{"id":18121,"date":"2012-08-14T20:34:24","date_gmt":"2012-08-15T01:34:24","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18121"},"modified":"2012-08-14T20:37:06","modified_gmt":"2012-08-15T01:37:06","slug":"ice-gets-iced","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/08\/ice-gets-iced\/","title":{"rendered":"Ice Gets Iced"},"content":{"rendered":"

Earlier this summer, in\u00a0Southern Union Co. v. United States\u00a0<\/em>(No. 11-94), the Supreme Court seemed to reverse course yet again in its on-and-off revolution in the area of jury-trial rights at sentencing.\u00a0 The revolution began with\u00a0Apprendi v. New Jersey<\/em>\u00a0(2000), which held that a jury, and not a judge, must find the facts that increase a statutory maximum prison term.\u00a0 The revolution seemed over two years later, when the Court decided in\u00a0Harris v. United States<\/em>\u00a0that no jury was required for mandatory minimum sentences.\u00a0 But, another two years after that, in\u00a0Blakely v. Washington<\/em>, the revolution was back on, with the Court extending\u00a0Apprendi\u00a0<\/em>rights to sentencing guidelines.\u00a0\u00a0Blakely<\/em>was especially notable for its hard-nosed formalism:\u00a0Apprendi\u00a0<\/em>was said to have created a bright-line rule firmly grounded in the framers\u2019 reverence for the jury; we are not in the business, declared Justice Scalia for the\u00a0Blakely\u00a0<\/em>majority, of carving out exceptions to such clear rules in the interest of efficiency or other contemporary policy concerns.<\/p>\n

Then came\u00a0Oregon v. Ice\u00a0<\/em>in 2009, which seemed to signal that the Court had again grown weary of the revolution. \u00a0<\/p>\n

Holding that judges may find the facts that are necessary to support consecutive, in lieu of concurrent, sentences, the\u00a0Ice<\/em>\u00a0Court emphasized administrability concerns and indicated a desire to support state experimentation in the sentencing field.\u00a0 Scalia sourly, but not unfairly, observed:<\/p>\n

The rule of\u00a0Apprendi<\/em>\u00a0is clear: Any fact\u2014other than that of a prior conviction\u2014that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury. Oregon\u2019s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since. The Court\u2019s justification of Oregon\u2019s scheme is a virtual copy of the dissents in those cases.<\/p><\/blockquote>\n

Now,\u00a0Southern Union<\/em>, with Scalia in the majority, seems a return to the spirit of\u00a0Blakeley<\/em>\u00a0and an implicit repudiation of\u00a0Ice<\/em>.<\/p>\n

In\u00a0Southern Union<\/em>, the Court extended the\u00a0Apprendi\u00a0<\/em>jury-trial right to facts that increase the amount of a fine that a defendant faces.\u00a0 Southern Union was convicted of criminal environmental violations in federal court.\u00a0 Under the governing statute, the company then faced a fine of not more than $50,000 for each day it was in violation.\u00a0 The sentencing judge determined that the violations extended for 762 days, which exposed Southern Union to a fine of up to $38.1 million; the actual fine imposed was $6 million, along with a community service obligation of $12 million.\u00a0 This, the Supreme Court held, was improper; Southern Union was entitled to a jury determination of how many days it was in violation.<\/p>\n

Justice Sotomayor\u2019s opinion for the majority sounded much like Scalia\u2019s dissent in\u00a0Ice<\/em>,\u00a0treating\u00a0the\u00a0case as a straightforward application of a clear, historically established\u00a0rule:<\/p>\n

Apprendi<\/em>\u2019s rule is \u201crooted in longstanding common-law practice.\u201d\u00a0Cunningham v. California<\/em>, 549 U. S. 270, 281 (2007). It preserves the \u201chistoric jury function\u201d of \u201cdetermining whether the prosecution has proved each element\u00a0of an offense beyond a reasonable doubt.\u201d\u00a0Oregon v. Ice<\/em>, 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\u2019s maximum authorized sentence. . . .<\/p>\n

While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis under\u00a0Apprendi<\/em>\u00a0for treating criminal fines differently.\u00a0Apprendi<\/em>\u2019s \u201ccore concern\u201d is to reserve to the jury \u201cthe determination of facts that warrant punishment for a specific statutory offense.\u201d\u00a0Ice,\u00a0<\/em>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. They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant\u2019s gain or the victim\u2019s loss, or some other factor. In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine\u2019s maximum amount is necessary to implement\u00a0Apprendi<\/em>\u2019s \u201canimating principle\u201d: the \u201cpreservation of the jury\u2019s historic role as a bulwark between the State and the accused at the trial for an alleged offense.\u201dIce<\/em>, 555 U. S., at 168. In stating\u00a0Apprendi<\/em>\u2019s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal \u201csentence[s],\u201d \u201cpenalties,\u201d or \u201cpunishment[s]\u201d\u2014terms that each undeniably embrace fines.\u00a0 (3-5)<\/p><\/blockquote>\n

