southern union argued march decided june petitioner southern union company convicted jury federal one count violating resource conservation recovery act rcra knowingly stored liquid mercury without permit subsidiary facility september october violations rcra punishable inter alia fine day violation sentencing probation office calculated maximum fine million basis southern union violated rcra days september october southern union argued imposing fine greater penalty unconstitutional apprendi new jersey holds sixth amendment guarantee requires fact fact prior conviction increases maximum punishment authorized particular crime proved jury beyond reasonable doubt southern union contended based jury verdict district instructions violation jury necessarily found one day district held apprendi applies criminal fines concluded content context verdict together jury found violation therefore set maximum potential fine million imposed fine million community service obligation million appeal first circuit disagreed district jury necessarily found violation days first circuit affirmed sentence held apprendi apply criminal fines held rule apprendi applies imposition criminal fines pp apprendi rule rooted longstanding practice cunningham california preserves historic jury function determining whether prosecution proved element offense beyond reasonable doubt oregon ice repeatedly affirmed apprendi rule applying variety sentencing schemes allow judges find facts increase defendant maximum authorized sentence see cunningham booker blakely washington ring arizona punishments stake cases imprisonment death sentence principled basis apprendi treat criminal fines differently apprendi core concern reserve jury determination facts warrant punishment specific statutory offense ice applies whether sentence criminal fine imprisonment death criminal fines like forms punishment penalties inflicted sovereign commission offenses fines far common form noncapital punishment colonial america continue frequently imposed today amount fine like maximum term imprisonment eligibility death penalty often determined reference particular facts government argues fines less onerous incarceration death sentence therefore exempt apprendi fine substantial enough trigger sixth amendment guarantee apprendi applies full pp historical role jury common law informs scope constitutional jury right ice supports applying apprendi criminal fines sure judges colonies founding era much discretion determining whether impose fine amount exercise discretion fully consistent apprendi permits courts impose judgment within range prescribed statute emphasis original salient question role jury played prosecutions offenses pegged amount fine determination specified facts review state federal decisions discloses predominant practice facts alleged indictment proved jury rule juries must determine facts set fine maximum amount application two longstanding tenets criminal jurisprudence apprendi based first every accusation defendant afterwards confirmed unanimous suffrage twelve equals neighbours blakely second accusation lacks particular fact law makes essential punishment accusation within requirements common law accusation reason ibid contrary government contentions neither murphy pet tyler cranch overcomes ample historical evidence juries routinely found facts set maximum criminal fines pp government remaining arguments echoed dissent unpersuasive government claims facts relevant fine amount typically quantify harm caused defendant offense define separate set acts punishment government contends latter determination implicates apprendi concerns argument rests rejected assumption determining maximum punishment offense constitutionally significant difference fact element offense one sentencing factor facts district found imposing fine southern union fairly characterized merely quantifying harm company caused government also argues applying apprendi criminal fines prevent federal government enacting statutes calibrate amount fine defendant legislatures free enact statutes long statutes administered conformance sixth amendment finally government contends requiring juries determine facts related fines cause confusion prejudice defendants impractical policy arguments rehearse made dissents prior apprendi cases must rejected rule government espouses unconstitutional addition apprendi decade old reliance interests underlying government arguments point attenuated pp reversed remanded sotomayor delivered opinion roberts scalia thomas ginsburg kagan joined breyer filed dissenting opinion kennedy alito joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press southern union company petitioner writ certiorari appeals first circuit june justice sotomayor delivered opinion sixth amendment reserves juries determination fact fact prior conviction increases criminal defendant maximum potential sentence apprendi new jersey blakely washington applied principle numerous cases sentence imprisonment death question whether rule applies sentences criminal fines hold petitioner southern union company natural gas distributor subsidiary stored liquid mercury hazardous substance facility pawtucket rhode september youths nearby apartment complex broke facility played spread around facility complex complex residents temporarily displaced cleanup underwent testing mercury poisoning grand jury indicted southern union multiple counts violating federal environmental statutes relevant first count alleged company knowingly stored liquid mercury without permit pawtucket facility rom september october app violation resource conservation recovery act rcra see stat amended jury convicted southern union count following trial district district rhode island verdict form stated southern union guilty unlawfully storing liquid mercury september october app violations rcra punishable inter alia fine day violation sentencing probation office set maximum fine million basis southern union violated rcra days september october southern union objected calculation violated apprendi jury asked determine precise duration violation company noted form listed violation approximate start date argued instructions permitted conviction jury found even violation therefore southern union maintained violation jury necessarily found one day imposing fine greater penalty require factfinding contravention apprendi government acknowledged jury asked specify duration violation argued apprendi apply criminal fines district disagreed held apprendi applies concluded content context verdict together jury found violation app pet cert therefore set maximum potential fine million imposed fine million community service obligatio million app appeal appeals first circuit rejected district conclusion jury necessarily found violation days appeals affirmed sentence also held contrast district apprendi apply criminal fines