HUNTER v. DEAN

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Argument of James C. Bonner, Jr.

Chief Justice Warren E. Burger: We'll hear arguments next in Hunter against Dean.

Mr. Bonner, you may proceed whenever you're ready.

Mr. James C. Bonner, Jr.: Yes sir.

Thank you Mr. Chief Justice, may it please the Court.

The facts in this case are relatively simple and pretty much undisputed.

I'll go over them briefly and we will launch into, all the multi-faceted issues that this case ultimately presents.

Jacque Hunter and a codefendant were convicted on guilty pleas -- a burglary charge then in Terrell Superior Court then in South Georgia near Albany.

They were each sentenced of the two years probated, provided that they each paid fines and costs and attorney's fees that amounted to some $250.00.

Codefendant's family was there in court.

He paid the fine reasonable promptly or they paid the fine, it's not clear or even relevant I guess who.

But in any event, he was released.

Jacque Hunter, when the court -- the trial judge inquired of her whether she could pay a fine, had indicated to her that she thought to him, that she thought so, and named two cousins --

Chief Justice Warren E. Burger: Did she say, “She think so,” that she thought so, or did she what?

Mr. James C. Bonner, Jr.: Well, she said, “Yes, sir,” but I don't think I'm mischaracterizing it to put it that way, I think that this is a -- I think this whole episode has to be viewed as a typical one and that is when a defendant is appearing for pronouncement of sentence.

I think always, his hopes outrun his --

Justice Byron R. White: Well she certainly didn't use those words?

Mr. James C. Bonner, Jr.: No sir, she didn't.

But, I think the gist of them are that, I'm not sure that that's important either.

But, in any event, she did indicate that she could pay a fine.

When the judge inquired further, she named two cousins that she was going to look to, to pay the fine.

Chief Justice Warren E. Burger: Has any explanation ever been tendered to the court why this was not done why this (Voice Overlap) --

Mr. James C. Bonner, Jr.: No, sir, there was no explanation was ever tendered but I don't believe that -- but of course, it's not a dispute that they did not pay the fine or --

Chief Justice Warren E. Burger: No, but, has there ever been any explanation from her about her representation to the court.

Mr. James C. Bonner, Jr.: No sir, they had -- subsequently, ten months after this sentence was -- I mean ten weeks after the sentence was passed and it became apparent that her hopes or expectation of whatever they were, were not going to come to pass.

She sued out writ of habeas corpus in the Terrell Superior Court with volunteer counsel.

Ironically, the hearing occurred before the same – before the trial judge which is not normally -- it would simply be a coincidence on Georgia law.

Also coincidentally, it occurred within the term of court when he still had plenary power over the sentence in all respects.

But in any event at that particular hearing, which I don't believe is part of the record before this Court, there was no testimony taken.

The parties just simply proceeded on the basis that she was in jail because she had no money.

There was no detailed explanation made at that time.

No inquiry even made at that time as to why the cousins hadn't paid or even what basis she had had for making that original statement.

Justice John Paul Stevens: Mr. Bonner.

Mr. James C. Bonner, Jr.: But in --

Justice John Paul Stevens: Mr. Bonner may I ask you a question about the fines.

I notice the statute provides, as a proviso in it that provided such defendant shall not be entitled to any rebate or refund of any part of such fine so paid in case such probation shall be revoked by law.

Mr. James C. Bonner, Jr.: Yes sir.

Justice John Paul Stevens: Is it fair to infer from that that if the defendant had paid the fine, had been put on probation and served it without any wrong doing, that the expiration, the period of probation, the fine would have been repaid to her?

Mr. James C. Bonner, Jr.: No sir, that's not correct.

I think that this might be a misimpression that inadvertently arouse from one of the state's arguments, that is the fine is somehow stake.

It's not a stake in a positive sense because the fine once paid is lost, even successful completion of probation, even if she had been discharged as a model citizen after one year wouldn't have resulted in that money being refunded.

To this degree, it does represent -- there is an added risk.

I might add here that an affluent defendant faces, when he pays the fine immediately and hits the street.

If Jacque Hunter for example, had been given leave to pay in installments and had validated her probation after two weeks, the relative amount of money she would lose would be -- she would have lost the $250.00, probably just only a small part out of it.

But --

Justice William H. Rehnquist: What if she had been sentenced to pay the fine in installments which she was concededly able to pay at the time and she with the sentence was imposed.

And then four months later, she defaulted on an installment and offered testimony on habeas that she is simply wasn't able to financially pay that installment?

Mr. James C. Bonner, Jr.: Your Honor, that obviously is a question that arises out of this but it's not our case.

Justice William H. Rehnquist: What's your answer to that?

Mr. James C. Bonner, Jr.: It's not our case.

Justice William H. Rehnquist: No, what's your answer to that.

Mr. James C. Bonner, Jr.: Well, I think -- I don't think there's any doubt that having been afforded a fair opportunity to pay the fine in installments that her probation could be revoked if she failed to do it.

Now, obviously we're talking about a gray area.

There's very large gray area here because it's obviously a very easy question if she willfully fails to pay the fine if she had squandered a fair opportunity to make installment payments.

It's quite another -- it's quite at the other end of the spectrum if she goes out and pounce every door in the county looking for a job and she can't get one.

