RINALDI v. YEAGER

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Argument of Frederick B. Lacey

Chief Justice Earl Warren: Number 940, Joseph A. Rinaldi, Appellant, versus Howard Yeager, Warden, et al.

Mr. Lacey.

Mr. Frederick B. Lacey: Mr. Chief Justice, may it please the Court.

Joseph Rinaldi, the appellant in this proceeding is presently confined in the New Jersey State Prison.

He is there following conviction and following admittedly and frankly an exhaustion of not only the trial process but the appellate process afforded him by the State of New Jersey.

To that extent, and I want to make this clear at the outset, we are not within the precise holding of Griffin and the cases which follow.

In other words, we are not here contending that because of this financial obligation which I will point out later, he was asked to assume, he was impeded in having either due process with respect to his freedom at the trial level or due process with respect to his freedom at the appellate level.

The position that I take here, however, is I believe a logical extension of what this Court has held in Griffin and the other cases which are cited in our brief such as Eskridge, Draper, Burns, etcetera.

Specifically, Rinaldi following conviction at trial applied under New Jersey procedures to be permitted to proceed in forma pauperis to appeal in the Appellate Division of the state court.

This procedure was pursued by him and he was permitted to so proceed in forma pauperis.2 (a) 152 Section 17 permitted this procedure and he availed himself of it.

Our quarrel is not with 17 however but with the next section which is Section 18.

18 we say, provided a means whereby New Jersey was permitted to utilize this carrot so to speak of appellate procedure to coerce Rinaldi into making an assignment of all of his institutional wages should he, following this gamble of whether to appeal or not, take the appeal and lose because Section 18 provides that if the applicant for proceeding in forma pauperis should have his conviction affirmed on appeal, then the cost of the trial transcript must be taken from all of his institutional wages until it is paid.

We say that this constituted unlike Griffin which was of course a due process taking of liberty, but this constituted without due process, a taking of property.

I think that in the overall in terms of the public interest and quite aside from a narrow question of Joseph Rinaldi, it flies in the face of what I believe was a clearly articulated philosophy of this Court that we don't want to do anything that will interfere with the thinking process as to whether or not an appeal should be taken.

The history of the statute, that is the legislative history, is devoid of any assistance and there's nothing in the record to indicate what it was.

However, the statute itself was a specific answer to this Court's holding in the Griffin case.

The Attorney General forthrightly concedes that one of the policy reasons behind the statute was to discourage frivolous appeals.

Justice William J. Brennan: When was – did it happen?

Mr. Frederick B. Lacey: 1958 sir.

Griffin, I believe, was 1956, yes sir.

And the Attorney General thus concede that one of the policy reasons for it Mr. Justice Brennan is to discourage non-meritorious appeals -- or frivolous appeals or non-meritorious appeals.

Justice John M. Harlan: Is there any indications (Inaudible)

Mr. Frederick B. Lacey: As I indicated sir, there is nothing in the record and I can state outside the record that we did search Florida legislative history and found none.

Chief Justice Earl Warren: Did you say the state concedes that that was the reason for it?

Mr. Frederick B. Lacey: The state says that that is one of the reasons for it.

Chief Justice Earl Warren: One of the reasons, yes.

Mr. Frederick B. Lacey: Yes sir.

Certainly sir, it could not be -- I'd hate to put my native state in the position of exacting a tribute of $20 -- 20 cents a day, a dollar a week to repay the cost of a $215 transcript on an economic basis.

And so I think that in the large public policy area in which this case falls, it clearly has the – an intended effect to discourage exercising the right to take an appeal granted by the New Jersey constitution.

Justice William J. Brennan: I thought that --

Mr. Frederick B. Lacey: Now, I do --

Justice William J. Brennan: And its --

Mr. Frederick B. Lacey: Yes sir.

Justice William J. Brennan: It's not limited within its application, the appeal held in fact to (Inaudible)

Mr. Frederick B. Lacey: Oh, no sir.

Justice William J. Brennan: Whether or not an -- the appeal is lawful?

Mr. Frederick B. Lacey: That is correct sir.

Justice William J. Brennan: That doesn't (Inaudible) the truth.

Mr. Frederick B. Lacey: No sir, it certainly doesn't.

Justice William J. Brennan: (Inaudible)

Mr. Frederick B. Lacey: What I am saying Mr. Justice Brennan is that the applicant for proceeding in forma pauperis is asked to make a gamble, to take a gamble and I think that to that extent, it is a fettering of the freedom of choice on whether or not to take an appeal.

Now, public policy, I think pervades the entire issue because if penalogically, it makes good sense to pay whatever the minimum wage might be in New Jersey state prison at the moment and the stipulation of facts indicates that with respect to Rinaldi, its 20 cents a day.

If this is good penalogically speaking, why then should New Jersey turn around and permit the county which laid out $215 for the transcript to take back this 20 cents a day.

The state says, “Well, we don't have to pay him anyway, and therefore, we're doing nothing more than putting him in a position where he could be in any case where we not to pay him.”

I say that --

Chief Justice Earl Warren: Would you state that again?

Mr. Frederick B. Lacey: Yes sir, I'm sorry Mr. Chief Justice.