circuits reached opposite conclusion see pfaff per curiam lagrou distribution granted certiorari resolve conflict reverse ii case requires us consider scope sixth amendment right jury trial construed apprendi apprendi ther fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant blakely emphasis deleted thus judges may exercise discretion sentencing may inflic punishment jury verdict alone allow apprendi rule rooted longstanding practice cunningham california preserves historic jury function determining whether prosecution proved element offense beyond reasonable doubt oregon ice repeatedly affirmed rule applying variety sentencing schemes allowed judges find facts increased defendant maximum authorized sentence see cunningham elevated upper term booker increased imprisonment range defendant federal sentencing guidelines blakely increased statutorily prescribed standard range ring arizona death penalty authorized upon finding existence aggravating factors apprendi extended term imprisonment based violation hate crime statute punishments stake cases imprisonment death sentence see principled basis apprendi treating criminal fines apprendi core concern reserve jury determination facts warrant punishment specific statutory offense ice concern applies whether sentence criminal fine imprisonment death criminal fines like forms punishment penalties inflicted sovereign commission offenses fines far common form noncapital punishment colonial frequently imposed today especially upon organizational defendants amount fine like maximum term imprisonment eligibility death penalty calculated reference particular facts sometimes fact duration statutory violation statutes amount defendant gain victim loss cases requiring juries find beyond reasonable doubt facts determine fine maximum amount necessary implement apprendi animating principle preservation jury historic role bulwark state accused trial alleged offense ice stating apprendi rule never distinguished one form punishment another instead decisions broadly prohibit judicial factfinding increases maximum criminal sentence penalties punishment terms undeniably embrace fines blakely apprendi ring government objects however fines less onerous incarceration death sentence government notes apprendi referred physical deprivation liberty imprisonment occasions see placed weight imprisonment fines construing scope sixth amendment rights counsel jury trial see blanton north las vegas jury trial scott illinois counsel therefore government concludes fines categorically implicate primary concerns motivating apprendi brief argument fails conclusion premise fine insubstantial underlying offense considered petty sixth amendment right jury trial triggered apprendi issue arises see muniz hoffman fine imposed labor union entitle union jury trial see also blanton jury trial right petty offenses measured severity maximum authorized penalty internal quotation marks omitted course true offenses punishable relatively brief terms imprisonment entitle defendant jury trial see establishing rebuttable presumption offenses punishable six months imprisonment less petty duncan louisiana fines insubstantial offenses punishable fines petty see mine workers bagwell criminal contempt fine million imposed union unquestionably serious contempt sanction triggers right jury trial federal statute particular see used obtain substantial judgments organizational defendants see amended judgment lg display nd cal pp million fine conviction single count violating sherman antitrust act judgment siemens aktiengesellschaft dc pp million fine two violations foreign corrupt practices act sentencing commission annual report ch noting fine billion imposed pharmaceutical corporation violations food drug laws defendant individual large fine may engender significant infringement personal freedom blanton quoting frank see also requiring consider burden fine impose upon defendant determining whether impose fine amount government thus asks wrong question comparing severity criminal fines punishments far apprendi concerned relevant question significance fine perspective sixth amendment jury trial guarantee fine substantial enough trigger right apprendi applies full said cunningham asking whether defendant basic right preserved though facts essential punishment reserved determination judge inquiry apprendi rule designed exclude case exemplary rcra subjects southern union maximum fine day violation government deny light seriousness punishment company properly accorded jury trial government concedes district made factual findings increased potential actual fine imposed brief exactly apprendi guards judicial factfinding enlarges maximum punishment defendant faces beyond jury verdict defendant admissions allow concluding rule apprendi apply criminal fines appeals relied decision ice ice addressed question whether defendant convicted multiple offenses apprendi forbids judges determine facts authorize imposition consecutive sentences holding apprendi ice emphasized juries historically played role deciding whether sentences run consecutively concurrently see appeals reasoned juries similarly uninvolved setting criminal fines appeals correct examine record scope constitutional jury right must informed historical role jury common law ice see also blakely apprendi view record supports applying apprendi criminal fines sure judges founding era possessed great deal discretion determining whether impose fine amount lillquist see also preyer often fine range apparently without limit except insofar within expectation part paid ibid offenses maximum fine capped statute see robbery larceny burglary offenses punishable massachusetts bay colony fines act ch stat consul gives false certificate shall forfeit pay fine exceeding ten thousand dollars discretion stith cabranes fear judging sentencing guidelines federal courts describing federal practice exercise sentencing discretion fully consistent apprendi permits courts impose judgment within range prescribed statute emphasis original fortiori apprendi violation maximum prescribed indeed surveying historical record formed basis holding apprendi considered english practice respect fines true many colonial offenses made sentencing largely dependent upon judicial discretion see see also jones blackstone commentaries laws england hereinafter blackstone even dissent acknowledges post opinion breyer authority suggesting english juries required find facts determined authorized pecuniary punishment see starkie treatise criminal pleading cases offence defined measure punishment depends upon property specific value value must proved precisely laid indictment variance fatal see also case usury judgment depends upon quantum taken usurious contract must averred according fact variance evidence fatal penalty apportioned value emphasis original hawkins treatise pleas crown ch pp ed doubting