But, I think that particular kind of question is probably going to be buried in the proper use of the Court's discretion when it's faced with ratification petition if one has ever filed on that particular ground.

And indeed, Your Honor, one may not ever be filed on that particular ground because our probation officer may understand what effort she is making and simply not prefer those kind of charges.

Justice William H. Rehnquist: But doesn't that suggest that there is a point in time at which the court has to make it's decision and the factors that go into the constitutionality of it's decision, it has to be judge as of that point in time rather than four months later or six months later?

Mr. James C. Bonner, Jr.: I'm not sure if I fully understand what you mean Your Honor, if you --

Justice William H. Rehnquist: Well, suppose -- supposing in this case that the trial judge was assured by her.

Now, if the record is apparently muddy and you claim otherwise, that she was able to pay the fine or someone would pay it on her behalf, and he therefore quite consciously decided, “I will suspend the imposition of sentence and impose a fine on you.”

Now, can she come in four months later and say, “Well, I know that the representation was made at the sentencing, I could pay the fine.

But in fact, I couldn't have paid it then.”

Is that grounds for relief?

Mr. James C. Bonner, Jr.: Yes sir, I think.

And I think that's fair characterization of what happened here according to the view of the state takes.

But, yes, I think that would be grounds -- I think she'd have the same kind of claim.

The question, which would be before the Court on writ of habeas corpus is whether she is being confined essentially for failure to pay money.

And I think once you've got that, you enter into an equal -- the full panoply of equal protection considerations arises.

But let me run back just a minute to a question that you asked.

We were talking about the gray area.

There -- what I want to avoid is the impression.

There's no part of my argument that says that Jacque Hunter can't be locked up if she can't pay the fine.

Obviously if it --

Justice William H. Rehnquist: Right at the time of the sentence.

Mr. James C. Bonner, Jr.: I'm sorry.

Justice William H. Rehnquist: Right at the time sentence is imposed.

A judge can look at a wealthy defendant and say, “I fine you a thousand dollars,” he can look an indigent defendant convicted at the same offense pleading guilty with the same offense and say, “I know you can't pay any fine, so I'm going to sentence you to 10 days in jail.”

Mr. James C. Bonner, Jr.: Yes sir, that would be perfectly appropriate because obviously, if we did anything else, we would immunize Jacque Hunter possibly from any punishment and that's not our claim.

We don't --

Justice Byron R. White: But then the record would have to show some -- also some finding or some consideration of whether she could pay in installments.

Mr. James C. Bonner, Jr.: Well, I suppose a proper inquiry would involve that Your Honor.

That certainly -- if the judge is thinking in terms of a fine at all, as a precondition or a condition or probation or anything, in common sense says --

Justice Byron R. White: What if he says, “I'm thinking that $500.00 fine, can you pay it?”

She says, “No, I haven't got $500.00, but I'm quite willing to try to work it out.”

And he says, “Well, if you can't pay it, go to jail.”

Mr. James C. Bonner, Jr.: I think you've got the same case we got here, we've got an equal protection problem.

Now Your Honor, we got that particular kind of case here.

I mean, we got -- we would have that particular kind of case in the hypothetical you gave.

Simply because in that case, as in this case, based on that colloquy, we would have the poverty factor, the precondition payment isolated and highlighted as the sole feature on which liberty or not turns.

That's a unique feature of this case.

It's not going to exist in a normal case.

In a normal case, when a judge is passing sentence, and incidentally, I want to stress too that we're not making any suggestion at all that the judge should not consider or should not be aware of economic status.

It's our position that the more he knows about that infinite, the wiser and the better his judgment can be.

But he's got to treat that factor like raise as Justice Jackson said in Edwards versus California as a neutral fact, one that is neither the source of rights nor a basis for denying them.

Justice John Paul Stevens: Mr. Bonner, I don't understand on how you can give us the answer you did to both Mr. Justice White and Mr. Justice Rehnquist.

With respect to Mr. Justice White, I though you said that if she came in and said that it would be $500.00 and she said, “I think, I can pay up,” and then she turns out she can't.

He cannot put her in prison.

Is that what you're saying?

Mr. James C. Bonner, Jr.: She would have the same equal protection claim, yes sir.

Justice John Paul Stevens: But then, to Mr. Justice Rehnquist, you said that if he had one that's a rich defendant who can pay a thousand dollars and a poor defendant who can't pay anything, he can't put –-

Mr. James C. Bonner, Jr.: Well now --

Justice John Paul Stevens: Lets -- I don't understand the difference that is.

Mr. James C. Bonner, Jr.: Well, you're hitting what -- I suppose we're talking about -- were are not -- if you've got a -- if a judge is faced with two comparably situated codefendants, one is rich and one is poor, there's no requirement that he impose the same sentences.

As a matter of fact, in all probability, the sentence is --

Justice John Paul Stevens: But the only reason the poor one goes to jail is she can't raise any money.

Mr. James C. Bonner, Jr.: Well, it's a question.

Here we're getting into a question of -- it's a different question here.

The judge may very well decide that a thousand dollar fine would be sufficient to punish the relatively affluent defendant.

He may decide that a fine, you know, that -- the poor codefendant who can pay no fine should also be punished but obviously, perhaps there are difficulties in punishing though a fine or him through a fine.