Chief Justice Earl Warren: (Inaudible)

Mr. Frederick B. Lacey: I may not have stated it clearly.

The state says in its brief that as a matter policy, internal state policy, we would not have to pay him while he's in prison, doing work.

I say that that misses the mark.

The fact is that for what I would deem good public policy reasons its deemed sound penologically to pay some minimum wage, here specifically 20 cents a day.

Then to turn around and say that you're going to lose this for four years until you pay off $215 to the county which afforded you this transcript so you could take the appeal which constitutionally we give you, I say is to -- if that is really the argument not -- whether or not we have to pay him in the first instance.

Now, I do say quickly here that in Rinaldi's case, I do not have -- I do -- I am not able to avail myself of the argument that his choice as to taking the appeal was impede -- obviously he took the appeal.

Obviously, he took the gamble and he lost.

But I am saying that now, he is being deprived of his property at the rate of a dollar a week, $52 a year for four years.

Justice John M. Harlan: Suppose he would say to pass the laws (Inaudible) free transcript that the state would have a (Inaudible)

Mr. Frederick B. Lacey: You're asking sir what might my view is on a reimbursement statute generally I think.

And I -- my answer to that is this, first of all, this is not a case generally but rather a case of an indigent and I think that under our thinking as it has evolved over the past few years, this puts the indigent in a position where his choice at the time of taking an appeal is different from the man who may expect to come in with some money later.

Secondly --

Justice John M. Harlan: There are (Inaudible)

Mr. Frederick B. Lacey: Yes sir.

Justice John M. Harlan: Supposing the State of New Jersey sued without any statute at all after this man got out of jail and he earns some money.

Mr. Frederick B. Lacey: I think that you could just --

Justice John M. Harlan: (Inaudible) statute of limitations sued him (Inaudible) of transcript.

Mr. Frederick B. Lacey: I think Mr. Justice Harlan that you could justify a statute that was in somewhat of this pattern if it conformed to a state policy of repayment of debts by garnishment.

For example in New Jersey, we have as I recall a garnishment statute, nothing up to $18 a week, may be garnished to repay a civil indebtedness and beyond that 10% of compensation.

If there were a reimbursement statute that was in that vein, in that setting, I would be prepared to say sir that this would probably be acceptable as far as I'm concerned but I come down here to the fact that we have the indigent situation and we have the great and sovereign State of New Jersey saying we are going to do something to restrain the multitude in these appeals that were -- we're being forced to accept because this can be the only intent of the statute and it is said to be one of intents by the Attorney General.

I think this that if we were to have a general garnishment statute which provided that sometime within the next 20 years, the man had a job, the state would not be barred by any statute of limitations.

It could pursue the collection.

Here's what concerns me further though about this public policy that's involved here, again in view of the way we're going today in affording free transcript now in the various states in the federal level.

Counsel pursuant to fee if this kind of statutory pattern is permitted to exist and survive then the policy having been established cannot then -- it'd be equally said that with respect to any fee that the state must pay to a counsel, the indigent must agree to pay this out of this person's wages because certainly in terms of policy, there could be no distinction drawn between a transcript and counsel fee.

Justice William J. Brennan: And didn't the (Inaudible) Supreme Court used to hold that there is a public governmental obligation with a county or state?

Mr. Frederick B. Lacey: Yes sir, Mr. Justice Brennan.

Justice William J. Brennan: (Inaudible)

Mr. Frederick B. Lacey: Yes sir, the case came down just the end of the year, as I recall and it provided that this is now going to be an obligation no longer born by the legal profession alone but rather is to be carried by society generally within the State of New Jersey at a rate that Mr. Chief Justice Weintraub I think even talked in terms of the lawyer's fee being 60% of what he might ordinarily get in a regular case.

So that I do recognize that I don't have with respect to the narrow issue of Joseph Rinaldi, the precise holding of Griffin and the other cases because he was not deprived of his liberty by a pre-existing condition or a condition precedent.

I say however that he was coerced by holding this appellate right before him, constitutionally given he was coerced into assigning all of his prison wages and that this is a deprivation of his property and I say further that this statute is brought with a public interest and I think a public danger.

Now additionally, in addition to the due process argument --

Justice John M. Harlan: The man who couldn't afford to pay for the record must -- he has to pay (Inaudible) and the state could provide him with the transcript (Inaudible) possible to appeal (Inaudible)

Mr. Frederick B. Lacey: Yes sir.

And he also has to think twice about whether he can afford to pay counsel.

That is true.

Justice John M. Harlan: I sort of understand --

Mr. Frederick B. Lacey: But --

Justice John M. Harlan: -- is it showing if he's (Inaudible) an appeal (Inaudible) the state could provide him a transcript?

Mr. Frederick B. Lacey: Yes sir.

I'm sure that's so, I know --

Justice John M. Harlan: Maybe -- this comes down really to a question (Inaudible)

Mr. Frederick B. Lacey: Well it does, but in a -- I had not thought of it frankly sir in that large sense.

