Southern Union Co. v. United States

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SOUTHERN UNION CO. v. UNITED STATES

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 Recov-
ery 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 vio-
lated 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 unconstitu-
tional 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 maxi-
mum 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 vio-
lation 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 sen-
tence 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.
2 SOUTHERN UNION CO. v. UNITED STATES

Syllabus

(a) Apprendi’s rule is “rooted in longstanding common-law prac-
tice,” Cunningham v. California, 549 U. S. 270, 281, 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, 163. 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 au-
thorized sentence. See Cunningham, 549 U. S., at 274−275; United
States v. Booker, 543 U. S. 220, 226–227; Blakely v. Washington, 542
U. S. 296, 299–300; Ring v. Arizona, 536 U. S. 584, 588–589; Ap-
prendi, 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 imprison-
ment 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, sup-
ports applying Apprendi to criminal fines. To be sure, judges in the
colonies and during the founding era had much discretion in deter-
mining whether to impose a fine and in what amount. But the exer-
cise of such discretion is fully consistent with Apprendi, which per-
mits 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 predomi-
nant 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
 Cite as: 567 U. S. ____ (2012) 3

Syllabus

of his equals and neighbours.’ ” Blakely, 542 U. S., at 301. And se-
cond, “ ‘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 of-
fense, 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 as-
sumption that, in determining the maximum punishment for an of-
fense, there is a constitutionally significant difference between a fact
that is an “element” of the offense and one that is a “sentencing fac-
tor.” 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 culp-
ability. 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 deter-
mine 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 be-
cause the rule the Government espouses is unconstitutional. In addi-
tion, 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.
 Cite as: 567 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 11–94
_________________

SOUTHERN UNION COMPANY, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 21, 2012]

JUSTICE SOTOMAYOR delivered the opinion of the Court.
The Sixth Amendment reserves to juries the determina-
tion of any fact, other than the fact of a prior conviction,
that increases a criminal defendant’s maximum potential
sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000);
Blakely v. Washington, 542 U. S. 296 (2004). We have
applied this principle in numerous cases where the sen-
tence was imprisonment or death. The question here is
whether the same rule applies to sentences of criminal
fines. We hold that it does.
I
Petitioner Southern Union Company is a natural gas
distributor. Its subsidiary stored liquid mercury, a haz-
ardous substance, at a facility in Pawtucket, Rhode Is-
land. In September 2004, youths from a nearby apart-
ment complex broke into the facility, played with the mer-
cury, and spread it around the facility and complex. The
complex’s residents were temporarily displaced during
the cleanup and most underwent testing for mercury
poisoning.
In 2007, a grand jury indicted Southern Union on mul-
2 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

tiple counts of violating federal environmental statutes.
As relevant here, the first count alleged that the company
knowingly stored liquid mercury without a permit at the
Pawtucket facility “[f ]rom on or about September 19, 2002
until on or about October 19, 2004,” App. 104, in viola-
tion of the Resource Conservation and Recovery Act of
1976 (RCRA). See 90 Stat. 2812, as amended, 42 U. S. C.
§6928(d)(2)(A). A jury convicted Southern Union on this
count following a trial in the District Court for the District
of Rhode Island. The verdict form stated that Southern
Union was guilty of unlawfully storing liquid mercury
“on or about September 19, 2002 to October 19, 2004.”
App. 140.
Violations of the RCRA are punishable by, inter alia,
“a fine of not more than $50,000 for each day of violation.”
§6928(d). At sentencing, the probation office set a maxi-
mum 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 objected that this calculation violated Apprendi
because the jury was not asked to determine the precise
duration of the violation. The company noted that the ver-
dict form listed only the violation’s approximate start
date (i.e., “on or about”), and argued that the court’s in-
structions permitted conviction if the jury found even a
1-day violation. Therefore, Southern Union maintained, the
only violation the jury necessarily found was for one day,
and imposing any fine greater than the single-day penalty
of $50,000 would require factfinding by the court, in con-
travention of Apprendi.
The Government acknowledged the jury was not asked
to specify the duration of the violation, but argued that
Apprendi does not apply to criminal fines. The District
Court disagreed and held that Apprendi applies. But the
court concluded from the “content and context of the ver-
dict all together” that the jury found a 762-day violation.
 Cite as: 567 U. S. ____ (2012) 3

Opinion of the Court

App. to Pet. for Cert. 46a. 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
obligatio[n]” of $12 million. App. 154.
On appeal, the United States Court of Appeals for the
First Circuit rejected the District Court’s conclusion that
the jury necessarily found a violation of 762 days. 630
F. 3d 17, 36 (2010). But the Court of Appeals affirmed
the sentence because it also held, again in contrast to the
District Court, that Apprendi does not apply to criminal
fines. 630 F. 3d, at 33–36. Other Circuits have reached
the opposite conclusion. See United States v. Pfaff, 619
F. 3d 172 (CA2 2010) (per curiam); United States v.
LaGrou Distribution Sys., Inc., 466 F. 3d 585 (CA7 2006).
We granted certiorari to resolve the conflict, 565 U. S. ___
(2011), and now reverse.
II

A

This case requires us to consider the scope of the Sixth
Amendment right of jury trial, as construed in Apprendi.
Under Apprendi, “[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U. S., at
490. The “ ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted
by the defendant.” Blakely, 542 U. S., at 303 (emphasis
deleted). Thus, while judges may exercise discretion in
sentencing, they may not “inflic[t] punishment that the
jury’s verdict alone does not allow.” Id., at 304.
Apprendi’s rule is “rooted in longstanding common-law
practice.” Cunningham v. California, 549 U. S. 270, 281
(2007). It preserves the “historic jury function” of “deter-
mining whether the prosecution has proved each element
4 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

of an offense beyond a reasonable doubt.” Oregon v. Ice,
555 U. S. 160, 163 (2009). We have repeatedly affirmed
this rule by applying it to a variety of sentencing schemes
that allowed judges to find facts that increased a defend-
ant’s maximum authorized sentence. See Cunningham,
549 U. S., at 274–275 (elevated “upper term” of impris-
onment); United States v. Booker, 543 U. S. 220, 226–
227, 233–234 (2005) (increased imprisonment range for
defendant under then-mandatory Federal Sentencing
Guidelines); Blakely, 542 U. S., at 299–300 (increased im-
prisonment above statutorily prescribed “standard range”);
Ring v. Arizona, 536 U. S. 584, 588–589 (2002) (death
penalty authorized upon finding existence of aggravating
factors); Apprendi, 530 U. S., at 468–469 (extended term
of imprisonment based on violation of a “hate crime”
statute).
While the punishments at stake in those cases were
imprisonment or a death sentence, we see no principled
basis under Apprendi for treating criminal fines differ-
ently. Apprendi’s “core concern” is to reserve to the jury
“the determination of facts that warrant punishment for a
specific statutory offense.” Ice, 555 U. S., at 170. That
concern 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 sover-
eign for the commission of offenses. Fines were by far the
most common form of noncapital punishment in colonial
America.1 They are frequently imposed today, especially
——————
1 See
Preyer, Penal Measures in the American Colonies: An Overview,
26 Am. J. Legal Hist. 326, 350 (1982) (hereinafter Preyer); see also
Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About
Apprendi, 82 N. C. L. Rev. 621, 640–641 (2004) (hereinafter Lillquist);
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S.
257, 290 (1989) (O’Connor, J., concurring in part and dissenting in
part) (fines were “the preferred penal sanction” in England by the 17th
century). “Imprisonment,” in contrast, “although provided for as a
 Cite as: 567 U. S. ____ (2012) 5

Opinion of the Court

upon organizational defendants who cannot be impris-
oned.2 And the amount of a fine, like the maximum term
of imprisonment or eligibility for the death penalty, is of-
ten calculated by reference to particular facts. Sometimes,
as here, the fact is the duration of a statutory violation;3
under other statutes it is the amount of the defendant’s
gain or the victim’s loss, or some other factor.4 In all
such cases, requiring juries to find beyond a reasonable
doubt facts that determine the fine’s maximum amount is
necessary to implement Apprendi’s “animating principle”:
the “preservation of the jury’s historic role as a bulwark
between the State and the accused at the trial for an
alleged offense.” Ice, 555 U. S., at 168. In stating Appren-
di’s rule, we have never distinguished one form of pun-
ishment from another. Instead, our decisions broadly
prohibit judicial factfinding that increases maximum
criminal “sentence[s],” “penalties,” or “punishment[s]”—
terms that each undeniably embrace fines. E.g., Blakely,
542 U. S., at 304; Apprendi, 530 U. S., at 490; Ring, 536
U. S., at 589.
The Government objects, however, that fines are less
——————
punishment in some colonies, was not a central feature of criminal
punishment until a later time.” Preyer 329; see also Lillquist 641–643.
2 In 2011, a fine was imposed on 9.0% of individual defendants and on

70.6% of organizational defendants in the federal system. See United
States Sentencing Commission, 2011 Annual Report, ch. 5, pp. 34, 40.
3 See, e.g., 12 U. S. C. §1467a(i)(1); 15 U. S. C. §717t(b); 16 U. S. C.