whether set forth value goods indictment trespass purpose aggravate fine event salient question role jury played prosecutions offenses peg amount fine determination specified facts often value damaged stolen property see apprendi thomas concurring review state federal decisions discloses predominant practice facts alleged indictment proved jury see commonwealth smith mass declining award judgment treble damages stolen items larceny prosecution indictment alleged value items clark people arson indictment must allege value destroyed building statute imposed fine equal value property burned state garner port malicious mischief prosecution punishment fine exceeding four fold value property injured destroyed ritchey state blackf ind arson prosecution addition imprisonment penitentiary guilty person liable fine exceeding double value property destroyed hope commonwealth mass value property alleged stolen must set forth indictment part ur statutes prescribe punishment larceny reference value property stolen state goodrich may also suggested case simple larceny respondent may sentenced pay owner goods stolen treble value thereof additional reason requiring value stolen items stated indictment woodruff defendant entitled constitutional right trial jury ascertain exact sum fine may imposed rule juries must determine facts set fine maximum amount application two longstanding tenets criminal jurisprudence apprendi based first every accusation defendant afterwards confirmed unanimous suffrage twelve equals neighbours blakely quoting blackstone second accusation lacks particular fact law makes essential punishment accusation within requirements common law accusation reason quoting bishop criminal procedure ed indeed bishop leading treatise criminal procedure specifically identified cases involving fines evidence proposition indictment must order inform punishment inflict contain averment every particular thing enters punishment discussing clark garner principle bishop explained pervades entire system adjudged law criminal procedure made apparent understandings single case cases criminal procedure see also thomas concurring explaining bishop grounded principle practice provisions federal state constitutions guaranteeing notice accusation criminal cases indictment grand jury serious crimes trial jury counterevidence juries historically determine facts relevant criminal fines government points two decisions one murphy pet considered whether interested witness competent testify larceny prosecution brought provision crimes act murphy relevance case crimes act authorized fine four times value stolen property remarked fine amount purely discretion statement best read permitting select fine within maximum authorized facts practice noted accords apprendi reading consistent fact indictment murphy alleged value stolen items see practice contemporary courts addressing statute see holland cas cc sdny trial instructs jury assess value property taken order determine maximum fine pye cas cc dc value stolen items alleged indictment government dissent place greater reliance tyler cranch like murphy decision involved constitutional question rather construed federal embargo statute imposed fine four times value property intended exported indictment identified property issue jury guilty verdict instead worth two hundred eighty dollars tyler cranch question whether discrepancy rendered verdict sufficiently certain value property charged indictment ibid held discrepancy immaterial ground law valuation jury necessary enable circuit impose proper fine ibid reasoning somewhat opaque appears rest text embargo statute directed defendant shall upon conviction fined sum ibid event nothing decision purports construe sixth amendment insofar tyler reflects prevailing practice bears noting indictment identified value property issue see tr tyler cranch reprinted appellate case files national archives microfilm publications roll indictment nineteen barrels pearlashes value six hundred dollars whatever precise meaning decision outweigh ample historical evidence showing juries routinely found facts set maximum amounts fines iii government remaining arguments echoed dissent see post unpersuasive government first submits comes fines judicially found facts typically involve quantifying harm caused defendant offense example long violation last much money defendant gain victim lose opposed separate set acts punishment brief latter determination government contends implicates apprendi concerns argument two defects first rests assumption apprendi progeny uniformly rejected determining maximum punishment offense constitutionally significant difference fact element offense one sentencing factor see ring second doubt coherence distinction case proves point fact ultimately determine maximum fine southern union faces number days company violated statute finding fairly characterized merely quantifying harm southern union caused rather determination given day government proved southern union committed acts constituting offense government next contends applying apprendi fines prevent federal government enacting statutes like calibrate fines defendant culpability thus providing punishment reducing unwarranted sentencing disparity government presents false choice true prior apprendi cases remains legislatures free enact statutes constrain judges discretion sentencing apprendi requires provisions administered conformance sixth amendment last government argues requiring juries determine facts related fines cause confusion expert testimony might needed guide inquiry prejudice defendant might deny violating statute simultaneously arguing violation minimal impractical least relevant facts unknown unknowable trial completed arguments rehearse made dissents prior apprendi cases see booker breyer dissenting part blakely dissenting breyer dissenting apprendi must rejected even predictions rule government espouses unconstitutional end matter blakely particular reason doubt strength policy concerns apprendi decade old reliance interests underlie many government arguments point attenuated view applying apprendi rule criminal fines mark unexpected extension doctrine circuits addressed issue already embrace position see pfaff lagrou distribution yang fed appx government prior ice see brief opposition light reasons given opinion dramatic departure precedent hold criminal fines exempt apprendi hold rule apprendi applies imposition criminal fines judgment appeals reversed case remanded proceedings consistent opinion ordered breyer dissenting southern union company petitioner writ certiorari appeals first circuit june justice breyer justice kennedy justice alito join dissenting criminal fine issue believe sixth amendment permits sentencing judge determine sentencing facts facts elements crime relevant amount fine judge impose framed bill rights understood finding