WILLIAMS v. ILLINOIS
Legal provision: Equal Protection
Argument of Stanley A. Bass
Chief Justice Warren E. Burger: The nest case on for argument is Number 1089, Williams against Illinois.
Mr. Bass, you may proceed whenever you're ready.
Mr. Stanley A. Bass: Mr. Chief Justice, May it please the Court.
This is an appeal from the Illinois Supreme Court presenting the question whether Illinois statutes which authorize a pauper’s incarceration in excess of the maximum period prescribed by law, at the rate of $5.00 a day for payment of fine and Court costs.
Despite the fact that the defendant is willing and able to pay them, if given the opportunity, violate the Equal Protection Clause of the Fourteenth Amendment.
The facts which are undisputed are briefly as follows: the complaint was issued in June of 1967 against Willie Williams for the crime of theft of property not from the person, and not exceeding $150.00 in value.
A warrant was issued and a $2000.00 bail was set.
Williams was arrested on August 13.
The case was brought before the Court the following day on August 14 at which at the time bail was set at $2000.00.
Williams was remanded to jail on motion of the state, the case was continued to August 16.
On August 16, the case was again continued on motion of the state to September 6.
On September 6, the trial commenced.
The defendant appeared in the Court said, there was no Court reporter present.
The record shows that the defendant waived his right to a jury trial.
The case was tried before the judge without a jury.
Finding of guilty was made and the maximum of sentence of one year plus a $500.00 fine was imposed.
The $5.00 cost was also made part of the judgment.
And the judgment further ordered that the defendant stand committed in jail, if he would default from the payment of the fine and cost.
Sometime afterward the defendant contacted the civil legal aid service in the jail and a petition was presented to the sentencing judge, November of 1967, which prayed that the portion of the sentencing order of September 6, which directed that the defendants stand committed in default of payment of the fine and cost be vacated.
That further prayed that the defendant be granted sufficient time and wish to obtain the funds and wish to pay the fine and cost and further asked for such other relief as maybe just inappropriate.
The petition was made under oath and contained some of the following allegations, that defendant was indigent, inmate of the county jail.
He had no funds, no valuable property.
He had been unable to post bail.
He lacked $200.00, wished to post the 10% under the Illinois law.
He was unable to hire an attorney and that he was then unable to pay the fine and cost.
He further recited that he had been in jail since August 13 and had been unable to earn funds since that time.
And it further alleged that if the defendant were released from jail upon the expiration of the one-year jail sentence that he would be able to get a job and earn the funds to pay the fine and costs.
The state did not contravene the factual allegation but moved to dismiss.
The lower court dismissed the petition without evidentiary hearing and an appeal was taken to the Illinois Supreme Court.
The Illinois Supreme Court held that there is no denial of Equal Protection of the law, when an indigent defendant is imprisoned to satisfy payment of his fine.
The Illinois Supreme Court granted a stayed pending appeal, and for the stayed the mandate pending appeal to this Court.
It should be noted at the outset what is not challenged in this case.
We do not challenge the practice of incarcerating contumacious defendant who refuses to pay the fine nor do we attack the discretion of the sentencing judges who wish to make the punishment for the offender, nor do we attack defendant's obligation to pay that debt, nor do we attack --
Justice John M. Harlan: What was the total sentence that resulted from the application of the statute?
Mr. Stanley A. Bass: The total sentence would be one year, plus 101 days, which would be the $505.00 at the rate of $5.00 a day.
Justice John M. Harlan: A year and three months?
Mr. Stanley A. Bass: About a year and three months, yes.
That was diminished slightly by the good-time credits.
Justice John M. Harlan: Do you mean that he suggested that defendant that in light of that and the facts which he shown that the record in this event was not represented by counsel (Inaudible)
Mr. Stanley A. Bass: That's a possible question.
We did not urge the right to counsel the question for a number of reasons.
The first reason is that it was doubtful of whether or not the defendant would succeed in that because under Illinois law, the right to counsel depends upon a request for counsel.
Secondly, the possibility was substantial that if there had been a retrial, or would have been a reconviction with the same sentence, which would only have resulted in the issue coming up at a later stage, and possibly the defendant is spending more time in jail than he did with respect to this case.
Justice Hugo L. Black: What was the maximum sentence that could have been imposed?
Mr. Stanley A. Bass: The maximum sentence that could be imposed for theft of property, not from the person and not exceeding of $150.00 in value was one year plus a $500.00 fine.
If the person commits a subsequent offense, it's a felony, one to five years, if he commits theft of property from the person or exceeding $150.00 in value is 1:10.
Justice Hugo L. Black: Which classification did this come in?
Mr. Stanley A. Bass: Pardon me Your Honor.
Justice Hugo L. Black: Which classification did this crime come in?
Mr. Stanley A. Bass: This came in the lowest, the misdemeanor of one year plus $500.00.
Justice Hugo L. Black: Only in one year?
Mr. Stanley A. Bass: Yes.
Justice William J. Brennan: Mr. Bass, how long he would stay or he had actually been in prison under this statute?
Mr. Stanley A. Bass: How long would he actually be?
Justice William J. Brennan: Or how long has he in fact been?
Mr. Stanley A. Bass: Well, he was bailed out after serving five days of the fine.
Justice William J. Brennan: So, that is had he served the sentence itself?
Mr. Stanley A. Bass: Served the full sentence and at the conclusion of the sentence, he asked for bail and the Illinois Supreme Court five days after, he began serving --
Justice Potter Stewart: How long was he actually in jail?
Mr. Stanley A. Bass: Well, I think he received approximately 84 days, which is a normal good time credit.
So it would be a year plus five days minus 84, which would be the period from August of 1967 to May of 1968, about nine months.
What we do challenge in this case is the construction of the statute by the Illinois Supreme Court which authorizes 24-hour a day imprisonment over the maximum at the rate of $5.00 a day, despite the fact that the defendant has said without any opposition by the state that he will go out and get a job, and earn the funds to pay his fine if he is given the opportunity.
The state has indicated that it has two primary goals to be served, the practice of incarceration of indigence should be sustained because of those goals.
Those are deterrence of crime and collection of revenue from the fines.
But whatever the examination reveals that round-the-clock imprisonment of an indigent under these circumstances is neither necessary nor rationally related to the stated goals and that there are clearly less onerous alternatives and perhaps more effective ones to satisfy the state's interest.
Certainly, if the state's interest is in collecting the revenue by remitting the person to jail, they're not going to get the money.
And in addition, the state has to pay substantial amount of money to house prisoners in already overcrowded and overburdened facilities.
Justice Potter Stewart: Could the state insist that we pay the fine by working for the state, and I don't say in a workhouse or in a work farm or something like that.
Mr. Stanley A. Bass: Well, it's our position that the state could certainly do that as long they let him go at night.
