Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 10–1121. Argued January 10, 2012—Decided June 21, 2012
California law permits public-sector employees in a bargaining unit to decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union. Even employees who do not join the union must pay an annual fee for “chargeable expenses,” i.e., the cost of nonpolitical union services related to collective bargaining. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, a public-sector union can bill nonmembers for chargeable expenses but may not require them to fund its political or ideological projects. Teachers v. Hudson, 475 U. S. 292–311, sets out requirements that a union must meet in order to collect regular fees from nonmembers without violating their rights.
In June 2005, respondent, a public-sector union (SEIU), sent to California employees its annual Hudson notice, setting and capping monthly dues and estimating that 56.35% of its total expenditures in the coming year would be chargeable expenses. A nonmember had 30 days to object to full payment of dues but would still have to pay the chargeable portion. The notice stated that the fee was subject to increase without further notice. That same month, the Governor called for a special election on, inter alia, two ballot propositions opposed by the SEIU. After the 30-day objection period ended, the SEIU sent a letter to unit employees announcing a temporary 25% increase in dues and a temporary elimination of the monthly dues cap, billing the move as an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” The purpose of the fund was to help achieve the union’s political objectives in the special election and in the upcoming November 2006 election. The union noted that the fund would be used “for a broad range of political expenses, including television and radio advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our communities across California.” Nonunion employees were not given any choice as to whether they would pay into the fund.
Petitioners, on behalf of nonunion employees who paid into the fund, brought a class action against the SEIU alleging violation of their First Amendment rights. The Federal District Court granted petitioners summary judgment. Ruling that the special assessment was for entirely political purposes, it ordered the SEIU to send a new notice giving class members 45 days to object and to provide those who object a full refund of contributions to the fund. The Ninth Circuit reversed, concluding that Hudson prescribed a balancing test under which the proper inquiry is whether the SEIU’s procedures reasonably accommodated the interests of the union, the employer, and the nonmember employees.
1. This case is not moot. Although the SEIU offered a full refund to all class members after certiorari was granted, a live controversy remains. The voluntary cessation of challenged conduct does not ordinarily render a case moot because that conduct could be resumed as soon as the case is dismissed. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283. Since the SEIU continues to defend the fund’s legality, it would not necessarily refrain from collecting similar fees in the future. Even if concerns about voluntary cessation were inapplicable because petitioners did not seek prospective relief, there would still be a live controversy as to the adequacy of the refund notice the SEIU sent pursuant to the District Court’s order. Pp. 6−8.
2. Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent. Pp. 8−23.
(a) A close connection exists between this Nation’s commitment to self-government and the rights protected by the First Amendment, see, e.g., Brown v. Hartlage, 456 U. S. 45−53, which creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference, New York State Bd. of Elections v. Lopez Torres, 552 U. S 196, 202. The government may not prohibit the dissemination of ideas it disfavors, nor compel the endorsement of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377. And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See, e.g., Roberts v. United States Jaycees, 468 U. S. 609. Closely related to compelled speech and compelled association is compelled funding of the speech of private speakers or groups. Compulsory subsidies for private speech are thus subject to exacting First Amendment scrutiny and cannot be sustained unless, first, there is a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy, United States v. United Foods, Inc., 533 U. S. 405, and, second, compulsory fees are levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association,” ibid. Pp. 8−10.
(b) When a State establishes an “agency shop” that exacts compulsory union fees as a condition of public employment, “[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis v. Railway Clerks, 466 U. S. 435. This form of compelled speech and association imposes a “significant impingement on First Amendment rights.” Ibid. The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues―rather than exempting them unless they opt in―represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree. Thus, Hudson, far from calling for a balancing of rights or interests, made it clear that any procedure for exacting fees from unwilling contributors must be “carefully tailored to minimize the infringement” of free speech rights, 475 U. S. 302−303, and it cited cases holding that measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest. Pp. 10−13.
(c) There is no justification for the SEIU’s failure to provide a fresh Hudson notice. Hudson rests on the principle that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having “a fair opportunity” to assess the impact of paying for nonchargeable union activities. 475 U. S., at 303. The SEIU’s procedure cannot be considered to have met Hudson’s requirement that fee-collection procedures be carefully tailored to minimize impingement on First Amendment rights. The SEIU argues that nonmembers who objected to the special assessment but were not given the opportunity to opt out would have been given the chance to recover the funds by opting out when the next annual notice was sent, and that the amount of dues payable the following year by objecting nonmembers would decrease if the special assessment were found to be for nonchargeable purposes. But this decrease would not fully recompense nonmembers, who would not have paid to support the special assessment if given the choice. In any event, even a full refund would not undo the First Amendment violations, since the First Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full. Pp. 14−17.