particular fact kind ordinarily matter judge necessarily within domain jury oregon ice quoting harris plurality opinion contrary conclusion believe ahistorical lead increased problems unfairness administration criminal justice system although dissent depend upon dissents apprendi new jersey progeny summarizing earlier dissents help reader understand one see dissenting breyer dissenting see also booker breyer dissenting part citing cases blakely washington breyer dissenting apprendi dissenters argued law long distinguished facts constitute elements offense facts relevant sentencing term elements offense means constituent parts crime prosecution must prove sustain conviction black law dictionary ed statute creates crime question typically sets forth constituent parts jury must find existence element beyond reasonable doubt see gaudin winship thus bank robbery statute might prohibit offender taking force intimidation presence another person thing value belonging custody bank case jury convict finds existence four factual elements beyond reasonable doubt need find facts beyond reasonable doubt four factual elements alone constitute crime facts may relevant length kind sentence impose upon convicted offender sentencing facts typically characterize manner offender carried crime set forth relevant features characterizing offender example respect manner offender might carried particular bank robbery without gun robber kept hidden brandished might frightened merely warned injured seriously less seriously tied simply pushed guard teller customer night noon effort obtain money crimes purposes company many robbers sentencing commission guidelines manual ussg respect characteristics offender current bank robbery conviction might offender first fourth criminal conviction traditionally sentencing facts help sentencing judge determine within say broad statutory range say years imprisonment particular bank robber punishment lie apprendi dissenters concluded constitution require jury find existence facts beyond reasonable doubt rather law rules statutes constitution due process clause typically offer defendant factfinding protection see fed rule crim proc federal presentence report prepared probation office sets forth facts defendant may contest sentencing proceeding constitutional inquiry dispute apprendi line cases arose congress many codified sentencing facts sentencing reform movement congress example concluded many different judges imposing many different sentences upon many similar offenders committed similar crimes similar ways subsequently enacted sentencing reform act creating federal sentencing commission produce greater uniformity sentencing promulgation mandatory uniform guidelines structuring judges ordinary cases typically use sentencing facts determine sentences ed supp iv see also majority agreed statute set higher maximum sentence commission might structure judge found sentencing facts relevant sentence imposed otherwise applicable maximum least resulting guidelines mandatory see booker majority held sentencing fact increased otherwise applicable maximum penalty fact found jury apprendi said dissenters thought sixth amendment require jury find sentencing facts asked dissenters congress state desire greater sentencing uniformity achieved statutes seeking uniform treatment similar offenders committing similar offenses similar ways suddenly produce new sixth amendment jury trial requirements requirements work greater sentencing fairness treat sentencing facts specified statute rule elements offense lead congress simply set high maximum ranges crime thereby avoiding di jury trial requirement alternatively congress might enact statutes specifically tied particular punishments crime limiting removing judicial discretion example mandatory minimum statutes system threaten disproportionality insisting similar punishments applied different kinds offense behavior offenders apprendi jury trial requirements might also prove unworkable consider difficulty juries find different facts bank robbery example set forth moreover defendant arguing gun alternatively argue event fire gun finally dissenters took different view sixth amendment history believed common law time constitution ratified judges juries often found sentencing facts facts relevant determination offender punishment see booker supra breyer dissenting part apprendi dissenting dissenters lost argument apprendi held fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt dissenters views help explain continue believe extend apprendi rule beyond central sphere concern ice quoting cunningham california kennedy dissenting view set forth ice base dissent primarily upon ice ii case involves sentencing facts elements crime criminal statute issue constitutes one part resource conservation recovery act rcra among others things authorizes environmental protection agency create list hazardous wastes criminal statute says person knowingly treats stores disposes hazardous waste identified listed rcra without permit shall upon conviction subject fine day violation imprisonment exceed five years one denies statute creates crime four elements knowing treatment storage disposal waste hazardous without permit knowing waste substantial potential causing harm others environment app see brief petitioner number day violation however additional element crime statute says number days becomes relevant upon conviction crime previously defined moreover number days relevant application one two kinds punishment statute mentions fine imprisonment one easily read statute creating two separate crimes identical punishment finally congress include sometimes done statutory words day violation shall constitute separate offense see also rather many similar statutes statute sets forth crime kinds punishments fine imprisonment separately specifying facts determine maximum punishment one kind fines particular case indictment set forth violation period days september october app jury guilty verdict specify number days defendant committed offense conviction sentencing hearing judge found among things clear essentially irrefutable evidence trial supported conclusion set forth presentence report namely maximum fine available amounted per day days million app pet cert judge imposed fine million along million community service obligation app iii apprendi says fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt number days beyond one defendant violated criminal statute fact nonetheless like majority believe apprendi rule automatically control outcome case case concerns fine apprendi term imprisonment made clear oregon ice apprendi encompass every kind sentencing decision increases statutory maximum ice considered apprendi application sentencing decision whether two prison sentences conviction two separate crimes illegal drug possession illegal gun possession run concurrently