§825o(b); Cal. Health & Safety Code Ann. §25515(a) (West Supp. 2012);
Colo. Rev. Stat. Ann. §§25–7–122.1(1)(b) and (c) (2011); Mass. Gen.
Laws, ch. 21, §34C (West 2010); N. J. Stat. Ann. §13:1E–99.89(f) (West
Supp. 2012).
4 See, e.g., 18 U. S. C. §3571(d) (fine “not more than the greater of

twice the gross gain or twice the gross loss”); Fla. Stat. §775.083(1)(f)
(2010) (same); Tex. Parks & Wild. Code Ann. §12.410(c) (West 2002)
(same); see also 18 U. S. C. §645 (fine for embezzlement by officers of
United States courts of up to twice the value of the money embezzled);
§201(b) (fine for bribery of public officials of up to three times the value
of the bribe).
6 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

onerous than incarceration and the death sentence. The
Government notes that Apprendi itself referred to the
physical deprivation of liberty that imprisonment occa-
sions, see 530 U. S., at 484, and that we have placed more
weight on imprisonment than on fines when construing
the scope of the Sixth Amendment rights to counsel and
jury trial. See Blanton v. North Las Vegas, 489 U. S. 538,
542–543 (1989) (jury trial); Scott v. Illinois, 440 U. S. 367,
373–374 (1979) (counsel). Therefore, the Government
concludes, fines categorically “do not implicate” the “pri-
mary concerns motivating Apprendi.” Brief for United
States 23–25.
This argument fails because its conclusion does not fol-
low from its premise. Where a fine is so insubstantial that
the underlying offense is considered “petty,” the Sixth
Amendment right of jury trial is not triggered, and no
Apprendi issue arises. See, e.g., Muniz v. Hoffman, 422
U. S. 454, 477 (1975) ($10,000 fine imposed on labor union
does not entitle union to jury trial); see also Blanton,
489 U. S., at 541 (no jury trial right for “petty” offenses,
as measured by the “severity of the maximum authorized
penalty” (internal quotation marks omitted)). The same,
of course, is true of offenses punishable by relatively brief
terms of imprisonment—these, too, do not entitle a de-
fendant to a jury trial. See id., at 543 (establishing a
rebuttable presumption that offenses punishable by six
months’ imprisonment or less are petty); Duncan v. Loui-
siana, 391 U. S. 145, 159–162 (1968).
But not all fines are insubstantial, and not all offenses
punishable by fines are petty. See, e.g., Mine Workers v.
Bagwell, 512 U. S. 821, 838, n. 5 (1994) (criminal contempt
fine of $52 million imposed on union “unquestionably is
a serious contempt sanction” that triggers right of jury
trial). The federal twice-the-gain-or-loss statute, in par-
ticular, see 18 U. S. C. §3571(d), has been used to obtain
substantial judgments against organizational defendants.
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Opinion of the Court

See, e.g., Amended Judgment in United States v. LG Dis-
play Co., Ltd., No. 08–CR–803–SI (ND Cal.), pp. 1–2 ($400
million fine for conviction of single count of violating
Sherman Antitrust Act); Judgment in United States v.
Siemens Aktiengesellschaft, No. 08–CR–367–RJL (D DC),
pp. 1–2, 5 ($448.5 million fine for two violations of Foreign
Corrupt Practices Act); United States Sentencing Com-
mission, 2010 Annual Report, ch. 5, p. 38 (noting fine of
$1.195 billion imposed on pharmaceutical corporation for
violations of food and drug laws). And, where the defend-
ant is an individual, a large fine may “engender ‘a signifi-
cant infringement of personal freedom.’ ” Blanton, 489
U. S., at 542 (quoting Frank v. United States, 395 U. S.
147, 151 (1969)); see also 18 U. S. C. §3572(a)(2) (requiring
court to consider “the burden that the fine will impose
upon the defendant” in determining whether to impose a
fine and in what amount).
The Government thus asks the wrong question by com-
paring the severity of criminal fines to that of other pun-
ishments. So far as Apprendi is concerned, the relevant
question is the significance of the fine from the perspective
of the Sixth Amendment’s jury trial guarantee. Where a
fine is substantial enough to trigger that right, Apprendi
applies in full. As we said in Cunningham, “Asking
whether a defendant’s basic jury-trial right is preserved,
though some facts essential to punishment are reserved
for determination by the judge, . . . is the very inquiry
Apprendi’s ‘bright-line rule’ was designed to exclude.” 549
U. S., at 291.
This case is exemplary. The RCRA subjects Southern
Union to a maximum fine of $50,000 for each day of
violation. 42 U. S. C. §6928(d). The Government does not
deny that, in light of the seriousness of that punishment,
the company was properly accorded a jury trial. And the
Government now concedes the District Court made factual
findings that increased both the “potential and actual” fine
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Opinion of the Court

the court imposed. Brief for United States 28. This is
exactly what Apprendi guards against: judicial factfinding
that enlarges the maximum punishment a defendant faces
beyond what the jury’s verdict or the defendant’s admis-
sions allow.
B
In concluding that the rule of Apprendi does not apply to
criminal fines, the Court of Appeals relied on our decision
in Ice. Ice addressed the question whether, when a de-
fendant is convicted of multiple offenses, Apprendi forbids
judges to determine facts that authorize the imposition of
consecutive sentences. 555 U. S., at 164. In holding that
Apprendi does not, Ice emphasized that juries historically
played no role in deciding whether sentences should run
consecutively or concurrently. See 555 U. S., at 168–169.
The Court of Appeals reasoned that juries were similarly
uninvolved in setting criminal fines. 630 F. 3d, at 35.5
The Court of Appeals was correct to examine the histor-
ical record, because “the scope of the constitutional jury
right must be informed by the historical role of the jury
at common law.” Ice, 555 U. S., at 170. See also, e.g.,
Blakely, 542 U. S., at 301–302; Apprendi, 530 U. S., at
477–484. But in our view, the record supports applying

——————
5 Ice also stated in dicta that applying Apprendi to consecutive-

versus-concurrent sentencing determinations might imperil a variety of
sentencing decisions judges commonly make, including “the imposition
of statutorily prescribed fines.” 555 U. S., at 171. The Court of Appeals
read this statement to mean that Apprendi does not apply to criminal
fines. 630 F. 3d, at 34. We think the statement is at most ambiguous,
and more likely refers to the routine practice of judges’ imposing fines
from within a range authorized by jury-found facts. Such a practice
poses no problem under Apprendi because the penalty does not exceed
what the jury’s verdict permits. See 530 U. S., at 481. In any event,
our statement in Ice was unnecessary to the judgment and is not
binding. Central Va. Community College v. Katz, 546 U. S. 356, 363
(2006).
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Opinion of the Court

Apprendi to criminal fines. To be sure, judges in the col-
onies and during the founding era “possessed a great deal
of discretion” in determining whether to impose a fine
and in what amount. Lillquist 640–641; see also Preyer
350. Often, a fine’s range “was apparently without limit
except insofar as it was within the expectation on the part
of the court that it would be paid.” Ibid. For some other
offenses, the maximum fine was capped by statute. See,
e.g., id., at 333 (robbery, larceny, burglary, and other
offenses punishable in Massachusetts Bay Colony “by
fines of up to £5”); Act of Feb. 28, 1803, ch. 9, §7, 2 Stat.
205 (any consul who gives a false certificate shall “forfeit
and pay a fine not exceeding ten thousand dollars, at the
discretion of the court”); K. Stith & J. Cabranes, Fear of
Judging: Sentencing Guidelines in the Federal Courts 9
(1998) (describing federal practice).
The exercise of such sentencing discretion is fully con-
sistent with Apprendi, which permits courts to impose
“judgment within the range prescribed by statute.” 530
U. S., at 481 (emphasis in original). Nor, a fortiori, could
there be an Apprendi violation where no maximum is
prescribed. Indeed, in surveying the historical record that
formed the basis of our holding in Apprendi, we specifi-
cally considered the English practice with respect to fines,
which, as was true of many colonial offenses, made sen-
tencing largely “dependent upon judicial discretion.” See
id., at 480, n. 7; see also Jones v. United States, 526 U. S.
227, 244–245 (1999); 4 W. Blackstone, Commentaries on
the Laws of England 372–373 (1769) (hereinafter Black-
stone). And even then, as the dissent acknowledges, post,
at 11–12 (opinion of BREYER, J.), there is authority sug-
gesting that English juries were required to find facts that
determined the authorized pecuniary punishment. See
1 T. Starkie, A Treatise on Criminal Pleading 187–188
(1814) (In cases “where the offence, or its defined measure
of punishment, depends upon” property’s specific value,
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Opinion of the Court

the value “must be proved precisely as it is laid [in the
indictment], and any variance will be fatal”); see also
id., at 188 (“[I]n the case of usury, where the judgment
depends upon the quantum taken, the usurious contract
must be averred according to the fact; and a variance from
it, in evidence, would be fatal, because the penalty is
apportioned to the value” (emphasis in original)); 2 W.
Hawkins, A Treatise of the Pleas of the Crown, ch. 25, §75,
pp. 234–235 (3d ed. 1739) (doubting whether “it be need-
ful to set forth the Value of the Goods in an Indictment
of Trespass for any other Purpose than to aggravate the
Fine”).
In any event, the salient question here is what role the
jury played in prosecutions for offenses that did peg the
amount of a fine to the determination of specified facts—
often, the value of damaged or stolen property. See Ap-
prendi, 530 U. S., at 502, n. 2 (THOMAS, J., concurring).
Our review of state and federal decisions discloses that the
predominant practice was for such facts to be alleged in
the indictment and proved to the jury. See, e.g., Com-
monwealth v. Smith, 1 Mass. 245, 247 (1804) (declining to
award judgment of treble damages for all stolen items in
larceny prosecution when indictment alleged value of only
some of the items); Clark v. People, 2 Ill. 117, 120–121
(1833) (arson indictment must allege value of destroyed
building because statute imposed “a fine equal in value to
the property burned”); State v. Garner, 8 Port. 447, 448
(Ala. 1839) (same in malicious mischief prosecution where
punishment was fine “not exceeding four fold the value of
the property injured or destroyed”); Ritchey v. State, 7
Blackf. 168, 169 (Ind. 1844) (same in arson prosecution
because, “[i]n addition to imprisonment in the peniten-
tiary, the guilty person is liable to a fine not exceeding
double the value of the property destroyed”); Hope v.
Commonwealth, 50 Mass. 134, 137 (1845) (the “value of
the property alleged to be stolen must be set forth in the
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Opinion of the Court

indictment” in part because “[o]ur statutes . . . prescribe
the punishment for larceny, with reference to the value
of the property stolen”); State v. Goodrich, 46 N. H. 186,
188 (1865) (“It may also be suggested, that, in the case of
simple larceny, the respondent may be sentenced to pay
the owner of the goods stolen, treble the value thereof,
which is an additional reason for requiring the [value of
the stolen items] to be stated [in the indictment]”); United
States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (“[T]he
defendant is entitled to his constitutional right of trial by
jury” to ascertain “the exact sum for which a fine may be
imposed”).6
The rule that juries must determine facts that set a

