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Money Makes All the Difference: WhyCorporate Defendants Are Not Entitled

to the Sixth Amendment Jury TrialRights Full Protection

ALLISON A.REUTER

ABSTRACT

Concentrated corporate power must be controlled by limiting theextent of the corporate legal personhood status. Strict application of theSixth Amendment jury trial right to corporations does not further theadministration of justicethe purpose of the rightand brings inefficient

costs, such as a greater need for bifurcated trials. The Apprendirule, whichrequires a jury determination for all factual findings that may increase adefendants maximum potential punishment (other than a priorconviction), is typically demanded by the Constitution in criminallitigation. However, a flexible application of this rule to corporate criminallitigationspecifically, a limitation of this rule to punitive fineswouldbetter promote the interests of justice.

Extending the jury-trial requirement to criminal fines imposed oncorporate defendants will result in decreased judicial efficiency,diminished notions of fairness throughout the criminal trial process, andsevere interference with established legislative acts. Despite the preemptivestatus of our nations Constitution, the resulting procedural effects on the

practical administration of justicewhich will undoubtedly occur byextending theApprendirule to corporate defendants facing criminal finesmust not be swept under the rug. This Note proposes limiting the Apprendirules application to corporate defendants facing punitive fines only, andnot to quasi-criminal or regulatory fines, in order to avoid needless judicialinefficiency and other impractical effects.

This limitation of the jury trial right is constitutionally appropriatebecause corporations are faceless entities and do not encounter moralcondemnation, imprisonment, or the death penalty. Therefore, quasi-

Juris Doctor, cum laude, New England Law | Boston (2014). B.S., Accounting, University of

Rhode Island (2011). I would like to thank Dean Victor Hansen for his insightful advice and

comments.


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610 New England Law Review v. 48 | 609

criminal or regulatory fines imposed on a corporation do not demand thesame protection that they would if imposed on an individual. In additionto lacking a moral conscience, corporate entities also require less

constitutional protection when facing a criminal fine due to their vastpower and deep pockets. Corporations often view criminal punishmentand penalties differently than the average person. In the eyes of a large,wealthy, and powerful company, a fine incurred due to a criminal violationis often a mere cost of business or a slap on the wrist. In contrast to the life-altering effect that a criminal conviction imposes on a person, corporationsface less severe consequences and therefore do not deserve a strictapplication of the Sixth Amendment.

INTRODUCTION

eanne Calment, a French woman from Arles, is the worlds oldestknown supercentenarian who lived until the ripe age of 122 years. 1As123 to 125 years of age is considered to be the maximum human

lifespan, it has been said that Jeanne overstayed her time here on Earth.2In stark contrast, Kongo Gumi Construction Company sustained asuccessful family business for an impressive 1,428 years, subsequentlyfacing absorption into a subsidiary company where the corporationsfaade lives perpetually.3While Jeanne proved her impressive longevity byliving for more than twelve decades, this Japanese construction corporationthrived for over fourteen centuries.4

While people go through life with diverse personal interests, purposes,and motivations, corporations typically pursue a single-minded goalprofit.5 In 2007, American corporations had an average net income of$252,396.6 This average net income, further apportioned by industry,reveals that the utilities industry sector reached an average net income ofover $4.5 million.7Unsurprisingly, the 2007 per capita personal income in

1 Jamie Frater, Top 10 Oldest People Ever, LISTVERSE(Feb. 7, 2010), http://listverse.com/

2010/02/07/top-10-oldest-people-ever/.2 Id.3 James Olan Hutcheson, The End of a 1,400-Year-Old Business, BLOOMBERGBUSINESSWEEK

(Apr. 16, 2007), http://www.businessweek.com/stories/2007-04-16/the-end-of-a-1-400-year-old-

businessbusinessweek-business-news-stock-market-and-financial-advice.4 Hutcheson, supra note 3.5 See Mokhiber & Weissman, supra note 3.6 Scott Shane, The Profitability of American Corporations, SMALL BUS.TRENDS(Jan. 17, 2011,

8:58 AM), http://smallbiztrends.com/2011/01/the-profitability-of-american-corporations.html.

This figure appears in 1999 dollars, so a more accurate figure for 2007 would be increased for

inflation. Id.7 Id.


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2014 Money Makes Al l the Di f f er ence 611

the United States was staggeringly lowerat $39,506.8 Corporations areuniquely different from people, and the most visible differences are theirvast size, wealth, and power.9

Because of this disparity, the extent of the corporate legal personhoodstatus must be limited to control concentrated corporate power. 10A strictapplication of the Sixth Amendment to corporations fails to further theadministration of justice because the purpose of the jury-trial right ishardly furthered when applied to business entities, and it comes withinefficient costs, such as a greater need for bifurcated trials.11TheApprendirule, which requires a jury determination for all factual findings that mayincrease a defendants maximum potential punishment (other than a priorconviction), is typically demanded by the Constitution in criminallitigation.12 However, a flexible application of this rule to corporatecriminal litigationspecifically, limiting this rule to punitive fineswouldbetter promote the interests of justice.13

Extending the jury-trial requirement to criminal fines imposed oncorporate defendants will decrease judicial efficiency, diminish notions offairness throughout the criminal trial process, and interfere withestablished legislative acts.14Despite the preemptive status of our nationsConstitution, the resulting procedural effects on the practicaladministration of justicewhich will undoubtedly occur by extending theApprendi rule to corporate defendants facing criminal finesmust not beswept under the rug.15 This Note proposes that the Apprendi rulesapplication to criminal fines imposed on corporate defendants 16should belimited to punitive fines only, and not extended to quasi-criminal orregulatory fines, in order to avoid judicial inefficiency and otherimpractical effects.17

This limitation of the jury-trial right is constitutionally appropriatebecause corporations lack a conscience and do not face moralcondemnation, imprisonment, or the death penalty.18 Therefore, quasi-criminal or regulatory fines imposed on a corporation do not demand thesame protection they would if imposed on an individual.19 In addition tolacking a moral conscience, corporate entities also require lessconstitutional protection when facing a criminal fine due to their vast

8 Per Capita Personal Income by State, BUREAU OF BUS.&ECON.RESEARCH, http://bber.

unm.edu/econ/us-pci.htm (last updated Apr. 2, 2013).9 See Mokhiber & Weissman, supra note3.10 See id.

11 SeeBrief for the United States at 4552, S. Union Co. v. United States, 132 S. Ct. 2344

(2012) (No. 11-94), 2012 WL 454630.12 Apprendi v. New Jersey, 530 U.S. 466, 47677 (2000).13 See id.at 476, 498.


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power and deep pockets.20Corporations often view criminal punishmentand penalties differently than the average person. 21 In the eyes of a large,wealthy, powerful company, a fine incurred due to a criminal violation is

often a mere cost of business or a slap on the wrist.22

In some situations, acorporation strategically cuts corners and breaks legal regulations becausethe monetary penalty is chump change compared to the price offollowing the law.23 In contrast to the life-altering effect that a criminalconviction imposes on a person, corporations face less severe consequencesand therefore do not deserve a strict application of the Sixth Amendment. 24

Part I of this Note discusses the constitutional rights of corporatedefendants, specifically the Sixth Amendment right to a jury trial. Part IIexplains the notion of the corporate person and the development ofcorporate criminal liability. Part III explains the development of theApprendi rule jurisprudence, which expands the Sixth Amendment jury-trial right to factual findings used to enhance the defendants sentence. Part

IV introduces the notion that the extension of the Apprendirule to criminalfines will have impractical effects on the administration of justice in white-collar crime litigation, specifically noting significant impacts on theefficiency and fairness of the criminal process. Part V argues that theambivalence of corporate criminal law must be addressed, notingsignificant differences between human defendants and corporatedefendants. Finally, Part VI proposes limiting the jury-trial requirement to

14 SeeBrief for the United States, supranote11.15 Seeid.16 To clarify, this proposal is limited to corporate entities and does not apply to the lateral

criminal convictions of the corporate officers or managers. This Note does not propose to limit

the constitutional protections of the personal counterparts of corporations.17 Leading Cases, 126 HARV.L.REV. 176, 26266 (2012) [hereinafter Leading Cases].18 See Mokhiber & Weissman, supra note3.19 See Leading Cases, supranote17.20 See Mokhiber & Weissman, supra note3.21 SeeCorporate Crime and Abuse, CENTER FOR CORP.POLY, http://www.corporatepolicy.

org/issues/crime.htm (last visited Aug. 21, 2014). A fine of $50,000 per day, which exceeds the

average persons annual income, would not affect Southern Union Company nearly as much

with a net income exceeding $60 million. See, e.g., Southern Union Co. Earnings: Revenue Falls

After Four-Straight Increases, YAHOO!FINANCE(May 9, 2011, 5:44 PM), http://finance.yahoo.

com/news/Southern-Union-Co-Earnings-wscheats-3458350717.html.22 SeeRobert Oak, The Slap on the Wrist Financial and Corporate Crime Fines, THE ECON.