consecutively oregon statute required concurrent sentence unless sentencing judge found certain facts facts make large difference term imprisonment presence mean sentence illegal drug possession sentence illegal gun possession amount years imprisonment rather indeed ice judge factfinding increased sentence years see thus presence fact increas penalty beyond otherwise prescribed statutory maximum internal quotation marks omitted nonetheless held sixth amendment permitted judge require jury make factual determination consequently concluded apprendi encompass every kind sentencing decision increases statutory maximum wrote animating principle apprendi rule preservation jury historic role bulwark state accused trial alleged offense refused extend apprendi rule new category facts two basic reasons first considered historical question namely whether finding particular fact understood within domain jury framed bill rights quoting harris read historical record showing england founding nation early american jury played role decision impose sentences consecutively concurrently omitted rather decision rested exclusively judge second recognizing administration discrete criminal justice system among basic sovereign prerogatives considered need respect state sovereignty ibid expressed concern lest application apprendi kind decision inhibit state legislative efforts establish fairer sentencing system helping bring uniform sentencing ice concluded either apprendi sixth amendment traditions compel straitjacketing respect ibid case presents another new category sentencing decisions namely decisions amount fine thus majority recognizes must begin historical question ante judge jury found facts determine amount criminal fine england founding nation early american ice supra omitted unlike majority believe answer question instances judge made determination iv apprendi relied heavily upon fact england founding nation prescribed punishment serious crimes felonies typically fixed indeed fixed death see baker introduction english legal history ed beattie crime courts england pp hereinafter beattie langbein english criminal trial eve french revolution trial jury england france germany pp schioppa ed facts related application punishment typically elements crime jury judge determined existence facts see blackstone commentaries laws england hereinafter blackstone see also baker supra practice jury judge ameliorate capital punishment application doctrines pious perjury benefit clergy reprieves king grant royal pardon beattie punishment lesser crimes however included fines common law judge jury determined amount fine sentencing facts relevant setting amount see baker supra beattie pertinent sentencing facts typically concerned manner offender committed crime characteristics offender see thus blackstone wrote statute law therefore often ascertained quantity fines common law ever directing offense punished fine general without specifying certain sum blackstone emphasis added quantum particular pecuniary fines neither ascertained invariable law value money changes thousand causes events ruin one man fortune may matter indifference another moreover quantum pecuniary fines must frequently vary aggravations otherwise offense manner crime committed quality conditions parties offender characteristics innumerable circumstances ibid similarly statesman baron auckland pointed england law attached fixed financial penalty specific crime principles penal law ed law example imposed penalty cows perjury cows rape maid ibid system baron auckland added ignored variations example differing value fixed fine say cow time among individuals also ignored manner offense committed characteristics offender reasons english law ordinarily left quantum fine discretion judges emphasis deleted enormity tendency crime malice wilfulness intention inconsiderateness suddenness act age faculties fortune offender form chain complex questions resolved evidence separate charge human foresight provide arises necessary appeal breast judge emphasis added generally applicable limitations judge imposing fine contained english bill rights magna carta ch eng stat large forbidding excessive fines magna carta hen iii eng stat large fine deprive offender means livelihood see auckland supra interpreting magna carta blackstone sure jury judge determine facts made elements crime even though elements might relevant whether fine apply amount fine imposed well common law example defined larceny theft goods intrinsic value divided offense grand larceny theft goods valued shilling petit larceny theft goods worth less shilling blackstone langbein supra see also beattie whether benefit clergy available depended value stolen consequently jury determine value goods question jury might manipulate sentence valuing goods shilling thereby spare defendant capital sanction lillquist puzzling return jury sentencing misgivings apprendi rev otherwise jury influence penalties like fines defendant might face criminal cases amount punishment left solely hands justices ibid determine certainty extent law placed relevant limitations upon judges authority determine sentencing facts found english treatise criminal pleading says unlike cases constitute offence value must certain amount cases offence defined measure punishment depends upon quantity excess variance amount averred fatal starkie treatise criminal pleading emphasis deleted adds case usury judgment depends upon quantum taken usurious contract must averred according fact variance evidence fatal penalty apportioned value treatise says questionable whether necessary set forth value goods indictment trespass purpose aggravate fine hawkins treatise pleas crown ch pp ed emphasis added one might read statements supporting majority might indicate statute sets forth facts determine pecuniary penalty jury judge determine facts whether correct reading unclear one thing prosecutions economic crimes usually brought injured parties fine cases went whole part compensate party damages see beattie example immediately following sentence quoted hawkins wrote questionable whether necessary set forth value goods indictment larceny purpose sh crime amounts grand larceny ascertain goods thereby better ntitle prosecutor tution hawkins supra emphasis added omitted likewise blackstone dated english usury law back statute provided penalty offending lender shall make ne king pleasure forfeit treble value money borrowed half king half sue hen viii ch stat realm emphasis added see blackstone see also ord essay law usury ed forfeitures recovered information qui tam discretionary fines recovered criminal indictment thus statutes issue american courts later call statutes part civil part criminal see also beattie parliament consequently special reason requiring jury determinations amount pecuniary penalty parliament authority depart common law insist juries