said, Justice Ginsburg, is that the -- the most you could read the jury to have found, because it was not asked the question, the most you could read out of it, was that there was a single day of a violation, and that that then--

Justice Antonin Scalia: The most -- the most you must read out of it.

Mr. Phillips: --The most you must read out of it.

Justice Antonin Scalia: Yes.

You could -- you could say, it could have meant, they could have thought that they violated every day.

Mr. Phillips: Right, they could have.

Justice Antonin Scalia: You can't say that for sure.

But one thing you can say for sure is that they found that it violated it 1 day.

Mr. Phillips: Right.

That's correct, Justice Scalia, and that therefore, if you apply the core Apprendi doctrine in a principled way, as Justice Kennedy suggested in a separate concurrence, if you applied it in a principled way, you determine what facts are supported by the jury's findings and how far does the penalty take it, and it goes to $50,000, and anything beyond the $50,000 is, if it's found by the judge, it doesn't satisfy the Sixth or Fifth Amendment under those circumstances.

That should be in my judgment the end of the inquiry.

The First Circuit rejected that argument by turning to Oregon v. Ice and suggesting that there was a fundamental shift in how the Court applies the Apprendi doctrine.

And I -- I would suggest to you that, although you are clearly better positioned to determine what you thought you meant by Ice than I am, my interpretation of Ice is that it deals with the very different situation of multiple offenses and the very different problem of trying to extend the Apprendi doctrine to the context of multiple convictions, and then adopted a methodology for applying it in those circumstances that focused significantly on a particular history of consecutive versus concurrent sentences--

Justice Stephen G. Breyer: I didn't think -- I mean I was -- I tend to be in dissent in these cases, so I don't have the authoritative view.

But the--

Mr. Phillips: --More so than I do, Your Honor.

Justice Stephen G. Breyer: --What?

Mr. Phillips: More so than I do.

Justice Stephen G. Breyer: Well, but no.

But the impression I have is that -- that I had thought there were what I would call the elements of the offense, and then there were sentencing facts.

And sentencing facts have been traditionally facts found by the judge when imposing a sentence.

Now the majority of the Court in Apprendi went back into the history and said there is no significant old tradition, old enough, of -- of sentencing facts.

So really when you raise the sentence that's like an element and you should have a jury trial.

Now, the argument here, one of them, the government stresses -- and Ice is the same -- is that there is no -- the tradition's different where fines and where multiple and concurrent sentences were at issue.

If you go back to the 18th century or earlier, what you will discover is that the judge has always had a much greater role in deciding what the amount of a fine should be.

And therefore, insofar as that amount rested upon some view of the facts as to the manner in which the crime occurred -- and it always does -- it was the judge who traditionally found it, not the jury.

So those facts are not like elements of the crime.

That's what I thought was essentially the argument.

Ice and fines are on one side of that line and Apprendi is on the other.

Mr. Phillips: I think the -- the problem with that analysis, Justice Breyer, is I don't think the history, first of all, is anywhere near as clear in this context as it was, for instance, in Ice in terms of who decided what.

It is -- there is no history that suggests that judges had the authority to impose fines beyond whatever the maximum statutory limit that was provided for by the legislature involved.

And if you -- and if you go through--

Justice Stephen G. Breyer: No, no.

They are not doing that here.

What they are deciding is a fact of sentencing is how often this crime was committed.

No one can go against the statutory limit, but rather it allows a higher sentence when certain facts occur.

Now, I thought in Apprendi that the history is just what I'm saying it was in -- in the fine case, but the majority says to the contrary.

And so here it seems, even if I was wrong in Apprendi, that at least there is enough discretion here to say, look, this is traditionally up to the judge.

Now why do you think that isn't so.

Mr. Phillips: --Because it never was traditionally up to the judge to go beyond whatever the maximum sentence provided was.

Justice Thomas's concurrence in Apprendi spends a significant amount of time with that history.

He several times references jury -- I mean fines and jury determinations and consistently finds that the same rule applies in the fine context as applies in the -- in the incarceration context.

Justice Elena Kagan: Mr. Phillips, do you think that you could say that there was no going above the statutory maximum here?

In other words, you know, if the judge had said well, it's $500 a day, I'm going to find some facts and fine you $600 a day, that would be going above a statutory maximum.

But I'm wondering whether this is different because here the judge was sticking to the $500 a day that was set out in the statute, and then the question is more, you know, of an out -- is it an element or is it a -- is it a sentencing fact as to how many days the violation occurred?

Mr. Phillips: Well, Justice Kagan, I would have thought, if anything, our case would be a much easier one, because what you -- what you basically are saying is that the district judge on the basis of a non-reasonable doubt standard and without a jury is making a determination that there have been 761 violations of Federal law, and on that basis imposing a sentence.

It would seem to me that, whatever else you might want to say Apprendi should limit, it would be the whole idea that the judge gets to determine every aspect of all elements of the crime and the punishment that attaches to it.

Justice Ruth Bader Ginsburg: Was there an objection at trial to the charge on the ground that it didn't instruct the jury to find the number of days of violation?

Mr. Phillips: The United States didn't object to that; no, Your Honor.

Actually we didn't object to it either and it wasn't an instruction that was offered by either of the parties.

The judge actually was the one who divined the instruction with respect to a single--

Justice Sonia Sotomayor: You have no inducement to--

Justice Anthony Kennedy: You have the context where the entire offense of the corporation was consistent with what the indictment said.

It was between the date on or about, and there -- it would be very strange under this evidence to think that it was only there for one day, when it was spilled and they came back -- that just doesn't make any sense.

Mr. Phillips: --Well, Justice Kennedy--

Justice Anthony Kennedy: I think there's -- that's just more a sense of background.

I -- I do think we have to reach the issue you -- you present as if it were just -- as if there were no evidence.

Mr. Phillips: --Right.

Justice Anthony Kennedy: But I -- like Justice Ginsburg, I was very surprised the government didn't allege -- didn't stress waiver here.

You didn't submit an instruction?

Mr. Phillips: Well, the -- yeah, we didn't submit an instruction.