(d) The SEIU’s treatment of nonmembers who opted out when the initial Hudson notice was sent also ran afoul of the First Amendment. They were required to pay 56.35% of the special assessment even though all the money was slated for nonchargeable, electoral uses. And the SEIU’s claim that the assessment was a windfall because chargeable expenses turned out to be 66.26% is unpersuasive. First, the SEIU’s understanding of the breadth of chargeable expenses is so expansive that it is hard to place much reliance on its statistics. “Lobbying the electorate,” which the SEIU claims is chargeable, is nothing more than another term for supporting political causes and candidates. Second, even if the SEIU’s statistics are accurate, it does not follow that it was proper to charge objecting nonmembers any particular percentage of the special assessment. If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes, there is a risk that unconsenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to receive any payment from those employees. Pp. 17−23.
628 F. 3d 1115, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined.
Certiorari To The United States Court Of Appeals For The Second Circuit
No. 10–1293. Argued January 10, 2012—Decided June 21, 2012 1
Title 18 U. S. C. §1464 bans the broadcast of “any obscene, indecent, or profane language.” The Federal Communications Commission (Commission) began enforcing §1464 in the 1970’s. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission’s order banning George Carlin’s “Filthy Words” monologue passed First Amendment scrutiny, but did not decide whether “an occasional expletive . . . would justify any sanction,” id., at 750. In the ensuing years, the Commission went from strictly observing the narrow circumstances of Pacifica to indicating that it would assess the full context of allegedly indecent broadcasts rather than limit its regulation to an index of indecent words or pictures. However, it continued to note the important difference between isolated and repeated broadcasts of indecent material. And in a 2001 policy statement, it even included, as one of the factors significant to the determination of what was patently offensive, “whether the material dwells on or repeats at length” the offending description or depiction.
It was against this regulatory background that the three incidents at issue took place. Two concern isolated utterances of obscene words during two live broadcasts aired by respondent Fox Television Stations, Inc. The third occurred during an episode of a television show broadcast by respondent ABC Television Network, when the nude buttocks of an adult female character were shown for approximately seven seconds and the side of her breast for a moment. After these incidents, but before the Commission issued Notices of Apparent Liability to Fox and ABC, the Commission issued its Golden Globes Order, declaring for the first time that fleeting expletives could be actionable. It then concluded that the Fox and ABC broadcasts violated this new standard. It found the Fox broadcasts indecent, but declined to propose forfeitures. The Second Circuit reversed, finding the Commission’s decision to modify its indecency enforcement regime to regulate fleeting expletives arbitrary and capricious. This Court reversed and remanded for the Second Circuit to address respondents’ First Amendment challenges. FCC v. Fox Television Stations, Inc., 556 U. S. 502. On remand, the Second Circuit found the policy unconstitutionally vague and invalidated it in its entirety. In the ABC case, the Commission found the display actionably indecent, and imposed a $27,500 forfeiture on each of the 45 ABC-affiliated stations that aired the episode. The Second Circuit vacated the order in light of its Fox decision.
Held: Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague. Pp. 11–18.
(a) The fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed, see, e.g., Connally v. General Constr. Co., 269 U. S. 385, is essential to the protections provided by the Fifth Amendment’s Due Process Clause, see United States v. Williams, 553 U. S. 285, which requires the invalidation of impermissibly vague laws. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. The void for vagueness doctrine addresses at least two connected but discrete due process concerns: Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. Pp. 11–12.
(b) These concerns are implicated here, where the broadcasters claim that the lengthy procedural history of their cases shows that they did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “whether the material dwell[ed] on or repeat[ed] at length” the offending description or depiction, but in the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. It then applied this new principle to these cases. Its lack of notice to Fox and ABC of its changed interpretation failed to give them “fair notice of what is prohibited.” Williams, supra, at 304. Pp. 12–13.
(c) Neither of the Government’s contrary arguments is persuasive. It claims that Fox cannot establish unconstitutional vagueness because the Commission declined to impose a forfeiture on Fox and said that it would not consider the indecent broadcast in renewing station licenses or in other contexts. But the Commission has the statutory power to take into account “any history of prior offenses” when setting a forfeiture penalty, 47 U. S. C. §503(b)(2)(E), and the due process protection against vague regulations “does not leave [regulated parties] . . . at the mercy of noblesse oblige.” United States v. Stevens, 559 U. S. ___, ___. The challenged orders could also have an adverse impact on Fox’s reputation with audiences and advertisers alike.
The Government argues that ABC had notice that its broadcast would be considered indecent. But an isolated statement in a 1960 Commission decision declaring that televising nudes might be contrary to §1464 does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech. Moreover, previous Commission decisions had declined to find isolated and brief moments of nudity actionably indecent. In light of these agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned. Pp. 13–17.