determine sentencing facts without establishing generally applicable principle relevant question often purposes parliament blackstone wrote statutes fixing fines amounts derogation common law uncommon blackstone finally one argues adopt rule actually suggested treatises rule sentencing done according value found jury instead discrepancy value alleged value found jury might render entire case fatal see starkie supra thus place great weight upon statutes parties refer briefs event historical sources taken together make clear predominant practice england judge jury find sentencing facts related imposition fine indeed apprendi conceded point distinguished punishments greater crimes fixed punishments punishments lesser crimes included fines wrote judges commonly imposed discretionary fines upon misdemeanants ibid emphasis added insofar english practice helps determine framers thought scope constitution terms sixth amendment right trial impartial jury practice suggests expected right include determination sentencing facts relevant imposition fine practice early american even less ambiguous colonial era judges normally determine amount fine within unlimited otherwise broad range also determining related sentencing facts say manner offender committed crime offender characteristics legal historians tell us american colonies criminal fine overwhelmingly common punishments instances range fine apparently without limit except insofar within expectation paid judge established precise amount fine amount tailored individually particular case preyer penal measures american colonies overview legal hist olonial judges like english brethren possessed great deal discretion set amount fine depending upon nature defendant crime lillquist enactment constitution bill rights change practice early american statutes specified judge discretion set amount fine saying nothing amount crimes act ch stat person bribes judge conviction thereof shall fined imprisoned discretion stat person violence ambassador public minister conviction shall imprisoned exceeding three years fined discretion others set maximum limitation act mar ch stat officer inspection convicted oppression extortion shall fined exceeding five hundred dollars imprisoned exceeding six months discretion respect statutes justice iredell wrote common law practice must adhered say jury find whether prisoner guilty must assess fine mundell cas cc still statutes england specifically keyed amount fine specific factual finding section crimes act example said person upon property high seas shall take carry away intent steal purloin personal goods another shall conviction fined exceeding fourfold value property stolen stat crime several elements taking carrying away intent steal personal goods belonging another property high seas jury must find existence facts beyond reasonable doubt establish conviction statute also says fine exceed fourfold value property stolen thereby requires finding sentencing fact namely value stolen property make determination judge jury unlike england case law directly answering question tyler cranch considered federal embargo statute making crime put certain goods board ship intent export outside see act ch stat statute also provided offender goods ship shall forfeited offender shall upon conviction fined sum conviction equal four times value specie goods wares merchandise ibid statute thereby required determination sentencing fact namely value goods finding sentencing fact judge jury tyler defendant indicted attempting export barrels valued ante jury convicted defendant said found defendant guilty tried export worth two hundred eighty dollars cranch emphasis deleted defendant appealed claiming difference jury basis conviction crime charged indictment difference words unlikely mattered simply refined grade potassium carbonate see barker dickinson hardie origins synthetic alkali industry britain economica thus defendant focus upon difference rather claimed jury verdict sufficiently certain value property charged indictment tyler cranch emphasis added differs jury found guilty crime charged however found jury finding valuation relevant upheld conviction opinion law valuation jury necessary enable circuit impose proper fine ibid emphasis added say explicitly sixth amendment permitted judge find relevant sentencing fact see ante seems unlikely included chief justice john marshall justice joseph story others familiar common law constitution interpreted federal statute either contemporary legal practice constitution suggested required different interpretation say fully consider matter justice story later authoritatively interpreted tyler sitting circuit justice mann cas ccnh considered question respect embargo statute wrote tyler cranch prosecution clause held fine quadruple value must assessed adjudged jury emphasis added see also cas ccnh story noting reached result unless satisfied fine imposed found jury thus nothing early american practice suggests framers thought sixth amendment jury trial right encompassed right jury determine sentencing facts contrary opinion namely tyler holds least strongly indicates opposite majority reaches different conclusion majority pose believe relevant historical question namely whether traditionally england founding nation early american see ice omitted judges juries normally determined sentencing facts instead asks whether jury rather judge found facts subclass cases statute peg ged amount fine determination specified facts ante concludes predominant practice facts alleged indictment proved jury ibid putting question way invites circular response true english usury cases nothing prohibits legislature requiring jury find sentencing fact particular subset cases obviously state jury indeed find facts thus say decide make juries find facts set fine say simple larceny jury practice say century include jury finding sentencing facts circumstance tells us specific statutes legislatures required tells us little anything practices tells us nothing traditional practice england america discovery say state legislatures required juries rather judges generally set fines tell us scope sixth amendment constitutional right trial jury matter important majority rests conclusion almost exclusively upon reports jury trials handful namely alabama illinois indiana massachusetts new hampshire treatise bases statements upon cases ante scholars tell us fact including alabama illinois indiana ratification sixth amendment enacted statutes required juries judges determine defendant punishment including length prison term also amount fine see iontcheva jury sentencing democratic practice rev king origins felony jury sentencing rev courts considered practice however believe constitutional right jury trial compelled alabama example explained state system allowed jury determine fine imprisonment derogation created innovation upon rules