POPULIST (Dec. 9, 2012, 9:44 PM), http://www.economicpopulist.org/content/slap-wrist-

financial-and-corporate-crime-fines; Corporate Crime and Abuse, supra note21.23 Cf.Oak, supranote22.24 See Mokhiber & Weissman, supra note3.


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punitive criminal fines imposed on corporations in order to decrease theresulting impractical effects on white-collar crime litigation.

I. The Intersection of the Constitution and Corporate Defendants

A. The Constitutional Rights of Corporate Defendants

Through the nineteenth century, the legal rights of the corporateperson were significantly restricted.25However, beginning in the latter partof the nineteenth century and continuing today, corporationsrights havegradually compounded through various judicial decisions.26Corporationsare afforded the protection of the First Amendment, the Due ProcessClause, and the Equal Protection Clause.27 Notwithstanding the line ofdecisions that enumerated certain constitutional provisions that extend tocorporations, the law withholds certain rights, including the right againstself-incrimination.28 The Fourth and Sixth Circuits held that corporatedefendants have the same Sixth Amendment right to a jury trial as anindividual defendant.29 Although the patchwork of judicial opinionsdefining the corporate citizen is somewhat difficult to reconcile, the

25 Note, Constitutional Rights of the Corporate Person, 91 YALE L.J. 1641, 1641 n.2 (1982).26 See, e.g., Citizens United v. Fed. Election Commn, 558 U.S. 310, 34243 (2010) (holding

that political speech does not lose its First Amendment protection because the source is a

corporation); United States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977) (holding that

the Fifth Amendment protection against double jeopardy extends to corporate defendants);

Hale v. Henkel, 201 U.S. 43, 71 (1906) (holding that the Fourth Amendment protection against

unreasonable searches and seizures applies to overbroad subpoena for corporate records);Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 457 (1890) (holding that the

Fourteenth Amendment Due Process Clause provides protection to corporations to transact

business without unconstitutional state supervision).27 See First Natl Bank of Bos. v. Bellotti, 435 U.S. 765, 784 (1978) (holding that the

protection of the First Amendment extends to speech from all sources, including

corporations); Smyth v. Ames, 169 U.S. 466, 522 (1898) (holding that the Due Process Clause

and Equal Protection Clause of the Fourteenth Amendment extend to corporations in

guarding against deprivation of property).28 See, e.g., Hale, 201 U.S. at 71 (holding that a corporation may not assert a Fifth

Amendment right against self-incrimination); Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519,

58687 (1839) (holding that the Privileges and Immunities Clause of Article IV does not afford

protection to corporations).29 See, e.g., United States v. Yang, 144 F. Appx 521, 523 (6th Cir. 2005) (citing United States

v. R. L. Polk & Co., 438 F.2d 377, 379 (6th Cir. 1971)) (holding that the jury-trial right applies to

corporations charged with criminal contempt);United States v. Troxler Hosiery Co., Inc., 681

F.2d 934, 93536 n.1 (4th Cir. 1982) (distinguishing the Fifth Amendment, which corporations

do not enjoy, from the Sixth Amendment).


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consistently clear trend is to afford corporations the same constitutionalprotections as a person.30

B. The Sixth Amendment Right to a Jury Trial and CorporateDefendants

The Sixth Amendment guarantees criminal defendants the right to ajury trial.31The right to a jury trial is fundamental to the American justicesystem, and therefore is incorporated into all state criminal cases by theFourteenth Amendment Due Process Clause.32 This constitutionalprovision gives criminal defendants the right to have a jury determine theirguilt beyond a reasonable doubt for every element of the crime. 33Althoughthe jury-trial guarantee is often inefficient, the Founding Fathers included itin the Bill of Rights, with very little controversy, to guard againstoppression and tyranny.34 Despite the Sixth Amendments position as acornerstone of the American criminal justice system, the jury trial

guarantee is subject to reasonable limitationssuch as its well-establishedreservation for prosecutions of serious offenses and that certain pettycrimes are not subject to the Sixth Amendment right to a jury trial.35

II. Corporate Criminal Liability

A. The Corporate Person

The agency doctrine of respondeat superior justifies imposing criminalliability on an impersonal corporation for offenses that require a mensreaor a guilty mind.36This theory, especially embraced by federal courts,imputes liability on the corporate entity for knowing, willful, or carelessviolations of regulations by employees in the scope of employment. 37Fewcourts require director or officer participation (or acquiescence) to find thenecessary corporate intentfor criminal liability; rather, corporations are

30 See Note, supra note25, at 164243 n.6.31 U.S.CONST. amend. VI (In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the state and district wherein the crime shall

have been committed[.]).32 Duncan v. Louisiana, 391 U.S. 145, 14850 (1968).33 United States v. Gaudin, 515 U.S. 506, 52223 (1995).34 Apprendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring) (The founders

of the American Republic were not prepared to leave [criminal justice] to the State, which is

why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights.

It has never been efficient; but it has always been free.).

35 Lewis v. United States, 518 U.S. 322, 325 (1996) (quoting Duncan, 391 U.S. at 159).36 SeeJAMES D.COX &THOMAS LEE HAZEN,1THE LAW OF CORPORATIONS 8:21, at 530 (3d

ed. 2012).37 Id.


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generally held legally responsible for the acts of employees andindependent contractors.38

Southern Union Company, a Delaware corporation that supplied

natural gas to Rhode Island and parts of Southeastern Massachusetts, wasconvicted of knowingly storing mercury in a dilapidated warehouse.39Thecorporation initiated a project removing gas meters with mercuryregulators from nearby homes based on an awareness of mercuryshazardous nature.40After removing the dangerous substance, they doublebagged it and stored it in plastic kiddie pools in an attempt to preventspillage into the environment.41 The accumulation and inappropriatestorage of mercury lasted for three years despite employees multiplenoted concerns of the shoddy conditions and several requests for proposalsto solicit bids from contractors for proper disposal.42 Southern UnionCompany, a corporate defendant, was found criminally liable forknowingly violating an environmental regulation based on the guilty

minds of its employees acting within the scope of employment.43

B. The Development of Corporate Criminal Liability

The extent of corporate criminal liability has long been disputed,reflecting the tension between the need for government regulation andcorporate power.44Corporate criminal liability began with nonfeasanceparticularly, failure to obey a court order and affirmative violations of civilregulations.45 Eventually, corporate criminal liability was extended toencompass true crimes requiring a guilty conscience or mens rea.46Corporate liability for such crimes has proceeded to develop rapidly, andcorporations are most commonly convicted for obtaining money underfalse pretenses, larceny, extortion, criminal contempt, the illegal practice of

law, conspiracy, and involuntary manslaughter.47

Many state and federalstatutes that involve regulatory matters, which exclusively subjectcorporations to criminal liability, have created a blurry line between civil

38 Id.39 United States v. S. Union Co., 643 F. Supp. 2d 201, 205 (D.R.I. 2009), affd, 630 F.3d 17 (1st

Cir. 2010), revd, 132 S. Ct. 2344 (2012).40 Id. at 20506.41 Id. at 206.42 Id.43 Id.44 See WILLIAM S.LAUFER,CORPORATE BODIES AND GUILTY MINDS:THE FAILURE OF

CORPORATE CRIMINAL LIABILITY7 (2006).45 COX &HAZEN,supra note36,at527.46 Id.47 See id.