I believe that -- as a practicing attorney, I have been in a position and all of the members of this Court I'm sure have been in the position of advising clients what it was going to cost them to take an appeal and having clients lose their order about taking an appeal.

But how often this is in the civil field rather than the criminal field, how often we are faced with this and have a decision by a client not to pursue his rights on appeal.

In a civil case, I would guess its 10, maybe 20 to 1.

I do really think that there is a public policy involved here that we should -- if we're going to do something for indigents, we should not then turn around and take it away from them.

With respect to the equal protection argument, I had dealt with this but not in the sense in which you put it Mr. Justice Harlan.

Instead in the discovery period before we made our motion we had arrived at a stipulation of facts.

And as is set forth in the stipulation of facts contained at page 37 of the record and referred to in our briefs, we point out that apparently there is a thinking that pervades the county officers that the statute somehow best them with a discretion as to whether or not they can deduct from the man who's in jail.

Now, the state responds to this by not really meeting the issue factually.

They say, well, in certain instances cited by appellant's brief this may have been true or that may have been true.

They don't deny that basic contention we make that this statute is not applied universally and yet the statute is in terms of shall, it is mandatory, it allows of no discretion.

So I am saying that in addition to the basic due process argument I urge that this statute as applied to Rinaldi is denying him equal protection of the laws.

The --

Justice Abe Fortas: I suppose that an indigent released pending appeal on its own recognizance, let's suppose I -- guess that's possible in New Jersey.

Could demand a transcript and then there's nothing in the law that requires him to repay the state (Inaudible) -- if he's not (Voice Overlap) --

Mr. Frederick B. Lacey: At that point sir --

Justice Abe Fortas: If he's not in jail.

Mr. Frederick B. Lacey: No sir, that's correct.

Justice Abe Fortas: He's released on bail or his recognizance pending appeal.

Mr. Frederick B. Lacey: Yes sir, that's correct.

Justice Abe Fortas: Oh, from one point of view perhaps there is a distinction in the treatment that turns on the circumstance on whether the indigent is or is not in jail.

Fellow --

Mr. Frederick B. Lacey: Well --

Justice Abe Fortas: -- is not in jail, he doesn't earn the 20 cents a day and has no other obligation to repay the state.

A fellow who's in jail has to pay the state the 20 cents a day that he earns.

Mr. Frederick B. Lacey: Well, I would -- I'm not sure what the thrust of that is -- as you state it but I would turn it this way.

Really, if -- I think it associates with what Mr. Justice Brennan asked me before, what does it say, how does it apply?

The fact that it is only applied in case you lose I think reflects again an attempt to discourage the frivolous appeal and I put "frivolous" in quotes because what "frivolous" is today, it may not be five years now.

What frivolous was five years ago or pre-Escobedo, it is not now.

So frivolous is a concept I do not think we should permit a state statute like this to stand upon and I do believe that if you look at it as a statute that is intended to penalize that you are viewing the statute in the light in which it was intended to be put on the books and to be enforced.

Thank you sir.

Chief Justice Earl Warren: Mr. Handler.

Argument of Alan B. Handler

Mr. Alan B. Handler: Mr. Chief Justice, may it please the Court.

I'm not certain in my own mind exactly what constitutional grounds appellant concentrates on in his attack upon the New Jersey statute.

There was some confusion in the proceedings below as to whether or not an Eighth Amendment and the Thirteenth Amendment ground were advanced.

In the brief presented to this Court, it would appear that appellant has argued that the statute violates both due process and equal protection.

And then there was a separate argument with respect to discrimination in the application of the statute to this appellant.

Whatever they purport of the constitutional attack is however, it is extremely important to understand and appreciate the New Jersey statute in its totality.

We have suggested in our brief that this statute is designed to provide an indigent with an effective and prompt right of appeal and in some measure, to minimize the cost to the public and to discourage an abusive resort to the appellate judicial machinery.

The legislative history as pointed out by counsel is barren.

There is a statement next to the bill that was -- when it was introduced which indicates just simply that the statute was apparently in the past responsive to this Court's decision in Griffin versus Illinois.

Justice William J. Brennan: I thought, Mr. Handler, that's all we ever do get in the way of a legislative history in New Jersey, is it?

Mr. Alan B. Handler: That's one of our complaints also Justice Brennan.

There are no transcripts or records of legislative sessions and the only thing that one can go on might be the statements annexed to the bill or perhaps any committee reports that may have been filed.

In this case, we don't have the advantage of any meaningful legislative history except it was obviously a response by the New Jersey legislature to fall within the mandate of the Griffin case and the statement of the bill so provides.

Well, let's -- left to infer however as to what else the New Jersey state legislature had in mind when it included in its statutory provision Section 18.

We have suggested, as I've just mentioned that reasoning from the obvious thrust of the statute, it must have been designed to discourage in some measure a promiscuous or wanton resort to the judicial machinery and although its impact is not great, it is designed in a minimal way to defray the clause that are otherwise visited on the public.

Justice Abe Fortas: How do you know when -- how do you know whether an appeal is frivolous, or promiscuous or some of those other words?

Mr. Alan B. Handler: I don't think that anyone can be certain as a matter of any objective analysis whether an appeal is frivolous or whether sham or bogus merely because an appeal is lost.