On the other hand, neither side submitted the particular instruction that the judge adopted in this particular case.

But what I think is important is to put it into the context of the, of the evidence at trial and the way it was analyzed by the First Circuit under the harmless error standard.

Remember that the issue here is not that they simply have mercury in a particular location without a permit.

The question was, did they -- were they holding it with an intent to recycle it at some point and to make it a usable product.

And there were three different points in time when evidence clearly demonstrated an attempt to obtain an RFP to handle the product in precisely that way, even up to the summer of 2004, and the indictment only runs to October of 2004.

So the notion that it could be a -- a significantly shorter period, maybe not, maybe not just a day, ultimately, but clearly you can't -- we just don't know, because no one asked under those circumstances.

The First Circuit said this could not be viewed as harmless error, and I think that is not challenged by the United States at this stage in the litigation.

And so it seems to me, as you say, Justice Kennedy, you have to evaluate the pure issue of, you have one day of violation, that's the determination, and when -- and to take the Apprendi doctrine.

As it is stated, it's quite plain.

Justice Sonia Sotomayor: --Mr. Phillips, can you deal with one policy argument that your adversary raised that gives me some pause?

And that is, the number of days is certainly something that the jury here could relatively easily decided upon.

It could have looked at the evidence and figured that out, okay?

Mr. Phillips: Right.

Justice Sonia Sotomayor: But in fraud cases, in securities cases, sometimes the identity of victims is not determined for months, till months after the conviction, and the amount of fine and/or restitution is set at sentencing.

What's going to happen to all of those statutes--

Mr. Phillips: Well--

Justice Sonia Sotomayor: --because -- or all of those procedures that have been set up by Congress to sort of set the amount of loss and repayment?

Are all of those subject to the Apprendi rule?

Mr. Phillips: --I dont -- I don't think so.

I mean, the lower courts have been pretty consistent on the question of restitution.

Restitution is, one, not a punishment within the meaning of Apprendi; and two, it's indeterminate.

And as a consequence of that, the jury doesn't have to make that determination.

Justice Sonia Sotomayor: Well, isn't -- aren't fines indeterminate here by definition, going back to Justice Kagan's question?

There is no upper limit to how much the fine could be here, set -- the upper limit is set by the number of days, but why is it different?

Why is restitution--

Mr. Phillips: Well, because it is set by the number of days--

Justice Sonia Sotomayor: --Well, so, so--

Mr. Phillips: --which requires a predicate finding of how many days.

Justice Sonia Sotomayor: --So how about when a fine is set by the value of the loss?

That's no different than restitution.

Mr. Phillips: And the government will have to figure out what it, what it -- its best take as to the value of the loss, and it's going to have to prove that if that's going to be the basis on which -- the fine.

Justice Stephen G. Breyer: My goodness, I think there's lots of statutes that say something like this, that within limits, there's a particular--

Mr. Phillips: Well, if it's within limits, that is fundamentally different.

Justice Stephen G. Breyer: --Yes, leave that out because--

Mr. Phillips: Right.

Justice Stephen G. Breyer: --It says, the fine:

"The maximum fine is going to be not more than the greater of the twice of gross gain or twice the gross loss. "

Mr. Phillips: Right.

Justice Stephen G. Breyer: Now, you are going to send that to the jury.

Let me read you the next phase, phrase:

"Unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process. "

I point to that next phrase to show you that Congress understands in an antitrust case, in a RICO case, in a corruption case of different kinds, in an environmental case, it is so complicated figuring out that kinds of things that they excuse even the judge who is experienced in this from dealing with that.

And under your theory, as you just point out, if Apprendi applies here, we are suddenly telling juries to -- they have to under the Constitution administer that section 18 U.S.C. 3571 which I just read to you.

Mr. Phillips: Right.

Well, Justice Breyer, I mean, my first line of defense would be the comment by this Court consistently that the jury trial right doesn't necessarily make for the most efficient criminal proceeding.

Justice Stephen G. Breyer: You know, I understand you could say: That's what the Constitution provides and if you jury can't handle it, well, too bad.

Okay.

But I think we are still in the business of trying to decide whether the Constitution does provide that in the case of fines.

Mr. Phillips: Right, but I, I would hope that the Court wouldn't -- wouldn't let the tail wag the dog in that particular context.

Justice Stephen G. Breyer: Is that a tail?

Is that a tail that the jury proceeding is itself so unadministrable that even Congress says: We recognize even a judge couldn't do it.

All right, now, is that--

Mr. Phillips: Well, recognizing--

Justice Stephen G. Breyer: --Is that an irrelevant consideration when you are trying to figure out whether an ambiguous history requires the jury trial?

Mr. Phillips: --Well, the ambiguous -- the part of the history that is unambiguous is the importance of the jury as a bulwark against the Federal Government and against the judge.

Justice Samuel Alito: Well, in 1790, in fact in the first Judiciary Act and in the Crimes Act of 1790, Congress enacted statutes, criminal statutes that authorized a fine and left it entirely to the discretion of the court.

Were those unconstitutional?

Mr. Phillips: If it -- up to the maximum.

Justice Samuel Alito: There was no maximum.

Mr. Phillips: Well, then there -- then it's an indeterminate sentence and, of course, they are not unconstitutional.

The core of Apprendi--

Justice Sonia Sotomayor: Congress permitted in 1790 indeterminate sentences as well, with no statutory maximum.

Mr. Phillips: --Right.

I think that is what Justice Scalia -- Alito was saying.

Justice Sonia Sotomayor: So they did both--

Mr. Phillips: Right.

Justice Sonia Sotomayor: --With respect to fines--

Mr. Phillips: Right.

They had both.

But the one thing they didn't have is a situation where, whatever the statutory maximum was, the judge was permitted to go beyond the maximum based on findings that the judge offered up on his part without the benefit of--

Justice Samuel Alito: So if it's totally up to the discretion of the judge, that's fine.

But if Congress enacts a statute that structures the fine and says, if this is the case then so much, if that is the case then so much more, then you have to have a jury trial?