——————
6 The dissent believes these decisions are inapposite because some of

them arose in States that authorized juries, rather than judges, to im-
pose sentence. See post, at 18–20. But this fact was not the basis of
the decisions; rather, the courts required value to be alleged and proved
to the jury because “the extent of the punishment . . . depend[s] upon
the value of the property consumed or injured.” Ritchey, 7 Blackf.,
at 169; see also, e.g., Clark, 2 Ill., at 120–121 (same). And as Bishop
explained, this requirement of proof originated not from a unique fea-
ture of jury sentencing, but from longstanding common-law princi-
ples—a point to which the dissent notably does not respond. 1 J.
Bishop, Criminal Procedure §§81, 540 (2d ed. 1872). See infra, at 12.
Nor, for that matter, do larceny cases “presen[t] a special circum-
stance.” Post, at 20. Such decisions invoked the same reasoning as the
other cases just mentioned. See, e.g., Hope, 50 Mass., at 137 (value
must be proved because, among other things, “[o]ur statutes . . . pre-
scribe the punishment for larceny . . . with reference to the value of the
property stolen”); Goodrich, 46 N. H., at 188 (same). Bishop made this
point explicit: “[Value] must be alleged wherever it is an element to
be considered by the court in determining the punishment, and it is
immaterial whether the particular crime is larceny or any other crime.”
Criminal Procedure §541, at 331 (footnote omitted and emphasis
added). At the end of the day, the only evidence the dissent musters
that judges found fine-enhancing facts are United States v. Tyler, 7
Cranch 285 (1812), and one lower-court decision restating Tyler’s
holding. See post, at 15–17. We address Tyler below. See infra, at
13–14.
12 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

fine’s maximum amount is an application of the “two
longstanding tenets of common-law criminal jurispru-
dence” 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 (quot-
ing 4 Blackstone 343). And second, “ ‘an accusation which
lacks any particular fact which the law makes essential to
the punishment is . . . no accusation within the require-
ments of the common law, and it is no accusation in rea-
son.’ ” 542 U. S., at 301–302 (quoting 1 J. Bishop, Crimi-
nal Procedure §87, p. 55 (2d ed. 1872)). Indeed, Bishop’s
leading treatise on criminal procedure specifically identi-
fied cases involving fines as evidence of the proposition
that “the indictment must, in order to inform the court
what punishment to inflict, contain an averment of every
particular thing which enters into the punishment.” Id.,
§540, at 330 (discussing Clark and Garner). This princi-
ple, Bishop explained, “pervades the entire system of the
adjudged law of criminal procedure. It is not made appar-
ent to our understandings by a single case only, but by
all the cases.” Criminal Procedure §81, at 51. See also Ap-
prendi, 530 U. S., at 510–511 (THOMAS, J., concurring)
(explaining that Bishop grounded this principle in “well-
established common-law practice . . . and in the provisions
of Federal and State Constitutions guaranteeing notice of
an accusation in all criminal cases, indictment by a grand
jury for serious crimes, and trial by jury”).
As counterevidence that juries historically did not de-
termine facts relevant to criminal fines, the Government
points to two decisions from this Court. One is United
States v. Murphy, 16 Pet. 203 (1842), which considered
whether an interested witness was competent to testify in
a larceny prosecution brought under a provision of the
Crimes Act of 1790. Murphy’s only relevance to this case
is that the Crimes Act authorized a fine of up to four times
 Cite as: 567 U. S. ____ (2012) 13

Opinion of the Court

the value of the stolen property, and the Court remarked
that “the fine is, as to its amount, purely in the discretion
of the Court.” Id., at 209. But this statement is best
read as permitting the court to select a fine from within
the maximum authorized by jury-found facts—a practice,
as noted, that accords with Apprendi. Such a reading is
consistent with the fact that the indictment in Murphy
alleged the value of the stolen items, see 16 Pet., at 207–
208, and with the practice of contemporary courts address-
ing the same statute, see United States v. Holland, 26
F. Cas. 343, 345 (No. 15,378) (CC SDNY 1843) (trial court
instructs jury “to assess the value of the property taken”
in order to determine maximum fine); Pye v. United
States, 20 F. Cas. 99 (No. 11,488) (CC DC 1842) (value of
stolen items alleged in indictment).
The Government and dissent place greater reliance on
United States v. Tyler, 7 Cranch 285 (1812). But like
Murphy, this decision involved no constitutional question.
Rather, it construed a federal embargo statute that im-
posed a fine of four times the value of the property intended
to be exported. The indictment identified the property at
issue as “pearl-ashes,” but the jury’s guilty verdict re-
ferred instead to “ ‘pot-ashes [that] were worth two hun-
dred and eighty dollars.’ ” Tyler, 7 Cranch, at 285.7 The
question was whether the discrepancy rendered the ver-
dict “not sufficiently certain as to the value of the property
charged in the indictment,” i.e., pearl-ashes. Ibid. The
Court held that the discrepancy was immaterial, on the
ground that “under this law, no valuation by the jury was
——————
7 We will not keep the reader in suspense: pot-ash and pearl-ash are

alkaline salts of differing causticity that “for a long time . . . [were]
amongst the most valuable articles of manufacture and commerce”
in parts of early America. D. Townsend, Principles and Observations
Applied to the Manufacture and Inspection of Pot and Pearl Ashes 3
(1793). See also Board of Trustees of Leland Stanford Junior Univ. v.
Roche Molecular Systems, Inc., 563 U. S. __, __ (2011) (slip op., at 6).
14 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

necessary to enable the Circuit Court to impose the proper
fine.” Ibid. The Court’s reasoning is somewhat opaque,
but appears to rest on the text of the embargo statute,
which directed that the defendant “shall, upon conviction,
be . . . fined a sum by the Court.” Ibid. In any event,
nothing in the decision purports to construe the Sixth
Amendment. And, insofar as Tyler reflects prevailing
practice, it bears noting that both the indictment and ver-
dict identified the value of the property at issue. See
Tr. 2 in Tyler, 7 Cranch 285, reprinted in Appellate Case
Files of the Supreme Court of the United States, 1792–
1831, National Archives Microfilm Publications No. 214
(1962), roll 18 (indictment: “nineteen barrels of pearlashes,
which were then and there of the value of six hundred
dollars”). Whatever the precise meaning of this decision,
it does not outweigh the ample historical evidence showing
that juries routinely found facts that set the maximum
amounts of fines.
III
The Government’s remaining arguments, echoed by the
dissent (see post, at 23–28), are unpersuasive. The Gov-
ernment first submits that, when it comes to fines, “the
judicially found facts typically involve only quantifying
the harm caused by the defendant’s offense”—for example,
how long did the violation last, or how much money did the
defendant gain (or the victim lose)?—“as opposed to de-
fining a separate set of acts for punishment.” Brief for
United States 25. Only the latter determination, the
Government contends, implicates Apprendi’s concerns.
This argument has two defects. First, it rests on an
assumption that Apprendi and its progeny have uniformly
rejected: that in determining the maximum punishment
for an offense, there is a constitutionally significant differ-
ence between a fact that is an “element” of the offense and
one that is a “sentencing factor.” See, e.g., 530 U. S., at
 Cite as: 567 U. S. ____ (2012) 15

Opinion of the Court

478; Ring, 536 U. S., at 605. Second, we doubt the coher-
ence of this distinction. This case proves the point. Under
42 U. S. C. §6928(d), the fact that will ultimately deter-
mine the maximum fine Southern Union faces is the num-
ber of days the company violated the statute. Such a
finding is not fairly characterized as merely “quantifying
the harm” Southern Union caused. Rather, it is a deter-
mination that for each given day, the Government has
proved that Southern Union committed all of the acts
constituting the offense.
The Government next contends that applying Apprendi
to fines will prevent States and the Federal Government
from enacting statutes that, like §6928(d), calibrate fines
to a defendant’s culpability, thus providing just punish-
ment and reducing unwarranted sentencing disparity.
But the Government presents a false choice. As was true
in our prior Apprendi cases, and remains so here, legisla-
tures are free to enact statutes that constrain judges’
discretion in sentencing—Apprendi requires only that
such provisions be administered in conformance with the
Sixth Amendment.
Last, the Government argues that requiring juries to
determine facts related to fines will cause confusion (be-
cause expert testimony might be needed to guide the
inquiry); or prejudice the defendant (who might have to
deny violating a statute while simultaneously arguing
that any violation was minimal); or be impractical (at
least when the relevant facts are unknown or unknowable
until the trial is completed).8 These arguments rehearse
——————
8 In this vein, the dissent speculates that today’s decision may

“nudg[e] our [criminal justice] system” further in favor of plea bargains
at the expense of jury trials. Post, at 28. But groups representing the
interests of defendants—whom the dissent’s rule purportedly favors—
tell us the opposite is true. See Brief for Chamber of Commerce of the
United States of America et al. as Amici Curiae 5 (“[E]xempting crimi-
nal fines from Apprendi makes innocent defendants more likely to
16 SOUTHERN UNION CO. v. UNITED STATES

Opinion of the Court

those made by the dissents in our prior Apprendi cases.
See Booker, 543 U. S., at 329 (BREYER, J., dissenting
in part); Blakely, 542 U. S., at 318–320 (O’Connor, J.,
dissenting); id., at 330–340 (BREYER, J., dissenting); Ap-
prendi, 530 U. S., at 555–559 (same). Here, as there, they
must be rejected. For even if these predictions are ac-
curate, the rule the Government espouses is unconstitu-
tional. That “should be the end of the matter.” Blakely, 542
U. S., at 313.
But here there is particular reason to doubt the strength
of these policy concerns. Apprendi is now more than a
decade old. The reliance interests that underlie many of
the Government’s arguments are by this point attenuated.
Nor, in our view, does applying Apprendi’s rule to criminal
fines mark an unexpected extension of the doctrine. Most
Circuits to have addressed the issue already embrace this
position, see Pfaff, 619 F. 3d, at 175–176; LaGrou Distri-
bution Sys., 466 F. 3d, at 594; United States v. Yang, 144
Fed. Appx. 521, 524 (CA6 2005), as did the Government
prior to Ice, see Brief in Opposition 11, n. 2. In light of the
reasons given in this opinion, the dramatic departure from
precedent would be to hold criminal fines exempt from
Apprendi.
* * *
We hold that the rule of Apprendi applies to the imposi-
tion of criminal fines. The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.

