SUPREME COURT OF THE UNITED STATES
_________________
No. 11–94
_________________
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 sen-
tencing 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, 239–247 (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 com- mitted
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
Appren- di’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 in-
sisting that similar punishments be applied to very dif- ferent
kinds of offense behavior or offenders.
Apprendi’s
jury trial requirements might also prove unworkable. Con- sider the
difficulty of juries’ having to find the differ- ent 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 bul- wark 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 be- gin
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 in- dicate that, where a statute
sets forth facts that deter- mine 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
Resti- tution.”
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 dis- cretionary 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
rea- son 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 am- biguous. 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 min- ister, “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 con- victed of
oppression or extortion “shall be fined not exceed- ing 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
sen- tencing 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 Su-
preme 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 constitu- tional right to trial by jury. The
matter is important be- cause 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 illus-
trative 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 con-
sonant 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 in- hibit (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 be- cause 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 Observa- tions 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 sen- tencing 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 fed- eral
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.