Mr. Phillips: --Absolutely.

Justice Samuel Alito: What sense does that make?

Mr. Phillips: Because--

Justice Antonin Scalia: Isn't that precisely what Apprendi said?

Mr. Phillips: --Well, that was the easy answer.

Justice Antonin Scalia: Yes.

[Laughter]

Mr. Phillips: But more fundamentally, and it's demonstrated in a case just like this one--

Justice Samuel Alito: That may be what Apprendi said, but is it consistent with the original meaning of the jury trial right in the Sixth Amendment?

These statutes give me pause on that score.

Mr. Phillips: --Because -- but these statutes don't speak to what Apprendi was talking about, which is, a situation where you set a maximum above which the judge is permitted to go.

None of the statutes that are out there exist that demonstrate that.

All -- and in all the language and all the discussion in Justice Thomas's concurrence talks about up to the -- you know, you have broad discretion up to the maximum.

Once you go beyond the maximum, at that point the jury trial right has to kick in.

And let me say it in this context.

Here's a situation where the government proves up its case in the context of a $50,000 fine, and that's what the jury is asked to decide, and it decides that, and then the judge gets to say: Okay, $38 million is now the right number.

If that's not the tail wagging the dog within the meaning of even the cases that preceded Apprendi, it seems to me there is a fundamental flaw in that particular scheme.

The history between fines and incarceration are essentially the same.

What the Court said in Apprendi should be followed exactly under these circumstances.

Ice should be distinguished on the recognition that multiple offenses are fundamentally different from single offense, and on that basis the judgment of the court of appeals should be reversed.

Justice Ruth Bader Ginsburg: What do you make of this old case that the government cites, U.S. v. Tyler?

And it was the question of -- the penalty was four times the value of the goods, and this Court said the judge, not the jury, is responsible for imposing the fine and therefore also for determining the value of the goods.

Mr. Phillips: Well, Tyler is in many ways kind of imponderable.

The one thing that's clear, it's not a Sixth Amendment decision.

It was not actually argued.

All it says is that under this law -- and the problem, obviously, in this case was they found -- you know, it was -- the pounds weren't the problem.

The problem was obviously they had identified one substance in the indictment and the jury found another substance in its verdict.

And so there was the disconnect there, and the Court basically said: We are not going to worry about that trifling under these circumstances.

What it doesn't say remotely is that the Sixth -- is that -- you know, that the Sixth Amendment would permit the judge to make that finding under those circumstances.

Justice Anthony Kennedy: If you were to prevail, I think it would be a rather simple matter for the parties to frame an instruction: We find the defendant guilty and that the pollutant was retained for x days, much as what they do in a drug case.

That's one way to do it.

Could the government do it by the indictment?

Could it indict alternatively, indict on count 1 for 10 days, days, count 2 for two 2 days, or something like that?

Mr. Phillips: They could do it that way or--

Justice Anthony Kennedy: Is that the way it often works?

Mr. Phillips: --Well, I would have thought the actually the indictment in this case was probably adequate for these purposes because it said

"during the entirety of the period from September 2002 to October 2004. "

Justice Anthony Kennedy: Well, that's why I'm surprised the government waived it, and I thought that's what the evidence showed anyway.

But that's not before us.

That's not the way the case is presented here.

Mr. Phillips: Right, Your Honor.

That's correct, Your Honor.

Justice Stephen G. Breyer: How, in general -- I mean, in the individual case, very offer a trial doesn't come up because 90 percent or more of the time it's just a question of the plea bargain, and therefore the defendant doesn't -- this is an added weapon for him, Apprendi.

But in your -- with your clients and others, there might be quite a lot of trials.

So how in a trial does your client or others in that position defend on the ground of: We didn't do this at all; but by the way, in case you decide to the contrary, jury, we want to tell you we only did it Monday, Wednesday and Friday.

[Laughter]

How is that supposed to work?

Do you have two juries?

Mr. Phillips: No.

Well, I mean, look, if we think we are going to be prejudiced as a consequence of trying this in a particular way, it will be our call whether or not to waive the jury trial right under those circumstances.

But more fundamentally, at least in this particular case, obviously our position was, we didn't form the intent at any point in time and -- but, you know, if ultimately the -- the jury had found that there was some other point in time, then we will deal with that issue as we deal with it.

But it wouldn't have been -- I don't think the trial in this case would have been significantly different.

The only thing that would have been different is that the jury would have been properly instructed and our jury trial right would have been preserved.

As it is here, our jury trial right has been savagely undermined.

If there are no further questions, I reserve the balance of my time, Your Honor.

Chief Justice John G. Roberts: Thank you, Mr. Phillips.

Mr. Dreeben.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

This case, like Oregon v. Ice, involves the kind of finding that the common law never entrusted to the jury.

There is, therefore, no erosion or encroachment on the jury function by assigning the function of determining the days of violation to the Court for the purpose of determining the criminal fine.

Chief Justice John G. Roberts: You agree, don't you, that the statement in Oregon v. Ice was pure dicta?

Mr. Dreeben: The Court's statement in Ice that if a purely algebraic application of Apprendi were followed it would sweep in things such as fines and restitution was not necessary to the judgment, Mr. Chief Justice, but it was part of the Court's rationale in adopting a different take on the meaning of the Apprendi line of cases then had previously been espoused.

Up until--

Justice Ruth Bader Ginsburg: Mr. Dreeben, I think the reference, it was a fleeting reference to fines and it could have meant that the judge has discretion to set fines up to the maximum in the statute.

That's one possible meaning.

Mr. Dreeben: --That is true, Justice Ginsburg.

But I think that the author of the opinion in Ice was citing to an amicus brief filed by States which supplied illustrations of fine statutes that it believed would be imperilled by a purely programmatic rule-based application of Apprendi.

And two of the State statutes that were cited in that amicus brief, that of New Jersey and Alaska, involved the kind of gain or loss statute that has been discussed this morning, in which the judge following the rendition of a guilty verdict determined the amount of gain or loss and then applied either a double or triple amount as the maximum fine.