common law far transfers powers jury hawkins state stew thus state garner port see ante malicious mischief statute issue said offender fined sum jury trying may assess exceeding four fold value property injured destroyed emphasis added statute words transferred sentencing facts jury illustrative practice statute said shall paid party injured ibid held consequently proper allege amount property value indictment state constitution required thing fine thus assesse benefit injured party case therefore quasi civil proceeding reason consonant rules pleading principles govern analogous cases indictment contain averment value property ibid ord law usury usury proceeding illinois law similar illinois became state see iontcheva supra citing act laws illinois subsequently wrote even though common law juries never invested power determining character extent punishment governed entirely provisions enactments code criminal jurisprudence blevings people scam clark people scam see ante made clear arson statute issue ha changed common law fine equal value property burne imposed part punishment hence indictment charged value property destroyed otherwise properly inquired jury indiana another state iontcheva supra king supra indiana case law decided indiana changed system indicates judge decide certain facts required set applicable maximum fine morris state blackf indiana became state courts held surprisingly indiana law jury must determine sentencing facts see ritchey state blackf ante massachusetts presents special circumstance two massachusetts cases majority cites ante larceny cases value traditionally element crime larceny larceny theft goods intrinsic value value distinguished grand larceny petit larceny thus juries traditionally determine least facts value property stolen see blackstone massachusetts abolished distinction grand petit larceny courts decided two cases majority cites see commonwealth smith mass decisions nonetheless rest significant part upon jury traditional larceny factfinding role hope commonwealth metcalf example massachusetts judicial wrote well settled practice familiar us stating indictment value article alleged stolen reason requiring allegation finding value may originally distinction might appear offences grand petit larceny statutes prescribe punishment larceny reference value property stolen reason well conformity long established practice opinion value property alleged stolen must set forth indictment long established practice refers larceny case practice practice criminal cases new hampshire case majority refers state goodrich ante also larceny case relied established larceny case practice explained indictment state value articles stolen may appear whether offence grand petit larceny believe settled practice held jurisdictions case value alleged offence charged may regarded simple larceny conviction accordingly think best adhere well established doctrine cases may also suggested case simple larceny respondent may sentenced pay owner goods stolen treble value thereof additional reason requiring character offence stated wrote nothing suggest holding rested generally applicable constitutional grounds new hampshire federal circuit earlier justice story indicated federal constitution impose requirement see mann leaves majority puzzling federal district case kansas woodruff ante circumstances case highly unusual district reasoning fine set seems rested combination statutory construction constitutional principle see woodruff cc woodruff still concede case majority lone swallow make majority summer taken together cases upon majority rests holding show anything practice vast majority concede practice contrary tell us little meaning sixth amendment even understand cases tell us constitution meaning say common practice leaving sentencing fact determinations judge apparently approved latter practice constitutional mcmillan pennsylvania cases seem closely related present topic upshot english common law american law typically provided judges broad discretion assess fines judge jury normally determine sentencing facts respect ordinary sentencing practice related fines unlike sentencing practice respect felonies latter case apprendi view punishment normally fixed judge sentencing role consequently minimal former case namely fines judge role normally minimal opposite reasons believe allowing judge determine sentencing facts related imposition fine invade historic province jury historical test set forth ice satisfied ice also took account practical extent extending apprendi rule beyond sphere diminish role devising solutions difficult legal problems absent impelling reason particular feared insisting juries determine relevant sentencing facts concerning concurrent opposed consecutive punishment unjustifiably interfere state legislative efforts rein discretion judges possessed common law impose consecutive sentences inhibit indeed straightjacke seeking make concurrent sentences rule consecutive sentences exception ibid said unclear many state initiatives fall apprendi extended expansion difficult administer believed considerations argued strongly expansion kinds considerations similarly argue expansion apprendi rule today decision applies thereafter well federal government recognized serious problem respect sentencing corporations fines imposed punishment upon corporate offenders nonuniform treating identical offenders differently often set low judges frequently fine corporations amounts failed approximate harm corporation caused gain obtained illegal activity often statutory maximums low often fines imposed tended substantially lower maximums see gruner towards organizational jurisprudence transforming corporate criminal law federal sentencing reform rev kadish observations use criminal sanctions enforcing economic regulations chi rev nagel swenson federal sentencing guidelines corporations development theoretical underpinnings thoughts future consequently authors model penal code adopted model provision stating respect offenses involving financial gain impose alternative higher fine equal double pecuniary gain derived offense offender model penal code new york soon thereafter adopted provision penal law ann west followed new york example similar provisions permitting judges set fines equal twice gain offender twice loss victim thereby helping diminish disparity helping potential victims increasing deterrence stat ann west stat many statutes say particular shall make finding gain loss separate hearing necessary penal law ann west stat ann west federal government followed suit instances rcra environmental harm likely varies length violation period congress advanced uniformity deterrence goals tying fine length time violation took place instances new general provision applying offenses including crimes corporate fraud antitrust violations environmental pollution provision says