And therefore, he could impose a term, you know, obviously, if it's ten days, it's a very simple question.

If we got this case here --

Justice John Paul Stevens: Why is it very simple if the only reason the person goes to prison is because the person is an indigent?

Mr. James C. Bonner, Jr.: Well, the --

Justice John Paul Stevens: Would you say that's an (Voice Overlap) --

Mr. James C. Bonner, Jr.: I think that illustrates, I think that illustrates how poverty has to be -- how it can be considered, how it has to be considered in molding whatever the appropriate punishment is.

Justice John Paul Stevens: Well, isn't not just what the judge did here.

He said, “If you can raise a $165.00, you get probation.

If you can't, you go to jail.”

Mr. James C. Bonner, Jr.: Well --

Justice Thurgood Marshall: Suppose the judge says to both parties a thousand dollars or a thousand days and one of them is a Mr. Onasis who just died, and others are sharecropper, you don't have any problem?

Mr. James C. Bonner, Jr.: No sir, obviously, you've got a problem.

Justice Thurgood Marshall: You don't have any problem?

Mr. James C. Bonner, Jr.: You've got the same problem that we've got here, I think in that situation.

Justice Thurgood Marshall: Well, you do have a problem.

Mr. James C. Bonner, Jr.: But what -- you were talking --

Justice Thurgood Marshall: Why didn't you bring that case, the one that my Brother Steven is talking about.

Mr. James C. Bonner, Jr.: Well, we're talking about the question of degrees, I think in the hypothetical that you post, we've got a judge who's looking to a codefendants, he wants to punish him, say comparably, and I don't think anybody can come in and claim, “Hey, wait a minute now.

A real comparable punishment would have been to lock him up for one day, not ten, or for two years not."

You know, I mean you get into a question where you're quibbling with considerations that only a trial judge can make.

Now, again, anytime the problem with posing hypothetical is that any hypothetical you give, it's easy to isolate economic factor in a way that's similar, to the way it's isolated here.

Justice John Paul Stevens: But here, he obviously tried to treat these two people equally?

I don't know how it could be more plain?

Mr. James C. Bonner, Jr.: Well, in a way he did, but again, the thousand dollar fine for Onasis and --

Justice John Paul Stevens: Well, but let's keep it to the 165 then.

Why -- if you can ever put person in jail for because of indigence and that's the only reason, for me it's a critical reason, why can't you do it here?

That's really the heart of the case, I quite understand it right.

Mr. James C. Bonner, Jr.: Well, no, Your Honor.

I'm not saying -- I didn't mean to suggest that you can ever put her --

Justice John Paul Stevens: But you said he did --

Mr. James C. Bonner, Jr.: Well, I suppose we get back to Mr. Justice Rehnquist's question.

Justice John Paul Stevens: Yes, you do.

Mr. James C. Bonner, Jr.: There may be a point when she is exposed to jail because for indigence, you know, talking about, not the gray area, the black or white where she willfully fails to get a job and the make the payments.

Justice John Paul Stevens: Well, let's assume its all was non-willful, let's leave willful cases, put them all on one side, just the inability to pay, can that ever justify a jail sentence?

And I think you said yes.

Mr. James C. Bonner, Jr.: Yes sir, it can, if it's treated as a neutral fact, if it goes --

Justice John Paul Stevens: Wasn't it treated as a neutral here?

Mr. James C. Bonner, Jr.: No sir, it wasn't.

Indigency was made the sole condition on which your going to jail and staying free a turn or --

Justice Potter Stewart: Well, if it can be in ingredient, then inevitably, it can sometimes be the controlling condition.

Mr. James C. Bonner, Jr.: Yes sir, I think sometimes it can be.

But it the normal case, we'll never know.

Because in a normal case of whatever judgment is passed, it's going to be weighed and balanced against the multitude of factors and we'll never be able to go into that even a question of proof aside.

We would never be able to go into that and say, “This man got this particular sentence because he was black or poor or rich or had blue eyes,” or something like that.

Chief Justice Warren E. Burger: Well, since, we're dealing with hypotheticals and you've just mention the rich.

Suppose a judge has a man before him who's a multi-millionaire and that the end of the evidence, he finds him guilty and says, “I observed that you've been found guilty.

Now, for the third time, driving while intoxicated, endangering people's lives and each time we've increased the fine, very clearly fines are no deterrent to you.

You can't be punished by fines because you've got so much money.”

And he puts all this on the record.

If I'm going to send you to jail for 30 days.

Now, the decision there, the fulcrum of that decision has been because he is so rich.

Mr. James C. Bonner, Jr.: Yes.

Chief Justice Warren E. Burger: Do you find something wrong with that?

Mr. James C. Bonner, Jr.: No sir, that obviously is a common situation, there is something quite right with that.

What is right with that is that the judge has used that economic factor rationally, obviously, it's very rational and hypothetical you gave.

That's the problem essentially with the use of it here.

The state justifies the use of this exclusion for poverty.

For one, well, basically, for a multitude of reasons.

They say, this reflects the family support and reflects their control.

It reflects an ability to live without, you know, without creating further offenses.

That's where their argument I think basically fails against the traditional test of showing a rational connection.

They have used, they've taken a fine and they've used it here as a blunderbuss.