Justice Antonin Scalia: This was -- you're not arguing that this rule will apply only to fines against corporations?

It would also apply to individuals, right?

Mr. Dreeben: Correct, Justice Scalia.

Justice Antonin Scalia: It's up to the judge to decide how many days or what the value was, and so forth, right?

Mr. Dreeben: Yes, Justice Scalia.

Justice Antonin Scalia: So the right to trial by jury to have that very important fact found does not exist, even for individuals?

Mr. Dreeben: Justice Scalia, the tradition with respect to monetary fines is different than the tradition that the Court analyzed in Apprendi.

With respect to fines, restitution and forfeiture, the jury was never given a substantive role at common law.

And the law today is with respect to forfeiture--

Justice Sonia Sotomayor: I'm not sure how you can fully make that argument, because I thought the history was set forth fairly clearly in Apprendi that the early history was that nothing was given to the jury with respect to imprisonment or fines because most if not all sentences were indeterminate.

It's only when States began and the Federal government to experiment with determinate sentences that the Apprendi issue then became live.

Mr. Dreeben: --Justice Sotomayor, I think what Apprendi relied on primarily was the linkage between charge and penalty in English law, which was for felonies death.

The Court distinguished in a footnote the tradition with respect to misdemeanors, which it acknowledged was judicial discretion with respect to fines and whippings, and it did not rely on that history in fashioning the Apprendi rule.

What it relied on were two things: First, the traditional linkage between charge and authorized penalty in English common law, and second the tradition in America that when the legislature had put a cap on the amount of the penalty, the judge had discretion within it not to go above it.

But neither of those aspects of Apprendi addressed the issue that's before the Court today, which is whether it would be an expansion beyond the domain that was covered in Apprendi to apply it to monetary penalties in the form of--

Justice Sonia Sotomayor: So explain to me, other than your reliance on Ice, some sort of tradition, which, you know, we can debate whether you can draw any conclusion from tradition in any of these areas, whether it's imprisonment or fines.

Tell me on the logic of Apprendi, not using Ice, why fines are different, without relying on history which to me is -- I view it as ambiguous, okay?

Mr. Dreeben: --It's difficult to do that, Justice Sotomayor, because the Court fashioned the Apprendi rule from history and it limited it based on history in Ice.

It doesn't operate as an algorithm that simply applies automatic--

Justice Sonia Sotomayor: I thought it was fairly simple algorithm.

It says if the statutory penalty -- if a judge's fact finding can increase the statutory penalty, then that's a violation of the Sixth Amendment.

A jury has to find any fact that increases the statutory maximum.

Mr. Dreeben: --Yes, and that was the argument of the Ice dissenters, that Apprendi states a rule that knows no exceptions for history or the impact on the states.

And Ice does represent I think a -- it shows where the high water mark of Apprendi was.

The high water mark was with respect to the penalty of imprisonment.

Justice Sonia Sotomayor: So outside of an imprisonment, there is no other penalty that Congress could fashion because it has no history that wouldn't be within the purview of the judge?

Mr. Dreeben: Well, of course the death penalty in Ring v. Arizona.

The court held that facts that exposed the defendant to the death penalty must be found by the jury.

So the court has extended Apprendi to those court of liberty areas.

But even with respect to the implication for the length of imprisonment, the quantum of punishment that a defendant faces when he is convicted of multiple offenses, this Court in Ice looked to history and the impact on the administration of justice before being willing to extend Apprendi outside of its core domain.

And I think it's highly relevant.

Justice Elena Kagan: But, Mr. Dreeben, wasn't the core domain defined by whether it related to a specific statutory offense?

So Ice says

"the core concern is a legislative attempt to remove from the province of the jury the determination of facts that warrant a punishment for a specific statutory offense. "

How is that not relevant precisely in this context.

Mr. Dreeben: Well, it is of course relevant, Justice Kagan.

Justice Elena Kagan: How does it not determine this context.

Mr. Dreeben: Because the Court went on several paragraphs later in its opinion to describe what it would mean to adopt a formulaic complication of Apprendi, treating it just as a rule divorced from history.

And one of the consequences that the Court considered was the impact it would have on sentencing accoutrements, two of which are directly related to this case because they are financial penalties, fines and restitution.

Now, I've talked about how the amicus brief that prompted that paragraph, the concern about implications of expanding Apprendi referred to fine statutes that operate on a gain or loss basis which necessarily requires judicial fact finding after the guilty verdict comes in.

But if the Court isn't satisfied with those, restitution which is explicitly mentioned in Apprendi -- excuse me, in Ice, classically operates based on findings about victim loss that occur after the guilty verdict has come in.

This Court is well familiar that oftentimes courts have to postpone sentencing in order to allow the victim to gather evidence and to present it.

Now the Court could, I suppose, do as the lower courts have done and say restitution is different because it's designed simply to compensate for loss and therefore it's in one sense remedial.

But that will have to deal with the fact that in cases like Pasquantino v. United States and Pennsylvania v. Davenport, the court has described restitution as a criminal penalty.

Now the other way in which lower courts have said that restitution isn't swept up by Apprendi is to say that it's a rule that has no maximum.

Whatever the amount of harm to the victim is, that can be compensated through restitution.

But again, if one is applying an algebraic understanding of the relevant statutory maximum from the Blakeley decision, restitution would be hard to justify because the jury verdict does not contain findings about harm to victims.

The jury verdict finds guilt, afterwards the judge finds an additional fact, namely the amount of harm and imposes restitution.

Chief Justice John G. Roberts: It's kind of odd though, isn't it, I mean.

To some extent, this is a little easier case for you, because it does involve a corporation.

But there are statutes where the amount of imprisonment and the amount of a fine can both increase based on a particular fact.

Mr. Dreeben: Uh-huh.

Chief Justice John G. Roberts: And under your submission if you have, you know, say a defendant is subject to one year and then if a particular fact is found and he's subject to two years, a fine of 20 but then 40, the judge would be constitutionally prohibited from increasing the prison increasing the prison sentence but would be perfectly free to increase the fine--

Mr. Dreeben: Probably--

Chief Justice John G. Roberts: --probably in a situation where the fine might be a lot more serious than the -- the time in prison.