I suppose could -- enable it to fall into the category of non-meritorious but there could be a serious appeal taken which lacks merit in which may be anything but frivolous.

Justice Abe Fortas: I guess we've all seen some appeals which at the time they were taken that the -- frivolous and then it turned out to be successful.

Mr. Alan B. Handler: That's -- has happened probably too often and of course it's happened not infrequently in the area of appeals by indigents.

But counsel has argued on behalf of the appellant that he has no quarrel with Section 17 of the law which is the application provision of the statute.

And I think this concession on his part is fairly mandated by the history of the case.

The application provision of the New Jersey law has been considered and comparable statutory provisions have been considered by this Court in at least three of the other so-called main decisions, Eskridge, Draper and Lane versus Brown.

Each involved a state statutory provision which entailed an application of some kind being made by an indigent for a free transcript and in each of those cases as applied to the particular indigent this Court has held that the state provision was unconstitutional that it was discriminatory.

In this case --

Chief Justice Earl Warren: May I ask you Mr. Handler.

Did I understand you to say that counsel had conceded that there was no unconstitutional application of this statute to him?

I thought he said otherwise.

Mr. Alan B. Handler: No.

I'm only referring to Section 17 of the New Jersey --

Chief Justice Earl Warren: Oh!

Mr. Alan B. Handler: -- statute which requires an indigent --

Chief Justice Earl Warren: But this is 18 that --

Mr. Alan B. Handler: He is attacking Section 18 which is the --

Chief Justice Earl Warren: Yes, yes.

Mr. Alan B. Handler: -- reimbursement statute.

Chief Justice Earl Warren: Yes, I understand that.

Mr. Alan B. Handler: But in evaluating the New Jersey statute in its totality and as applied to this appellant, I think it important that the Court appreciate that the New Jersey statute has a application provision, that as applied to this particular appellant he was not deterred or impeded in his recourse to the appellate courts.

As a matter of fact, he took two appeals from two separate convictions and his applications were promptly passed favorably by the Appellate Division.

Justice William J. Brennan: Mr. Handler, may I ask you, suppose the -- on his conviction, if that -- the jail term, he got a suspended sentence and had taken the appeal.

Under 17, would he have been entitled to a transcript as an indigent?

Mr. Alan B. Handler: Yes, Justice Brennan.

Justice William J. Brennan: But would Section 18 have been operative in that case?

Mr. Alan B. Handler: But Section 18 would have been inoperative.

Justice William J. Brennan: Inoperative way?

Mr. Alan B. Handler: In other words, Section 17 is designed to enable any person claiming a state of indigency to apply to the Court for a free transcript.

And incidentally, I might point out that the New Jersey rules of court go beyond the statute in question.

Because under the New Jersey rules a application or petition may be made in forma pauperis to relieve an indigent of all costs, not only transcript costs.

These would be filing fees and any other costs or fees incidental to the processing of a normal appeal.

It also --

Justice William J. Brennan: Now, incidentally, this applies only to the one who is in that institution, an institution covers more than the prison, I gather.

Mr. Alan B. Handler: It does.

As a matter of fact, as we point out in a footnote in the New Jersey statute that provides for compensation both in terms of cash as well as time remission applies to all inmates of all institutions including hospitals and --

Justice William J. Brennan: Mental hospitals?

Mr. Alan B. Handler: And other types of institutions where work is --

Justice William J. Brennan: Do we still though, the sex offender law that the -- on conviction for sex offense instead of going to a prison, after he'd gone a mental (Inaudible) he go to some mental hospital, do you still have that?

Mr. Alan B. Handler: Yes.

Yes, that --

Justice William J. Brennan: So that I take it a -- one convicted under that statute and went to a mental hospital and earn 20 cents a day or whatever he did at the mental hospital would also be taken out of his earnings, wouldn't it?

Mr. Alan B. Handler: Yes.

And the same thing would apply to a convicted person who was mentally insane or met the requirements for committing.

Chief Justice Earl Warren: If he was found not guilty by reason of insanity and committed to a mental hospital, would he have to pay this?

Mr. Alan B. Handler: I'm not prepared to say Chief Justice.

I would think that if he were acquitted that the statute would not apply at all.

The reimbursement and this is the law applies only in the event the appeal was unsuccessful.

Chief Justice Earl Warren: And wouldn't apply to anybody who had been placed on probation or who had been fined or had been given a suspended sentence?

Mr. Alan B. Handler: It would not apply to that category of indigent defendant.

And one might very well ask why should the state make a distinction between a prisoner who is confined to an institution and an indigent defendant who has been convicted but has been paroled or has served out his sentence or has received a suspended sentence before reimbursement came into operation.

And I think the answer to that is that there is a greater policy to be subserved in assuring that persons in a state of indigency notwithstanding their convictions who have demonstrated by their good behavior in prison that they are entitled to parole or that they have demonstrated by virtue of their reports to the sentencing judge that they are entitled to a suspended sentence, that the interest of society in here in effect that we want people such as these to return to a useful meaningful place in society and that it does not -- that is not conducive to any overriding state policy to follow them for the cost of their transcript appeal.