Instead of making the specific inquiries in what control is the family going to offer, what kind of support are they're going to give.

Is she going to be able to live alike without crime?

They've taken one factor, whether she can pay a certain fine, period.

And they've used it as a substitute, as a very crude and clumsy substitute for these things that ought to be precise, careful evaluations.

Justice Byron R. White: Well, what if the judge had determined that this person couldn't have paid any fine and installments or otherwise and faced by debt to it.

That first, is really indigent and couldn't pay as hard as she tried.

She is just disabled for example.

And said, “Therefore, two years in jail.”

You would still be here, wouldn't you?

Mr. James C. Bonner, Jr.: No sir, we wouldn't be here.

Justice Byron R. White: Well, why wouldn't you?

Mr. James C. Bonner, Jr.: Well --

Justice Byron R. White: Why wouldn't you require --

Mr. James C. Bonner, Jr.: The problem --

Justice Byron R. White: -- to say instead of an automatic two years --

Mr. James C. Bonner, Jr.: We would have not no way of saying that two-year sentence wasn't inappropriate punishment, we'd have no launching pad here, you know, to bring us here.

I think in this particular case, in what you outlined, we would have a case where the judge would properly exercise this discretion.

Now again, maybe fundamentally, we have somebody who is in jail because of the neutral fact that they can't pay or they can't be punished any other way.

But, we can't -- you know, we can't launch ourselves into this.

We shouldn't launch ourselves into this inquiry into what role all of this play and how it's going to fit in with, say your prior record in this kind of thing.

On the face of it that would look like an appropriate sentence.

We'd have no claim.

Now again, this is -- that illustrates the problem with hypothetical.

When you give a hypothetical, it's very neat and simple to say, to isolate that economic factor on through.

And I think any time, you got that, then the position I'm taking is somewhat kind of --

Justice Byron R. White: Well, no part of your argument is that there's hardly any relationship between two years of jail and a $165.00 in terms of serving the state's penological interest?

Mr. James C. Bonner, Jr.: Well --

Yeah, I think here, what we've got --

Justice Byron R. White: Well, is there anything -- are you arguing that or not?

Mr. James C. Bonner, Jr.: I'm sorry, that -- no, it's not a relativity argument.

I admit we would have difficulties on our habeas hearing.

A judge can come back and said, “Okay, well you can't pay a fine, then I sentence you to one year, 12 -- you know, and 11 months.”

Or something like that.

We could run into some problems at that particular extreme.

But neither then, as I say, the critical thing here, what were talking about, you know, it's a very modest modification of that particular requirement in order to give this defendant the choice that is open to affluent codefendant under the same sort of sentence.

And again, I want to stress that we're not saying that the judge be blind to economic condition anymore that he should be blind to the call of the man who stands in front of him or the sex of the person who stands in front of him.

These are things that the judge is going to know.

But --

Justice John Paul Stevens: Mr. Bonner, can I go back for one second.

Mr. James C. Bonner, Jr.: Yes sir.

Justice John Paul Stevens: To the question I started with about the proviso on the statute about money being paid back, you said it's not normally the case that the fined is refundable, is it ever the case under your --

Mr. James C. Bonner, Jr.: As far as I know Your Honor, that statute controls and it's never refundable.

Justice John Paul Stevens: Its never -- the proviso just is -- it's just really meaningless, isn't it?

Mr. James C. Bonner, Jr.: Well, it means that once the money is paid in it sticks.

I think --

Justice Potter Stewart: Even though you end up getting imprisoned for imposition?

Mr. James C. Bonner, Jr.: Even though you end up --

Yeah, you could serve --

Justice Potter Stewart: You don't get the fine back, that's all.

Mr. James C. Bonner, Jr.: One year -- I mean, two years less one day, and if you paid the whole fine and put the --

Justice John Paul Stevens: But the proviso is that it won't be revoked if probation is revoked -- I mean, it won't be refunded if probation is revoked.

Justice Potter Stewart: Right.

Justice John Paul Stevens: Which gives rise to the suggestion that it would be refunded if probation was not revoked?

Mr. James C. Bonner, Jr.: That's not – that's just simply our attempt --

Justice John Paul Stevens: But they --

That just never happened?

Justice Potter Stewart: That inference is just not fact as otherwise.

Mr. James C. Bonner, Jr.: If you browse through the Georgia Code, you can come up --

Justice Byron R. White: Well, the other possibility is that they were just saying that we can punish you not only by a fine but by imprisonment?

Because that it might be -- that the inference might be that you can be only fined or imprisoned.

If I break probation and sent to jail I should get my money back.

Justice Potter Stewart: Right.

That's should be the --

Mr. James C. Bonner, Jr.: Yeah, I think it's the head off that argument exactly.

But as far as I know, none of that money has ever refunded.

If the State of Georgia gets it, it's got it.

Now, this does point out a disparity I suppose between the affluent man who pays his money right away and then stands two years of risking and losing it all and somebody who's on an installment payment who plan who might only lose part of it.

But I think once you talk -- I think that de minimis disparity.

And I think that, you know, to countervail against it, the man who is able to pay all of the fine at one point has that one condition that he doesn't have to worry about throughout his probation.

The indigent on an installment program, although he may end up saving money that he doesn't have, you know, by not paying it, because he's locked up, nonetheless has to suffer under that additional condition.