In a hierarchy of alternatives that we have suggested, we have placed remitting to the work house as one of the possibilities, but the problem is in this case, that they keep the man in jail around the clock and there's absolutely no justification for incarcerating somebody at night merely because they're extracting his day life, that's wrong.
Chief Justice Warren E. Burger: Do you think the Supreme of Illinois had judicial power to shape that kind of solution to problem?
Mr. Stanley A. Bass: Well, we feel that the Illinois Supreme Court could easily have saved the statute by construction.
For example, the first provision -- the first sentence in the statute talks in terms of a judgment of a fine imposed upon a defendant, maybe enforced in the same manner as a judgment entered the civil action.
Just last November, the Illinois Supreme Court held that civil case.
It could not obtain the body execution that is jail to facilitate.
Absence of showing or refusal to pay, that's the lawyer's title of Phoenix versus Gerber, which we said in Footnote 19 on page 22.
Chief Justice Warren E. Burger: Is that -- was that done in the context of the old notions of imprisonment for debt?
Mr. Stanley A. Bass: No, the Illinois Supreme Court does not treat imprisonment as a result of a conviction as a debt which is considered within that prohibition.
But if the Illinois Supreme Court had construed the section, to require resort to the other alternatives before remitting the person immediately, The Illinois Supreme Court could have avoided the constitutional infirmity in this case.
Chief Justice Warren E. Burger: Well, then you don't complain about the rate of the workout, that this $5.00 a day if he goes home at night.
Is that it?
Mr. Stanley A. Bass: If he goes home at night, I think there maybe some question about whether or not $5.00 a day comports with a reasonable rate.
But certainly, $5.00 a day --
Chief Justice Warren E. Burger: Are you raising that here or not?
Mr. Stanley A. Bass: We do raise it.
But what we have it in this case is $5.00 a day not for the workday but the pleasure of his company during the night as well, and that certainly, under those circumstances, that's certainly not compensatory, certainly unjust compensation for -- not only taking his labors during the day but having him around at night too against his will.
Chief Justice Warren E. Burger: But you don't consider the compelled presence and requirements of work in the day -- daytime hours as a form of incarceration?
Mr. Stanley A. Bass: Well, we had originally suggested that the alternative of allowing the man to go out on his own is to be preferred.
But we're willing to acknowledge that there maybe situations where a person is unable to get a job, where the state is unable to get a job for him, do an employment service.
And as a last resort, the state might want to give him the public works program, the job.
They could make him work at the hospital or a boy's club or at the work farm.
But our point is what the state has done is much more onerous here.
Justice William J. Brennan: What -- suppose this was a civil case and he had cost, what does Illinois do?
Mr. Stanley A. Bass: Illinois does not imprisonment for nonpayment of cost in civil case.
It will clearly have an irrational discrimination here.
One can hardly think that costs are necessary to enforce a criminal law.
Justice Potter Stewart: You were suggesting I take it, just a moment ago, that there were circumstances under which the state could keep the man in jail around the clock, weren't you?
Mr. Stanley A. Bass: Well, I wasn't suggesting that.
But I can envision the possibility where after an adequate inquiry is made, it's determined that there's very, very, real probability that they let him out to go to the job during the day and they'll never see him again.
Justice Potter Stewart: Well, let's assume he refuses to work.
Mr. Stanley A. Bass: If he refuses to work, that might well be the contumacious type of conduct that could lead to remitting him to incarceration.
Justice Hugo L. Black: Mr. Bass, if that's true --
Justice Byron R. White: As a substitute for the fine?
Mr. Stanley A. Bass: Not as a substitute for a fine but as a means of collection or as a means of getting him to be willing to go and work.
Justice Byron R. White: You're position is you ought to -- all you want probably is money although it limits your remedy to that as long you think you can get it, as long as there are some chance of getting it.
Now, what if there is no chance of getting it, is there then --
Mr. Stanley A. Bass: Well, the state can provide the job.
If he absolutely sits down at the job --
Justice Byron R. White: What if he won't work?
Mr. Stanley A. Bass: Well, if he absolutely refuses to work, that is contumacious conduct.
That's a complete refusal to be cooperative.
Justice Byron R. White: Well then, what could state do?
Mr. Stanley A. Bass: Well, under those circumstances, the state might do, but it does with respect to a person who has the funds and that is say, you sit unless you work or pay.
Chief Justice Warren E. Burger: There was separate proceeding for that to determine this, the factual situation?
Mr. Stanley A. Bass: But not under the Illinois statute.
That's the problem.
No provision has made for any kind of inquiry or hearing or factual evidence to determine whether or not the defendant is refusing to pay or refusing to work, refusing to comply with his obligation.
Justice Byron R. White: Would you say that the state, in order to satisfy his obligation, he would always purport that incarcerating then 24 hours a day would have to offer him work?
Mr. Stanley A. Bass: Well, our position is that--
Justice Byron R. White: Would he work by the state?
Mr. Stanley A. Bass: Our position is that where liberty is involve, that the state is obligated to utilize alternatives rather than automatic remission to jail.
Justice Byron R. White: Well, I understand but how about that alternative, are they obligated to use that one too?
Mr. Stanley A. Bass: Well, the alternatives that we would suggest would be first, straight installment payments.
An economy that's based upon time payment, that's certainly not strange.
Secondly, garnishment, that is once he goes out, automatically seize a portion.
Third, possibility is to utilize a state employment service to find a job for him.
The last one would be to put him on the public works job, whether that would be out in the farm or out in the workhouse.
That's the last the last one.
Justice Potter Stewart: But what if no jobs are available in the community that he can get, must the state furnish him the opportunity to work on its own payroll?
Mr. Stanley A. Bass: Well, we think that it's unrealistic to think that there is no work at all these days, but if it were shown -- evidence did show that it was impossible to place him anywhere, we think that it would be permissible to require him to work at a designated place during the day.
Justice Byron R. White: Well, permissible yes.
But the state says, we don't want him, we better put him in jail.
We haven't got any place for him to work.
Mr. Stanley A. Bass: Well, it's our position that the interest of the society do not justify such as onerous exaction, such an imposition upon the liberty of the defendant.
It's interesting to note that the state which talks in terms of these alternatives really administratively feasible for a stance of cost is that administrative convenience is not a sufficient ground for such an onerous exaction.
But the second one is that Illinois, by passing a work release program has itself recognized that these alternatives are feasible.
Of course, there's one glaring defect in the Illinois work release program as applied to the person who is incarcerated for nonpayment of fine.
That's triple punishment.
Defendant is required to serve his year in jail, pay his fine with the earnings he gets during the day but he sits in jail at night.
And there's absolutely no justification why a person should have to sit in jail at night when he is out there during the day working off his fine.
Justice Thurgood Marshall: Mr. Bass, going back to this case, is there anything of this record that shows that his incarceration beyond the year is any different from a man being sentenced to two years?
Mr. Stanley A. Bass: Well, if I understand your question Mr. Justice Marshall --
Justice Thurgood Marshall: Well, for example, the release on work applies to a man that's serving the sentence of just one year and nothing else.