It is so ordered.

——————
plead guilty”).
 Cite as: 567 U. S. ____ (2012) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 11–94
_________________

SOUTHERN UNION COMPANY, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 21, 2012]

JUSTICE BREYER, with whom JUSTICE KENNEDY and
JUSTICE ALITO join, dissenting.
Where a criminal fine is at issue, I believe the Sixth
Amendment permits a sentencing judge to determine sen-
tencing facts—facts that are not elements of the crime
but are relevant only to the amount of the fine the judge
will impose. Those who framed the Bill of Rights under­
stood that “the finding of a particular fact” of this kind
was ordinarily a matter for a judge and not necessarily
“within ‘the domain of the jury.’ ” Oregon v. Ice, 555 U. S.
160, 168 (2009) (quoting Harris v. United States, 536 U. S.
545, 557 (2002) (plurality opinion)). The Court’s contrary
conclusion, I believe, is ahistorical and will lead to in­
creased problems of unfairness in the administration of
our criminal justice system.
I
Although this dissent does not depend upon the dissents
in Apprendi v. New Jersey, 530 U. S. 466 (2000), and
its progeny, summarizing those earlier dissents will help
the reader understand this one. See id., at 523–554
(O’Connor, J., dissenting); id., at 555–556 (BREYER, J.,
dissenting); see also United States v. Booker, 543 U. S.
220, 327 (2005) (BREYER, J., dissenting in part) (citing
cases); Blakely v. Washington, 542 U. S. 296, 329 (2004)
2 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

(BREYER, J., dissenting) (same). The Apprendi dissenters
argued that the law had long distinguished between (1)
facts that constitute elements of the offense and (2) facts
relevant only to sentencing. The term “elements of the
offense” means “constituent parts of a crime . . . that the
prosecution must prove to sustain a conviction.” Black’s
Law Dictionary 597 (9th ed. 2009). The statute that cre­
ates the crime in question typically sets forth those con­
stituent parts. And a jury must find the existence of
each such element “beyond a reasonable doubt.” See, e.g.,
United States v. Gaudin, 515 U. S. 506, 510 (1995); In re
Winship, 397 U. S. 358, 364 (1970).
Thus, a bank robbery statute might prohibit an offender
from (1) taking by force or by intimidation (2) in the pres­
ence of another person (3) a thing of value (4) belonging to,
or in custody of, a bank. In that case, the jury can convict
only if it finds the existence of each of these four factual
“elements” beyond a reasonable doubt. But it need not
find other facts beyond a reasonable doubt, for these four
factual elements alone constitute the crime.
Other facts may be relevant to the length or kind of
sentence the court will impose upon a convicted offender.
These sentencing facts typically characterize the manner
in which the offender carried out the crime or set forth
relevant features characterizing the offender. For exam­
ple, in respect to manner, an offender might have carried
out a particular bank robbery
“with (or without) a gun, which the robber kept hid­
den (or brandished), might have frightened (or merely
warned), injured seriously (or less seriously), tied up
(or simply pushed) a guard, teller, or customer, at
night (or at noon), in an effort to obtain money for
other crimes (or for other purposes), in the company of
a few (or many) other robbers . . . .” United States
Sentencing Commission, Guidelines Manual §1A1.3,
 Cite as: 567 U. S. ____ (2012) 3

BREYER, J., dissenting

p. 3 (Nov. 2011) (USSG).
In respect to characteristics of the offender, a current bank
robbery conviction might be that offender’s first (or his
fourth) criminal conviction.
Traditionally, sentencing facts help the sentencing judge
determine where, within say a broad statutory range of,
say, up to 20 years of imprisonment, the particular bank
robber’s punishment should lie. The Apprendi dissenters
concluded that the Constitution did not require the jury
to find the existence of those facts beyond a reasonable
doubt. Rather the law, through its rules, statutes, and
the Constitution’s Due Process Clause would typically offer
the defendant factfinding protection. See, e.g., Fed. Rule
Crim. Proc. 32 (federal presentence report prepared by
probation office sets forth facts, which defendant may
contest at sentencing proceeding); Almendarez-Torres v.
United States, 523 U. S. 224, 239–247 (1998) (constitu­
tional inquiry).
The dispute in Apprendi and its line of cases arose after
Congress and many States codified these sentencing facts
during the sentencing reform movement of the 1970’s and
1980’s. Congress, for example, concluded that too many
different judges were imposing too many different sen­
tences upon too many similar offenders who had com-
mitted similar crimes in similar ways. It subsequently
enacted the Sentencing Reform Act of 1984, creating a
federal Sentencing Commission which would produce greater
uniformity in sentencing through the promulgation of
mandatory uniform Guidelines structuring how judges, in
ordinary cases, should typically use sentencing facts to
determine sentences. 28 U. S. C. §§991, 994 (2006 ed. and
Supp. IV); see also 18 U. S. C. §§3553(b)(1), 3742(e). The
Apprendi-line majority agreed that, where a statute set a
higher maximum sentence, a Commission might structure
how a judge found sentencing facts relevant to the sen­
4 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

tence imposed below that otherwise applicable maximum,
at least if the resulting guidelines were not mandatory.
See Booker, 543 U. S., at 245. But the majority held that
where a sentencing fact increased the otherwise applicable
maximum penalty, that fact had to be found by a jury.
Apprendi, 530 U. S., at 490.
As I have said, the dissenters thought that the Sixth
Amendment did not require a jury to find any of these
sentencing facts. Why, asked the dissenters, should Con­
gress’ or a State’s desire for greater sentencing uniformity
achieved through statutes seeking more uniform treat­
ment (of similar offenders committing similar offenses in
similar ways) suddenly produce new Sixth Amendment
jury trial requirements?
Those requirements would work against greater sen­
tencing fairness. To treat all sentencing facts (where so
specified in a statute or rule) as if they were elements of
the offense could lead Congress simply to set high maxi­
mum ranges for each crime, thereby avoiding Appren-
di’s jury trial requirement. Alternatively, Congress might
enact statutes that more specifically tied particular pun­
ishments to each crime (limiting or removing judicial
discretion), for example, mandatory minimum statutes.
But this system would threaten disproportionality by in-
sisting that similar punishments be applied to very dif­
ferent kinds of offense behavior or offenders. Apprendi’s
jury trial requirements might also prove unworkable. Con-
sider the difficulty of juries’ having to find the differ-
ent facts in the bank robbery example I have set forth
above. Moreover, how is a defendant, arguing that he did
not have a gun, alternatively to argue that, in any event,
he did not fire the gun?
Finally, the dissenters took a different view of Sixth
Amendment history. They believed that under the com­
mon law and at the time the Constitution was ratified,
judges, not juries, often found sentencing facts, i.e., facts
 Cite as: 567 U. S. ____ (2012) 5

BREYER, J., dissenting

relevant only to the determination of the offender’s pun­
ishment. See, e.g., Booker, supra, at 329 (BREYER, J.,
dissenting in part); Apprendi, 530 U. S., at 527–529
(O’Connor, J., dissenting).
The dissenters lost the argument. The Court in Ap-
prendi held that (other than the fact of a prior conviction)
“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id., at 490.
But the dissenters’ views help to explain why I continue to
believe this Court should not extend Apprendi’s rule be­
yond “ ‘the central sphere of [its] concern.’ ” Ice, 555 U. S.,
at 172 (quoting Cunningham v. California, 549 U. S. 270,
295 (2007) (KENNEDY, J., dissenting)). That is the Court’s
view, too, as set forth in Ice. And I base my dissent here
primarily upon Ice.
II
This case involves sentencing facts, not elements of a
crime. The criminal statute at issue constitutes one part
of the Resource Conservation and Recovery Act of 1976
(RCRA), which, among others things, authorizes the Envi­
ronmental Protection Agency to create a list of hazardous
wastes. 42 U. S. C. §6921. The criminal statute says:
“Any person who . . . knowingly treats, stores, or dis­
poses of any hazardous waste identified or listed un­
der [RCRA] . . . without [an RCRA-authorized] permit
. . . shall, upon conviction, be subject to a fine of not
more than $50,000 for each day of violation, or im­
prisonment not to exceed . . . five years . . . , or both.”
§6928(d)(2)(A).
No one here denies that this statute creates a crime with
four elements: (1) knowing treatment, storage, or disposal
of a waste (2) that is hazardous, (3) without a permit, and
(4) knowing that the waste has a substantial potential of
6 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

causing harm to others or to the environment. App. 129–
130; see Brief for Petitioner 30.
The number of “day[s] of each violation,” however, is not
an additional element of the crime. The statute says that
the number of days becomes relevant only “upon convic­
tion” of the crime as previously defined. Moreover, the
number of days is relevant to application of only one of
two kinds of punishment that the statute mentions (fine
and imprisonment); one cannot easily read this statute as
creating two separate crimes identical but for the punish­
ment. Finally, Congress did not include here, as it some­
times has done, statutory words such as “each day of
violation shall constitute a separate offense.” E.g., 47
U. S. C. §223(b); see also 42 U. S. C. §4910(b). Rather, as
in many other similar statutes, the statute here sets forth
the crime and kinds of punishments (fine and imprison­
ment), while separately specifying facts that determine
the maximum punishment of one kind (fines).
In this particular case, the indictment set forth a viola­
tion period of 762 days (from “on or about September 19,
2002 until on or about October 19, 2004”). App. 104. The
jury’s guilty verdict did not specify the number of days on
which the defendant committed the offense. Id., at 141.
But after the conviction and sentencing hearing, the judge
found that, among other things, the “clear and essentially
irrefutable evidence” at trial supported the conclusion set
forth in the presentence report, namely, that the maxi­
mum fine available amounted to $50,000 per day for 762
days—or $38.1 million. App. to Pet. for Cert. 47a–48a.
The judge imposed a fine of $6 million along with a $12
million community service obligation. App. 162–163.
III
Apprendi says that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reason­
 Cite as: 567 U. S. ____ (2012) 7