As I say, the basic point I just wanted to make is that that we fully agree that any kind of decision to probate is part of this state's argument is necessarily a delicate one and one that should be taken with great care.

Our point is that when it's made to turn solely upon poverty, on a financial consideration, then it's simply not rational.

That kind of judgement is again a blunderbuss.

It's a -- it's no substitute for the kind of evaluations that the state claims that it stand's for.

Here, for example, if the judge has decided that Jacque Hunter shouldn't be on probation because her family was going to provide a negative influence on her, you know, and maybe the poverty of the family and so forth, would play some role in all that, and then had to put on probation, we wouldn't have a case.

I mean, there again, the judge would have made a specific evaluation, a specific judgement and we couldn't impeach it, and we couldn't get behind it.

Even though, you know, poverty may have played some particular role in it, in a non-hypothetical way.

Obviously again, once we get in a hypothetical situation, then we're exactly where we are here because we can take that one fact and track it all that way down and we can play with it and see how it may have been used rationally.

But in a normal case, we're not going to have that particular opportunity.

We're going to have to presume that whatever weight the judge gave to it, was a proper weight.

That like race and certainly, any judge who can see is going to be aware of the race of the defendant in front of him, and that might mean something in some context.

Justice William J. Brennan: Mr. Bonner, if you prevail here, is it likely that Georgia will enact strictly with legislation, and impose and call for mandatories prison sentence?

Mr. James C. Bonner, Jr.: There has been some movement in that direction, Your Honor, but I don't think that's any chance at all.

I might say here as a practical matter that not all probated sentences pass this way or enforced this way in a lot -- the great majority of them that have fine conditions, accommodate that particular problem, particularly in the Atlanta Metropolitan Area and some of the other Metropolitan areas.

But, I'm not sure what they do this -- you know, I'm not sure, just whether they're operating under that --

Justice William J. Brennan: Well, sometimes, one can win a case and loose a lot more in the long run.

Mr. James C. Bonner, Jr.: I don't believe here, Your Honor, that there is some risk of that.

What we're asking for is a slight accommodation of that sentence, a very modest accommodation of that sentence, modification of that sentence, and one that in practical matter is quite commonly --

Justice Byron R. White: What are you asking for --

Mr. James C. Bonner, Jr.: We're asking basically Your Honor, that she'd be given an opportunity to pay that fine in installments, in reasonable installments.

And we would have no objection to it if the state wanted to -- there is no reason why the installments should stretch over the entire 24-month period either.

It's all a question of what's reasonable but we have no objection if she is required to pay them all relatively early in the probation.

Chief Justice Warren E. Burger: Do you suggest that we can, at this stage, determine the terms of the --

Mr. James C. Bonner, Jr.: No sir, this is a -- this again is something that a trial judge is going -- you know, would have to look at.

Obviously, he's going to have to evaluate her employment potential, the job market possibly in the area, a variety of things like this and determine what's reasonable.

Justice William J. Brennan: Is there any theoretical difference between paying it at once or paying it in installments as far as the legal theory is concerned?

Mr. James C. Bonner, Jr.: You mean, this penological theory or something?

Justice William J. Brennan: Well, the legal theory --

Mr. James C. Bonner, Jr.: I see no problem with the fine and all as a penalty.

You know, I think the only problem here is the indigency has to be accommodated when a judge in the name of the state decides that a money payment and probation will satisfy penological interest of the state.

But I don't see -- I think Justice Harlan's concurring opinion in Williams, made the point that the effect of a fine is liable to be it's pinch on the purse rather than the manner in which it collected.

And I don't think there's any -- I don't see any problem with that.

If I have any time left, I would try to save them.

Justice John Paul Stevens: Let me ask one more question, I'm sorry.

But in your habeas corpus petition, did you ask, did you tender an amount that you said your client could pay or did you ask fore release?

Mr. James C. Bonner, Jr.: Your Honor, I didn't draft that petition, but I think the prayer was for release out right.

Justice John Paul Stevens: Is there anything in the record to indicate that your client could pay $25.00 immediately even?

Mr. James C. Bonner, Jr.: No sir.

The inquiry never got into that fine of stage because what it happened in this particular case is that the court, basically, adjudicated on the basis of the prior decisions in the state's Supreme Court, on just the naked legal issue, and that what the Calhon and the Barnet case.

The hearing was really, you know, if you call them hearing, it's sort of in quotations marks, because there's no evidence taken.

There was no proffer of anything like that.

It was a rather summary type of thing, more legal argument.

Let me save the balance of my time if I have any.

Argument of G. Stephen Parker

Chief Justice Warren E. Burger: Mr. Parker.

Mr. G. Stephen Parker: Mr. Chief Justice, may it please the Court.

The overwriting issue in this case is whether or not it is constitutional for a state trial judge to condition probation upon prepayment of a fine where the defendant represents to the court that he or she is able to pay a fine but subsequently is unable to pay the fine.

And for that reason, is not allowed to serve the sentence on probation but rather is incarcerated.

An underlying issue is whether or not a trial judge is should be able in the exercise of their vast although not unlimited discretion to consider the financial resources available to a defendant in determining whether or not he is at good risk for probation.

The petitioner in this case appeared, in the Superior Court of Carol County in December 1976 after having been indicted with one other person for a residential burglary.