(d) It is necessary to make three observations about this decision’s scope. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application. Pp. 17–18.
613 F. 3d 317 (first case) and 404 Fed. Appx. 530 (second case), vacated and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Breyer, Alito, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. Sotomayor, J., took no part in the consideration or decision of the cases.
1 Together with Federal Communications Commission v. ABC, Inc., et al. (see this Court’s Rule 12.4), also on certiorari to the same court.
Certiorari To The United States Court Of Appeals For The Seventh Circuit
No. 11–5683. Argued April 17, 2012—Decided June 21, 2012 1
Under the Anti-Drug Abuse Act (1986 Drug Act), the 5- and 10-year mandatory minimum prison terms for federal drug crimes reflected a 100-to-1 disparity between the amounts of crack cocaine and powder cocaine needed to trigger the minimums. Thus, the 5-year minimum was triggered by a conviction for possessing with intent to distribute 5 grams of crack cocaine but 500 grams of powder, and the 10-year minimum was triggered by a conviction for possessing with intent to distribute 50 grams of crack but 5,000 grams of powder. The United States Sentencing Commission—which is charged under the Sentencing Reform Act of 1984 with writing the Federal Sentencing Guidelines—incorporated the 1986 Drug Act’s 100-to-1 disparity into the Guidelines because it believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic proportionality objective. The Fair Sentencing Act, which took effect on August 3, 2010, reduced the disparity to 18-to-1, lowering the mandatory minimums applicable to many crack offenders, by increasing the amount of crack needed to trigger the 5-year minimum from 5 to 28 grams and the amount for the 10-year minimum from 50 to 280 grams, while leaving the powder cocaine amounts intact. It also directed the Sentencing Commission to make conforming amendments to the Guidelines “as soon as practicable” (but no later than 90 days after the Fair Sentencing Act’s effective date). The new amendments became effective on November 1, 2010.
In No. 11−5721, petitioner Hill unlawfully sold 53 grams of crack in 2007, but was not sentenced until December 2010. Sentencing him to the 10-year minimum mandated by the 1986 Drug Act, the District Judge ruled that the Fair Sentencing Act’s 5-year minimum for selling that amount of crack did not apply to those whose offenses were committed before the Act’s effective date. In No. 11−5683, petitioner Dorsey unlawfully sold 5.5 grams of crack in 2008. In September 2010, the District Judge sentenced him to the 1986 Drug Act’s 10-year minimum, finding that it applied because Dorsey had a prior drug conviction and declining to apply the Fair Sentencing Act, under which there would be no mandated minimum term for an amount less than 28 grams, because Dorsey’s offense predated that Act’s effective date. The Seventh Circuit affirmed in both cases.
Held: The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. Pp. 10−20.
(a) Language in different statutes argues in opposite directions. The general federal saving statute (1871 Act) provides that a new criminal statute that “repeal[s]” an older criminal statute shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so expressly provide.” 1 U. S. C. §109. The word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth, see Warden v. Marrero, 417 U. S. 653−664, and penalties are “incurred” under the older statute when an offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable, see United States v. Reisinger, 128 U. S. 398. In contrast, the Sentencing Reform Act says that, regardless of when the offender’s conduct occurs, the applicable sentencing guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii).
Six considerations, taken together, show that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great Northern R. Co. v. United States, 208 U. S. 452. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act offenders, to assure themselves by the “plain import” or “fair implication” of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the Sentencing Reform Act sets forth a special and different background principle in §3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter. Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act’s special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgate conforming amendments to the Guidelines that “achieve consistency with other guideline provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatory minimums. And consistency with “other guideline provisions” and with prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments’ effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse by creating new anomalies―new sets of disproportionate sentences―not previously present. That is because sentencing courts must apply the new Guidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress’ basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations that would make a critical difference. Pp. 10−19.
(b) The new Act’s lower minimums also apply to those who committed an offense prior to August 3 and were sentenced between that date and November 1, 2010, the effective date of the new Guidelines. The Act simply instructs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Act took effect), and thus as far as Congress was concerned, the Commission might have promulgated those Guidelines to be effective as early as August 3. In any event, courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums. Finally, applying the new minimums to all who are sentenced after August 3 makes it possible to foresee a reasonably smooth transition, and this Court has no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. Pp. 19−20.