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and criminal law; and the effectiveness of this procedure is often met withcriticism.48

Corporate knowledge of criminal acts is presumed through willful

blindness, and criminal liability is imposed when the corporation avoidslearning the truth.49 Most courts reject a corporations ignorance defenseeven when the entity shows good faith and employee complianceprograms.50 Although a few courts have accepted this affirmative goodfaithdefense and denied corporate liability,51liability is often imputed oncorporations through agency theoryeven if the corporation has notbenefited from the agents crimes.52

Although corporations are wise to implement programs thatproactively thwart employee misconduct, compliance programs generallydo not shield the corporate entity from criminal liability for its employees violations.53The federal sentencing guidelines for organizations, intendedto create uniformity among federal judges, assess the culpability of

corporate offenders based on mitigating and aggravating factors,including: the involvement of high-level employees; a repeat offense; theobstruction of justice; or, sometimes, the existence of a complianceprogram.54

III. The Jury Trial Requirement in Sentencing:Apprendi Jurisprudence

A. Apprendiand the Jury Trial Requirement for Sentencing Factors

The United States Supreme Court has consistently upheld adefendants Sixth Amendment right to have a jury make all factualfindings (other than prior convictions) that may increase the maximumpotential sentence for a crime.55In 2000, the Court decided Apprendi v. New

48 See id.at 52829 (listing regulatory matters that would arguably be better addressed in

the flexible arena of civil prosecution including price regulations, regulation of child labor,

and antitrust laws).49 Id. at 533.50 Id.51 See, e.g., Holland Furnace Co. v. United States, 158 F.2d 2, 8 (6th Cir. 1946).52 See, e.g., United States v. U.S. Cartridge Co., 198 F.2d 456, 463 (8th Cir. 1952),

cert. denied, 345 U.S. 910 (1953); Old Monastery Co. v. United States, 147 F.2d 905, 908 (4th Cir.

1945), cert. denied, 326 U.S. 734 (1945) (We do not accept benefit as a touchstone of corporate

criminal liability; benefit, at best, is an evidential, not an operative, fact.); C.I.T. Corp. v.

United States, 150 F.2d 85, 89 (9th Cir. 1945).53 COX &HAZEN,supra note36,at534 (noting, however, that compliance programs have

the potential to mitigate the sanction imposed under the federal sentencing guidelines for

organizations).54 Id.55 Jones v. United States, 526 U.S. 227, 243 n.6 (1999).


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Jersey, a case involving enhanced sentencing factors.56The Court held thatwhere an aggravating factor would increase a defendants sentence beyondthe statutory maximum, the jury must decide the presence of this factor

beyond a reasonable doubt.57

The Courts holding expanded thisestablished procedural right to state statutes under the FourteenthAmendments Due Process Clause.58

The case arose from a New Jersey Hate Crime Statute, which allowedfor an enhanced sentence beyond the statutory maximum of the criminalconviction if the judge made the factual determination based on apreponderance of evidence that [t]he defendant in committing the crimeacted with a purpose to intimidate an individual or group of individualsbecause of race, color, gender, handicap, religion, sexual orientation orethnicity.59The defendant, Apprendi, ultimately pleaded guilty to second-degree possession of a firearm for an unlawful purpose after he fired at anAfrican-American familys home.60 The State requested that the court

impose an extended imprisonment term under the Hate Crime Statute, andthe judge held that the hate crime sentence enhancement applied.61

The United States Supreme Court reversed the sentence enhancementafter determining that the Hate Crime Statute violated the SixthAmendment right to a jury trial and the Fourteenth Amendment DueProcess Clause.62The Court clarified that the test of whether a factor mustbe proved to a jury beyond a reasonable doubt is one of effectwhetherthe fact, if proved, exposes the defendant to a greater punishment than thejurys guilty verdict.63Furthermore, the Court rejected the notion that mereplacement of legislation in the sentencing provision of the criminal codeenables the State to escape due process requirements of proving facts to ajury beyond a reasonable doubt.64Although the Court was closely divided,the Apprendi case is a seminal decision of the Supreme Courts

56 530 U.S. 466, 476 (2000).57 Id.(basing this holding on the notice and jury trial guarantees of the Sixth

Amendment).58 See id.59 Id.at 46869 (quoting N.J.STAT.ANN. 2C:44-3(e) (West 1999) (amended 2002)).60 Id. at 46970.61 Id.at 47071.62 Apprendi, 530 U.S. at 47476, 497.63 Id.at 494.64 Id.at 49596 ([T]he fact that New Jersey, along with numerous other States, has also

made precisely the same conduct the subject of an independent substantive offense makes it

clear that the mere presence of this enhancement in a sentencing statute does n ot define its

character.).


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jurisprudence, gently setting constitutional limitations on legislativediscretion in defining crimes.65

B. Extending Apprendito Capital Punishment

Ring v. Arizona extended the Apprendi rule to capital punishment,66overruling a prior decision, and ultimately requiring a jury to find factorsnecessary for imposing the death sentence under the Sixth Amendment.67The jury convicted Ring of felony murder, and under Arizona law, Ringcould only be sentenced to capital punishment if the judge found theexistence of at least one aggravating factor and no mitigatingcircumstances.68 After the judge found the existence of two aggravatingfactors, Ring appealed, arguing that the state s sentencing scheme violatedthe Sixth Amendment by allowing a judge to find facts that enhanced acriminal sentence.69The United States Supreme Court held that Arizona scapital punishment sentencing scheme was unconstitutional because it

emphasized form over substance.70The Court also recognized that failingto extend the defendants Sixth Amendment jury-trial right to theimposition of the death penalty would significantly diminish its meaning.71

C. The Extension of Apprendi and the Invalidation of FederalSentencing Guidelines

The Court consistently upheld the Apprendi rule following its 2002decision in Ring, and three years later this jurisprudence challenged theconstitutionality of mandatory statutory-sentencing schemes.72The UnitedStates Sentencing Commission promulgated the Federal SentencingGuidelines to promote uniformity and transparency in federal prosecutionsof felonies and serious misdemeanors.73The Federal Sentencing Guidelines

65 See Alan C. Michaels, Truth in Convicting: Understanding & Evaluating Apprendi, 12 FED.

SENTG REP. 320, 320 (2000).66 536 U.S. 584, 609 (2002).67 Id.68 Id. at 593.69 Id.at 59495.70 Id.at 609.71 Id.72 See United States v. Booker, 543 U.S. 220, 226 (2005).73 U.S.SENTG COMMN,2013U.S.S.G.GUIDELINE MANUAL13 (2013), available at http://

www.ussc.gov/sites/default/files/pdf/guidelines-manual/2013/manual-

pdf/2013_Guidelines_Manual_Full.pdf.