Mr. Stanley A. Bass: That's correct.
It applies to straight jail sentence.
Justice Thurgood Marshall: This is nothing just where people are put in because they couldn't pay a fine.
Mr. Stanley A. Bass: That's correct.
Justice Thurgood Marshall: So what is the basis of this argument?
I thought your argument was that put them in jail beyond the one year period solely because he was broke, was unconstitutional.
Mr. Stanley A. Bass: Right, let me explain that.
Justice Thurgood Marshall: Please.
Mr. Stanley A. Bass: With respect to a person who is doing a straight jail sentence, he's certainly receiving quite a benefit to be told that he can obtain some liberty during the day and he can hardly complain of that.
But the person who is being incarcerated for nonpayment of fine, the only interest that the state has is his money.
When they let him go out during the day to get that money, may then have completely undermined that by saying he must come back to jail at night.
There is no rational justification.
Justice Thurgood Marshall: Well, getting back to this case, is he out or in?
Mr. Stanley A. Bass: Williams?
Justice Thurgood Marshall: Yes.
Mr. Stanley A. Bass: He's out.
He was bailed by the Illinois Supreme Court.
Justice Thurgood Marshall: He was bailed out.
Mr. Stanley A. Bass: Yes.
Justice Thurgood Marshall: So how does the work release program come up?
He might never qualify for it.
Mr. Stanley A. Bass: Well, as to Williams, of course, the work release program was passed by the legislature effective January 1969 and all of the Williams proceedings occurred in 1967.
I was addressing myself to in the event that it were applicable to him or other persons similarly situated what the effect would be, and my point was that the work release statute shows that the administrative convenience argument doesn't hold up.
And secondly, that there's a glaring defect in it because it requires night time incarceration so which does no rational justification.
Justice Thurgood Marshall: Does it also require that he pay room and board?
Mr. Stanley A. Bass: That adds in injury by making a $3.50 a day.
Justice Potter Stewart: I don't -- perhaps you told us, but if so, I didn't get it clearly.
As I read the Illinois Revised Statute 1967, Chapter 38 Paragraph 180-6, its language would seem entirely to take care of your claim, however, I understand that it's been construed by the Illinois Courts in such a way as to mean something other than what it seems rather clearly to say.
Mr. Stanley A. Bass: Well, we certainly thought that the language of the statute could be interpreted literarily and would be granted for discharge.
Justice Potter Stewart: And how has Illinois suit reviewed? How the Illinois Courts construed it?
Mr. Stanley A. Bass: They've construed the language until all the legal means have been exhausted to mean that the defendant either must show, he's physically unable to work which is the Goldstones case and People versus Hardenbergh.
Or that no work is provided for him.
Now, there's always housekeeping available.
In fact, the record shows, the jail record of Williams is included in here on page 33 of the record.
And it does show that when he was serving his jail time, he worked in the laundry and he worked in the tailor shop and he worked in something beginning with 'K' which I think is the kitchen.
So that, all people that are in jail have the opportunity to work.
So person who is serving off or working off a fine is not going to be doing anything differently.
The state has attempted to suggest that the policy of deterrence requires the result reached in this case.
We dispute that contention for the following reasons.
First, the fact the Illinois is going under 180-6 to discharge a persons who are unable to work or for whom no work is provided is an indication that automatic incarceration of everybody who don't pay fines, not necessary to the enforcement of the criminal law.
We submit that the fine is certainly a different order of punishment than a jail sentence.
If the trial judge wishes to individualize the sentence, imposed a fine because he feels that the interest of society require no more than a fine.
It's inconsistent with that trial judge's determination then to have the defendant sitting in jail.
Justice Byron R. White: Are you arguing this is an equal protection matter or a due process involved?
Mr. Stanley A. Bass: There really a blend of equal protection and due process, almost all of this Court's criminal procedure --
Justice Byron R. White: How would you define your equal protection position?
How do you frame it?
Mr. Stanley A. Bass: We frame it in terms of the fact that the indigent is required to spend more jail time than the person with funds.
The fact the indigent defendant despite his willingness to work is deprived that the opportunity to payoff the fine but rather remitted to incarceration.
Justice Byron R. White: That's the consequence of the economic necessity to go into that kind of a –
Mr. Stanley A. Bass: Well, there is more to it than that.
There is a due process aspect to this extent that the state seems to be conclusively presuming that incarceration is necessary because the person might run away and they lose the risk, so to speak, and he'll run away from the job and he won't be around to pay the fine.
That type conclusive presumption in the absence any showing, any hearing, any inquiry, certainly doesn't comport with fundamental principles.
So, to that extent, there is this blend of Due Process into the Equal Protection.
The state's attempt to justify this 24-hour day incarceration for fear that some people might skip is not based upon any evidence.
Certainly, not in this record and I take it the state this arguing in a broad proposition that they're entitled to incarcerate somebody around the clock in any case regardless of the fact that a felon may come in and say, “Well, look, I have great possibility of getting a job.
I could earn enough funds in perhaps a week or two to pay off this fine.”
But -- and the state says, it wants the revenue from collecting these fines, and yet that state does precisely by incarcerating the person and depriving him the opportunity to go out to work.
Chief Justice Warren E. Burger: Did you put in the evidence in this case what the reasonable value of services would be in the place of $5.00 a day?
Mr. Stanley A. Bass: Well, there's no evidence in the record to that effect.
Chief Justice Warren E. Burger: Would that, in your judgment, as a constitutional matter, would that have to be tailored to his capacities or could the Illinois legislature fix another figure such $16.00 a day or based on the minimum wage which I guess is a $1.60 times eight hours.
Mr. Stanley A. Bass: Clearly, the evaluation is a legislative matter.
However, there is a point when 24-hour incarceration for $5.00 a day is so obviously unjust compensation as to render it on Constitution because we have to remember that the defendant here is being kept for longer than the work day.
Chief Justice Warren E. Burger: Well, my problem with your argument counsel is that I can understand someone rationally fixing a rate for his services.
I have some difficulty seeing how you put a rate on his liberty by the hour.
You seem to imply that they might rationally fix some X dollars per hour for depriving him of his liberty.
Where is your basis for doing that?
How do you measure the value of a man's freedom?
Mr. Stanley A. Bass: Well, it seems to me that the remission to incarceration at a certain value is the last resort.
It's our submission in this case that the state should have done something before they resort to that alternative.
And the state didn't.
Despite the fact that the defendant said he could go and get the money on his own, the state wouldn't have to keep him in jail and to work off the fine at whatever value they assigned.
He said that he could go out and get that money.
And the state instead of even inquiring into the credibility of the weights of those contentions which the state did not meet simply denied the petition without evidentiary hearing.
And the Illinois Supreme Court rather than adopt the type of construction that could save the statute, simply said, there is no denial of Equal Protection when an indigent is required to work off his fine.
