Who sets the fine? Judge or jury?

20 Aug 2012

Earlier this summer, the US Supreme Court decided this question in the context of  a criminal violation of the federal hazardous waste law, known as RCRA.  In the case of Southern Union Co. v. United States, a jury convicted a utility of illegally storing hazardous waste without a permit and the Judge assessed a fine of $6 Million.

As an aside, this was clearly a case of good intentions gone awry.  The utility created, on its own, a program to retire customers’ mercury containing switches.  Unfortunately, for reasons that aren’t clear, the company treated the mercury very cavalierly and ultimately vandals caused spills that cost more than $6 million to clean-up!

The utility objected that the Judge’s calculation of 762 days of violation was improper because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation’s approximate start date (i.e., “on or about”), and argued that the trial court’s instructions permitted conviction if the jury found even a 1-day violation. The utility argued that 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 fact finding by the court, something it argued was reserved to the jury.  There was a split of authority, with some courts holding that judges can set criminal fines without jury input and other courts ruling that any fact that determines a fine must be decided by a jury.

In a 6 to 3 decision (with interesting splits in both the traditional liberal and conservative blocks of the Court), the US Supreme Court agreed with the utility and concluded that the question should have been put to the jury.  The Court held that 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 including criminal fines.

The utility isn’t out of the woods just yet as the Court remanded the case to the lower courts for further proceedings.  In any event, future criminal defendants will know that the jury must find the facts that are used to set their fines and not the judge.

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