The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime

Control Act of 1984) provides for the development of guidelines that will

further the basic purposes of criminal punishment: deterrence,


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required federal judges to impose a sentence within the guideline range,which the Commission fixed for each particular conviction.74 In order tostray from the mandatory guideline range, the system required judges to

prove mitigating or aggravating factors that were not submitted to a jury orproven beyond a reasonable doubt.75 The mandatory consideration ofcertain facts by ajudge, which are subsequently used to enhance the lengthof a sentence, implicated the jury-trial right defined inApprendi.76In UnitedStates v. Booker, based on the Apprendi rule, the United States SupremeCourt found that the Federal Sentencing Guidelines as mandatory andbinding on all judges, are unconstitutional.77

However, the Court held that the sentencing guidelines areconstitutional so long as they are advisory.78 The advisory nature of thesentencing guidelines solved the constitutional issue by enabling judges todecrease or increase a convicted defendants sentence without proving anyfacts.79Without the obligation to find certain factors in order to depart from

the sentencing guidelines, the defendants Sixth Amendment right to havea jury find all relevant sentencing facts is not compromised.80 The Courtheld that the advisory nature of the guidelines is necessary to maintainconsistency with the Apprendi ruling that aggravating factors, which mayenhance a criminal conviction, must be proved by a jurynot a judge

incapacitation, just punishment, and rehabilitation. The Act delegates

broad authority to the Commission to review and rationalize the federal

sentencing process.

Id.74 Booker, 543 U.S. at 23334.75 See id.(The Guidelines as written, however, are not advisory; they are mandatory and

binding on all judges. . . . [W]e have consistently held that the Guidelines have the force and

effect of laws.); see also Blakely v. Washington, 542 U.S 296, 305 (2004).

Whether the judge's authority to impose an enhanced sentence depends

on finding a specified fact (as in Apprendi), one of several specified facts

(as in Ring), or any aggravating fact (as here), it remains the case that the

jury's verdict alone does not authorize the sentence. The judge acquires

that authority only upon finding some additional fact.

Id.76 SeeBooker, 543 U.S. at 23334; see also Blakely, 542 U.S. at 30304 (When a judge inflicts

punishment that the jury's verdict alone does not allow, the jury has not found all the facts

which the law makes essential to the punishment, and the judge exceeds his proper

authority.) (internal quotation marks omitted).

77 Booker, 543 U.S. at 246.78 Id.at 23334, 245.79 Id.at 233.80 Id. at 234.


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beyond a reasonable doubt.81 The Court intended for this solution topreserve the Federal Sentencing Guidelines, while simultaneouslyprotecting criminal defendants procedural safeguards and preventing

excessive judicial discretion in violation of the Sixth Amendment.82

To the contrary, the practical consequence of Booker has had the

opposite effect of its well-founded intention.83By holding that sentencingguidelines were merely advisory, Booker actually gave judges morediscretion.84The Court created a veil under which sentencing judges do notneed to explain their decision in order to stray from advisory guidelines. 85Judges surely consider the same relevant factors they are prohibited fromconsidering without submission to a jury under Booker, but their silentconsideration of such factors does not implicate the Sixth Amendment aslong as such considerations are not spoken out loud.86This has created theperverse effect of less transparency in the reasoning behind a particularcriminal sentence.87

The vast constitutional issue concerning the extent of the jury trialrequirement is clearly a difficult one to confront as Apprendi, Ring, andBooker all concluded with a divided, 5-4 decision.88 The complexity inanswering this issue arose from the substantial tension between the SixthAmendment right to a jury trial and fear of logistical problems that couldresult from the extension of this requirement.89 Strict application of the

81 See id. at 24546.82 See id.at 246.83 See Michael W. McConnell, The BookerMess, 83 DENV.U.L.REV. 665, 67778 (2006) (Yet

somehow, a case based on the proposition that judges were given too much power to sentence

based on facts not found by a jury was transmogrified, as if alchemically, into a holding that

they should have more discretion to disregard sentencing ranges set by Congress.).84 See Amy Farrel & Geoff Ward, Examining District Variation in Sentencing in the Post-

BookerPeriod,23 FED.SENTG REP. 318, 318 (2011).85 SeePeter B. Krupp, The Return of Judicial Discretion: Federal Sentencing Under Advisory"

Guidelines After United States v. Booker, BOS. B.J., March/April 2005, at 18, 18, 20 ([T]hree

things are clear: the federal sentencing rules are now less certain than they have been, trial

judges will have greater discretion while sentencing defendants than they had under the

mandatory Guidelines system, and the opportunity for creative and effective sentencing

advocacy in the federal courts is greater now than anytime since 1987.).86 See McConnell, supranote83,at 677 (The most striking feature of the Bookerdecision is

that the remedy bears no logical relation to the constitutional violation.).87 See Farrel & Ward, supra note84 (noting the need for empirical research in order to

understand the disparities in sentencing trends due to the advisory guidelines).88 See United States v. Booker, 543 U.S. 220, 225 (2005); Ring v. Arizona, 536 U.S. 584, 587

(2002); Apprendi v. New Jersey, 530 U.S. 466, 468 (2000).89 See Booker, 543 U.S. at 22025; Ring, 536 U.S. at 58587;Apprendi, 530 U.S. at 46667.


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Sixth Amendment continues to have practicality concerns and raises issuesas to its workability in various contexts.90

D. The Extension of Apprendito Criminal Fines

This past term, the Supreme Court extended the Apprendi rule inSouthern Union Co. v. United States to factual findings used to increasecriminal fines.91 A jury found Southern Union Company guilty ofknowingly storing liquid mercury without a permit, but the verdict wasnot detailed as to the duration of this violation. 92 Storing liquid mercurywithout a permit is a violation of a federal environmental statute, theResource Conservation and Recovery Act of 1976,93 which limitspunishment of violations to not more than $50,000 for each day ofviolation.94At sentencing, a maximum fine of $38.1 million was calculatedbased on the allegations of Southern Unions violation enduring for 762daysSeptember 19, 2002 to October 19, 2004.95Southern Union objected,

arguing that the verdict form was a mere approximation of duration andemphasizing that the jurys conviction was permitted even if the jury foundonly a one-day violation.96 Essentially, Southern Union contended thatimposing a fine greater than the one-day statutory maximum would be incontravention of Apprendi because the jury onlydetermined that SouthernUnion stored liquid mercury, not how long Southern Union stored liquidmercury.97

In reversing the United States Court of Appeals for the First Circuit,which affirmed the enhanced criminal fine, the United States SupremeCourt extended the Apprendirule to the imposition of criminal fines.98TheCourt found that there was no basis under Apprendito treat criminal finesdifferently than imprisonment or the death sentencedeclaring the

Apprendi rules application to criminal fines a logical extension of thedoctrine.99The Court rejected the governments argument that fines should

90 See, e.g.,McConnell, supranote83,at 677 (explaining that the holding in Booker, founded

on Sixth Amendment grounds, fails to effectively remedy the initial constitutional violation).91 S. Union Co. v. United States, 132 S. Ct. 2344, 2357 (2012).92 Id. at 2349 (The verdict form stated that Southern Unionwas guilty of unlawfully

storing liquid mercury on or about September 19, 2002 to October 19, 2004.).93 42 U.S.C. 6924(d)(2)(B), 6928(d) (2006).94 S. Union Co., 132 S. Ct. at 2349 (quoting 6928(d)).95 Id.96 Id.

97 Id.98 Id.at 2357.99 See id.at 2350, 2357 ([T]he dramatic departure from precedent would be to hold

criminal fines exempt fromApprendi.).