As Mr. Bonner has recited the plea of guilty entered at that point, the trial judge has turned his attention to the question of what an appropriate sentence would be.

The -- upon inquiry, the petitioner responded affirmatively that she would be able to pay a fine and that a cousin would be, probably called upon to help her with that.

Trial court then imposed a two-year probated sentence or two-year sentence on each defendant to be probated upon the condition that each of them pay a fine of a $165.00 plus court cost.

Subsequently, the additional portion of that, the money for the attorney's fees was stricken with Trial court after the habeas corpus hearing.

The codefendant was able to pay his fine and was released.

Petitioner however did not pay her fine and remained incarcerated.

She's had been on a personal recognizance bond for the duration of this habeas corpus proceeding.

The petition for habeas corpus, which were file in the Superior Court of Carol County, there was a hearing held at which there was no evidence introduced other than the transcripts of the prior proceedings.

Now, at that hearing, and I would like to point out to the Court that the transcript of that hearing only, very recently became available to the parties and the time the briefs were filed in this case, that transcripts was not in fact available.

But at that -- what that transcript does reflect is that at that hearing, there was an assertion by her attorney that he believed she could pay the fine in installments.

There was, however, no testimony about the petitioner in this regard.

That he did not avail himself of the possibility of calling her as a witness in this habeas corpus preceding which of course could've been done to the Georgia habeas corpus statute.

I would point out --

Justice Potter Stewart: I missed what you just said?

He did not avail himself of?

Mr. G. Stephen Parker: In other words, Your Honor, the attorney, a different attorney who represented at the habeas corpus hearing could have there roughly understand and had her testified -–

Justice Potter Stewart: Instead just relied on the record in the trial court?

Mr. G. Stephen Parker: Yes sir, he just -- more or less argued the law.

He maintained that he believed that she could pay a fine and installment, but there were no specifics and she offered no testimony.

Now, I also would point out that at this habeas corpus hearing at the state stipulated that she was an indigent at that point in time.

The extent that we do not have that transcript, there is an error in footnote 4 of our brief, which states that the installment issue was not raised until appeal.

Our brief was an error on that one point on footnote 4.

Justice Thurgood Marshall: But how did – how does the point get up as she couldn't pay it.

You said there were no testimony.

Mr. G. Stephen Parker: Well, she remained incarcerated as a result for failure to pay.

And then at the hearing, the attorney who represented her at that time advised the court the she couldn't pay and that when he also advised the court of his belief that he though she could pay on the installment payments.

Justice Thurgood Marshall: And under Georgia law at that stage, the judge could have altered the sentence?

Mr. G. Stephen Parker: Yes sir, he could have.

Under Georgia law, a judge who imposes a probated sentence maintains control over that sentence for the term of probation.

Otherwise, he would lose it at the end of the term of court.

Now, we have not disputed petitioner's assertions that the equal protection clause applies to judicial action as well as the legislative ones.

However, I believe that it is important to point out this distinction and to point out the fact that the basic statutory scheme which authorizes the sentence in this case has not been challenged at any time by the petitioner.

This Court, in this case today is not reviewing the application of the statute challenge is unconstitutional, but instead as being after declared unconstitutional an active individual judicial discretion and sentencing.

Now we contend that this is --

Justice Potter Stewart: You understand this attack by your brother to be solely under the Equal Protection Clause of the Fourteenth Amendment, not under the Due Process Clause?

Mr. G. Stephen Parker: I understand that Your Honor.

Justice Potter Stewart: Perhaps that you should be the one to talk but that's my understanding too.

Mr. G. Stephen Parker: Yes sir, I understand this Equal Protection Clause and nothing more.

Justice Byron R. White: Mr. Parker, just taking short of any relevance to the problem.

Mr. G. Stephen Parker: Your Honor, it certainly has relevance, but we certainly believe as to the Georgia Supreme Court that the facts of the case distinguish it primarily because that's --

Justice Byron R. White: Well, I think there we had a Texas statute, do we not, that (Voice Overlap)

Mr. G. Stephen Parker: There was --

Justice Byron R. White: -- whatever the statute but we had an attack on a statute there I think, isn't it?

Mr. G. Stephen Parker: Yes sir, in both -- that case and also Williams versus Illinois, there were statutory provisions and question which authorizes specific sentence in that case.

And as I stated in this case, we do not have a challenge to the statute but rather just to the judges action and conditioning probation upon pre-payment of the fine.

As we noted in our brief and I will not (Inaudible) with the point.

Decisions of this Court have not treated indigents as a suspect class for the purposes of equal protection analysis in each and every case.

For this reason, we contend that even though this case arises in the criminal justice system, that pass of strict scrutiny is not the applicable test but rather the rational basis test is the applicable test.

The question is whether there is a rational basis for a trial judge to consider a defendant's economic status in determining whether he has a risk for probation.

Recent decisions of the Court have underscored this point in cases such as the San Antonio School District case, more recently the abortion case, Meyer versus Roe.

These decisions all involve legislative or administrative classifications but they did make clear that the mere fact that the impact of a challenged statute or regulation does fall most heavily upon the indigent is not sufficient to constitute discrimination against the suspect class.