Mr. Dreeben: --Well, probably, Mr. Chief Justice, such a statute would be construed to make that fact one for the jury, since it dictates imprisonment increases as well as fine increases.

And so the constitutional question is unlikely to arise.

Congress would have been deemed to have intended that that kind of a fact go to the jury.

That's not what -- the case in this statute.

This statute provides a 5-year maximum penalty, and then it provides a fine amount that's graduated to the days of the violation.

The violation in this case was one single violation.

The judge did not find that there were multiple violations; the judge simply looked at the record, and his task is to decide how long did that violation--

Chief Justice John G. Roberts: But he operated -- he operated in a reasonable way.

But we give juries the discretion to be unreasonable.

It would not -- juries often compromise.

So if the instructions and the verdict told the jury you can find the defendant, you know, guilty for 1 day, or whatever it -- is the 30 million -- 50,000 or 30 million -- it would not be at all unusual for the jury to debate and say well, let's find him guilty for 10 million.

Mr. Dreeben: --We do--

Chief Justice John G. Roberts: --and to carry that through, the judge is constrained by reason in -- in a way that the jury is not, and that's sort of -- that's part of the protection the Sixth Amendment provided.

Mr. Dreeben: --This Court has never recognized jury nullification as a constitutionally protected right.

We presume a rational jury.

We presume that if the jury is confronted with the evidence and the law as given to it by the Court, it will apply that law in a rational matter.

And the question here is whether that is something that the jury is constitutionally entitled to do.

Now, coming back to the historical foundations of the Apprendi rule and the extension that's requested here, with all due respect to Petitioner, I think United States v. Tyler is much more significant than Petitioner gives it credit for.

This is a case decided in 1812 on a Court that had on it Chief Justice Marshall and Justice Story.

These were people who were well-steeped in common law traditions and well-familiar with how judges would find facts at the time of the founding.

And in Tyler, there was a charge that the defendant had unlawfully exported in violation of an embargo law an amount of pearl ashes that were worth $600.

And the jury came back with a verdict that said we find that the defendant unlawfully exported pot ashes worth $280.

And the question is could a verdict be imposed on this and could the judge set the fine?

The two judges on the circuit court disagreed, and so it was certified to the Supreme Court.

And this Court held unanimously that finding a valuation was a judge function, not a jury function.

No valuation was necessary in order for the Court to impose the proper fine.

And it's difficult to understand how this Court could have said that if there was such a well-settled constitutionally protected entitlement to a jury verdict on facts that dictated a fine, if indeed this statute assigned the role to the judge and the Court was fully comfortable with that role being carried out.

And Tyler is a decision of this Court.

There is no decision of this Court with respect to imprisonment that is anything like Tyler.

The traditions with respect to imprisonment would surely be understood in a different manner than with respect to fines.

And when one looks at fines, restitution and forfeiture as a package of financial penalties and asks the question, did the Framers envision that these matters would be within the jury's domain as opposed to the judges' in imposing the appropriate sentence after a jury verdict, I think that the answer is they would not have viewed it as a matter protected by the Sixth Amendment, because there was no factual predicate in the Common Law that would have led them to believe the jury's function would be eroded if those matters were not.

Chief Justice John G. Roberts: It's a very -- very simple matter for the government to ask for jury findings on the questions at issue in this case, right?

Mr. Dreeben: We could have done it here, Mr. Chief Justice.

The broader concern is cases that involve gain or loss, in which the question of how much loss may have been suffered by hundreds or even thousands of victims of fraud is typically not undertaken -- the process of quantifying them isn't done until the guilty verdict is in because it's an enormously difficult and complicated task -- as Justice Breyer pointed out, the judge isn't even required to do it at sentencing if it proves to be too complicated.

And for jury trials to do it, there may well be a need for bifurcation.

And this Court in Oregon v. Ice declined to impose on the States the need to bifurcate trials to determine whether a sentence should be run consecutively or concurrently, because that would intrude upon a valuable reform that was designed to provide some restraints on judicial discretion.

The same kind of thing would operate here if this Court adopts an across-the-board rule that fines have to be proved to a jury.

If it extended it to restitution and to forfeiture, that would involve overruling the Court's decision in Libretti v. United States, which held that forfeiture is a sentencing function.

But upon a strict application of Apprendi, a mathematically geometrically accurate application of the rule stated in Apprendi, it's difficult to see why forfeiture is not something that has to be--

Justice Antonin Scalia: Mr. Dreeben, let's talk about Tyler.

Tyler was not argued before this Court.

Mr. Dreeben: --Correct.

Justice Antonin Scalia: It's a one-page opinion.

It's later described quite accurately as focusing not upon the amount of the fine, but rather upon a misdescription of pot ashes as pearl ashes, right?

Mr. Dreeben: Well, I don't agree with -- that it's later been characterized that way.

It was characterized in a decision that was written by Justice Story in the same year.

Justice Story was on Tyler.

He wrote -- he sat on circuit in a case called United States v. Mann -- and this is in our brief.

And he -- he interpreted Tyler and said the Court would not have given the direction that it did, that a judgment could be entered based on the fine amount, unless they were satisfied that an indictment lay and that the fine was to be imposed by the Court and not found by the jury as a penalty.

Justice Antonin Scalia: The jury did find it in Tyler there, didn't it?

The question was submitted to the jury, wasn't it?

Why doesn't that indicate what the historical practice was?

Mr. Dreeben: Because the Court stated that the part of the verdict which is subject -- which we're discussing right now -- is to be regarded as surplusage.

In other words, this -- Tyler explains that although it was submitted to the jury, it wasn't necessary to be submitted to the jury.

The charge had asked for $600 of value which would then be subject to the fine.

The jury found only $280.

And as I interpret the Court's decision and I think as Justice Story interpreted it sitting on circuit in Mann, it said this isn't a jury function.

Justice Antonin Scalia: It did it as a matter of statutory construction, right?