The heart of this thing is that there is no equivalent between the rich man's choice that is whether anyone is to pay or sit in jail and there are some people who would like to do that.
And the exactions on the indigent requiring him to sit in jail, that is simply an inequality and that is (Inaudible).
I'd like to save a few moments for rebuttal, if I may.
Chief Justice Warren E. Burger: Well then, thank you.
Argument of James R. Thompson
Mr. James R. Thompson: Mr. Chief Justice and May it please the Court.
In 1927, Mr. Justice Holmes referred to the Equal Protection Clause as the last resort of constitutional arguments.
Reading the opinions of this Court will show that we have come quite a ways since that characterization.
In fact, Judge Skelly Wright of the United States Court of Appeals for the District of Columbia recently referred to the Equal Protection Clause as the cutting edge of our expanding constitutional liberties.
One of the issues that's involved in this case before the Court today is whether that cutting edge will press so deeply not only into the statutory scheme in the state of Illinois, the statutory of scheme of the other American states in the Federal Government, to compel those states and the Federal Government to adopt the system of criminal justice administration.
Greatly different from that which they have adopted by the legislative process in the name of the explication of the Equal Protection Clause.
I think we should consider at the outset what some of the interests are in considering the context or setting of the Equal Protection argument in this case.
As Mr. Justice Brennan referred to it in the concurring opinion of Allen versus Illinois just some weeks ago, the constitutional claims must be considered in context.
And we think the context of the Equal Protection claim here is an important one.
First, the history of incarceration to work off a fine which cannot or will not be paid is an ancient one far outdating the American legal system.
Mr. Justice Black said in his opinion for the Court in Kotch versus the Board of River Pilots some years ago and in a dissenting opinion in Harper versus the Virginia Board of Elections, the history of a practice in important in considering whether or not that practice violates the Federal Constitution.
Similarly, the widespread usage of a particular feature of a criminal justice system by the states and by the Federal Government is also important in assessing its validity under the Federal Constitution as was noted for the Court in the opinion in Roth versus the United States for the fact that not only in all American jurisdictions and the Federal Government ban the dissemination of obscenity but most of the civilized nations of the world did as well, we think it's equally relevant then to consider in the context of whether or not Equal Protection has been violated here, that all of the states of the Federal Union for years and years and years and the English Government before that have allowed the incarceration of those who cannot or will not pay their fines until the fines has worked off.
The impact of this Court's holding that the Illinois system is unconstitutional must also be considered, we believe, for this Court to decide how far they will take the Equal Protection Clause because if the challenge to Illinois statute is successful in this Court today, similar challenges will follow.
Challenge to the bail system, the claim that the requirement of a monetary bail in any case is irrational.
If other factors will show or seek to persuade that the defendant will not flee.
Justice Byron R. White: How many states have got a statute, where the Illinois statute here, or as construed, the Illinois statute is construed?
Mr. James R. Thompson: At least 48, Your Honor.
Justice Byron R. White: 48?
Mr. James R. Thompson: At least 48.
Justice Hugo L. Black: Which of the two do not have it?
Mr. James R. Thompson: Well, New York has a statute where there is to be a hearing on the question of whether or not the indigent can pay the fine and if he cannot pay the fine, they go back and re-sentence and they don't follow exactly the same procedures in Illinois and I'm informed by counsel in the case that you are to here following this one that Maryland has recently changed its statute in light of the opinion below in the Schoonfield case.
But to my knowledge, all the rest of the states of the American jurisdiction have statutes similar to Illinois so as the Federal Government.
Justice Potter Stewart: Many of them, as I understand it, do not -- I have so -- do not have Illinois as the provision that Illinois has that if a man in fact is unable to work off his fine, he must be released and am I not right that many states to apply that sort of a release --
Mr. James R. Thompson: Illinois' policy is more benign in this regard because Illinois does allow discharge where no work is available or where his physically unable to work.
Justice Potter Stewart: That's what I thought.
And many of those other 47 states do not.
Mr. James R. Thompson: That's correct.
Justice Potter Stewart: Am I mistaken about that?
Mr. James R. Thompson: That's right.
That follows, I think, our policy of regarding the incarceration for failure to pay this fine as the equivalent of the collection of money by collecting in labor and obviously if we can't collect in labor, the man has no business in jail.
But some other states justify incarceration in lieu of payment of fine on an alternative punishment theory and since they don't depend upon the collection of revenue theory, it's easy to see why they don't discharge for failure to provide work.
Justice Thurgood Marshall: But in this case, if the statute said one year, maximum of one year period and the judge thought that this was a horrible case, and the man said get more time.
He couldn't get him for about a year.
Mr. James R. Thompson: He could not.
Justice Thurgood Marshall: But if the statute says as it does here, the year and a $500.00 fine, the judge -- it's undisputed the judge knows this man is a pauper.
Mr. James R. Thompson: I think that's a fair inference to draw.
Justice Thurgood Marshall: Well he had his -- I assume he had probation.
I mean he had a sentencing report, I'd assume so.
And so he says, well I can't give this man any more time but I can give him a hundred more days by merely giving him the $500.00 fine.
On the other hand, if the probation report said that this man is a millionaire that has a hobby of stealing, he couldn't do it.
Mr. James R. Thompson: A judge could say that, Your Honor.
The record does not reflect Judge Giles said in this case.
Justice Thurgood Marshall: Well, I mean the judge couldn't give that man a hundred more days.
Mr. James R. Thompson: That's correct, he could not --
Justice Thurgood Marshall: No way under the sun.
Mr. James R. Thompson: That he could not give him an additional 101 days as punishment neither could he give the indigent man an additional 101 days as punishment.
Justice Thurgood Marshall: What he gives him?
Mr. James R. Thompson: He could simply impose a fine which --
Justice Thurgood Marshall: Which he knew he couldn't pay.
Mr. James R. Thompson: Which he knew he couldn't pay.
Justice Thurgood Marshall: And you don't think that's giving him a hundred days.
Mr. James R. Thompson: No sir.
We do not equate that 101 days it takes to work off the fine to give the state your labor for 101 days as the equivalent of 101 days of straight punishment under the statute.
Justice Thurgood Marshall: The difference being?
Mr. James R. Thompson: The difference being that in one case, he is in there to give the state the value of his services.
Justice Thurgood Marshall: But in both cases, he's in the same jail.
Mr. James R. Thompson: That's correct.
Justice Thurgood Marshall: In the same cell?
Mr. James R. Thompson: Yes sir.
Justice Thurgood Marshall: But after the one year, he's serving something different.
Mr. James R. Thompson: In terms of the theory of why the state has in there, that's correct.
Justice Thurgood Marshall: The theory?
What about the man's theory?
He's in jail.
Mr. James R. Thompson: Well in terms of what happens to the man, obviously there's no difference between the two.
Justice Byron R. White: Do you do different work after the one year?