Now, the petitioner contends that there's a distinction between cases involving public funding of schools, welfare and related programs and between cases arising under the criminal justice system such as this case.

There are some supports for that argument.

There is a footnote in the Meyer versus Roe opinion indicating that the principals of Griffin versus Illinois have not been applied to legislative classifications generally.

But I will also point out to the court that there are contrary indications such as the language in the San Antonio School District case in which the very cases of Tate versus Short, and Williams versus Illinois were discussed at some length by the Court and of the majority opinion.

And the opinion that it flatly stated that all of the judges often do consider a defendant's ability to pay a fine and imposing a fine that in doing so --

Justice Thurgood Marshall: Why do Georgia have legal aid?

Mr. G. Stephen Parker: Sir?

Justice Thurgood Marshall: Why does Georgia provide legal aid?

Mr. G. Stephen Parker: Well, Your Honor, the Georgia provides legal aid in order to provide the assistance of counsel at trail level with --

Justice Thurgood Marshall: I recognized that there is a group that needs it.

Mr. G. Stephen Parker: Yes sir, there is a recognition to that need.

The discussion of the Tate case and of the Williams case which is contained in the San Antonio opinion pointed out or stated, in dicta admittedly, that in imposing fines, judges are guided by sound judicial discretion rather than constitutional mandates.

There are in fact a number of cases within the criminal justice system in which this Court has refused to apply strict scrutiny test in an equal protection analysis.

For example, in Ross versus Muffet, the court in 1974 decision, in which it was held at the Equal Protection Clause nor the Due Process Clause, neither of them required the state to appoint counsel for indigents on discretionary appeals after direct appeals had been exhausted.

There was reference in that case to the other decisions outside of the criminal law area in which indigents have not been considered a suspect class.

I would submit that Ross versus Muffet is a recognition by this Court, that is it is not possible to have absolute equality within the criminal justice system.

There are other cases.

Now, for example, the Court rejected an equal protection challenge in a case involving New York parole.

A New York statute said in parole eligibility, that are in clearly favor in those who had been or just clearly discriminated in those who's been unable to make bond prior to their trials.

An equal protection argument was summarily rejected in that case, McGinnis versus Roister.

Would also point out that an examination of the case as such as Griffin versus Illinois and it's progeny reveals that the Court has in fact invalidates statutes and practices which have placed the indigent at a disadvantage in the criminal justice system for no rational reason.

The lack of a rational reason I submit is a compelling factor in all of those cases.

Now, for example, in the Griffin case, the courts found and I think very correctly, that there's no rational relationship between the defendant's ability to pay calls for an appeal in advance in its guilt or innocence, there's just couldn't be any relationship.

And for that reason, and others, the Illinois requirement was struck then.

The irrationality simply being in the fact that the merits of a post trial motion is in nowhere related to a defendant financial status.

Justice Byron R. White: So I take it your submission is that 30 days or $30.00 is always a good sentence and if the indigent -- and if a person is indigent can't pay the $30,00, 30 days is always null.

Mr. G. Stephen Parker: No sir, that's is not our position at all.

Our --

Justice Byron R. White: What is it?

What is it?

You haven't said yet.

Mr. G. Stephen Parker: Well, our position Your Honor is that, it is permissible for a judge to convict, to impose probation and to provide as a condition of that probation that a fine be paid.

Justice Byron R. White: In a lump sum?

Mr. G. Stephen Parker: In a lump sum.

Justice Byron R. White: So that you need to pay in lump sum or you have the specified time in jail?

Chief Justice Warren E. Burger: Regardless of the amount?

Mr. G. Stephen Parker: Well, Your Honor, there's certainly limitations on what a judge could do and in fact the Georgia Supreme Court's opinion --

Justice Potter Stewart: Well, the statutory limitations in Georgia obviously?

Mr. G. Stephen Parker: Yes sir, and due process limitations is set forth by this Court's decision.

Justice Byron R. White: Well here the -- the maximum was the statutory, what was it -- well, it was within the statutory?

Mr. G. Stephen Parker: Yes Your Honor.

Justice Byron R. White: Yes.

Mr. G. Stephen Parker: The judge could have fined her up to $2000.00.

Justice Byron R. White: And if -- and the jail?

Mr. G. Stephen Parker: Well, the statute provides that a fine may be imposed as a condition of probation, provides that the fine can be up to $2000.00.

Justice Byron R. White: Well, it -- yeah, but then how much probation is revoked then what happens?

Mr. G. Stephen Parker: Well, if probation is revoked then the defendant would be required, would get credit for the time spent on probation.

Justice Byron R. White: I know but what's the jail sentence?

Justice Potter Stewart: Maximum.

Mr. G. Stephen Parker: Well, the max -- well --

Justice Potter Stewart: Under Georgia law for this offense?

Justice Byron R. White: What --

Was it in this case?

What was it in this case?

Mr. G. Stephen Parker: And this case is (Voice Overlap) --

Justice Byron R. White: Two years, that's what I'm asking.

Justice Byron R. White: The crime for which she was indicted carry the one to 20-year sentence.

In this case, she received a two-year probated sentence.

Justice Byron R. White: Right, so as well within the statutory limits of the jail sentence?

Mr. G. Stephen Parker: Yes sir.