Mr. Dreeben: Again, I would readily concede, Justice Scalia, that the Sixth Amendment does not appear in the Court's decision in Tyler, but it's difficult for me to understand that a Court that included Chief Justice Marshall, Justice Story and other members who were well-familiar with how common law operated would have adopted an interpretation of a statute that was facially unconstitutional.

I -- I don't submit that this decision grapples with what we now know to be the Apprendi doctrine.

I simply submit it as evidence that this Court--

Justice Antonin Scalia: You -- you don't think they believed in the Apprendi doctrine, either, right?

Mr. Dreeben: --No.

I -- they didn't have the benefit of having read Apprendi in order to render their decision.

They -- they were deciding the question that was certified up to them.

My submission is that they wouldn't have decided the case that way if they thought, based on their familiarity with the Common Law, that fines were the kind of thing that had to go to a jury.

Justice Antonin Scalia: Might have felt that they had argument, right?

Mr. Dreeben: I think they felt they did not need it, because the matter was sufficiently obvious that all members of a court could agree with it.

Justice Antonin Scalia: What about all of the 19th Century cases cited by Justice Thomas's concurrence in Apprendi?

Fine cases.

In which courts -- in which courts did indeed require the amount of the fines to be found by the jury.

Mr. Dreeben: There are three of them.

The earliest one is Commonwealth v. Smith.

It's a Massachusetts case.

Justice Antonin Scalia: Massachusetts, right.

Mr. Dreeben: And the Court in that case, its analysis I think is even briefer than the analysis we just discussed in Tyler.

Justice Antonin Scalia: Was it an argued case, at least?

Mr. Dreeben: Justice Scalia, I'd have to go back and look at the opinion to tell you whether it was an argued case.

There's no citation of any constitutional law in -- in that decision.

Justice Sonia Sotomayor: What makes acceptable common law?

Let's assume there weren't 50 states back then, but whatever the number was, 20 states, and 15 of them submitted it to the jury and 5 didn't.

Does that mean there was no common law that this was generally submitted to the jury?

If you can point to one case, that's enough to defeat the existence of a common law view?

Mr. Dreeben: I doubt that I would say that, Justice Sotomayor.

The -- the jurisprudence of the former colonies/new States is not uniform.

I -- the -- there is something I think of mythology in speaking about the common law as one indivisible body of law.

Justice Sonia Sotomayor: That -- you see, that's my problem.

Mr. Dreeben: And I don't disagree with you on that point, Justice Sotomayor; but I think that there is one fact that truly stands out about fines, and that is they were historically at common law products of judicial discretion.

Justice Sonia Sotomayor: But so was imprisonment.

Mr. Dreeben: Imprisonment was rare.

Imprisonment was hardly ever imposed in the early colonies and in England.

Justice Sonia Sotomayor: Well, how many statutes had anything but indeterminate fine structures?

Mr. Dreeben: I -- I'm sorry.

Justice Sonia Sotomayor: How many statutes in the early common law had anything but indeterminate fine statutes?

Mr. Dreeben: A few did.

And I've attempted to read up on the law of North Carolina, the law of Pennsylvania, the law of Massachusetts, the law of New York.

It's all varied and complicated, but there were a few of them there.

Justice Antonin Scalia: If it's varied and complicated, why should we -- assuming that it's ambiguous, why should we adopt the strange rule that the jury has to find the fact if you go to jail for two weeks, but doesn't have to find the fact if the amount of fines multiplied by number of days or by anything else will -- will make a pauper of you?

Why would we adopt such a strange rule?

Mr. Dreeben: Well, the fact that there were--

Justice Antonin Scalia: Unless compelled to do -- to do so by a clear common law history?

Mr. Dreeben: --Well, none of those statutes assigned to the role of finding fines to juries.

There may be an example or two that one could find if you dig through the mass of colonial records, but the dominant trend, and it was acknowledged by Blackstone, was that the common law never assigned the responsibility of fines to the jury, and statutes did so rarely.

Imprisonment simply doesn't help very much in this area, because the resources required to imprison just didn't exist, and imprisonment really is a product that developed in the late--

Justice Stephen G. Breyer: What about the other two?

I just -- I was very interested in your colloquy here.

You said, well, there were three cases in the 19th century where they did say the jury--

Mr. Dreeben: --Yes.

Justice Stephen G. Breyer: --And one of them was a very brief opinion from Massachusetts.

Mr. Dreeben: Yes.

Justice Stephen G. Breyer: Well, Massachusetts counts in its favor, but perhaps the brief opinion doesn't.

The -- what about the other two?

Mr. Dreeben: Another one of them is Massachusetts.

Justice Stephen G. Breyer: Both Massachusetts.

Well, that's extraordinary.

Mr. Dreeben: Right.

Hope in 1845, which cites back to Smith and relied on it, and then there is an arson case called Ritchey from Indiana in which the court did seem to think that in order to sustain a proper prosecution where the fine amount varied based on the destruction of the property, the jury had to find the amount of the property valuation.

But this is 1845, it's not something that would have been present to the mind of the Framers.

It doesn't indicate clearly what the source of law is, whether it's a common law tradition, whether it's following something like Smith.

Smith itself I think is also best understood as a larceny case, and there was more of an established tradition that in larceny cases, the value of the property taken was relevant to the jury's findings because it made the difference between a capital offense, a capital offense that could be given with benefit of clergy, which was basically the way for the English judges to mitigate a death-eligible crime to a non-death penalty, or petty larceny, which was punished by fines and whippings.

So it graded the offense in a way that for example the fine penalty at issue in this case does not.

Petitioner is guilty of a felony by virtue of the jury verdict.

That imposes the stigma of being a felon on Petitioner.

The judge's role is then to decide what was charged in the indictment and what was the length of that violation, not to find Petitioner guilty of numerous additional violations.

Justice Antonin Scalia: What if the judge disagreed with the jury about whether there was even a violation?

Mr. Dreeben: The jury's acquittal would end the criminal case.

Justice Antonin Scalia: No, no, no, no.

The jury finds a violation but the judge thinks the jury got it wrong.

Mr. Dreeben: Well, in that case--

Justice Antonin Scalia: How does -- how does he pick the number of days?

He flips a coin?

Mr. Dreeben: --Unless the judge finds that the evidence is insufficient under Jackson v. Virginia he's bound by the jury.

Justice Antonin Scalia: No, he finds, you know, they could have come out that way, but -- but they were wrong.

Mr. Dreeben: Then I think that he would be bound by the day of violation, $50,000 limit, subject to another provision of Federal law, 3573 (c), which provides in the case of an organization that a felony exposes the defendant to a $500,000 fine.

So there -- there would be other limits applicable in Federal law that would explain what the judge is supposed to do in that situation.

The judge, of course, is operating in a different way than the jury.

The jury is finding guilt beyond a reasonable doubt.

The judge is applying a preponderance of the evidence standard.

This Court in United States v. Watts has recognized that judges can find facts that the jury may have rejected under the higher standard.

Justice Antonin Scalia: That is the whole problem.

That is indeed the whole problem.

Mr. Dreeben: It's only the whole problem, Justice--

Justice Antonin Scalia: The judge doesn't have to find that this defendant beyond a reasonable doubt committed the violation on so many days.

The jury would.

Mr. Dreeben: --The only--

Justice Antonin Scalia: The judge could simply say well, you know, all in all, probably they did it -- probably.

More likely than they did it so many days.

Mr. Dreeben: --It's only a problem, Justice Scalia, if the Sixth Amendment protects a defendant's right to it.

And the question that was -- as framed in Ice, is whether the legislative innovation, the reform aimed to structure the discretion of a court which at the Founding era might have been impose whatever fine you like, with no limits whatsoever, except the excessive fines clause of the Eighth Amendment -- Congress has come along, as have the State legislatures, and sought to structure the deliberations with respect to financial penalties.

Fines, restitution and forfeiture are now structured in a way that basically sends the decision to he judge or lowers the standard of proof to a preponderance in the case of forfeiture amounts that -- that are decided by a Federal jury without the constraints of the Apprendi rule.

And that distinction between financial penalties and infringements on life or liberty is consistent with a Sixth Amendment theme.

Deprivations of life or liberty attract a greater degree of protection than fine amounts or other financial penalties.

There is substantive constitutional protection in the Eighth Amendment--

Justice Elena Kagan: What other rules do you think are different?

I mean is there a jury trial in the one case but not in the other?

Is there a right to counsel in one case but not in the other?

What else turns on this fine/incarceration distinction?

Mr. Dreeben: --In the right to counsel area, the Court has held that for misdemeanors, if the defendant goes to prison he is entitled to counsel, if the defendant does not, he is not entitled to counsel.

With respect to jury trials, a petty offense which is generally one punishable by less than 6 months in prison, there is no jury trial right.

A penalty of greater than 6 months in prison indicates a more serious offense.

Justice Antonin Scalia: What if you call it a misdemeanor but -- but impose a very heavy fine?

It's still a misdemeanor?

Mr. Dreeben: It is still a misdemeanor because the primary indication.

Justice Antonin Scalia: And you don't have right to counsel.

Right?

Mr. Dreeben: That -- that is, this Court's jurisprudence; this Court in Scott and Argersinger draw the line at actual imprisonment, recognizing that deprivations of liberty have a more serious criminal implication than financial penalties.

And--

Justice Anthony Kennedy: And that makes it clear to you that there is no overlap between property and liberty, so that no matter how much of your property are taken, under what circumstances, it's just property, it's no liberty involved?

Mr. Dreeben: --There is, of course, an important constitutional value in deprivations of property.

It's protected by due process and the Excessive Fines Clause explicitly addresses the possibility that the judge may impose an unjustified penalty.

There are also nonconstitutional sources of protection such as reasonableness review, which Petitioner got in this case, and the First Circuit upheld the amount of the fine as reasonable.

The only question here is whether despite the lack of a historical pedigree, and despite this Court's decision in Tyler, and despite the adverse affect on the administration of justice, the Apprendi rule needs to be expanded where it has never been applied previously to encompass fines.

Justice Anthony Kennedy: But you want us to write as part of that decision that no matter how great the fine, liberty is not involved?

Mr. Dreeben: Well, liberty in the sense of imprisonment is not involved.

Corporations I don't think can be deprived of--

Justice Anthony Kennedy: Liberty in the sense of what the Fifth Amendment and the Fourteenth amendment say.

Mr. Dreeben: --I don't think a corporation could be deprived of liberty within the meaning of the Fifth Amendment.

It can't be put in prison; it can't be restricted from you know, activities that are--

Chief Justice John G. Roberts: You're -- I'm sorry.

Justice Antonin Scalia: I guess you don't need counsel on any suits against corporations, right?

Mr. Dreeben: --Well, I don't think corporations can appear in court except through counsel.

They don't have a sort of distinct--

Chief Justice John G. Roberts: Your argument isn't limited to corporations, though.

Mr. Dreeben: --No, this is a rule that is responsive to the history with respect to--

Justice Stephen G. Breyer: Do you need any more than that?

I mean, do we have to get into this?

Isn't it just a question of whether there is a tradition in the law that juries rather than judges would determine what used to be called sentencing facts; facts related not to the crime, but to the imposition of the punishment where that's a fine?

Mr. Dreeben: --May I answer?

Chief Justice John G. Roberts: Sure.

Mr. Dreeben: Justice Breyer, we're not asking the Court to reconsider its Apprendi line of cases.

We're asking it to apply the analysis that limited Apprendi in Oregon v. Ice.

Thank you.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Phillips, you have 7 minutes remaining.

REBUTTAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE PETITIONER

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

Hopefully, I'll be able to give you back a couple of those minutes.

I'd like to -- I'd like to start with what seems to me ultimately the fundamental notion of the United States' position, which is that there is a vast gulf somehow between fines and imprisonment.

And it seems to me very difficult within the constitutional structure to embrace that approach when obviously, property interests are protected in the Fifth Amendment; they're protected in the Eighth Amendment.

And if you go back to Blackstone, where he talks about inflicting corporal punishment or stated imprisonment for a term which is better than an excessive fine, that amounts to imprisonment for life.

There's a recognition historically that fines have an enormous impact on individuals and of course are entitled to fundamental constitutional protections.

It seems to me that the government's approach there to saying fines are off the table and it's completely open season on defendants under those circumstances is unjustifiable.

With respect to restitution, I already suggested to the Court all lower courts have concluded that restitution is not within the Apprendi doctrine.

I don't think that's going to be a problem under these circumstances.

And -- and I don't think ultimately that the issue in this case is sort of what is or is not the common law tradition.

Because I -- if I go back and I think -- I read Justice Thomas's concurrence in the history there, he doesn't even mention Tyler as part of -- as part of that analysis, and yet concludes with what I think is a very powerful assessment, that juries would be available for fines up to, you know, within -- if it were going to go beyond some kind of a maximum.

But within the maximum obviously in that context, the judge would have complete discretion on -- on how to approach it.

Justice Ruth Bader Ginsburg: What about the amount of loss issue that Justice Breyer raised with -- very complicated to determine what the amount of the loss is.

Mr. Phillips: Right.

Justice Ginsburg, I think it's worth considering two facts in this case in dealing with what I think is purely a policy argument that shouldn't override the Constitution.

But the first one is that -- the notion that Apprendi applies to fines has been well accepted in 99 percent of the country for more than a decade.

And the Antitrust Division operates and makes these kinds of decisions all the time.

Fraud prosecutions are going forward.

The amicus brief that was filed by the Chamber of Commerce demonstrates categorically they -- this -- this -- it's done every day and it gets done effectively.

So whatever the problem of Apprendi, it has not surfaced.

And -- and you'll look in the government's brief for any specific evidence of the complaint that it makes other than the hypothetical possibility that they were afraid a parade of horribles would be play out.

This Court has rejected that parade of horribles in every other Apprendi context.

Justice Ruth Bader Ginsburg: If -- if -- on the question of the value of goods or the amount of the loss, what would the standard be?

Would the jury have to find beyond a reasonable doubt that it is -- the value was such-and-such?

Mr. Phillips: Yes, I think that is precisely what the jury would be asked to find.

And juries are asked to find that all the time and make that determination.

And I guess the last point that I think as a practical matter that ought -- the Court ought to take notice of is that no State filed an amicus brief in this case, that Apprendi has not been the problem in the fines context that would even warrant anybody to come in here and complain about it.

It seems to me the right answer is to apply the core doctrine, the core principle of Apprendi, which even the government concedes if you just take the language, it talks about any fact that increases the penalty, that algorithm takes you to the conclusion that the judgment below should be reversed.

Justice Sonia Sotomayor: I may have just forgotten, but does your brief go through the status of what lower courts have decided with respect to fines and how they're dealing with them?

I just don't remember it as being part of your brief, the statement you just made--

Mr. Phillips: Well, we do -- I mean, we do make the -- we demonstrated two things: One, that the lower courts pretty consistently have rejected the First Circuit's approach--

Justice Sonia Sotomayor: --Okay.

Mr. Phillips: --and then two, that the amicus brief then focused more in terms of fines being used on a regular basis in that period of time in those jurisdictions.

If there are no further questions, I will cede back the rest of my time.

Chief Justice John G. Roberts: Thank you, Counsel.

Counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Sotomayor has our opinion this morning in case 11-94, Southern Union Company versus the United States.

Justice Sonia Sotomayor: This case is about the Sixth Amendment right of jury trial.

In Apprendi versus New Jersey, we held that this right requires that other than the fact of a prior conviction, any fact that increases the maximum punishment for criminal defendant cases must be proved to a jury beyond a reasonable doubt rather than to a judge under a lower standard of proof.

We have reaffirmed the Apprendi's rules numerous times in cases where the punishment at issue was imprisonment or the death sentence.

The question here is whether Apprendi also applies when the punishment is a criminal fine.

We hold that it does.

This case arises from the conviction of Southern Union Company, a natural gas distributor.

A jury found the company guilty of violating a federal environmental statute.

The statute authorizes a fine of up to $50,000 for each day of violation.

The jury, however, did not specify the length of the violation.

Southern Union argued that the judge must, therefore, assume the violation was for just one day because any longer violation would expose the company to a larger maximum fine and thus amount to judicial fact finding in violation of Apprendi.

The District Court, however, imposed a fine of $6 million and a community service obligation of $12 million, amounts much larger than the one day penalty of $50,000.

The United States Courts of Appeals for the First Circuit recognized that this would violate Apprendi, if Apprendi applied to criminal fines but held that Apprendi does not so apply.

We disagree.

For purposes of Apprendi, there is no basis to distinguish criminal fines from imprisonment or the death sentence.

As we have said in Oregon versus Ice, the core concern of Apprendi is to ensure that the jury finds facts that weren't punishment for a specific statutory offense.

That concern applies just as much to fines as to imprisonment and the death sentence.

Like these other forms of punishment, fines are frequently imposed penal sanctions.

Their amounts are often determined by particular facts and they can be very substantial ranging into the tens of million of dollars or greater.

To allow judges to find facts that set the maximum amount of a fine would subvert Apprendi's purposes.

Our holding today is rooted in historical practice.

At the time of the founding, judges often have much discretion in choosing what fine to impose, but when as here, the amount of a fine depended on a particular fact, those facts were typically alleged in the indictment and proved to the jury.

This requirement manifested the common law rule that all accusations against the defendant that go into determining the punishment must be proved to the jury otherwise the defendant would be punished on the basis of facts that he has never been accused of.

The Government makes several policy arguments for why Apprendi should not apply to criminal fines and we reject them for reasons fully discussed in the opinion.

Because the First Circuit held that Apprendi does not apply to criminal fines, we reverse that Court's judgment and remand for proceedings consistent with this opinion.

Justice Breyer has filed a dissenting opinion in this case in which Justices Kennedy and Justice Alito join.