Mercury Fine Was Jury Domain, Justices Say

(CN) - Criminal fines, like sentences, are subject to jury consideration, the Supreme Court ruled Thursday, looking at a case where a natural gas company was fined $18 million for storing mercury without a permit.

When a Rhode Island federal jury convicted Texas-based Southern Union of having violated the Resource Conservation and Recovery Act, its verdict form said that the company "was guilty of unlawfully storing liquid mercury 'on or about September 19, 2002 to October 19, 2004.'"

Southern Union began supplying natural gas to New England customers in 2000 and stopped serving Rhode Island customers in 2006. Most of its 12-acre complex on Tidewater Street in Pawtucket, R.I., sat unused, but Southern Union used parts to store construction supplies and waste, including malfunctioning mercury-sealed gas regulators.

Homeless people and vandals took up residence at the site, which did not have security cameras, as it fell into disrepair.

After the mercury theft and spill in 2004, the company spent more than $6 million in remediation costs. Five buildings in an apartment complex were evacuated, and 150 residents were displaced for two months tested for mercury exposure.

Concluding that the jury had determined 762-day violation, the court imposed a $6 million fine and a $12 million "community service obligation."

But Southern Union claimed that the "on or about" language in the verdict form left the precise duration of its violation undetermined. It said the jury could have reached the same verdict even if it had determined a one-day violation, in which case the fine would have been $50,000.

Failing to do so violated the Supreme Court's 2000 decision in Apprendi v. New Jersey, Southern Union had claimed. That decision found that the Sixth Amendment puts a criminal defendant's maximum potential sentence in the jury's hands.

Though the Boston-based 1st Circuit agreed in 2010 that the jury had not explicitly convicted Southern Union of a 762-day violation, it upheld the penalty because it found that Apprendi does not apply to criminal fines.

The Supreme Court concluded otherwise, 6-3, on Thursday, noting that there is "no principled basis" to treat a criminal fine differently than it would treat "imprisonment or a death sentence."

"Apprendi's 'core concern' is to reserve to the jury 'the determination of facts that warrant punishment for aspecific statutory offense,' Justice Sonia Sotomayor wrote for the majority. "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."

Whether the jury considers the duration of a statutory violation or the amount of illegal gain or victim loss, Apprendi requires juries to "find beyond a reasonable doubt facts that determine the fine's maximum amount," the decision states.

This is especially true since "petty" offenses that carry insubstantial fines or prison terms do not trigger the Sixth Amendment right to jury trials, the court found.

"But not all fines are insubstantial, and not all offenses punishable by fines are petty," Sotomayor wrote.

"And, where the defend­ant is an individual, a large fine may 'engender "a signifi­cant infringement of personal freedom,"' she added.

Calling the majority decision "ahistorical," three members of the court found that "the Sixth Amendment permits a sentencing judge to determine sentencing facts" in cases that carry criminal fines.

"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,"' Justice Stephen Breyer wrote, joined by Justices Anthony Kennedy and Samuel Alito.

"The consequence of the majority's holding, insisting that juries make such determinations, is likely to diminish the fairness of the criminal trial process," the decision states. "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 lifesavings lost to the fraud."

"If, as seems likely, it becomes too difficult to prove fine-related sentencing facts to a jury, legislatures will have to change their statutes," Breyer added. "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."

Citing William Blackstone's "Commentaries on the Laws of England," Breyer said that "those systems produce sentences that are not proportionate; they tend to treat alike offenders who committed the same crime in very different ways."

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