Although the Court cited\u00a0Ice\u00a0<\/em>a few times, it gave very short shrift to the practical concerns that had been relied on by\u00a0Ice\u00a0<\/em>and that were urged by the\u00a0Southern Union\u00a0<\/em>dissenters.\u00a0 Indeed, Justice Breyer, writing in dissent, could quite justifiably claim that his views were based \u201cprimarily upon\u00a0Ice<\/em>.\u201d\u00a0 He emphasized the importance of flexible fine-stetting procedures for corporation-defendants, who cannot be imprisoned and whose crimes often involve complex regulatory violations whose scope and impact are\u00a0difficult for juries to sort out.<\/p>\n

Although\u00a0Southern Union\u00a0<\/em>does not overturn\u00a0Ice<\/em>, it does suggest that the\u00a0pragmatic approach of\u00a0Ice\u00a0<\/em>to jury rights at sentencing does not command a stable majority on the Court.\u00a0 This may have important implications for future cases, particularly those involving other sorts of nonincarcerative punishments.\u00a0 From the start of the\u00a0Apprendi\u00a0<\/em>revolution, one of the big questions has been what impact it would have on the wide range of nonincarcerative sanctions used in criminal cases.\u00a0\u00a0Southern Union\u00a0<\/em>tells us that punishment is punishment\u2013it\u2019s all the same for\u00a0Apprendi\u00a0<\/em>purposes.\u00a0 (At the same time, though, the Court did make a nod to pre-Apprendi\u00a0<\/em>cases that carved out an exception to jury-trial rights for \u201cpetty crimes\u201d\u2013sorting out the precise scope of this exception may become an important focus of litigation after\u00a0Southern Union<\/em>.)<\/p>\n

What caused the change from\u00a0Ice\u00a0<\/em>to\u00a0Southern Union<\/em>?\u00a0 A\u00a0shift in personnel may have contributed to the switch.\u00a0 Justice Stevens sided with Breyer in the\u00a0Ice\u00a0<\/em>majority, but his successor, Justice Kagan, sided with Scalia in the\u00a0Southern Union\u00a0<\/em>majority.\u00a0 But, even without Kagan,\u00a0Scalia probably would have had his majority in\u00a0Southern Union\u00a0<\/em>anyway\u2013the final vote was 6-3.\u00a0 The other \u201cflip\u201d was from Justice Ginsburg\u2013the only justice who was in the majority in both cases.\u00a0 It\u2019s hard to know how she would reconcile those votes because she did not write in\u00a0Southern Union<\/em>.<\/p>\n

Ginsburg\u2019s\u00a0position here recalls her (also unexplained) flip between the Scalia and Breyer camps in\u00a0United States v. Booker<\/em>, which applied\u00a0Blakely\u00a0<\/em>to the federal sentencing guidelines.\u00a0 She is apparently not a purist either in favor of or in opposition to the\u00a0Apprendi\u00a0<\/em>revolution, but makes fine-grained distinctions on a case-by-case basis.\u00a0 If she continues to serve as a key swing vote in\u00a0Apprendi\u00a0<\/em>cases, the revolution seems likely to continue on its unpredictable path.<\/p>\n

On the other hand, if the\u00a0Southern Union<\/em>\u00a0votes of Kagan and Sotomayor\u2013the Court\u2019s newest members\u2013indicate that they are firmly in the Scalia camp (along with Thomas and Roberts), then Ginsburg\u2019s flip-flops may no longer\u00a0matter.<\/p>\n

Cross posted at Life Sentences<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Earlier this summer, in\u00a0Southern Union Co. v. United States\u00a0(No. 11-94), the Supreme Court seemed to reverse course yet again in its on-and-off revolution in the area of jury-trial rights at sentencing.\u00a0 The revolution began with\u00a0Apprendi v. New Jersey\u00a0(2000), which held that a jury, and not a judge, must find the facts that increase a statutory […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[70,30,28,74,122,24],"tags":[],"class_list":["post-18121","post","type-post","status-publish","format-standard","hentry","category-business-regulation","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18121","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=18121"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18121\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=18121"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=18121"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=18121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}