BREYER, J., dissenting

able doubt.” 530 U. S., at 490. The number of days (be­
yond one) on which the defendant violated this criminal
statute is such a fact. Nonetheless, like the majority, I
believe that Apprendi’s rule does not automatically control
the outcome in this case.
That is because this case concerns a fine, not, as in
Apprendi, a term of imprisonment. And we made clear in
Oregon v. Ice, 555 U. S. 160, that Apprendi does not en­
compass every kind of fact-related sentencing decision
that increases the statutory maximum. In Ice, we consid­
ered Apprendi’s application to a sentencing decision about
whether two prison sentences for conviction of two sepa­
rate crimes (e.g., illegal drug possession and illegal gun
possession) would run concurrently or consecutively. 555
U. S., at 163. An Oregon statute required a concurrent
sentence unless the sentencing judge found certain facts.
Id., at 165. Those facts could make a large difference in a
term of imprisonment. Their presence could mean that a
5-year sentence for illegal drug possession and a 5-year
sentence for illegal gun possession would amount to 10
years of imprisonment rather than 5 (indeed, in Ice itself,
the judge’s factfinding increased the sentence by 20 years,
see id., at 166, and n. 5). Thus, the presence of those
“fact[s]” could “increas[e] the penalty” beyond what would
otherwise be “the prescribed statutory maximum.” Id., at
167 (internal quotation marks omitted). Nonetheless, we
held that the Sixth Amendment permitted a judge—it did
not require a jury—to make that factual determination.
Id., at 164.
We consequently concluded that Apprendi does not
encompass every kind of fact-related sentencing decision
that increases the statutory maximum. In doing so, we
wrote that the “animating principle” of Apprendi’s rule
“is the preservation of the jury’s historic role as a bul-
wark between the State and the accused at the trial for
an alleged offense.” 555 U. S., at 168. And we refused
8 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

to extend Apprendi’s rule to a new category of sentence­
related facts for two basic reasons.
First, we considered a historical question, namely,
whether “the finding of a particular fact was understood
as within ‘the domain of the jury . . . by those who framed
the Bill of Rights.’ ” 555 U. S., at 168 (quoting Harris, 536
U. S., at 557). And we read the “historical record” as
showing that “in England before the founding of our Na­
tion, and in the early American States,” the jury “played
no role in the decision to impose sentences consecutively
or concurrently.” 555 U. S., at 168–169 (footnote omitted).
Rather, that decision “rested exclusively with the judge.”
Id., at 168.
Second, recognizing that “administration of a discrete
criminal justice system is among the [States’] basic sover­
eign prerogatives,” we considered the need to “respect . . .
state sovereignty.” Ibid. We expressed concern lest appli­
cation of Apprendi to this kind of decision inhibit state
legislative efforts to establish a fairer sentencing system
by helping to bring about more uniform sentencing. Ice,
555 U. S., at 171. We concluded that “[n]either Apprendi
nor our Sixth Amendment traditions compel straitjacket­
ing the States” in this respect. Ibid.
This case presents another new category of fact-related
sentencing decisions, namely, decisions about the amount
of a fine. Thus, as the majority recognizes, we must be-
gin with a historical question. Ante, at 8. Who—judge or
jury—found the facts that determine the amount of a
criminal fine “in England before the founding of our
Nation, and in the early American States?” Ice, supra, at
169 (footnote omitted). Unlike the majority, I believe
the answer to this question is that, in most instances, the
judge made that determination.
 Cite as: 567 U. S. ____ (2012) 9

BREYER, J., dissenting

IV

A

Apprendi relied heavily upon the fact that in “England
before the founding of our Nation” the prescribed punish­
ment for more serious crimes, i.e., felonies, was typically
fixed—indeed, fixed at death. 530 U. S., at 478–480; see J.
Baker, An Introduction to English Legal History 512 (4th
ed. 2007); J. Beattie, Crime and the Courts in England,
1660–1800, pp. 409, 450–451 (1986) (hereinafter Beattie);
Langbein, The English Criminal Trial on the Eve of the
French Revolution, in The Trial Jury in England, France,
Germany 1700–1900, pp. 13, 16, 36–37 (A. Schioppa ed.
1987). The facts related to the application of that pun­
ishment were typically elements of the crime. And the
jury, not the judge, determined the existence of those
facts. See 4 W. Blackstone, Commentaries on the Laws
of England 343 (1769) (hereinafter Blackstone); see also
Baker, supra, at 512–518 (in practice, the jury or judge
could ameliorate capital punishment through application
of doctrines such as “pious perjury,” “benefit of clergy,”
and reprieves, or the King could grant a royal pardon);
Beattie 419–435 (same).
Punishment for lesser crimes, however, included fines.
And under the common law, the judge, not the jury, de­
termined the amount of the fine and the sentencing facts
relevant to the setting of that amount. See Baker, supra,
at 512; Beattie 459. Pertinent sentencing facts typically
concerned the manner in which the offender committed
the crime and the characteristics of that offender. See id.,
at 456–460. Thus, in 1769, Blackstone wrote:
“Our statute law has not therefore often ascertained
the quantity of fines, nor the common law ever; it di­
recting such an offense to be punished by fine, in gen­
eral, without specifying the certain sum.” Blackstone
372 (emphasis added).
10 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

That is because
“the quantum, in particular, of pecuniary fines neither
can, nor ought to be, ascertained by any invariable
law. The value of money itself changes from a thou­
sand causes; and, at all events, what is ruin to one
man’s fortune, may be a matter of indifference to an­
other.” Id., at 371.
Moreover, the “quantum” of pecuniary fines
“must frequently vary, from aggravations or otherwise
of the offense [i.e., the manner in which the crime was
committed], the quality and conditions of the parties
[e.g., the offender’s characteristics], and from innu­
merable other circumstances.” Ibid.
Similarly, the 18th-century statesman and treatise­
writer Baron Auckland pointed out that in 10th-century
England pre-Norman law had attached a fixed financial
penalty to each specific crime. Principles of Penal Law 69
(2d ed. 1771). That law, for example, imposed a penalty of
3 cows for perjury and 12 cows for the rape of a maid.
Ibid. This system, Baron Auckland added, ignored varia­
tions in, for example, the differing value of a fixed fine, say
a cow, over time and among individuals; it also ignored
the manner in which the offense was committed and the
characteristics of the offender. Id., at 69–72. For those
reasons, 18th-century English law ordinarily left “the
quantum of the fine” to “the discretion of the Judges.” Id.,
at 68 (emphasis deleted).
“[Because t]he enormity and tendency of the crime,
the malice and wilfulness of the intention, the incon­
siderateness and suddenness of the act, the age, facul­
ties, and fortune of the offender, form a chain of
complex questions; which can be resolved only by
the evidence of each separate charge, and for which no
human foresight can provide . . . then arises a neces­
 Cite as: 567 U. S. ____ (2012) 11

BREYER, J., dissenting

sary appeal to the breast of the judge.” Id., at 72 (em­
phasis added).
The only generally applicable limitations on the judge,
when imposing the fine, were those contained in the Eng­
lish Bill of Rights and the Magna Carta. 1 W. & M., ch. 2,
§11, in 3 Eng. Stat. at Large 440 (forbidding “excessive
Fines”); Magna Carta §20, 9 Hen. III, §14, in 1 Eng. Stat.
at Large 5 (1225) (fine cannot deprive offender of means of
livelihood); see Auckland, supra, at 73 (so interpreting
Magna Carta); Blackstone 372–373 (same).
To be sure, the jury, not the judge, would determine the
facts that made up the elements of the crime, even though
those elements might be relevant to whether a fine could
apply and, if so, the amount of the fine imposed as well.
The common law, for example, defined larceny as the theft
of goods that had some intrinsic value and divided the
offense into grand larceny, which was theft of goods val­
ued at more than a shilling, and petit larceny, which was
theft of goods worth less than a shilling. Blackstone 229–
234; Langbein, supra, at 16–17; see also Beattie 424
(whether “benefit of clergy” was available depended on
value stolen). Consequently, the jury would determine the
value of the goods in question. In doing so, the jury might
“manipulate the sentence by valuing the goods at under a
shilling and thereby spare the defendant the capital sanc­
tion.” Lillquist, The Puzzling Return of Jury Sentencing:
Misgivings About Apprendi, 82 N. C. L. Rev. 621, 636
(2004). But otherwise “the jury could not influence what
other penalties” like fines the defendant might face be­
cause in “non-capital criminal cases” the amount of pun­
ishment “was left solely in the hands of the justices.” Ibid.
I cannot determine with any certainty the extent to
which 18th-century law placed other relevant limitations
upon the judges’ authority to determine fine-related sen­
tencing facts. I have found an 1814 English treatise on
12 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