No. 11−5683, 635 F. 3d 336, and No. 11−5721, 417 Fed. Appx. 560, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
1 Together with No. 11–5721, Hill v. United States, also on certiorari to the same court.
Certiorari To The United States Court Of Appeals For The First Circuit
No. 11–94. Argued March 19, 2012—Decided June 21, 2012
Petitioner Southern Union Company was convicted by a jury in federal court on one count of violating the Resource Conservation and Recovery Act of 1976 (RCRA) for having knowingly stored liquid mercury without a permit at a subsidiary’s facility “on or about September 19, 2002 to October 19, 2004.” Violations of the RCRA are punishable by, inter alia, a fine of not more than $50,000 for each day of violation. 42 U. S. C. §6928(d). At sentencing, the probation office calculated a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union argued that imposing any fine greater than the 1-day penalty of $50,000 would be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, which holds that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt. Southern Union contended that, based on the jury verdict and the District Court’s instructions, the only violation the jury necessarily found was for one day. The District Court held that Apprendi applies to criminal fines, but concluded from the “content and context of the verdict all together” that the jury found a 762-day violation. The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligation” of $12 million. On appeal, the First Circuit disagreed with the District Court that the jury necessarily found a violation of 762 days. But the First Circuit affirmed the sentence because it held that Apprendi does not apply to criminal fines.
Held: The rule of Apprendi applies to the imposition of criminal fines. Pp. 3−16.
(a) Apprendi’s rule is “rooted in longstanding common-law practice,” Cunningham v. California, 549 U. S. 270, and preserves the “historic jury function” of “determining whether the prosecution has proved each element of an offense beyond a reasonable doubt,” Oregon v. Ice, 555 U. S. 160. This Court has repeatedly affirmed Apprendi’s rule by applying it to a variety of sentencing schemes that allow judges to find facts that increase a defendant’s maximum authorized sentence. See Cunningham, 549 U. S., at 274−275; United States v. Booker, 543 U. S. 220–227; Blakely v. Washington, 542 U. S. 296–300; Ring v. Arizona, 536 U. S. 584–589; Apprendi, 530 U. S., at 468–469. While the punishments at stake in these cases were imprisonment or a death sentence, there is no principled basis under Apprendi to treat criminal fines differently. Apprendi’s “core concern”—to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense,” Ice, 555 U. S., at 170—applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America and they continue to be frequently imposed today. And, the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often determined by reference to particular facts. The Government argues that fines are less onerous than incarceration and the death sentence and therefore should be exempt from Apprendi. But where a fine is substantial enough to trigger the Sixth Amendment’s jury-trial guarantee, Apprendi applies in full. Pp. 3−8.
(b) The “historical role of the jury at common law,” which informs the “scope of the constitutional jury right,” Ice, 555 U. S., at 170, supports applying Apprendi to criminal fines. To be sure, judges in the colonies and during the founding era had much discretion in determining whether to impose a fine and in what amount. But the exercise of such discretion is fully consistent with Apprendi, which permits courts to impose “judgment within the range prescribed by statute.” 530 U. S., at 481 (emphasis in original). The more salient question is what role the jury played in prosecutions for offenses that pegged the amount of a fine to the determination of specified facts. A review of both state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury. The rule that juries must determine facts that set a fine’s maximum amount is an application of the “two longstanding tenets of common-law criminal jurisprudence” on which Apprendi is based: first, “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” Blakely, 542 U. S., at 301. And second, “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and is no accusation in reason.’ ” Ibid. Contrary to the Government’s contentions, neither United States v. Murphy, 16 Pet. 203, nor United States v. Tyler, 7 Cranch 285, overcomes the ample historical evidence that juries routinely found facts that set maximum criminal fines. Pp. 8−14.
(c) The Government’s remaining arguments, echoed by the dissent, are unpersuasive. The Government claims that facts relevant to a fine’s amount typically quantify the harm caused by the defendant’s offense, and do not define a separate set of acts for punishment. The Government contends that only the latter determination implicates Apprendi’s concerns. But this argument rests on the rejected assumption that, in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an “element” of the offense and one that is a “sentencing factor.” Further, the facts the District Court found in imposing a fine on Southern Union are not fairly characterized as merely quantifying the harm the company caused.
The Government also argues that applying Apprendi to criminal fines will prevent States and the Federal Government from enact- ing statutes that calibrate the amount of a fine to a defendant’s culpability. But legislatures are free to enact such statutes, so long as the statutes are administered in conformance with the Sixth Amendment.
Finally, the Government contends that requiring juries to determine facts related to fines will cause confusion, prejudice defendants, or be impractical. These policy arguments rehearse those made by the dissents in our prior Apprendi cases. They must be rejected because the rule the Government espouses is unconstitutional. In addition, because Apprendi is now more than a decade old, the reliance interests underlying the Government’s arguments are by this point attenuated. Pp. 14−16.
630 F. 3d 17, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined.