November 01, 2012

RCRA and the Sixth Amendment: The Supreme Court holds that criminal fines go to the jury

Andrew Mergen

The Resource Conservation and Recovery Act (RCRA) is a “cradle to grave” hazardous waste statute notable for its comprehensive and complex regulatory scheme. 42 U.S.C. §§ 6901 et seq. Environmental disputes in the U.S. Supreme Court, however, rarely turn on the intricacies of regulatory schemes but instead such disputes generally focus on big picture concerns. This is true of Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). As Deborah Tellier recently explained in the May/June 2012 issue of Trends, at the heart of this case is a constitutional issue—whether the principles of the Sixth Amendment established under Apprendi v. New Jersey, 530 U.S. 466 (2000), apply to the imposition of criminal fines.

The case and the majority ruling

The Southern Union Company was convicted of illegally storing mercury without a permit under RCRA, which authorizes a fine of not more than $50,000 for each day of violation. The jury returned a verdict finding Southern Union liable for a RCRA violation, but did not specify the number of days of the violation. The judge imposed a fine of $6 million, holding the company liable for over 700 days of violating RCRA. Southern Union argued under Apprendi that the maximum fine authorized by the facts implicitly found by the jury was $50,000. The question before the Supreme Court in Southern Union was whether, when the amount of a fine depended on the number of days of the environmental violation, the judge or jury had to find the number of days.

The Supreme Court held that the rule of Apprendi applies to the imposition of criminal fines. Justice Sotomayor’s opinion for the 6–3 majority has—in simplified terms—three components. First, the majority rejected the United States’ argument that criminal fines do not implicate the “core concerns” that underlie Apprendi. Specifically, the majority was not persuaded that a criminal fine is different from punishments involving a death sentence or imprisonment. The Apprendi rule, the majority found, should apply to criminal fines no differently than it does to sentences of imprisonment. The majority concluded that when a fine is substantial enough to trigger the Sixth Amendment’s jury trial guarantee, it is sufficient to trigger the core concerns set forth in Apprendi. Second, the majority considered the historical record consistent with the Court’s prior precedents holding that the scope of the constitutional jury right must be informed by the historical role of the jury at common law. The majority found historical evidence for the proposition that juries routinely found facts that set the maximum amount of fines. Finally, the majority rejected the government’s arguments that extending Apprendi to criminal fines would interfere with legislative prerogatives and the administration of justice. The majority concluded by finding any policy objections attenuated given decade-long experience that lower courts had in applying Apprendi.

The minority view

The Southern Union dissenting opinion was authored by Justice Breyer, with whom Justices Kennedy and Alito joined. This combination of Justices in the dissent illustrates that the alignment of the Justices on Sixth Amendment issues does not break down along perceived ideological affiliations.

At the outset of his dissent, Justice Breyer stated his belief that the majority opinion was both ahistorical and would lead to problems in the administration of the criminal justice system. Indeed, Justice Breyer read the legal history differently from the majority and concluded 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” and that practice in the “early American States is even less ambiguous.” 132 S. Ct. at 2361–64 (Breyer, J., with whom Kennedy & Alito join, dissenting). The stark contrast between the majority and dissenting opinions’ conception of the legal history is also present with regard to the effects of the decision on the administration of justice. Justice Breyer suggested that the majority decision will undermine the goals of uniformity and deterrence that Congress sought to advance through statutes such as RCRA. In enacting such provisions Congress intended judges, and not juries, to determine fine-related sentencing facts that so often involve highly complex determinations. As an example, the dissent noted, in gain-or-loss provisions the jury may have particular difficulty assessing different estimates of resulting losses. 132 S. Ct. at 2369–2371. The dissent further observed that unfairness may result because “[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 on only 20 days, not 30.” The dissent suggested that Southern Union (and other potential RCRA defendants) might now find potentially prejudicial evidence about the release of a hazardous waste into the nearby community admissible to show the number of days of their violation before the jury finder of fact. 132 S. Ct. at 2371–72.

This contrast between the dissent and majority reflects a substantial difference of opinion regarding the role of the jury in the criminal justice system. However, the majority of criminal matters don’t go to the jury. In fact, the dissent noted that 97 percent of federal convictions result from guilty pleas. 132 S. Ct. at 2371. Whether applying the Apprendi rule to criminal fines will enhance or detract from the fairness and deterrent effect of such pleas is also likely to be the subject of debate.

Andrew Mergen

Andrew Mergen is a deputy section chief in the Appellate Section of the Environment and Natural Resources Division, U.S. Department of Justice. The views expressed herein are the author’s and do not necessarily reflect the opinions of any federal agency.