criminal pleading that says, unlike in cases “where to
constitute the offence the value must [only] be of a certain
amount,” in cases “where the offence, or its defined meas­
ure of punishment, depends upon the quantity of that
excess . . . a variance from the amount averred . . . will be
fatal.” 1 T. Starkie, A Treatise on Criminal Pleading 187–
188 (emphasis deleted). It then adds that “in the case of
usury, where the judgment depends upon the quantum
taken, the usurious contract must be averred according to
the fact; and a variance from it, in evidence, would be
fatal, because the penalty is apportioned to the value.”
Id., at 188. And an 18th-century treatise says that it
is questionable whether it is necessary “to set forth the
Value of the Goods in an Indictment of Trespass for any
other Purpose than to aggravate the Fine.” 2 W. Hawkins,
A Treatise of the Pleas of the Crown, ch. 25, §75, pp. 234–
235 (3d ed. 1739) (emphasis added). One might read these
statements as supporting the majority, for they might in-
dicate that, where a statute sets forth facts that deter­
mine a pecuniary penalty, then a jury, not judge, would
determine those facts.
But whether that is the correct reading is unclear. For
one thing, prosecutions for economic crimes were usually
brought by injured parties and the “fine” in such cases
went in whole or in part to compensate that party for
damages. See Beattie 35–36, 192. For example, immedi­
ately following the sentence I have just quoted, Hawkins
wrote that it is questionable whether it is necessary “to set
forth the Value of the Goods . . . in an Indictment of Lar­
ceny for any other Purpose than to sh[o]w that the Crime
amounts to grand Larceny, and to ascertain the Goods,
thereby the better to [e]ntitle the Prosecutor to a Resti-
tution.” Hawkins, supra, at 234–235 (emphasis added;
footnote omitted). Likewise, Blackstone dated English
usury law back to a 1545 statute that provided as the
penalty that the offending lender shall both “make f[i]ne
 Cite as: 567 U. S. ____ (2012) 13

BREYER, J., dissenting

. . . at the King’s will and pleasure” and forfeit “treble
value” of the money borrowed—with half to the King and
the other half “to him or them that will sue for the same.”
37 Hen. VIII, ch. 9, in 3 Stat. of Realm 997 (emphasis
added); see Blackstone 156; see also M. Ord, An Essay
on the Law of Usury 122–123 (3d ed. 1809) (treble-value
forfeitures recovered through information qui tam but dis-
cretionary fines recovered through criminal indictment).
Thus, the statutes at issue were what American courts
would later call quasi-civil statutes—part civil, part crimi­
nal; see also Beattie 457.
Parliament consequently would have had a special rea­
son for requiring jury determinations of the amount of
the pecuniary penalty. And Parliament had the authority
to depart from the common law and to insist that juries
determine sentencing facts without establishing a generally
applicable principle. The relevant question here is how
often and for what purposes Parliament did so. Black­
stone himself wrote that such statutes fixing fines in
amounts were both in derogation of the common law and
uncommon. Blackstone 372. Finally, no one here argues
that we adopt the rule actually suggested by the treatises.
That rule is not that sentencing is to be done according to
value found by the jury but instead that a discrepancy
between the value alleged and value found by the jury
might render the entire case fatal. See Starkie, supra,
at 188.
Thus, I cannot place great weight upon these statutes.
The parties did not refer to them in their briefs. And in
any event, the historical sources taken together make
clear that the predominant practice in 18th-century Eng­
land was for a judge, not a jury, to find sentencing facts
related to the imposition of a fine.
Indeed, the Court in Apprendi conceded the point. It
distinguished 18th-century punishments for greater
crimes (fixed punishments) from punishments for lesser
14 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

crimes (included fines). 530 U. S., at 480, n. 7. And it
wrote that “judges most commonly imposed discretionary
‘sentences’ of fines . . . upon misdemeanants.” Ibid. (em­
phasis added). Insofar as 18th-century English practice
helps determine what the Framers would have thought
about the scope of the Constitution’s terms—here, the
Sixth Amendment’s right to trial by an impartial jury—
that practice suggests they would not have expected that
right to include determination of sentencing facts relevant
only to the imposition of a fine.
B
Practice in the “early American States” is even less am-
biguous. In the colonial era, judges would normally
determine the amount of a fine (within an unlimited or
otherwise broad range) while also determining related
sentencing facts (say, about the manner in which the
offender committed the crime and the offender’s character­
istics). Legal historians tell us that in the American
colonies a criminal fine was “overwhelmingly the most
common of the non-capital punishments,” that in most
instances the range of the fine was “apparently without
limit except insofar as it was within the expectation of the
court that it would be paid,” that the judge established the
precise amount of the fine, and that the amount was “tai­
lored individually to the particular case.” Preyer, Penal
Measures in the American Colonies: An Overview, 26 Am.
J. Legal Hist. 326, 350 (1982). “[C]olonial judges, like
their English brethren, possessed a great deal of discre­
tion” and could set the amount of fine “depending upon
the nature of the defendant and the crime.” Lillquist, 82
N. C. L. Rev., at 640–641.
Enactment of the Constitution and Bill of Rights did not
change this practice. Some early American statutes speci­
fied that the judge has discretion to set the amount of the
fine while saying nothing about amount. E.g., Crimes Act
 Cite as: 567 U. S. ____ (2012) 15

BREYER, J., dissenting

of 1790, ch. 9, §21, 1 Stat. 117 (any person who bribes a
judge “on conviction thereof shall be fined and imprisoned
at the discretion of the court”); §28, 1 Stat. 118 (any per­
son who does violence to an ambassador or public min-
ister, “on conviction, shall be imprisoned not exceeding
three years, and fined at the discretion of the court”).
Others set only a maximum limitation. E.g., Act of Mar. 3,
1791, ch. 15, §39, 1 Stat. 208 (officer of inspection con-
victed of oppression or extortion “shall be fined not exceed-
ing five hundred dollars, or imprisoned not exceeding six
months, or both, at the discretion of the court”). In respect
to these statutes, Justice Iredell wrote in 1795 that the
“common law practice . . . must be adhered to; that is to
say, the jury are to find whether the prisoner be guilty,
and . . . the court must assess the fine.” United States v.
Mundell, 27 F. Cas. 23, 24 (No. 15,834) (CC Va.).
Still other statutes, as in England, specifically keyed the
amount of the fine to a specific factual finding. A section
of the Crimes Act of 1790, for example, said that any
person who upon United States property or the high seas
“shall take and carry away, with an intent to steal or
purloin the personal goods of another . . . shall, on convic­
tion, be fined not exceeding the fourfold value of the prop­
erty so stolen.” §16, 1 Stat. 116. This crime has several
elements: (1) taking and (2) carrying away (3) with intent
to steal (4) personal goods (5) belonging to another (6) on
United States property or the high seas. The jury must
find the existence of these facts beyond a reasonable doubt
to establish a conviction. But the statute also says that
the fine cannot exceed “the fourfold value of the property
so stolen.” And it thereby requires the finding of a sen­
tencing fact, namely the value of the stolen property. Who
would make this determination—judge or jury?
Unlike in 18th-century England, in the United States
there is case law directly answering the question. In
United States v. Tyler, 7 Cranch 285 (1812), this Court
16 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

considered a federal embargo statute making it a crime to
“put” certain “goods” on board a ship with intent to “ex­
port” them outside of the United States. See Act of Jan. 9,
1809, ch. 5, §1, 2 Stat. 506. The statute also provided
that an offender’s “goods” and ship “shall be forfeited,” and
the offender, “shall, upon conviction,” be “fined a sum, by
the court before which the conviction is had, equal to four
times the value of such specie, goods, wares and merchan­
dise.” Ibid. The statute thereby required determination of
a sentencing fact, namely “the value of such . . . goods.”
Was the finding of this sentencing fact for the judge or for
the jury?
In Tyler, the defendant had been indicted for attempting
to export 19 barrels of pearl-ashes, valued at $600. Ante,
at 13–14. The jury convicted the defendant, but when
doing so, it said that it found the defendant guilty of hav­
ing tried to export “ ‘pot-ashes . . . worth two hundred and
eighty dollars.’ ” 7 Cranch, at 285 (emphasis deleted). The
defendant appealed, claiming a difference between the
jury’s basis for conviction and the crime as charged in the
indictment. The difference between the words “pearl­
ashes” and “pot-ashes” is unlikely to have mattered, for
pearl-ash is simply a refined grade of pot-ash (potassium
carbonate). See T. Barker, R. Dickinson, & D. Hardie,
Origins of the Synthetic Alkali Industry in Britain, 23
Economica 158, 163 (1956). Thus, the defendant did not
focus upon that difference. Rather, he claimed that the
jury’s verdict “was not sufficiently certain as to the value
of the property charged in the indictment.” Tyler, 7
Cranch, at 285 (emphasis added). Because $280 differs
from $600, the jury had not found him guilty of the crime
charged.
The Supreme Court, however, found that the jury’s
finding as to valuation was not relevant. It upheld the
conviction because it was “of the opinion that, under this
law, no valuation by the jury was necessary to enable the
 Cite as: 567 U. S. ____ (2012) 17

