In June, the U.S. Supreme Court declared in Southern Union v. United States, 132 S. Ct. 2344 (2012), that the Sixth Amendment of the Constitution prohibits a sentencing judge from making factual findings that cause a criminal fine to be increased beyond the statutory fine maximum, in the absence of necessary facts found in a jury verdict or the defendants admissions. In Southern Union, the court explained that its landmark holding in Apprendi v. New Jersey, 530 U.S. 466 (2000) which holds that, under the Sixth Amendment, any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt applies to criminal fines just as it does to imprisonment.
Shortly before the holding in Southern Union, we wrote in The Legal that a defense victory in that case could affect the parties respective plea bargaining positions in federal prosecutions of corporations and other white-collar defendants, in the defendants favor. (See The 6th Amendment Flexes Its Muscles: Change May Be Coming to Corporations Federal Sentencing, April 6, 2012.) With the defense victory in Southern Union now a reality, and with a majority of the justices continuing to embrace the rule set forth in Apprendi, federal courts are turning to the next potential application of the principles that animated the Southern Union holding: criminal restitution.