Chief Justice Earl Warren: Well, that doesn't square very well with your original pieces as I understood that this was to -- designed to discourage frivolous appeals.

Now, if a man took an appeal when he was placed on probation or when he was fined or when he was given a suspended sentence and he lost, you couldn't collect anything from him under this section so you're not basing it on the question of discouraging frivolous appeals, you are discouraging it upon the basis of only the people that the judges think should go to jail.

Mr. Alan B. Handler: I would say not entirely so Mr. Chief Justice.

Before a person takes an appeal, I think he has to go to the same risk weighing process as --

Chief Justice Earl Warren: You say in what?

Mr. Alan B. Handler: Risk weighing process.

He has to evaluate what the outcome of his appeal would be.

It may very well be that a person under prison sentence put out on bail faces the prospect that his appeal is unsuccessful that he would go to jail.

He may not know whether he'll get paroled, whether there will be a remission of his sentence.

And so as long as he faces the prospect that in the event that his appeal is unsuccessful and that he may go to jail, he goes to the same risk evaluation that a person not on bail and confined to prison would also have to undertake with respect to a person who has received a suspended sentence.

It's true that more likelihood he doesn't anticipate that even if his appeal is unsuccessful that that sentence would be altered and he'd be committed to jail.

And to that extent he is not under the same kind of onus but I would suggest --

Justice William J. Brennan: Yes, but Mr. Handler, how -- I can't read Section 18 as suggesting for example that one who has a suspended sentence who takes an appeal for some reason or another the suspension is revoked and he then goes to prison subject to this Section 18, this seems to indicate its only the applicant who is confined at the time he applies for the transcript to whom this sentence -- Section 18 applies.

Am I wrong about that?

Mr. Alan B. Handler: Well, let me say this Mr. Justice Brennan.

I don't think -- I'm not aware of any instance in which the statute has been or has not been applied with respect to a defendant who was under a suspended sentence who lost his appeal and then there was -- remitted to prison.

I don't know that there has been any occasion.

Justice William J. Brennan: Well, I'm just looking at the words, the wording of the statute itself.

And the language is confined so far a notice to the institution in which the person upon to his application, the transcript to the record was prepared is confined which indicates, doesn't it, that it applies only to the application that one can find at the time the application is filed.

Mr. Alan B. Handler: I would have to concede that the -- that language seems clear enough on that point.

I would only again add that I'm not aware of any occasion in which a -- the question would arose as to whether it could be applied to somebody subsequently going to jail.

Justice Hugo L. Black: Is that question involved in this particular man's case?

Mr. Alan B. Handler: I think it is involved only to the extent that the appellant is urging that the statute in terms of the classifications that it draws or that it -- are inherent in the policy are invidious against him.

I don't think that the appellant has urged that there is a discrimination between a jail defendant and a indigent defendant who is under a suspended sentence or was in jail at the time of his application.

Chief Justice Earl Warren: I thought he mentioned something of that in his argument to us.

Mr. Alan B. Handler: Well, I think that was in response to a question.

I'm sure counsel on his rebuttal will clarify to the Court whether this particular point is urged.

It's not clear to me that it is.

Justice Hugo L. Black: But so far as he is concerned, is he hurt by that particular provision, that's what I was asking.

Mr. Alan B. Handler: I don't think that he is hurt and --

Justice Hugo L. Black: But how could you be?

I haven't yet gathered how he could be by that provision.

Mr. Alan B. Handler: I don't see how he could be.

And I would like to develop this further thought as to whether --

Justice Hugo L. Black: Am I right in thinking that the real issue here -- I'm just asking because I am not sure, is this.

The State of New Jersey has authorized people to appeal who are indigents even though they can't pay the Court of the cost.

They're not barred from taking their appeal as was the case in Griffin.

What you have then is that the state has said that we're going to create a debt against you for cost if you lose just as we created debt against all losing indigents.

Is that right as to that point?

Mr. Alan B. Handler: That is substantially correct except for the qualification that must be conceded that this creation of a debt applies only to a prisoner who is being paid by the state.

Justice Hugo L. Black: Well, I suppose -- suppose he is not a prisoner and being paid for the state.

Does he have to pay the cost?

Mr. Alan B. Handler: No.

Not by any statutory authority and --

Justice Hugo L. Black: How do you collect the cost?

Mr. Alan B. Handler: The costs are waived.

In other words, if a defendant takes an appeal and he has satisfied the Court that he is a pauper and the Court authorizes him to proceed with his appeal, free of cost and his appeal is unsuccessful, certainly, if he doesn't go to jail, there would be no effort on the part of the state.

Justice Hugo L. Black: Suppose he's not a pauper --

Mr. Alan B. Handler: If he's not a pauper, he would pay.

Justice Hugo L. Black: -- and loses.

Mr. Alan B. Handler: He would pay costs.

Justice Hugo L. Black: Pay costs.

Mr. Alan B. Handler: He would pay costs.

Justice Hugo L. Black: So that -- why is that, (Inaudible) that the state created debt for those cost and how do they collect that debt from him --

Mr. Alan B. Handler: Those --

Justice Hugo L. Black: -- if he's not a pauper?