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be treated differently from liberty-depriving punishments such asincarceration and clarified that, in determining whether a punishmenttriggers the Sixth Amendment, the proper place to draw the line is whether

the punishment is insubstantial or pettyrather than a categoricaldistinction.100

The Court emphasized the historic, common-law role of the jury ofdetermining whether the prosecution has proved each element of anoffense beyond a reasonable doubt.101Upon review of the historical recordregarding the traditional jury function, the Court opined that thepredominant practice was for juries to find the specific facts that fixed theguidelines of a criminal fine.102This extension was further justified by twolongstanding tenets of common-law criminal jurisprudence: that the truthof every accusation against a defendant should be confirmed by a jury ofhis peers and that an accusation fails if a required factual element ismissing.103

Prior to the Supreme Courts ruling in Southern Union Co., the circuitcourts were split as to whether this right extended to criminal fines. 104TheFourth and Sixth Circuits held that corporate defendants had the sameSixth Amendment right to trial by jury as individual defendants.105Whilethe Second and Seventh Circuits held that the Apprendi rule extended tocriminal fines, these opinions did not persuade the First Circuit, which heldto the contrary in Southern Union Co.prior to reversal by the SupremeCourt.106Relying on the historic, unfettered discretion of judges, 107the FirstCircuit declined to extend the Apprendi rule in a way that would nullify

100 S. Union Co., 132 S. Ct. at 2351.101 Id.at 2350, 2353 (quoting Oregon v. Ice, 555 U.S. 160, 163 (2009)).102 Id.at 2353.103 Id.at 2354.104 Bruce Pasfield & Elise Paeffgen, Supreme Courts Southern UnionDecision Helps Level the

Playing Field for Corporations Subject to Criminal Fines, 13 ABAENVTL.ENFORCEMENT &CRIMES

COMMITTEE NEWSL. 3, 4 (2012), available athttp://www.americanbar.org/content/dam/aba/

publications/nr_newsletters/eecc/201208_eecc.authcheckdam.pdf.105 See, e.g.,United States v. Yang, 144 F. Appx. 521, 523 (6th Cir. 2005) (citing United

States v. R. L. Polk and Co., 438 F.2d 377, 379 (6th Cir. 1971)) (holding that the jury-trial right

applies to corporations charged with criminal contempt); United States v. Troxler Hosiery Co.,

681 F.2d 934, 93536 n.1 (4th Cir. 1982) (distinguishing the Fifth Amendment, which

corporations do not enjoy, with the Sixth Amendment).106 CompareUnited States v. Pfaff, 619 F.3d 172, 175 (2d Cir. 2010) (per curiam), andUnited

States v. LaGrou Distribution Sys., Inc., 466 F.3d 585, 593 (7th Cir. 2006), with United States v.

S. Union Co., 630 F.3d 17, 36 & n.17 (1st Cir. 2010), rev'd and remanded, 132 S. Ct. 2344 (2012).107 Oregon v. Ice, 555 U.S. 160, 16768 (2009) (Our application ofApprendi's rule must

honor the longstanding common-law practice in which the rule is rooted.) (quoting

Cunningham v. California, 549 U.S. 270, 281 (2007)).
https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000387238&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000387238&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000387238&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000387238&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)


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legislation curtailing the discretion judges enjoyed at common law.108Nonetheless, the Supreme Court overruled the First Circuit, extending thejury-trial requirement to corporate defendants who face nonpetty criminal

fines.109

ANALYSIS

IV. The Extension of theApprendiRule to Criminal Fines Will HaveImpractical Effects on the Administration of Justice in White-CollarCrime Litigation

Extending the Apprendi rule to criminal fines will undoubtedly havesignificant impacts on white-collar crime litigation because corporate andinstitutional defendants can only face criminal punishment throughfines.110 The procedural impact of this decision will interfere withlegislative acts, and decrease judicial efficiency and the ultimate fairness of

the criminal trial process.111

A. Extending the Jury-Trial Requirement to Criminal Fines WillDiminish the Fairness of the Criminal Trial Processand DecreaseJudicial Efficiency

As noted by Justice Breyer in his well-reasoned dissent, the majoritysextension of the Apprendi rule will likely diminish the fairness of thecriminal trial process.112Practically speaking, the predicate facts for settingthe fine, such as the full extent of the loss (or gain) caused by fraud, maynot be known at indictmentmaking the jurys assessment particularlydaunting and ultimately placing a heavier burden on the prosecutor.113Conversely, the admission of these facts could prejudice the defense during

the guilt phase of the trial.114 It is virtually impossible for a defendant toprove to the jury the length or quantity of criminal conduct for sentencingpurposes while simultaneously denying culpability.115 Additionally, theprosecution may present cumulative, unduly prejudicial, or confusing

108 S. Union Co., 630 F.3d at 35.109 S. Union Co. v. United States, 132 S. Ct. 2344, 2351 (2012).110 Lance J. Rogers, Supreme Court Says Juries, Not Judges, Must Decide Facts that Boost

Criminal Fines, 91 CRIM.L.RPT, 415 (2012), available atBLOOMBERG BNA, 91 CRL 415.111 S. Union Co., 132 S. Ct. at 2370 (Breyer, J., dissenting).112 Id.113 SeeBrief for the United States, supranote11,at 50. For example, the cleanup cost of an

environmental crime may not be known at indictment making it impossible to quantify the

loss caused by the defendant. Id.114 Oregon v. Ice, 555 U.S. 160, 172 (2009).115 SeeS. Union Co., 132 S. Ct. at 2370 (Breyer, J., dissenting).


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evidence to the jurythat would otherwise be inadmissibleto quantifythe crime for sentencing.116 For example, if the victims loss is deemedrelevant for sentencing, such as in a fraud trial, the prosecution may admit

evidence of the victims monetary loss that would normally beinadmissible as unduly prejudicial in determining the defendants guilt.117

These unfair procedural effects raise constitutional concerns regardingthe defendants right to a fair trial, and inevitably lead to more bifurcatedtrials or the empanelling of multiple juries.118With our judiciary currentlydeemed in crisis, the efficiency of the judicial process is a crucial concernand bifurcated trials are not an appropriate solution. 119 Disregarding theimportance of procedural judicial efficiency will likely swing full circle andimpinge a defendants constitutional right to a fair and speedy trial. 120Rather, heavy administrative burdens should be avoided because theApprendirule is not implicated where a jury has found the defendant guiltyand the judge uses his or her historic discretion to set the fine.121

The compounding effects on judicial fairness and efficiency reflectJustice Breyers concern that this holding unnecessarily complicat[es] thetrial process and redirects the criminal justice systems discretionarypower away from the judge or jury and into the prosecution s hands.122Onthe other hand, with a heavier burden of proof on the government,corporate defendants may gain a tactical advantage in plea bargains,resulting in more trials.123Although the exact procedural impact on white-collar crime litigation may vary from case to case, the Apprendi rules

116 Seeid.117 See id.118 SeeIce, 555 U.S. at 172.119 SeeJohn T. Broderick, Jr., Dean of the Univ. of N.H. Sch. of Law, Keynote Address at

the New England Law Review Symposium: Crisis in the Judiciary (Nov. 18, 2012), available at

http://newenglrev.com/symposia/vol_47_fall_symposium/fall-symposium-2012-keynote-

address/.120 Seeid.

Meaningful access to justice is the most important issue confronting state

courts across this country. There can be little doubt that we now have a

state justice system in America that is slowly eroding while at the same

time becoming increasingly too expensive for the vast majority of our

fellow citizens. These developments, left unchecked, will have real

consequences that will go to the very core of the American promise.

Id.121 SeeIce, 555 U.S. at 172; Brief for the United States, supra note11, at 50.

122 S. Union Co., 132 S. Ct. at 237172 (Breyer,J., dissenting) ([C]omplex jury trial

requirements may affect the strength of a partys bargaining position rather than the conduct

of many actual trials.).123 See Rogers, supranote110.