BREYER, J., dissenting

Circuit Court to impose the proper fine.” Ibid. (emphasis
added). The Court did not say explicitly that the Sixth
Amendment permitted the judge to find the relevant sen­
tencing fact. See ante, at 14. But it seems unlikely
that a Court that included Chief Justice John Marshall,
Justice Joseph Story, and others familiar with both the
common law and the Constitution would have interpreted
a federal statute as they did if either contemporary legal
practice or the Constitution suggested or required a differ­
ent interpretation.
Nor can we say that the Court did not fully consider the
matter. Justice Story later authoritatively interpreted
Tyler. Sitting as a Circuit Justice in United States v.
Mann, 26 F. Cas. 1153 (No. 15,717) (CCNH 1812), he
considered the same judge/jury question in respect to the
same embargo statute. His court wrote that in “Tyler, 7
Cranch 285, in a prosecution on this same clause, the court
held that the fine and quadruple value must be assessed
and adjudged by the court, and not by the jury.” Id., at
1153 (emphasis added); see also 26 F. Cas. 1153, 1155
(No. 15,718) (CCNH 1812) (Story, J.) (noting that the Su-
preme Court would not have reached its result unless
satisfied “that the fine was to be imposed by the court, and
not found by the jury”).
Thus, nothing in early American practice suggests that
the Framers thought that the Sixth Amendment jury trial
right encompassed a right to have a jury determine fine­
related sentencing facts. But, to the contrary, there is a
Supreme Court opinion, namely Tyler, that holds, or at
least strongly indicates, the opposite.
C
The majority reaches a different conclusion. But the
majority does not pose what I believe to be the relevant
historical question, namely whether traditionally “in
England before the founding of our Nation, and in the
18 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

early American States,” see Ice, 555 U. S., at 169 (footnote
omitted), judges, not juries, normally determined fine­
related sentencing facts. Instead, it asks whether a jury,
rather than the judge, found those facts in that subclass of
cases where a statute “peg[ged] the amount of a fine to the
determination of specified facts.” Ante, at 10. It concludes
that “the predominant practice was for such facts to be
alleged in the indictment and proved to the jury.” Ibid.
Putting the question this way invites a circular re­
sponse. As is true of the English usury cases, nothing
prohibits a legislature from requiring a jury to find a
sentencing fact in a particular subset of cases. And obvi­
ously when a State does so, the jury will indeed have to
find those facts. Thus, if, say, 10 States decide to make
juries find facts that will set the fine for, say, simple lar­
ceny, then jury practice in those States (during, say, the
19th century) will include the jury’s finding of those sen­
tencing facts. But that circumstance tells us only that in
those 10 States for those specific statutes the legislatures
so required. It tells us little, if anything, about practices
in most States, and it tells us nothing at all about tradi­
tional practice in England or 18th-century America. Nor
does a discovery that, say, 10 state legislatures once re­
quired juries, rather than judges, generally to set fines tell
us about the scope of the Sixth Amendment’s constitu-
tional right to trial by jury. The matter is important be-
cause the majority rests its conclusion almost exclusively
upon reports of mid-19th-century jury trials in a handful of
States, namely Alabama, Illinois, Indiana, Massachusetts,
and New Hampshire, and a treatise that bases its state­
ments upon those cases. Ante, at 10–12.
Scholars tell us that in fact there were about 10
States—including Alabama, Illinois, and Indiana—that
(after ratification of the Sixth Amendment) enacted stat­
utes that required juries, not judges, to determine a de­
fendant’s punishment, including not only the length of a
 Cite as: 567 U. S. ____ (2012) 19

BREYER, J., dissenting

prison term but also the amount of a fine. See Iontcheva,
Jury Sentencing as Democratic Practice, 89 Va. L. Rev.
311, 317 (2003); King, Origins of Felony Jury Sentencing
in the United States 78 Chi.-Kent L. Rev. 937, 963 (2003).
The courts that considered this practice, however, did
not believe that the constitutional right to jury trial com­
pelled it.
Alabama’s Supreme Court, for example, explained that
its State’s jury-sentencing system, which allowed the jury
“to determine both the fine and imprisonment,” was in
derogation of, and created “an innovation upon[,] the rules
of the common law, so far as it transfers [those] powers
from the court to the jury.” Hawkins v. State, 3 Stew. & P.
63 (1832). Thus, in State v. Garner, 8 Port. 447 (1839), see
ante, at 10, the malicious mischief statute at issue said
that the offender would “ ‘be fined in such sum as the jury
trying the same may assess, not exceeding four fold the
value of the property injured or destroyed.’ ” 8 Port., at
448 (emphasis added). The statute, in other words, trans­
ferred all sentencing facts to the jury and was not illus­
trative of 18th-century practice. Further, the statute said
that the “ ‘fine shall be paid to the party injured.’ ” Ibid.
The court held that it was consequently proper to allege
the amount of the property’s value in the indictment, not
because the State’s constitution required any such thing,
but because “the fine thus assesse[d] is for the benefit of
the injured party”; the case “is, therefore, a quasi civil
proceeding”; and for that reason “it would be more con-
sonant to the rules of pleading, and to the principles
which govern analogous cases, that the indictment should
contain an averment of the value of the property.” Ibid.;
Ord, Law of Usury, at 122–123 (usury as quasi-civil
proceeding).
Illinois law was similar. Illinois became a jury­
sentencing State in 1831. See Iontcheva, supra, at 317,
n. 28 (citing Act of Feb. 15, 1831, §42, 1830 Ill. Laws 103,
20 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

113). The Illinois Supreme Court subsequently wrote
that, even though “at common law . . . juries . . . never
were invested with the power of determining the character
or extent of the punishment . . . , we are to be governed
entirely the provisions and enactments of our code of
criminal jurisprudence.” Blevings v. People, 1 Scam. 172
(1835). And in Clark v. People, 1 Scam. 117 (1833), see
ante, at 10, the court made clear that the arson statute at
issue
“ha[d] changed the common law, . . . [that the] fine
equal in value to the property burne[d] is imposed as
part of the punishment[; hence,] [t]he indictment . . .
should have charged the value of the property de­
stroyed, [for] otherwise it could not properly have
been inquired into by the jury.” 1 Scam., at 117.
Indiana was another jury-sentencing State. Iontcheva,
supra, at 317, n. 28; King, supra, at 937. Indiana case law
decided before Indiana changed its system indicates that
the judge could decide certain facts required to set the
applicable maximum fine. E.g., Morris v. State, 1 Blackf.
37 (1819). But after Indiana became a jury-sentencing
State, its courts held, not surprisingly, that under Indiana
law the jury must determine sentencing facts. See Ritchey
v. State, 7 Blackf. 168, 169 (1844); ante, at 10.
Massachusetts presents a special circumstance. The
two Massachusetts cases that the majority cites, ante, at
10–11, are larceny cases. Value traditionally was an
element of the crime of larceny—both because larceny was
theft of goods that had some intrinsic value and because
value distinguished grand larceny from petit larceny—and
thus juries traditionally had to determine at least some
facts about the value of the property stolen. See Black­
stone 229, 234. Massachusetts had abolished the distinc­
tion between grand and petit larceny before its courts
decided the two cases the majority cites. See Common-
 Cite as: 567 U. S. ____ (2012) 21

BREYER, J., dissenting

wealth v. Smith, 1 Mass. 245, 246 (1804). But those deci­
sions nonetheless rest in significant part upon the jury’s
traditional larceny factfinding role. In Hope v. Common-
wealth, 9 Metcalf 134 (1845), for example, the Massachu­
setts Supreme Judicial Court wrote:
“The well settled practice, familiar to us all, has been
that of stating in the indictment the value of the arti­
cle alleged to have been stolen. . . . The reason for re­
quiring this allegation and finding of value may have
been, originally, that a distinction might appear be­
tween the offences of grand and petit larceny . . . . Our
statutes . . . prescribe the punishment for larceny,
with reference to the value of the property stolen; and
for this reason, as well as because it is in conformity
with long established practice, the court are of opinion
that the value of the property alleged to be stolen
must be set forth in the indictment.” Id., at 136–137.
The “long established practice” to which the court refers is
larceny case practice, not practice in all criminal cases.
The New Hampshire case to which the majority refers,
State v. Goodrich, 46 N. H. 186 (1865), ante, at 11, is also
a larceny case that relied on the “established” larceny case
practice. The court explained:
“The indictment ought to state the value of the arti­
cles stolen that it may appear whether the offence be
grand or petit larceny, and such we believe is the set­
tled practice. . . . It has been held in some jurisdic­
tions, that, in case no value is alleged, the offence
charged may be regarded as simple larceny, and a
conviction be had accordingly . . . but we think it best
to adhere to the well established doctrine in such
cases . . . . It may also be suggested, that, in the case
of simple larceny, the respondent may be sentenced
to pay the owner of the goods stolen, treble the value
thereof, which is an additional reason for requiring
22 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

the character of the offence to be stated.” 46 N. H., at
187–188.
The court wrote nothing to suggest that its holding rested
on generally applicable constitutional grounds. And it was
in the New Hampshire federal circuit court a half-century
earlier when Justice Story had indicated that the Federal
Constitution did not impose any such requirement. See
Mann, 26 F. Cas., at 1155 (No. 15,718).
That leaves the majority’s puzzling 1895 Federal Dis­
trict Court case from Kansas. United States v. Woodruff,
68 F. 536 (D. Kan. 1895); ante, at 11. The circumstances
of this case are highly unusual, and the District Court’s
reasoning as to why no fine could be set seems to have
rested on a combination of statutory construction and
constitutional principle. See Woodruff v. United States, 58
F. 766, 767–768 (CC Kan. 1893); Woodruff, 68 F., at 538–
539. Still, I concede this case to the majority—as the lone
swallow that cannot make the majority’s summer.
Taken together, the 19th-century cases upon which the
majority rests its holding do not show anything about
practice in the vast majority of States. They concede that
common-law practice was to the contrary. And they tell us
little about the meaning of the Sixth Amendment. Even
were that not so, I do not understand why these mid-19th­
century cases should tell us more about the Constitution’s
meaning than, say, the common 20th-century practice
of leaving sentencing fact determinations to the judge.
This Court apparently once approved the latter practice as
constitutional. E.g., McMillan v. Pennsylvania, 477 U. S.
79 (1986); Almendarez-Torres, 523 U. S. 224. And these
cases seem more closely related to the present topic.
D
The upshot is that both 18th-century English common
law and 18th-century American law typically provided
judges with broad discretion to assess fines. The judge,
 Cite as: 567 U. S. ____ (2012) 23