Mr. Alan B. Handler: Those costs would be assessed in the normal course of litigation.

In other words, it would -- he would have to pose post cost to file his notice of appeal.

He would have to file -- pay certain filing and docket costs.

If he wanted a transcript and the transcript would be necessary if he's urging trial hours, he would have to order it himself --

Justice Hugo L. Black: Have paid them (Voice Overlap) --

Mr. Alan B. Handler: -- from the reporter and pay it for himself.

And if he didn't, his appeal couldn't proceed.

Justice Hugo L. Black: The difference here then is it, after you finally get down to the ultimate difference is that the state pays those costs for an indigent.

But it says, we're going to require you to pay them back like the other people would have to pay the cost if you have -- get abled or if we can collect it by deducting it from something that somebody owes you, is that the result of it?

Mr. Alan B. Handler: Well, the state does that only with respect to indigents.

Justice Hugo L. Black: Well, you say they collect it from the others without that.

Mr. Alan B. Handler: I thought your question applied to non-indigents, Mr. Justice Black.

In other words --

Justice Hugo L. Black: No, for non-indigents, you say they collect it from them anyhow.

If they've got it, they can collect it, they collect it.

Mr. Alan B. Handler: That's correct.

Justice Hugo L. Black: So you have a system whereby you collect costs.

But you waive that as I understand it for the defendants who are indigents but you also say that although we are waiving this, we claimed that our state has the power.

No federal provision constitutional provision prohibits us from collecting that back if we want to --

Mr. Alan B. Handler: That is --

Justice Hugo L. Black: -- and can.

Mr. Alan B. Handler: That is correct.

Justice Hugo L. Black: Is that the ultimate issue?

Mr. Alan B. Handler: I think that is -- that is the --

Justice Hugo L. Black: I don't know.

Or there's something else.

I didn't understand it.

Mr. Alan B. Handler: I think that is the ultimate issue of what --

Justice William J. Brennan: But Mr. Handler, wait a minute, I don't know that it is.

As I understand it, and correct me if I'm wrong.

If no costs whatever are assessed against the indigent who's not in prison and whatever the cost may be for a transcript and otherwise even if he loses, the state thereafter -- there's no provision in our law which permits the state thereafter to collect it from the indigent if later on he gets money.

Mr. Alan B. Handler: That is correct.

Justice William J. Brennan: That's right.

Mr. Alan B. Handler: That is correct.

Justice William J. Brennan: The only indigent who has to pay anything is the (Inaudible) in prison and then only to the extent of the 20 cents a day that the state pays him for whatever work he does in prison.

Mr. Alan B. Handler: That is correct.

Mr. Justice Black's question however was --

Justice Hugo L. Black: But I wanted to get out of that was the case.

Mr. Alan B. Handler: That is the case here.

Your question was whether the state has the power to go after indigents in general (Voice Overlap) --

Justice Hugo L. Black: Well, of course the state might have the power to go after an indigent to make him pay the money back but it might if the reason of some special provision which thereby discriminated him against him on account of the fact that they were indigent, still could be barred by the Equal Protection Clause.

Mr. Alan B. Handler: Oh!

I certainly have to agree with that.

Justice Hugo L. Black: Well --

Mr. Alan B. Handler: Of course we (Voice Overlap) --

Justice Hugo L. Black: Then you're -- then the ultimate issue as you see it, do you agree with Mr. Justice Brennan that that's the ultimate issue here?

Mr. Alan B. Handler: That is --

Justice Hugo L. Black: The one he said?

Mr. Alan B. Handler: I agree with his statement of the problem.

Chief Justice Earl Warren: Well, doesn't that raise some equal protection problem?

Mr. Alan B. Handler: I don't think so Mr. Chief Justice.

Getting back of course to your earlier question you indicated that isn't the state being somewhat ambivalent or inconsistent in only searching for costs, transcript costs against the indigent prisoner not going near to the indigent who is not in jail if the state's policy is to discourage frivolous appeals.

And I would suggest by way of the answer that even though this inferentially is probably one of the policies of the statute that there are other considerations that cut across other objectives of state policy which are also entitled some deference.

Chief Justice Earl Warren: What are they?

Mr. Alan B. Handler: Now, the question that would have to be posed by the court, is there any reasonable basis for the State of New Jersey not to collect the costs of litigation against indigents who are not confined to prison, notwithstanding they are under conviction that they have not reverse their convictions.

And I would suggest that the larger policy involved is that these people by virtue of their backgrounds either that they have -- been entitled to parole or that they are entitled to a suspended sentence based upon a sentencing judge evaluation of their personalities, that these people should be permitted to function in society as best they can without the added burden of the state assessing cost of litigation against them.

I think you have a different consideration.

Chief Justice Earl Warren: Let me give you just a specific case and see if there is any discrimination, this situation.

Two men are charged with the commission of the same offense.

They are both convicted.

One of them is sent to prison.

The other one is given probation.

They both appealed.

They both lose.

They're both indigents.

They both were given a transcript.

The man who was convicted and placed on probation, goes out and gets a job and makes $100 a week.