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extension will undoubtedly have impractical effects on the fairness andefficiency of the criminal justice system for corporate defendants.124

B. Extending the Jury Trial Requirement to Criminal Fines WillInterfere with Legislative Acts

In addition to compromising fairness and efficiency in prosecutingcriminal organizations, the extension of the Apprendi rule jeopardizes thepotency of multiple laws.125The administrative effects will be more seriousand problematic in corporate white-collar crime cases where prison termsare not the disputed issue, as they were in Apprendi.126 A humandefendants crime can be difficult to accurately reduce to a punishment,but the law allows more flexibility in arriving at a fair criminalconsequence for natural persons because it provides two forms of penalconsequencesfines and prison sentences.127 However, because anorganizational defendant cannot be imprisoned, the punishment must be

quantified into a monetary amount for penal purposes, despite theimpreciseness of such a task.128

Due to the especially complex nature of corporate crimes, it willbecome difficult to prove facts to a jury to determine the criminal fine.129The legislature may be forced to abandon statutes that allow judges to setfine amounts based on the duration (or another formulation) of the crimeafter the jury has found the defendant guilty.130This could lead to highlydiscretionary legislation, which would interfere with uniformity or resultin crime-specified fines, causing arbitrary and disproportionatepunishment.131

Similar to the impact in Bookerwhere the Sixth Amendmentrequirement that sentencing guidelines be advisory ultimately created

more judicial discretion and less transparencythe same undesired resultcould occur due to the recent extension of the Apprendirule.132In responseto the Courts determination that legislation dictating the calculation of acriminal fine is unconstitutional unless factually established by a jury,states may avoid this constitutional dispute by adapting such legislation to

124 SeeS. Union Co., 132 S. Ct. at 2370 (Breyer, J., dissenting).125 See id.at 2369.126 Seeid. at 2371.127 Seeid.128 Seeid.129 Seeid.(listing typical, complex corporate criminal cases that are difficult to quantify

including fraud, price fixing, and environmental pollution).130 SeeS. Union Co., 132 S. Ct. at 2371 (Breyer, J., dissenting).131 Seeid. at 2369, 2371.132 See Farrel & Ward, supranote84.


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become merely advisory to judges.133The Supreme Court determined thatthe advisory nature of the Federal Sentencing Guidelines alleviated theSixth Amendment concern that sentencing factorswere avoiding the jury

trial and highest burden of proof.134

Unfortunately, from a practicalstandpoint, this holding increased judicial power and discretion indetermining sentences.135It is a real concern that similar consequences willresult from extending the Apprendirule to criminal fines and will diminishthe constitutional protection that the Court intends to afford corporatedefendants.136

V. The Ambivalence of Corporate Criminal Liability Must BeAddressed Through Practical Considerations of Fairness andEfficiency

A. Corporate Criminal Liability Is a Necessary Deterrent to EnsureCorporate Compliance with Legislative Acts

Substantive corporate criminal law is flush with ambivalence due to avariety of conceptual difficulties, including the fictitious corporate personand its lack of a guilty mind.137 Despite the serious consequences ofcorporate deviance, corporate criminal liability is consistently criticizedbecause the effects of punishment often land on innocent stakeholders.138The resulting corporate criminal law (which is muddled with civilregulations) is a weak deterrent often strategically avoided by guiltycorporate bodies.139

Despite its apparent failings, the imposition of corporate criminalliability is justified for various policy and practical reasons. 140 Acorporation should not be able to benefit from illegal acts committed on itsbehalf regardless of its awareness of such offenses, and corporate criminalliability reduces such illegally obtained benefits.141 Practically, it may bedifficult (or impossible) to determine the employee or employeesresponsible for the criminal offense, especially in a large corporation.142

133 See United States v. Booker, 543 U.S. 220, 24647 (2005).134 Seeid. at 248.135 See Farrel & Ward, supranote84.136 SeeBooker, 543 U.S. at 246.137 COX &HAZEN,supra note36,at526.138 SeeLAUFER,supra note44.139 See id.at 5.

140 See COX &HAZEN,supra note36,at 53031.141 See id.142 See, e.g., United States v. Hilton Hotels Corp., 467 F.2d 1000, 1006 (9th Cir. 1972)

(Complex business structures, characterized by decentralization and delegation of authority,


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Failing to impose corporate criminal liability for the offenses of allemployees would encourage delegation of responsibility and decision-making to low-level employees.143It would be an error for the law to allow

large, wealthy, and powerful entities to evade liability by burying theirmens rea in the lower level of their organizational behavior. 144Corporatecriminal liability is a necessary deterrent that aims to ensure complexpublic entities comply with vital regulatory legislation.145

B. Corporations that Only Face Criminal Fines Should Not Enjoy All ofthe Constitutional Protections Enjoyed by Natural Persons Who FaceIncarceration and Capital Punishment

1. Corporations Cannot Face Moral Condemnation

TheApprendirules extension to criminal fines should better align withthe primary purposes of criminal law.146The core purposes of criminal laware punishment and retribution, which go hand-in-hand with moralcondemnation.147 Because corporations cannot face moral condemnation,they are not entitled to the same Apprendiinterpretation as persons facingstigmatic punishment.148 In white-collar crime convictions, corporatedefendants cannot be incarcerated and therefore only face criminalpunishment by fine.149 Courts typically impose a criminal fine upon anorganizational defendant for a violation of a regulatory behavior, not basedon morality, or lack thereof.150Although corporations are entitled to a jurytrial for a determination of guilt, there should be limits on their right to a

commonly adopted by corporations for business purposes, make it difficult to identify the

particular corporate agents responsible for Sherman Act violations.).143 See Comment, Increasing Community Control Over Corporate CrimeA Problem in the Law

of Sanctions, 71 YALE L.J. 280, 291 (1961) ([I]t is difficult if not impossible to pinpoint guilt

above the level of those who carry out the necessary overt acts.).144 See COX &HAZEN,supra note36,at 53031.145 See id.146 See Leading Cases, supranote17,at 26163.147 See Dan M. Kahan, What Do Alternative Sanctions Mean?,63 U.CHI.L.REV. 591, 598

(1996) ([T]he signification of punishment is moral condemnation. . . . It follows, moreover,

that when society deliberately forgoes answering the wrongdoer through punishment, it risks

being perceived as endorsing his valuations; hence the complaint that unduly lenient

punishment reveals that the victim is worthless in the eyes of the law.).148 SeeBrief for the United States, supranote11,at 24(clarifying that theApprendirule

applies due to potential loss of liberty and the stigma associated with a crimina l

defendant facing criminal punishment).149 Alan L. Adlestein, A Corporations Right to a Jury Trial Under the Sixth Amendment, 27

U.C.DAVIS L.REV. 375, 387 (1994).150 See COX &HAZEN,supra note36,at 52829.


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jury determination of sentencing because a criminal fine often serves amere regulatory function, rather than as moral condemnation orretribution.151

Moral condemnation, as a core function of criminal punishment, losesits footing in corporate convictions where the distinction between criminaland civil law is blurred.152 Criminal punishment serves our society byfirmly endorsing the consequences of our actions, and when anindividuals actions stray from social norms the offender is punished andmorally condemned for denying important societal values. 153 Thepunishment is retributory and should be proportionate to the severity andreprehensibility of the crime.154Criminal fines, especially regarding white-collar crime, often serve deterrent and compensatory purposes.155Criminalrestitution, such as an order to return fraudulently obtained money, ismore appropriately categorized as a civil punishment that undoes theharm done to the wronged person and puts the parties back on equal

footingrather than as a criminal punishment that fits comfortably withinthe scope of theApprendirule and condemns the wrongdoer.156

2. Criminal Fines Are Different from Incarceration andCapital Punishment

In finding no principled basis under Apprendi for treating criminalfines differently,157 the Court departed from its jurisprudence inconstruing the scope of the Sixth Amendment.158Criminal fines, which onlyinvolve the deprivation of property, are easily distinguished fromincarceration and capital punishment, which involve the deprivation of lifeand liberty.159 Justice Kennedy noted that the principle [that] lies at theheart of the Sixth Amendmentis that [w]hen a defendants liberty is put

at great risk in a trial, he is entitled to have the trial conducted to a jury. 160

The Apprendi holding is rooted in the Constitution; the requirement that a

151 See Leading Cases, supranote17,at 26163.152 SeeLAUFER,supra note44,at5.153 SeeKahan, supranote147,at 59798.154 See id. at 598.155 See Leading Cases, supranote17,at 262.156 See United States v. Wolfe, 701 F.3d 1206, 121617 (7th Cir. 2012); Leading Cases, supra

note17,at 262.157 S. Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012).158 See Blanton v. City of N. Las Vegas, Nev., 489 U.S. 538, 54142 (1989) ([Fines] cannot

approximate in severity the loss of liberty that a prison term entails.); Muniz v. Hoffman, 422

U.S. 454, 477 (1975) ([I]mprisonment and fines are intrinsically different.).159 Brief for the United States, supranote11,at 1011.160 Lewis v. United States, 518 U.S. 322, 339 (1996) (Kennedy, J., concurring).