BREYER, J., dissenting

not the jury, would normally determine fine-related sen­
tencing facts. In this respect, ordinary 18th-century sen­
tencing practice related to fines was unlike sentencing
practice in respect to felonies. In the latter case, in Ap-
prendi’s view, punishment was normally “fixed” and the
judge’s sentencing role was consequently minimal. 530
U. S., at 478–480. In the former case, namely fines, the
judge’s role was not normally minimal, but the opposite.
For these reasons, I believe that allowing a judge to de­
termine sentencing facts related to imposition of a fine
does not invade the historic province of the jury. The
historical test that we set forth in Ice is satisfied.
V
In Ice, we also took account of the practical extent
to which extending Apprendi’s rule beyond the “ ‘central
sphere of [its] concern’ ” would “diminish” the States’ “role”
in “devising solutions to difficult legal problems . . . absent
impelling reason to do so.” 555 U. S., at 171–172. In
particular, we feared that insisting that juries determine
the relevant sentencing facts (concerning concurrent, as
opposed to consecutive, punishment) would unjustifiably
interfere with a State’s legislative efforts “to rein in the
discretion judges possessed at common law to impose
consecutive sentences at will.” Id., at 171. It would in-
hibit (indeed “straightjacke[t]”) States seeking to make
“concurrent sentences the rule, and consecutive sentences
the exception.” Ibid. We said that we were “unclear how
many other state initiatives would fall” if Apprendi were
extended, and that expansion would be “difficult for
States to administer.” Id., at 171–172. We believed that
these considerations argued strongly against any such
“expansion.”
Here, the same kinds of considerations similarly argue
against “expansion” of Apprendi’s rule. Today’s decision
applies to the States. In the 1950’s and thereafter, States
24 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

as well as the Federal Government recognized a serious
problem in respect to the sentencing of corporations.
Fines, imposed as a punishment upon corporate offenders,
were both nonuniform (treating identical offenders differ­
ently) and too often they were set too low. Judges would
frequently fine corporations in amounts that failed to
approximate the harm a corporation had caused or the
gain that it had obtained through its illegal activity, both
because often the statutory maximums were low and be-
cause often the fines imposed tended to be substantially
lower than those maximums. See Gruner, Towards an
Organizational Jurisprudence: Transforming Corporate
Criminal Law Through Federal Sentencing Reform, 36
Ariz. L. Rev. 407, 408 (1994); Kadish, Some Observa­
tions on the Use of Criminal Sanctions in Enforcing Eco­
nomic Regulations, 30 U. Chi. L. Rev. 423, 435, n. 55 (1963);
Nagel & Swenson, Federal Sentencing Guidelines for
Corporations: Their Development, Theoretical Underpin­
nings, and Some Thoughts About Their Future, 71 Wash.
U. L. Q. 205, 215 (1993).
Consequently, the authors of the Model Penal Code
adopted a model provision stating that, in respect to of­
fenses involving financial gain, a court could impose an
alternative “higher” fine “equal to double the pecuniary
gain derived from the offense by the offender.” Model
Penal Code §6.03(5), 10A U. L. A. 259 (2001). New York
soon thereafter adopted such a provision. N. Y. Penal Law
Ann. §80.10(2)(b) (West 2009). And other States followed
New York’s example with similar provisions permitting
judges to set fines equal to twice the gain to the offender
or twice the loss to the victim, thereby helping to diminish
disparity while helping potential victims by increasing
deterrence. E.g., Conn. Gen. Stat. Ann. §53a–44 (West
2007); Fla. Stat. §775.083(1)(f) (2010). Many of these
statutes say in particular that the “court” shall make the
finding of gain or loss, in a separate hearing if necessary.
 Cite as: 567 U. S. ____ (2012) 25

BREYER, J., dissenting

E.g., N. Y. Penal Law Ann. §80.00(3) (West 2009); N. J.
Stat. Ann. §2C:43–3(e) (West 2005).
The Federal Government followed suit. In some in­
stances, such as RCRA, where environmental harm likely
varies with the length of the violation period, Congress
advanced its uniformity and deterrence goals by tying a
dollar-limited fine to the length of time during which that
violation took place. 42 U. S. C. §6928(d)(2)(A). In other
instances, it did so through a new general gain-or-loss
provision, applying to all offenses, including such crimes
as corporate fraud, antitrust violations, and environmen­
tal pollution. That provision says:
“ALTERNATIVE FINE BASED ON GAIN OR LOSS.—If any
person derives pecuniary gain from the offense, or if
the offense results in pecuniary loss to a person other
than the defendant, the defendant may be fined not
more than the greater of twice the gross gain or twice
the gross loss, unless imposition of a fine under this
subsection would unduly complicate or prolong the
sentencing process.” 18 U. S. C. §3571(d).
To apply Apprendi’s rule to the fines set forth in such
statutes, no less than in Ice, would weaken or destroy the
States’ and Federal Government’s efforts “to rein in the
discretion judges possessed at common law,” Ice, 555 U. S.,
at 171, over fines. Congress, in enacting such statutes,
expected judges, not juries, to determine fine-related sen­
tencing facts because doing so will often involve highly
complex determinations. Where, say, major fraud is at
issue, the full extent of the loss (or gain) may be unknown
at the time of indictment or at any other time prior to the
conclusion of the trial. And in an antitrust or an environ­
mental pollution case, the jury may have particular diffi­
culty assessing different estimates of resulting losses.
The consequence of the majority’s holding, insisting that
juries make such determinations, is likely to diminish the
26 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

fairness of the criminal trial process. A defendant will not
find it easy to show the jury at trial that (1) he committed
no environmental crime, but (2) in any event, he commit­
ted the crime only on 20 days, not 30. Moreover, the
majority’s holding will sometimes permit prosecutors to
introduce newly relevant evidence that would otherwise
have been kept from the jury on the ground that it was
cumulative or unduly prejudicial. If victims’ losses are
relevant, the prosecutor may be able to produce witness
after witness testifying only about the amount of life
savings lost to the fraud. The defendant in this case, for
example, thought the introduction of evidence about the
discovery of mercury and remediation and evacuation of a
nearby apartment complex was unduly prejudicial. Brief
for United States 51 (citing App. 15 (defendant’s motion in
limine to exclude such evidence)). But even if that were
so, that evidence might now be admitted as showing the
amount of harm caused or the number of days upon which
the defendant’s unlawful activity took place.
Administrative problems here may prove more serious
than where, as in Apprendi, prison terms were at stake.
In part, that is because corporate criminal cases often
focus upon complex frauds, criminal price fixing, extended
environmental pollution, food-and-drug safety violations,
and the like. Both Congress and the Sentencing Commis­
sion have recognized as much. The federal criminal fine
statute to which I earlier referred specifically creates an
exception where assessing total loss or gain “would unduly
complicate or prolong the sentencing process.” 18 U. S. C.
§3571(d). Similarly, Sentencing Guidelines applicable to
corporations exclude fine provisions for environmental
crimes (along with most crimes involving export viola­
tions, food-and-drug safety, agricultural-and-consumer
products, and RICO violations) because of the “potential
difficulty . . . of defining and computing loss.” Nagel &
Swenson, supra, at 256; see USSG §8C2.1, and comment.,
 Cite as: 567 U. S. ____ (2012) 27

BREYER, J., dissenting

§8C2.10. Where the defendant is a human being, the
Government can avoid problems of proof simply by aban­
doning any effort to obtain a fine; instead, perhaps to the
individual defendant’s dismay, the prosecution can seek
a longer prison term. Where the criminal defendant is a
corporation, however, no such possibility exists.
If, as seems likely, it becomes too difficult to prove fine­
related sentencing facts to a jury, legislatures will have
to change their statutes. Some may choose to return to
highly discretionary sentencing, with its related risks of
nonuniformity. Others may link conviction with fines
specified in amount, rather like the 10th-century pre-
Norman system of three cows for perjury or more modern
mandatory minimum penalties. As Blackstone pointed
out, those systems produce sentences that are not propor­
tionate; they tend to treat alike offenders who committed
the same crime in very different ways. See 4 Blackstone
371–372.
The majority believes that 10 years of experience with
Apprendi “attenuate[s]” any legal claim of reliance on
different rule of constitutional law here. Ante, at 16.
Perhaps so. Perhaps that experience shows that Appren-
di’s jury trial requirement is workable. But there is an­
other less optimistic possibility.
Perhaps that experience, like the canary in a mine­
shaft, tells us only that our criminal justice system is no
longer the jury-trial-based adversarial system that it once
was. We have noted that “[n]inety-seven percent of fed­
eral convictions and ninety-four percent of state convictions
are the result of guilty pleas.” Missouri v. Frye, 566 U. S.
___, ___ (2012) (slip op., at 7). We have added that today
“ ‘plea bargaining” is “not some adjunct to the criminal
justice system; it is the criminal justice system.’ ” Ibid.
(quoting Scott & Stuntz, Plea Bargaining as Contract, 101
Yale L. J. 1909, 1912 (1992)). And in such a system, com­
plex jury trial requirements may affect the strength of a
28 SOUTHERN UNION CO. v. UNITED STATES

BREYER, J., dissenting

party’s bargaining position rather than the conduct of
many actual trials.
At the same time, the prosecutor in such a system,
perhaps armed with statutes providing for mandatory
minimum sentences, can become the ultimate adjudicator.
The prosecutor/adjudicator plays an important role in
many “European inquisitorial” systems. But those prose­
cutors, unlike ours, typically are trained formally to be
more like neutral adjudicators than advocates. Cf. Lang­
bein & Weinreb, Continental Criminal Procedure: “Myth”
and Reality, 87 Yale L. J. 1549, 1559 (1978); see, e.g.,
Ècole Nationale de la Magistrature. Today’s holding, by
unnecessarily complicating the trial process, may prove
workable only because it nudges our system slightly fur­
ther in this direction. I see no virtue in doing so.
For these reasons, with respect, I dissent.