Mr. James R. Thompson: Not necessarily.
Justice Byron R. White: Why do you keep him overnight?
Mr. James R. Thompson: Well, I suppose one reason we keep them overnight --
Justice Byron R. White: If your theory isn't some substitute kind of punishment, but you're really just collecting your fine.
Mr. James R. Thompson: Yes.
Justice Byron R. White: If he doesn't work for night and day, I suppose, why don't you let him go when he isn't working?
Mr. James R. Thompson: I don't think I have nothing the record to support this but I don't think that the value of work off system insofar as it applies to a jail system, considering the people who are convicted and have no money to pay their fines who would stand very long if they were permitted to be released at night.
I think there would be a substantial percentages of failures to return to the jail during the day.
Justice Byron R. White: But Illinois, in taking this approach currently would keep a person as long as necessary to work off the fine at that rate.
Mr. James R. Thompson: No sir.
Justice Byron R. White: Even though the -- what's the --
Mr. James R. Thompson: Illinois has a maximum limitation of six months no matter what the fine is.
It cannot serve longer than six months in the working off with the fine.
Illinois is one of the few states to have such a maximum period.
Justice Byron R. White: But he -- he will stay -- he can't stay in jail more than six months beyond the maximum term of imprisonment for the offense.
Mr. James R. Thompson: No, no he can -- if he is given the maximum term of imprisonment for the offense, he would stay in jail beyond that maximum term only for so long as it takes to workout the fine for $85.00 a day or six months, whichever is greater, whichever is less.
Justice Byron R. White: So he can stay in jail six months longer than the maximum term of --
Mr. James R. Thompson: Yes sir.
Justice Byron R. White: -- imprisonment.
Mr. James R. Thompson: That's correct, that right.
Now, in the brief of the appellant, an attempt is made --
Chief Justice Warren E. Burger: Before you get to that counsel, how far back is the $5.00 a day measure go?
Mr. James R. Thompson: I think that --
Chief Justice Warren E. Burger: Can you go over from an old statute?
Mr. James R. Thompson: No sir, back in the early 1900s, the rate was $1.50 a day.
I'm not sure precisely how far back it goes but I think it's relevantly recent, $5.00 a day provision.
And it's among the highest in the country in terms of work off statutes.
I think only a very few states have a higher rate, $8.00 or something like that I think being the maximum.
Most of them averaging around $5.00 or in some cases even less.
Ohio recently declared unconstitutional the $2.00 a day, I believe.
But they vary.
But Illinois is fairly high up in the list.
Justice Byron R. White: Do you charge him for his board room?
Mr. James R. Thompson: Not under the work off system as such, I think it's probably reflected in the value of his labor, in other words, we're not saying your labor is only worth $5.00 a day to as we're probably really saying to him that your labor is worth at least $11.00 a day to us because it costs about $6.13 to keep him.
Justice Byron R. White: When he's serving his year.
Mr. James R. Thompson: Yes.
Justice Byron R. White: When he's serving his initial year, you got a year here?
Mr. James R. Thompson: That's correct.
Justice Byron R. White: Did it work?
Mr. James R. Thompson: I think his record in the appendix reflects that he was assigned to the tailor shop or the kitchen so I presume he worked.
Justice Byron R. White: Which is the same as he was assigned after that?
Mr. James R. Thompson: I presume that's correct.
Justice Byron R. White: Why doesn't he get credit on his fine for that work?
Mr. James R. Thompson: Well, I suppose on the theory that it's a sort of consecutive sentence idea.
I mean if he were convicted say of two crimes, defendant under Illinois law could be sentenced consecutively.
Justice Byron R. White: Well, what would have to go -- while he's serving his year, assume he refused to work?
Mr. James R. Thompson: During the first year?
Well, I assume he might be put into the disciplinary cell or subject to discipline of some kind or loses good time, probably, most likely a remedy that will be employed.
If he refused to work, if he refused in his lawful assignment in the prison system, I assume he would lose his good time.
That would be an incentive for him to work.
Justice Byron R. White: But why?
What good reason is there for not crediting the work he does during his regular prison term on his fine?
The state is collecting that value from him.
Mr. James R. Thompson: Yes it is.
I assume though that the state is entitled to put its regularly sentenced prisoners to work even though no fine has been imposed and as an incidental benefit to the state, flowing from the year's imprisonment, they're entitled to collect that labor.
Justice Byron R. White: Do you pay people for working in your --
Mr. James R. Thompson: There are some projects in the city jail which prisoners may obtain a small amount of paid form even though they're not working out fine.
Although sometimes the pay is in the form of privileges or tobacco or things of that sort but it's really not a reimbursement scheme and such.
But to answer your question, I think that if the man was sentenced simply for a year in jail, the state is entitled to exact that year in terms of his time in the normal theory of a jail punishment and they're also entitled to the benefits of his labor, I think during that period.
But the sentence in this case was a year in jail and a fine of $500.00, a sentence permissible under Illinois law, sentence which is not challenged in this Court on grounds of constitutionality or rationality.
The state is therefore saying to Willie Williams, we are entitled to keep you in jail for a year to derive whatever incidental benefits flow to the state from that year of service in jail and we are also entitled to collect from you a $500.00 fine or its equivalent in labor.
And I don't think it's irrational for the State of Illinois to say that in so far as the collection of the benefits from the labor are concerned, they must be served separately.
In other words, that the fine work off must follow the year's work off and that he need not, under a rational scheme of prison administration, be given credit for the fine work off during the course of the first year.
Justice Hugo L. Black: They in fact show an indigent is forced to serve a lot of time that a man who's not an indigent would not have to serve?
Mr. James R. Thompson: Well, a man who was an indigent must work off his fine in the same jail that men go to who are sentenced.
Justice Hugo L. Black: Same jail but you don't have to work off his fine at the same jail that the millionaire would have to work it.
Mr. James R. Thompson: As a millionaire, who pays his fine, that's correct.
Justice Hugo L. Black: Well, that's the difference practically speaking.
Mr. James R. Thompson: That's true.
Justice Hugo L. Black: And that's your real issue.
Mr. James R. Thompson: That's true.
The question, that that raises, is does that violate the Equal Protection Clause?
And that was the question that was raised in the brief and that is a question which this Court has never really considered.
And I'd like to turn for my remaining moments of argument to an examination of how this Court's previous cases, setting forth what the requirements of the Equal Protection Clause are that touch this case.
Obviously, the traditional test that this Court has talked about in Equal Protection cases is what class has the state set up?
In this case, those who do not, for whatever reason pay their fine.
What scheme has the state adopted to deal with that class?
In this case, the work off system.
What interests of the state does that scheme serve?
In this case, transit crime by preserving the value of fines and the Courts which impose fines as a component of our criminal justice system and the collection of revenue which fines bring in.
The final question under the traditional test, does the state's scheme rationally relate to the end result which they seek to achieve?