The one who goes to jail gets 20 cents a day or less than a dollar a week.

The state in order to reimburse itself under Section 18 puts a lien on and takes the 20 cents a day that the man in prison makes but has no way of collecting on the fellow who earns a $100 week and doesn't try, the state doesn't try to get that back.

How -- don't you think that's some discrimination?

Mr. Alan B. Handler: I think that that question cannot be answered unless you give some consideration to why in one case a man is sentenced and in another case, he is given probation.

Chief Justice Earl Warren: Well, you're putting it then not on the basis of frivolous appeal.

You're putting it on the basis of who the state thinks are good people and who the state thinks are bad people.

Mr. Alan B. Handler: I think that this is not disassociated from the policy of the statute.

There are several strains that that runs --

Justice John M. Harlan: (Inaudible) another thing, if the state as a matter of (Inaudible) say that the man who's a pauper who is not in jail but who can get hold of these funds that he goes out, the chances of our collecting from such a man isn't worth the candle and therefore is a general manner we're not going to proceed trial.

Mr. Alan B. Handler: I think that there can be that practical aspect of what is a practical consideration by entering --

Chief Justice Earl Warren: But is it --

Mr. Alan B. Handler: (Inaudible)

Chief Justice Earl Warren: But is it worth the candle for the state to collect 20 cents a day, the only money that a man can earn while he's in prison and then let go, free from any obligation at all, the man who goes out makes $100 to $200 a week or more.

Mr. Alan B. Handler: There's no question, they have to do an awful lot of bookkeeping to it.

Chief Justice Earl Warren: Yes.

And it costs them more --

Mr. Alan B. Handler: (Voice Overlap)

Chief Justice Earl Warren: -- to collect that money than it's worth, wouldn't it?

Mr. Alan B. Handler: I'm not prepared to say that but I do want to get back to the distinction between the state's treatment of a person not confined to prison and an indigent who is.

And I think that the greater policy that's being subserved by the state not taxing the cost of an indigent not in jail is that with this type of person, he represents a good risk for the state, for society.

He doesn't deserve a jail sentence and for that reason, he hasn't been confined to jail.

Since he's indigent, undoubtedly, society wants to give him every opportunity to be self-sustaining, to become responsible and it just doesn't make sense with that greater policy to assess him for the cost of an appeal notwithstanding that it was an unsuccessful appeal.

Now --

Chief Justice Earl Warren: Well, isn't that -- isn't that 20 cents a day be given to a man for his work in prison on the theory that it would have a tendency to rehabilitate him?

Mr. Alan B. Handler: Yes.

Chief Justice Earl Warren: Then you want to take that away from him and not take it away from the fellow who's on the outside and have -- make money in an unlimited way.

Mr. Alan B. Handler: But I -- I say yes with this broader answer.

The monetary wage is only part of the compensation that a prisoner gets and it is in fact the less important compensation that he receives.

A prisoner under the New Jersey regulations at the present time can earn as much as 55 cents a day depending upon how hard he is willing to work and what he wants to do.

The most important thing as far as a prisoner is concerned is the remission of time off his sentence.

And --

Justice William J. Brennan: But he earns 55 cents, under this they take the 55 cents, isn't it?

Mr. Alan B. Handler: Well, to pay it off that much more quickly.

Justice William J. Brennan: I know but that's what they take.

Mr. Alan B. Handler: Yes.

Justice William J. Brennan: He ends up with nothing.

He decided to work to get 55 cents, it's pretty well discouraged, isn't it?

Mr. Alan B. Handler: It is except by -- again, I don't know that the question has ever imposed as to whether --

Justice William J. Brennan: Well, this says -- this says that, shall be reimbursed from any institutional earnings of the person.

That's what the statute says.

Mr. Alan B. Handler: Yes, but it doesn't say that --

Justice William J. Brennan: They have to take it all.

Mr. Alan B. Handler: They have to take it all at the same time.

Justice William J. Brennan: Yes.

Mr. Alan B. Handler: But I do want to put before the Court the added thought that under the New Jersey compensation provision that the other element of compensation is remission from the sentence and that under the statute as well as under the regulations governing state institutions prisoners that show by their conduct that they can become minimum security risks can get a much more accelerated credit on their sentence than prisoners that have not (Inaudible) that.

With respect to the argument of the appellant that there has been discrimination in connection with other types of criminal defendants, I would of course urge to the Court that there is a meaningful or invidious discrimination as far as prisoners convicted of capital offenses may be concerned.

But with respect to successful indigents the non-assessment of costs I think is reflected of the general state policy that costs are normal incident to litigation with respect to a losing litigant.

With respect to the unsuccessful, non-indigent, of course the simple answer to that is that he's paid his costs and not only his transcript costs but of course all of the costs of litigation which include his attorney's fees, printing costs, costs of investigation and any other fees that may be involved.

With respect to the argument that there has been invidious discrimination in the application of the statute, I think that the Court must appreciate that the mechanics for the reimbursement of the statute arise upon a request by county officials that reimbursement be had against a particular inmate.