alternative fine based gain person derives pecuniary gain offense offense results pecuniary loss person defendant defendant may fined greater twice gross gain twice gross loss unless imposition fine subsection unduly complicate prolong sentencing process apply apprendi rule fines set forth statutes less ice weaken destroy federal government efforts rein discretion judges possessed common law ice fines congress enacting statutes expected judges juries determine sentencing facts often involve highly complex determinations say major fraud issue full extent loss gain may unknown time indictment time prior conclusion trial antitrust environmental pollution case jury may particular difficulty assessing different estimates resulting losses consequence majority holding insisting juries make determinations likely diminish fairness criminal trial process defendant find easy show jury trial committed environmental crime event committed crime days moreover majority holding sometimes permit prosecutors introduce newly relevant evidence otherwise kept jury ground cumulative unduly prejudicial victims losses relevant prosecutor may able produce witness witness testifying amount life savings lost fraud defendant case example thought introduction evidence discovery mercury remediation evacuation nearby apartment complex unduly prejudicial brief citing app defendant motion limine exclude evidence even evidence might admitted showing amount harm caused number days upon defendant unlawful activity took place administrative problems may prove serious apprendi prison terms stake part corporate criminal cases often focus upon complex frauds criminal price fixing extended environmental pollution safety violations like congress sentencing commission recognized much federal criminal fine statute earlier referred specifically creates exception assessing total loss gain unduly complicate prolong sentencing process similarly sentencing guidelines applicable corporations exclude fine provisions environmental crimes along crimes involving export violations safety products rico violations potential difficulty defining computing loss nagel swenson supra see ussg defendant human government avoid problems proof simply abandoning effort obtain fine instead perhaps individual defendant dismay prosecution seek longer prison term criminal defendant corporation however possibility exists seems likely becomes difficult prove sentencing facts jury legislatures change statutes may choose return highly discretionary sentencing related risks nonuniformity others may link conviction fines specified amount rather like system three cows perjury modern mandatory minimum penalties blackstone pointed systems produce sentences proportionate tend treat alike offenders committed crime different ways see blackstone majority believes years experience apprendi attenuate legal claim reliance different rule constitutional law ante perhaps perhaps experience shows apprendi jury trial requirement workable another less optimistic possibility perhaps experience like canary tells us criminal justice system longer adversarial system noted percent federal convictions percent state convictions result guilty pleas missouri frye slip added today bargaining adjunct criminal justice system criminal justice system ibid quoting scott stuntz plea bargaining contract yale system complex jury trial requirements may affect strength party bargaining position rather conduct many actual trials time prosecutor system perhaps armed statutes providing mandatory minimum sentences become ultimate adjudicator plays important role many european inquisitorial systems prosecutors unlike typically trained formally like neutral adjudicators advocates cf langbein weinreb continental criminal procedure myth reality yale see ècole nationale de la magistrature today holding unnecessarily complicating trial process may prove workable nudges system slightly direction see virtue reasons respect dissent footnotes see preyer penal measures american colonies overview legal hist hereinafter preyer see also lillquist puzzling return jury sentencing misgivings apprendi rev hereinafter lillquist industries kelco disposal concurring part dissenting part fines preferred penal sanction england century imprisonment contrast although provided punishment colonies central feature criminal punishment later time preyer see also lillquist fine imposed individual defendants organizational defendants federal system see sentencing commission annual report ch pp see cal health safety code ann west supp rev stat ann mass laws ch west stat ann west supp see fine greater twice gross gain twice gross loss stat tex parks wild code ann west see also fine embezzlement officers courts twice value money embezzled fine bribery public officials three times value bribe ice also stated dicta applying apprendi sentencing determinations might imperil variety sentencing decisions judges commonly make including imposition statutorily prescribed fines appeals read statement mean apprendi apply criminal fines think statement ambiguous likely refers routine practice judges imposing fines within range authorized facts practice poses problem apprendi penalty exceed jury verdict permits see event statement ice unnecessary judgment binding central community college katz dissent believes decisions inapposite arose authorized juries rather judges sentence see post fact basis decisions rather courts required value alleged proved jury extent punishment depend upon value property consumed injured ritchey see also clark bishop explained requirement proof originated unique jury sentencing longstanding point dissent notably respond bishop criminal procedure ed see infra matter larceny cases presen special circumstance post decisions invoked reasoning cases mentioned see hope value must proved among things ur statutes prescribe punishment larceny reference value property stolen goodrich bishop made point explicit value must alleged wherever element considered determining punishment immaterial whether particular crime larceny crime criminal procedure omitted emphasis added end day evidence dissent musters judges found facts tyler cranch one decision restating tyler holding see post address tyler see infra keep reader suspense alkaline salts differing causticity long time amongst valuable articles manufacture commerce parts early america townsend principles observations applied manufacture inspection pot pearl ashes see also board trustees leland stanford junior univ roche molecular systems slip vein dissent speculates today decision may nudg criminal justice system favor plea bargains expense jury trials post groups representing interests defendants dissent rule purportedly favors tell us opposite true see brief chamber commerce america et al amici curiae xempting criminal fines apprendi makes innocent defendants likely plead guilty