And in this case, we say it does because the work off system of Illinois offers the opportunity for the state to keep its fine system viable and at the same time to collect the equivalent of fine and the labor of the defendant.
Justice Byron R. White: What is Illinois' collected fines usually?
Mr. James R. Thompson: I'm not certain Your Honor but it's certainly in the high millions of dollars when you count in the fines collected by the Courts which handle cases in which the fine is the only punishment, including traffic offenses.
I'm sure it's in the high millions and as a practical matter, offers the source of support for those Courts which enforce misdemeanor and petty offenses and traffic offenses without the revenues derived from the imposition of fines.
Especially in traffic cases, it would be extremely difficult for the State of Illinois under its present budget to support those Courts.
Justice Thurgood Marshall: Mr. Thompson, I assume that the jails are overcrowded in Illinois lately than place else.
Mr. James R. Thompson: Not necessarily, Mr. Justice Marshall.
Justice Thurgood Marshall: Really?
Mr. James R. Thompson: It adds and flows -- I was out to the Bridewell Jail just a few weeks ago and they are not overcrowded in the Bridewell.
It depends on a number of factors, sometimes they are overcrowded, sometimes there is space available.
Justice Thurgood Marshall: You mean, the need as to workers?
Mr. James R. Thompson: No, but crime doesn't follow a steady pace.
Justice Thurgood Marshall: Do you think that the statute in Illinois was passed putting a head tax on everybody of $100.00 a year and all who didn't pay it went to jail, would be valid?
Mr. James R. Thompson: Well, I think the State of Illinois would be entitled to impose a tax, a revenue collecting tax on all of its citizens and to provide some means for alternative collection if the man failed to pay it.
Justice Thurgood Marshall: The man that couldn't pay it?
Man that couldn't have a $100.00 in his life, you could put him to jail because he didn't have $100.00.
Mr. James R. Thompson: We could extract the value of his labor and services to the state and if necessary, to accomplish that objective --
Justice Thurgood Marshall: Do you think that's true in the year of 1970 to put a man in jail because he doesn't have money?
Mr. James R. Thompson: Well, I would draw a distinction, your honor between your hypothetical in my case for this reason.
We're not dealing in the Williams case with an ordinary citizen who has been taxed and who has failed to pay.
We're dealing with a man who has committed a criminal offense, has had a trial which was presumably fair, has been found guilty and has been sentenced to a criminal fine.
Now, I think the state is entitled to draw different assumptions with regard to Willie Williams and what is necessary to extract the value of his services than it is with a taxpayer.
Justice Thurgood Marshall: What's the difference between Willie who doesn't have $1.75, paying the tax or paying the fine?
Mr. James R. Thompson: Well, the difference is simply I think that the state --
Justice Thurgood Marshall: The state doesn't need the money that he has, is that correct?
Mr. James R. Thompson: Well, I think on the broad scheme -- on the broad scale, you could certainly say that they do.
Justice Thurgood Marshall: Well, didn't the judge, when he sentenced this man know that he wasn't getting a single dollar out of Willie?
Mr. James R. Thompson: Well, I'm sure --
Justice Thurgood Marshall: Didn't he?
Mr. James R. Thompson: I'm sure he presumed that Willie Williams is not going to come up with $500.00 in cash, that's right.
Justice Thurgood Marshall: All he wanted was to extend the one year sentence, that's all he was interested in doing.
Mr. James R. Thompson: I don't think that that is necessarily a motive which you can ascribe to the judge.
Justice Thurgood Marshall: Well can you give me any other one?
Mr. James R. Thompson: Yes, I think he was saying that the circumstances of Williams' crime, whatever they were, and the record does not show it, warranted the maximum penalty provided for by law.
Justice Thurgood Marshall: Which is a hundred -- so far as jail was concerned was a hundred -- one year.
Mr. James R. Thompson: That's correct and then so far as the fine is concerned, the maximum fine.
Justice Thurgood Marshall: So, he sentenced him to one year and 100 days.
Mr. James R. Thompson: That is the net result of the sentence, that's correct.
Justice Thurgood Marshall: And you don't see anything wrong?
Mr. James R. Thompson: No sir, I don't.
Justice John M. Harlan: What effect, suppose we were to hold, just assuming we were to hold that that provision is unconstitutional because it denies equal protection.
Mr. James R. Thompson: Yes sir.
Justice John M. Harlan: In fact, although it does not do so theoretically, but in fact, what are we to hold?
What effect could it have on the administration of the law in Illinois?
Mr. James R. Thompson: I think the extraordinary effect on the administration of criminal justice, not only in Illinois but in all the states.
Justice John M. Harlan: Where would it be?
Mr. James R. Thompson: In several areas, first, a holding of that time would necessarily take this Court far beyond the rationale of Griffin versus Illinois which provided for the first time that the state must attempt to remedy the imbalance between the poor and the rich, so far as the administration of criminal justice is concerned.
But the impact to that opinion so far has always been confined by this Court to those stages of the criminal justice process which determined guilt or provide for a first appellate review of guilt.
This Court has been very, very hesitant, in fact has not at all taken the rationale of Griffin beyond those narrow bounds.
It seems to me that --
Justice John M. Harlan: I'm trying to find that I would block the state of Illinois is in anyway, I wouldn't talk about rationale and (Voice Overlap).
Mr. James R. Thompson: Well, alright.
Justice John M. Harlan: I will not -- how will it really affect the administration of the law in Illinois?
Mr. James R. Thompson: This is what it would do.
Justice John M. Harlan: Adversely.
Mr. James R. Thompson: As to those cases where the only penalty provided by law was a fine --
Justice John M. Harlan: Which could be changed.
Mr. James R. Thompson: Which could be changed except that that would have an extremely harsh impact on the administration of criminal justice because --
Justice John M. Harlan: Why would it?
Mr. James R. Thompson: Well, in the traffic area, for example, a state would be low to provide that the only possible penalty that could be imposed in a traffic case was a jail sentence.
I think we would have chaos in traffic law enforcement.
And I think the same would be true in a number of petty offenses and misdemeanor cases.
Justice Thurgood Marshall: Well, that's getting to what I was talking about.
Mr. James R. Thompson: Right.
The second thing that it would do is that it would encourage spurious claims of indigency and that it would impose on the Court's least able to handle it, a burden of determining something new in a case, not only must they first determine guilt, but after determination of guilt, if there was a claim on indigency and that a fine could not be paid, they would have to hold a hearing to determine whether the man was in fact indigent.
Now, it's one thing to require a hearing of that sort in a criminal court where the issues is does he have the money for a transcript on appeal or a lawyer on appeal where the judge may have on his call one or two or three or five cases a day.
It's quite another thing to say for example to the Municipal Court of Chicago, in a traffic case where a judge may have two or three or 400 cases on his call per day that whenever he is confronted with the claim of indigency, he must stop and determine that fact in order to decide whether or not the defendant is going to have to work off his fine under the Illinois work off system.