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jury determine sentence-enhancing factors is justified because of theseriousness of the deprivation of life and liberty.161 While the dispositivequestion in determining the extent of the jury-trial requirement is one not

of form, but of effect,162

it is clear that a criminal fine is different fromincarceration and capital punishment in form and effect.163 Based on theclear difference between depriving an alleged criminal of life and libertywho is plainly entitled to a jury determinationand the deprivation ofproperty from a corporation, the need to treat criminal fines differently incorporate crime should be recognized within the scope of the Apprendiholding.164

Despite the well-reasoned argument that fines are not as onerous ascapital punishment and imprisonment,165the Court rejected this distinctionby focusing on the significance of the penalty rather than the form.166Thisruling clarifies that substantial fines implicate the Sixth Amendment rightto a jury trial and follows the reasoning of the Apprendi inquiry, which

focuses on effect rather than form.167

Although it is well established that theSixth Amendment right to a jury trial is not triggered by petty orinsubstantial fines, Southern Union Co. fails to answer the central questionof when a fine becomes substantialwhich is paramount considering thedeep pockets of powerful corporations.168

It is difficult to pinpoint the monetary value at which a criminal fineleaps from petty to substantial.169The subjectivity of monetary value blursthe line further.170A fine that could bankrupt a small organization could bepeanuts to a larger corporation.171 In the case of corporate liability,corporations often view criminal fines as a mere cost of business andchoose to risk incurring penalties for violations rather than pay the higher

161 SeeBlakely v. Washington, 542 U.S. 296, 31314 (2004) (noting the serious consequence

of incarceration); Ring v. Arizona, 536 U.S. 584, 609 (2002) (noting the serious consequence of

capital punishment).162 Apprendi v. New Jersey, 530 U.S. 466, 494 (2000).163 See Muniz, 422 U.S. at 477.164 SeeAdlestein, supranote149,at 387.165 SeeRichard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth

Amendment: "Proportionality" Relative to What?, 89 MINN.L.REV. 571, 646 (2005).166 S. Union Co. v. United States, 132 S. Ct. 2344, 235152 (2012).167 See id.;Apprendi, 530 U.S. at 494.168 Lewis v. United States, 518 U.S. 322, 325 (1996); see also S. Union Co., 132 S. Ct. at 2351.169 See Muniz v. Hoffman, 422 U.S. 454, 47677 (1975).

170 See S.P. Altmann, Simmels Philosophy of Money, 9 AM.J.SOC. 46, 49 (1903) (describing

the subjectivity of value as the phenomenon that one and the same object is valued

differently by different persons).171 See id.


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price or withstand the inconvenience of abiding by the law.172 Deepcorporate pockets, which enable cost of businessdecisions, substantiallytip the scale in favor of corporate defendants in determining when a fine is

petty.173

Based on this subjectivity, in assessing whether a certain criminalfine implicates theApprendiissue, the substantiality of the fine would haveto be aligned with the defendants assets.174 This approach seemsunparalleled with other criminal punishment determinations, whichtypically revolve around the elements of the crime as opposed to thedefendants particular economic position.175

The court would need to know the amount of the fine in question toassess its significance relative to the defendants wealth.176It appears to bea case of the chicken and the egg: the Apprendi doctrine is not invokedunless the fine is substantial, but the jury must first determine the quantityof the fine under the Apprendi doctrine.177 Ultimately, the extension ofApprendi is bootstrapped to all criminal fines through this circular

procedure, and the scope is unlimited despite the Courts desire to restrictthe jury requirement to substantial criminal fines.178The Supreme Courtsjurisprudence recognizes a clear distinction between the deprivation of lifeand liberty and the deprivation of property, which courts must observe bylimiting the scope of the Apprendidoctrine to legitimize its application towhite-collar crime.179

172 SeeTHE CORPORATION(Zeitgeist Films 2005); see alsoJOEL BAKAN, THE CORPORATION:

THE PATHOLOGICAL PURSUIT OF PROFIT AND POWER 80 (2004) (referring to an interview in

which Robert Monk stated: [i]f the chance of getting caught and the penalty are less than it

costs to comply, our people think of it as being just a business decision). For more

information on this documentary and book, see David Ng, Ten YearsWhy It Still Matters,

THECORPORATION.COM (Jan. 28, 2014), http://thecorporation.com/blog.cfm?view=BLOG_

POST&blog_id=557.173 SeeLAUFER,supra note44,at11516.174 See Lewis v. United States, 518 U.S. 322, 325 (1996); see also Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (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.).175 See Lewis, 518 U.S. at 328 (holding that an objective inquiry into societys view of the

offense, rather than the particular case or defendant, should be considered in determining

whether a criminal offense is petty).176 See S. Union Co. v. United States, 132 S. Ct. 2344, 2351 (2012). Although an offense is

determined petty by its maximum authorized penalty, the issue here is that this penalty is not

known prior to the factual sentencing determination of the environmental violations length.

See id.at 2349.177 See id.at 2351.178 See id.at 2349, 2351.179 See, e.g.,Muniz v. Hoffman, 422 U.S. 454, 477 (1975).


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VI. The Extension of theApprendiRule to Criminal Fines Should BeScaled Back when Applied to Corporate Defendants in Order toAvoid Inefficient and Impractical Results

A. Judicial Discretion, Rather than the Finding of a Jury, Should BeEmployed to Ensure the Administration of Justice in White-CollarCrime

The Southern Union Co. Court succinctly rejected the governmentsarguments against the extension of Apprendi, failing to see that judicialdiscretion has a constitutionally appropriate place in administering justicein white-collar crime litigation.180In determining the amount of a criminalfine, judicially-found facts do not define but rather quantify separate acts,and Apprendis rejection of this argument should not be extended tocorporations.181 Rejecting the clear distinction between facts that areelements of a crime and facts that are relevant in determining the amountof a fine imposed for a proven crime is ahistorical.182After heavy relianceon history in reaching its conclusion, the majority ironically skims over thereality that fact-finding in sentencing was historically in the judgesdomain.183

Thereafter, the Court skirted the governments argument that theextension will interfere with legislative acts by ambiguously respondingthat legislatures are free to enact statutes that constrain judicial discretionin sentencingas long as such statutes conform to the Sixth Amendment.184However, this ruling inhibits the states sovereign prerogative toadminister a criminal justice system through uniform sentencing statutes,which mandate judicial discretion.185 Thus, statutes requiring judicialdeterminations are effectively nullified when limited to the findings of ajury.186

Finally, the Court rejected the governments concern that Apprendisextension to criminal fines will cause confusion, prejudice, andimpracticality based on the notion that constitutional rights preempt

180 See S. Union Co., 132 S. Ct. at 235657.181 Contra id.at 2356.182 Id.at 2357 (Breyer, J., dissenting).183 Id. (Those who framed the Bill of Rights understood that the finding of a particular

fact of this kind was ordinarily a matter for the judge and not necessarily within the domain

of the jury.).184 Id.at 2356.185 Id. at 2360.186 See S. Union Co., 132 S. Ct. at 2360.