Criminal prosecution of course is handled in the State of New Jersey by their respective counties and so there maybe some unevenness in terms of the overall application of the statute but certainly there is no basis in this record for the assertion that this is discrimination, is invidious or purposefully selected.

Thank you.

Chief Justice Earl Warren: Mr. Lacey.

Rebuttal of Frederick B. Lacey

Mr. Frederick B. Lacey: First I would like to respond to a question put by Mr. Justice Brennan to Mr. Handler.

At page 42 of the record sir, there is a form that Rinaldi was required to sign and this form I think sir answers your question.

You wanted to know if he was paid 55 cents an hour, could they in effect apply the garnishment rate.

Instead the form says all.

Whatever he makes if he should go up to a dollar a day, this form implementing the statute demonstrates the policy that they're going to take everything he makes until he gets this indebtedness paid.

Justice Hugo L. Black: May I ask you a question (Voice Overlap) --

Mr. Frederick B. Lacey: Yes sir, Mr. Justice Black.

Justice Hugo L. Black: Just to the issue, completely clear.

Mr. Frederick B. Lacey: Yes sir.

Justice Hugo L. Black: Is your case in your judgment depend on a holding that a state is without constitutional power to collect back from a defendant that it is required to pay costs, that is without constitutional power to collect that money back if they can, so long as the law doesn't in some way discriminate as between the person to which collect it from.

Mr. Frederick B. Lacey: No sir because that would include the example put to me by Mr. Justice Harlan and in answering him, I said that under certain language, certain phrasing, certain proportion, I would recognize the state had a right to reimbursement.

I say however that in this particular case, this is tied to the right of appeal and I say that this case is a logical extension of Griffin.

It's tied to a right to appeal that's tied to an indigent.

It makes him take the gamble and he logically I would assume that he's faced with the lengthy jail sentence he's going to take the gamble.

But when they thereafter persuade him by this means to assign in full all of his prison earnings, I say that this is a deprivation of his property without due process.

Justice Hugo L. Black: I understand that argument but as far as I'm concerned, as my understanding of Griffin would not go -- does not fit in -- it is not the same.

Mr. Frederick B. Lacey: No sir.

Justice Hugo L. Black: It's wholly distinguishable in this respect.

There we held as to the non-indigent, the right to get his appeal heard because of his indigency would deny him equal protection of the law.

This man here had his appeal heard, so you have to go a little further than the Griffin case.

Mr. Frederick B. Lacey: Yes sir, on --

Justice Hugo L. Black: As you --

Mr. Frederick B. Lacey: I want to make that clear at the outset Mr. Justice Black.

And I stated it as forthrightly as I could --

Justice Hugo L. Black: Yes.

Mr. Frederick B. Lacey: -- that we were not arguing a deprivation of liberty here as was the case in Griffin and you're quite right sir that we are arguing a deprivation of property.

And I am saying that we are not within the holding of Griffin but rather I am arguing a logical extension of Griffin.

Justice Hugo L. Black: Deprivation of property is --

Mr. Frederick B. Lacey: Without due process, yes sir.

Namely the --

Justice Hugo L. Black: You're not relying on equal protection?

Mr. Frederick B. Lacey: Yes sir.

Oh, I thought we were talking at the moment about due process with respect to what he was being -- what he had taken away from him at the moment.

I said in Griffin, I recognized that he was being deprived of this freedom.

In this case, I said that we were arguing that but rather arguing that he was being deprived of his property without due process.

Now, additionally, I certainly --

Justice Hugo L. Black: Well, if (Inaudible)

Mr. Frederick B. Lacey: --they didn't want to waive that sir.

Justice Hugo L. Black: You're relying on the Griffin principle there unless we consider the two as meaning the same and they do -- maybe one of them does substantial includes those but deprivation of property here is in effect, they are in taking his property when others who are in factually the same situation as him do not have their property taken.

Mr. Frederick B. Lacey: Yes sir and you -- yes sir, and I do recognize.

In fact, I proclaimed that inseparable is the equal protection argument in the context of this case.

I think this is what you're asking me and my answer would be that that is exactly the point.

Thank you sir.

Chief Justice Earl Warren: Mr. Lacey, before you sit down, I should like to express the appreciation of the Court to you for having represented this indigent defendant.

I understand you are appointed by the court below and you've carried it through with great diligence.

And we consider that to be a real public service and we feel endeavored to the members of the Bar when they do that and we appreciate your efforts in this regard.

Mr. Frederick B. Lacey: Sir, I'd be remissive.

First, I didn't ask that you also recognize and associate our own office Mr. Thomas Campion who is in the counsel table with me who's --

Chief Justice Earl Warren: Indeed.

The same --

Mr. Frederick B. Lacey: As you must have recognized at most of the work.

Additionally, Justice -- the Third Circuit, Justice McLaughlin was nice in an opinion that he wrote up until we came to the decision line, I hope I don't meet with the same result here.

Thank you.

Chief Justice Earl Warren: Thank you.

And Mr. Handler, I also should like to thank you in behalf of the Court for your very earnest and diligent protection of the rights of your state.

Rebuttal of Alan B. Handler

Mr. Alan B. Handler: Thank you sir.