Justice Thurgood Marshall: I preclude that that's true.
There are few in the illustration you've mentioned, to driving automobiles around to the country, couldn't pay a $5.00 fine.
Mr. James R. Thompson: I'm not so sure that's true, Your Honor because first, suppose the fine was substantially greater than that --
Justice William J. Brennan: Well, do you have any statistics, how many traffic offenders who can't pay their fines are required for work off?
Mr. James R. Thompson: No I don't, no I don't.
Justice William J. Brennan: Do you know that this actually happens?
Mr. James R. Thompson: Yes I do, it does actually happen but the percentage figures I don't have.
I think it happens fairly often, I think it happens fairly often.
Justice Thurgood Marshall: I had some experiences of prosecutions in my state.
I do not recall a single one where they were not able to pay except somebody who had stolen the car or something of that nature.
Mr. James R. Thompson: Well, Your Honor I think --
Justice Thurgood Marshall: What this amounts to, which has to be paid is that it imposes a punishment upon a man who has no money, cannot possibly be imposed on a man who has money.
Mr. James R. Thompson: Well, if I accept it Your Honors.
Justice Thurgood Marshall: Isn't that right?
Mr. James R. Thompson: If I accepted your premise, I would agree with you.
I cannot, under the terms of my argument, accept the premise that it imposes initial punishment.
Justice Thurgood Marshall: But I' not talking about the premises.
I'm talking about terms of fact.
Mr. James R. Thompson: In fact, he goes to the same jail as a man who is sentenced to a straight jail term, that's correct.
And in fact as a man pays his fine, he does go to jail.
Justice Thurgood Marshall: In fact, it amounts sending a man to jail without his fine and who is indigent, you do not send a man to jail who has money and is not indigent.
Mr. James R. Thompson: And who pays the fine, that's correct.
Justice Thurgood Marshall: That's right.
Mr. James R. Thompson: That's correct.
Justice Thurgood Marshall: That's what it results.
Mr. James R. Thompson: That's just what happens.
Justice Thurgood Marshall: And the question is, does that violate the Constitution?
Mr. James R. Thompson: It does not violate the Constitution because under this traditional Equal Protection test which this Court has set up, if we shown irrational class, those who do not pay, rational state objectives to be achieved in a rational connection between the two of the work off system.
It doesn't violate Equal Protection even though it may treat some people differently than others.
But even if we move beyond that traditional test, as this Court has moved in some areas.
For example, in the Shapiro case, testing whether or not a one year's residency require it for welfare, violated the Equal Protection Clause where Mr. Justice Brennan said that in cases involving the exercise of constitutional right, you have to show a compelling state interest, not merely a rational relationship or some other cases which have essentially used a balancing approach to the advantages gained by the state, outweigh the disadvantages to the defendant.
We believe that the interest of the State of Illinois and the rest of the states of the union, in preserving the idea that this does not violate Equal Protection, this and allied practices such as the area of bail, is so strong that it outweighs the disadvantage to the indigent defendant even if the test is compelling state interest or the balancing of advantages to one side.
Justice Thurgood Marshall: I'm going to state your balancing in a little different way.
Let's forget about the theories.
What you're saying is that the state has such a compelling interest in making indigent serve time that no one else has to serve in the state.
It has simply brought the state's efforts to fall.
Mr. James R. Thompson: I think that if this Court were to hold that indigency excused a man from incarceration under the work off system, that the threat to other state interests, including the maintenance of the whole fine system, the maintenance of the Courts which enforce the fine system, especially in those cases where the fine is the only penalty and the maintenance, the monetary bail system and the potential saddling of all those Courts with spurious claims of indigency which do not now arise because a man knows if he doesn't pay his fine, he's going to jail to work it off, are so compelling that they outweigh whatever disadvantages there are in sending an indigent man to jail to work off his fine.
Justice Thurgood Marshall: I have a hard time convincing the indigent is that reasonable but --
Mr. James R. Thompson: We probably would.
Justice Byron R. White: And the federal system, do you know what the statute is?
Mr. James R. Thompson: Yes, Your Honor, the man goes to jail for no more than 30 days in lieu with paying off the fine.
The Federal Government has it too.
Justice Thurgood Marshall: All for hearing on it?
Mr. James R. Thompson: I beg your pardon?
Justice Thurgood Marshall: Is there also a hearing before that's done?
Mr. James R. Thompson: Under the federal statute?
Justice Thurgood Marshall: Isn't it?
Mr. James R. Thompson: I'm not sure about it, Your Honor.
Justice Thurgood Marshall: Well in practice, would you -- will it?
Mr. James R. Thompson: In Illinois there is no such, Your Honor.
Justice Byron R. White: Do you think, the intermediate position is also destructing your statement which I gather about putting a man who can't pay his fine immediately, putting him on probation (Inaudible) and he would work outside, I take it that is a provision in Illinois.
Mr. James R. Thompson: Well, we do.
Justice Byron R. White: And I suppose that work offs may be cheaper and more efficient way of control but what's so destructing about state interest when a felon says, “I got a job, I can get a job and I will work to pay in installments.
And I'll be on probation which is more than every week?
Mr. James R. Thompson: Well, there are two considerations, I think Mr. Justice White, if we're going to consider the question of alternatives to the work off system which are thought to be less onerous to the indigent defendant than the work off system.
The first question which arises is, is it within the province of this Court to examine whether there are viable alternatives?
Or must this Court, in an Equal Protection case refrain from deciding what is a wiser, what is a more humane, what is a more just system of the enforcement of the criminal laws.
Justice Byron R. White: Well, I know but you are talking about state interest.
Mr. James R. Thompson: Yes sir.
Justice Byron R. White: A compelling state interest.
Mr. James R. Thompson: That's correct.
Justice Byron R. White: And if there is a viable alternative why they'd put your (Inaudible) about compelling state interest (Inaudible).
Mr. James R. Thompson: Well, I'm not sure.
If we were -- if we were following the traditional test of Equal Protection cases, we would not stop to inquire whether there were in fact alternatives.
But if we are following what's been called the balancing test or the compelling state interest test, I'm not sure even there that the same rule doesn't carry over.
In other words, if this Court can find a compelling state interest which is carried out by a rational scheme which the state has selected, we think the work off system, standing by itself is a rational scheme.
Then I'm not so sure that even in a compelling interest case, if this is one.
That this Court can say, but we will strike down the rational scheme because there are other rational schemes which contain less disadvantage to the defendant.
As this Court said just a few weeks ago in the Dandridge case talking about the maximum grants on welfare payments.
The language of Mr. Justice Stewart, reiterating again words which have been used for years in equal protection cases.
It may well be that there are other policies which are available at the State of Illinois but the question is, can this Court, under the Equal Protection Clause make the state used.
In Illinois, as this Court sits today, we have a legislature sitting and we have a constitutional convention sitting.