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impractical or inefficient impacts on procedure.187 While admirablysafeguarding the sovereignty of the Constitution, the Court failed toconsider a solution that would minimize the procedural effects on the

administration of justice in white-collar crime litigation while upholdingthe constitutional rights of corporate defendants.188

Some may argue that the impractical effects on corporate criminallitigation caused by Southern Union Co. are unavoidable due to thedefendants constitutional right to a jury trial.189However, it is possible tocraft a solution that effectively precludes the seemingly inevitableprocedural downfalls, while upholding the supremacy of the SixthAmendment and the rights it affords to defendants.190 Because corporatedefendants face only criminal finesand not liberty-depriving sentencesthe extension of the Apprendi rule should be limited to punitive fines,which represent the primary purposes of criminal law.191 This limitationwill effectively promote the fairness and efficiency of the criminal justice

system without compromising the Sixth Amendments objective.192

B. Quasi-Criminal Fines that Are Merely Regulatory Should Not Be

Entitled to Sixth Amendment Protection

Corporate personhood is integral to the notion of corporate criminalliability, granting constitutional rights and privileges to corporations. 193However, the procedural protections of Apprendi need not extend to quasi-criminal punishments that function solely to regulate business entities,such as the fine Southern Union received for an environmental violation.194The law should respect state sovereignty, which governs corporations, andthe scope of the Apprendirule should only extend to stigmatic or punitivecrimes, especially considering the inability of corporations to face moral

condemnation.195

187 Id. at 235657 (quoting Blakely v. Washington, 542 U.S. 296, 313 (2004)) (For even if

these predictions are accurate, the rule the Government espouses is unconstitutional. That

should be the end of the matter.).188 See id.189 See id.at 2357.190 See id. (Breyer, J., dissenting) (Where a criminal fine is at issue, I believe the Sixth

Amendment permits a sentencing judge to determine sentencing facts facts that are not

elements of the crime but are relevant only to the amount of the fine the judge will impose.).191 See Leading Cases, supranote17,at 26163; see alsoAdlestein, supranote149,at 387.

192 See Leading Cases, supranote17,at 26263.193 LAUFER,supra note44,at 48.194 Leading Cases, supranote17,at 26263, 265.195 See id. at 263; see supraPart V.B.I.


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The extension of theApprendirule to criminal fines should be limited tofines that are punitive in nature, rather than deterrent or compensatory. 196This limitation of theApprendi rule is consistent with the fact that the Sixth

Amendment jury-trial requirement applies only to criminal cases.197

Furthermore, the primary purposes of criminal lawretribution and moralcondemnationsupport this limitation because only punitive fines servethe same dual purpose.198

Practical concerns of efficiency and legislative autonomy, althoughimportant, cannot overpower the preemptive status of the Constitution.199However, limiting the extension of the constitutional right to a jury trialcan effectively mitigate unnecessary burdens on the criminal justicesystem.200Distinguishing between punitive criminal fines and quasi-civil orregulatory fines would effectively serve this purpose withoutcompromising the supremacy of the Constitution.201

Broadly extending the Apprendi rule to criminal fines sweeps too

wideby encompassing quasi-civil sanctions.202

The legislature has broadpower to define crimes and their punishment and uses this power toimpose quasi-civil sanctions alongside criminal convictions.203Simply put,not all sanctions that accompany a criminal offense serve the dual purposesof criminal lawmoral condemnation and retribution.204 For example,criminal restitution imposed on a defendant for mail fraud is labeled civilbecause its purpose is compensatory, or to allow victims of the mail fraudto recover their losses.205 Civil forfeiture is also categorized as a civilremedy, rather than punishment, because it is not so punitive in fact.206In contrast, deportation, although recognized as a severe penalty, is notconsidered a criminal sanction in the strict sense of its meaning because it

196 See United States v. Wolfe, 701 F.3d 1206, 121617 (7th Cir. 2012);Leading Cases, supra

note17,at 263 ([T]he courts should only extend Apprendiprotection to those sanctions that

the courts can confidently say are specifically stigmatic or predominantly punitive.).197 See U.S.CONST. amend. VI.198 See Aaron Xavier Fellmeth, Challenges and Implications of a Systemic Social Effect Theory,

2006 U.ILL.L.REV. 691, 74143 (2006).199 See Blakely v. Washington, 542 U.S. 296, 313 (2004) (There is not one shred of doubt,

however, about the Framers paradigm for criminal justice: not the civil-law ideal of

administrative perfection, but the common-law ideal of limited state power accomplished by

strict division of authority between judge and jury.).200 See Leading Cases, supranote17,at 257.201 See Adlestein, supra note149,at 38788.202 See Leading Cases,supranote17,at 25657.

203 SeeApprendi v. New Jersey, 530 U.S. 466, 524 (2000) (OConnor, J., dissenting).204 See Leading Cases, supranote17,at 262.205 SeeUnited States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999).206 United States v. Usery, 518 U.S. 267, 288 (1996).


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is civil in nature, despite its relation to the criminal process.207 AfterSouthern Union Companys conviction, the district court ordered thecorporation to pay both a punitive fine and a restitution-based community

service obligation.208

The legislatures ability to create a criminal fine thatserves several purposescompensatory, equitable, and punitivedilutesthe rationale for extending the Apprendirule because the nature of the fineis not purely criminal.209

Under the broad holding of Southern Union Co., which extends theApprendirule to criminal fines without limitation, the jury-trial requirementwould inappropriately stretch to state regulated civil enforcement.210 TheApprendirule only covers criminal offenses, and recognizing the distinctionbetween criminal fines and quasi-civil fines will support the purposebehind criminal law and the protection of the rule.211 Although thislimitation on the Apprendi rule will undoubtedly raise many difficultquestions regarding the true nature of complicated, quasi-civil sanctions,

such challenges should not be determinative.212

The courts are competentto determine the purpose of quasi-civil criminal fines and should allowdeference to the legislatures noted intent.213A categorical determination ofwhether a statutory violation is criminal in nature or merely regulatory is astandard practice for competent judges assessing whether a jury trial isnecessary, and only a minor burden compared to an unlimited jury-trialrequirement.214Furthermore, it would uphold the core purpose of criminallaw while promoting fairness and efficiency of the criminal justicesystem.215 Ultimately, limiting the Apprendi rule to punitive corporatecriminal fines provides benefits that outweigh the slight burden ofdetermining the purpose of such fines.216

CONCLUSION

Extending the jury-trial requirement to facts used to enhance a criminalfine against a corporate defendant will impact the administration of justice

207 Padilla v. Kentucky, 559 U.S. 356, 365 (2010).208 United States v. S. Union Co., 630 F.3d 17, 32, 37 (1st Cir. 2010) (noting that the district

court imposed a $6 million fine as well as a $12 million community service obligation).209 Leading Cases, supranote17,at 264.210 See id. at 26364.211 See id.212 See id. at 265.

213 See id. at 26566.214 See id at 266.215 See Leading Cases, supranote17,at 266.216 See id.


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in white-collar crime litigation.217 This holding will decrease judicialefficiency, diminish the fairness of the criminal trial process, andinterfere with legislative acts.218 Southern Union Co.s impractical effect on

corporate criminal litigation may appear facially to directly conflict withthe defendants constitutional right to a jury trial.219However, it is possibleto craft a solution that will effectively preclude the seemingly inevitableprocedural downfalls while upholding the supremacy of the SixthAmendment and the rights it affords to all defendants.220Because corporatedefendants only face criminal finesand not liberty-depriving sentencesthe extension of the Apprendi rule should be limited to punitive fines,which represent the primary purposes of criminal law, in order to promotethe fairness and efficiency of the criminal justice system.221

217 See Rogers, supra note110.

218 SeeS. Union Co. v. United States, 132 S. Ct. 2344, 237071 (2012) (Breyer, J., dissenting).219 See id.at 2357.220 But see id.221 See Leading Cases, supranote17,at 26163.

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Reuter: Money Makes All the Difference

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