And I think the arguments of Mr. Bass has made to this Court today are more properly directed to those two bodies.
Chief Justice Warren E. Burger: Mr. Thompson I have a question, it won't take too long I hope.
Is it possible that in considering these various alternatives that a holding along the lines, holding adverse to the State of Illinois in this case, could lead judges to impose direct prison penal sentences without the alternative of a fine and then produce what is a new term to me these days, counterproductive consequences?
Mr. James R. Thompson: I think that's entirely clear.
I think one of the results of such a holding would be that some judges would simply impose maximum jail sentences where they do not now impose jail sentences.
I couldn't say that all judges would do that.
Justice Thurgood Marshall: Well, that doesn't apply to this case?
Mr. James R. Thompson: No sir, it would not apply to this case.
Justice Thurgood Marshall: You gave the over maximum.
Mr. James R. Thompson: In this case, he could not give anymore, that's correct.
Chief Justice Warren E. Burger: Now, my question was addressed to the consequences of a holding, not to any consequence on this particular case.
Mr. James R. Thompson: I think the danger of that as a consequence to the holding is great danger as to the consequence to this holding for the bail system, for the whole system of fines in the Courts which force that question.
Chief Justice Warren E. Burger: Thank you, Mr. Thompson.
Mr. Bass you have five minutes left?
Rebuttal of Stanley A. Bass
Mr. Stanley A. Bass: I don't think I will use that up, Your Honor.
Chief Justice Warren E. Burger: What do you think about this last thing that if you seem to have some spare time, do you think there's a so-called counter productive possibility or potential here?
Mr. Stanley A. Bass: I don't think so, Your Honor.
I think that the traffic courts have utilized the fines as a method of keeping the system supported.
I don't think there's any reason to believe that the traffic courts are going to change their practices overnight.
Chief Justice Warren E. Burger: Well, I wasn't thinking so much of traffic court as the misdemeanor court dealing with behavior not as serious as the behavior involved in this case.
Mr. Stanley A. Bass: I think we're entitled to trust the trial judges' discretion.
If they want to individualize the sentence, they should be allowed to do so.
If they think that a fine is called for rather than imprisonment, they will impose a fine.
If they feel that incarceration is called for, they will impose incarceration.
Chief Justice Warren E. Burger: The matter of your view then I take it is that there is no potential for the -- what I've characterized as counterproductive results.
Mr. Stanley A. Bass: The potential is there but I think we have to test the Courts.
I think the potential will not be realized.
I did want to make an observation with respect to the state's complaint that they'll have difficulty administering these evidentiary hearings going to the financial ability of the defendant.
I'd always thought that was a basic principle of American law that it's not better to let a man rot in jail because it was easier for the state's administrative machinery to have to dispense with hearings.
But besides, the lower court judges right now, under the Illinois statutes conduct inquiries into the defendant's background, etcetera in setting bail.
There's a statute right now that requires such inquiries, so I don't understand how the state is going to be put to any substantially greater hearings that it engages in right now.
Justice Harry A. Blackmun: Well, Mr. Bass, what would you think of an overt system by state or a criminal court system which says where it's determined after investigation that a defendant cannot pay a fine, we just won't impose a fine but we will impose an alternative, what we think is some equivalent jail sentence.
Mr. Stanley A. Bass: That's not an equivalent, that's the problem in this case.
If the state feels that he cannot pay, they still must do something less than putting him in jail.
A fine is not the equivalent of jail.
That is obvious and if the state wants to get the revenue, there are ways of collecting it.
If the state feels that a fine is the type of punishment, that's different from jail.
If that's appropriate, then that's the punishment that the state should stick to.
We're not telling the trial judges what to do.
We're simply talking about the manner in which the state gets that exaction.
If the judge determines money is the sanction that should be the sanction.
I did want to point to a reference in terms of cost, it was estimated that in the City of Chicago between 1907 and 1921, when prison costs were relatively low, the city lost $5 million in uncollected fines and incurred an additional expense in prison maintenance of $5 million, a total cost of $10 million.
Justice Thurgood Marshall: (Inaudible)
Mr. Stanley A. Bass: Well, we don't have those figures.
I'm sorry Your Honor.
I believe that the traffic courts have been granting installments on some occasions but I don't have the exact figures.
But in terms of the cost problem, the economics of it is not so clear at all that the state will be bankrupted by a ruling.
Justice Byron R. White: I suppose that it will be hard to contain that (Inaudible).
Mr. Stanley A. Bass: Well, to the extent to which the offense is punishable by fine only, we would be dealing with the situation of poor people being subjected to a sanction different from the sanction as to rich people.
Justice Byron R. White: So, now you would say that if we agree with you in this case, we agree to the same (Inaudible)?
Mr. Stanley A. Bass: Well, you don't have to reach that in this case, but we would submit --
Chief Justice Warren E. Burger: But we take that step, don't we?
Mr. Stanley A. Bass: We would submit that if the judge determines that -- well, first of all, if the offense is serious enough to warrant incarceration of an individual would seem to underlie a lot of these, letting an indigence to get away with violating the law with impunity.
This legislature has the ability to set up imprisonment as an alternative but if the offense is not serious enough to require an exaction greater than the fine, there's not justification for putting people in jail simply because they don't have the way with all to pay that.
Chief Justice Warren E. Burger: You've almost -- you've almost gone around the circle now on my counterproductive proposition.
You said the legislature might respond by making greater class, number of classes of crimes subject to imprisonment which are now subject only to fines as a response to a holding that you can't have an alternative for a poor man.
Mr. Stanley A. Bass: Well, it's possible that the legislature has always had the discretion to determine what penalties are appropriate for what offenses but we're talking about this situation is an automatic system that puts people in jail without any inquiry whatsoever as to whether or not the money, that the state says is the appropriate sanction, the fine, can be satisfied in the means less onerous.
Justice Potter Stewart: Well, the legislature has done this, isn't it?
It's the legislature that has all these powers, this is exactly what the legislature has done in this case.
Mr. Stanley A. Bass: The legislature has not, according to the construction put on the statute by the Illinois Supreme Court.
The legislature has not allowed these alternatives to work.
The legislature --
Justice Potter Stewart: The legislature has proved, as I understood that this case is about that the Illinois legislature has said that if a person is convicted and he cannot pay his fine, he can be put in jail instead.
Mr. Stanley A. Bass: Well that's what they've said.
Justice Potter Stewart: That's what the case is about and that's -- the legislature has done this, isn't it?
Mr. Stanley A. Bass: Well, but our point is that the legislature may unconstitutionally do that.
Justice Potter Stewart: But it may, according to you submission, as I understand it, say that the punishment for any offense can be a fine up to $5.00 or imprisonment up to five days, isn't it?
Mr. Stanley A. Bass: The legislature may prescribe maximum penalties, yes.
Chief Justice Warren E. Burger: Thank you Mr. Bass, thank you Mr. Thompson.
The case is submitted.