Justice Byron R. White: And --

Mr. G. Stephen Parker: And there you --

Justice Byron R. White: You would say that -- you would say the judge could say to the defendant, either pay the fine, you violated probation, now either pay the fine in a lump sum or go to jail and the defendant says, “I will -- I just cant pay it in a lump sum.”

Mr. G. Stephen Parker: Well, at that point Your Honor, I think it is --

Justice Byron R. White: I can pay it in installments.

Mr. G. Stephen Parker: At that point, I think it is a matter for the court's discretion.

Justice Byron R. White: But it would not violate the Constitution you say if the judge said “Awfully sorry, but either lump sum or nothing.”

Mr. G. Stephen Parker: We contend that it does not violate the constitution for the judge in the exercise of his sentence in discretion to impose a lump sum payment upon an individual in the condition of their probation upon them being able to pay that fine.

Justice Lewis F. Powell: Could the judge have sentenced to ask simply the 20-year period?

Mr. G. Stephen Parker: Yes Your Honor.

The plea of guilty was to the crime of burglary and the crime period sentence -- does carry a sentence from one to 20 years in this case.

I would like to use the balance of my time for our basic arguments about sentence in discretion and hopefully cover some of your questions, Justice White, what our position is with regards to what the judge can or should be able to do.

Let me just first state three basic propositions, which we are advocating with regard to the judge's sentence in discretion.

First of all, we contend that it's not constitutionally required to -- or it should not be required -- the Court should not be prohibited from considering the defendants financial status and all other relevant factors in determining whether he or she is a good risk for probation.

Secondly, we contend that the trial judge in assessing the sentence or determining what appropriate terms of probation would be or should be allowed to rely upon the defendant's assertion that he or she would be able to pay a fine.

Now, in this case, I would point out that the defendant was represented by appointed counsel and there's no challenge to counsels confidence and no challenge to the voluntariness of the guilty plea.

Justice Thurgood Marshall: He didn't think she could pay?

Mr. G. Stephen Parker: No, Your Honor.

She said she could pay, he didn't, yes sir.

Justice Thurgood Marshall: Why did she say it?

Mr. G. Stephen Parker: What -- she didn't say it in response to the amount that was given but she said she could pay a fine without to the amount and there's no indication that counsel was there looking his duty --

Justice Thurgood Marshall: She had said she thought or couldn't pay?

Mr. G. Stephen Parker: Yes sir, she said she could pay --

Justice Thurgood Marshall: That's a lot of difference in saying, “I will pay.”

Chief Justice Warren E. Burger: Well, didn't she --

Justice Thurgood Marshall: Or “I can't pay.”

Chief Justice Warren E. Burger: Didn't she say categorically --

Justice Thurgood Marshall: Unless she got cousins that are different from my cousins.

Mr. G. Stephen Parker: Well, yeah.

Chief Justice Warren E. Burger: Didn't she say categorically, yes, she could pay, and then when the judge took a further step, the judge said, “How are you going to pay it?” and then she said, “My cousin will pay it."

Mr. G. Stephen Parker: That is right Mr. Chief Justice, she -- the judge did not simply rely upon her assertion that she could pay.

He asked her how she could pay.

Justice Thurgood Marshall: You don't know what the judge relied on, do you?

If some (Voice Overlap) --

Mr. G. Stephen Parker: No sir, I know what's on the record.

Justice Thurgood Marshall: Well quote to me, what did he say in the record?

Mr. G. Stephen Parker: That --

Justice Thurgood Marshall: That he relied on that?

Mr. G. Stephen Parker: He said -- to be verbatim, he said “Jacquelyn, how can you pay a fine?”

And then that point, she responded with the statement.

Justice Thurgood Marshall: No, the statement was you said relying on that.

Mr. G. Stephen Parker: Well, I apologize for any presumption.

Justice Thurgood Marshall: (Voice Overlap) -- you can assume that.

You can assume you relied on, but you don't know?

Mr. G. Stephen Parker: Yes sir, that is true.

But we -- the point that I was trying to make was that where a defendant is represented by counsel and indicates to the court, after having been advised with counsel and after having into a plea of guilty, that she can in fact pay a fine.

And then I should also point out that there was no effort made to withdraw the guilty plea at that time where there was no, at least the record reflects, no complaint of any type about either the sentence or the fine or any other aspect of the case.

Our position is that the -- to allow that the sentencing court to consider all pertinent factors is a very consistent of what this Court has decided in numerous cases, such as William versus New York in 1949 case, in which the Court stated emphatically that under the modern philosophy of penology, the punishment is supposed to fit the offender and not merely the crime.

The rational of that decision was recently reiterated by the Court, and the decision handed down on June 26 of this year.

I -- after the filing of that brief, United States versus Grayson, in which the majority of this Court held that -- upheld the action of a federal trial judge who had stated on the record that he had given a particular defendant a longer sentence because of his personal belief that the defendant had lied on the stand while he is testifying his own behalf.

The Grayson Court concluded that a defendant's truthfulness or mendacity was relevant to his prospects of rehabilitation as a reflection of his attitude towards society.

The facts are obviously quite different, but we submit that under the rationale of Grayson and similar cases that to allow sentencing judge to consider along with many other factors, the financial resources available to a defendant in the event he is sentenced to probation is constitutional and is in fact desirable.

Now, we do point out in our brief that in probably the majority of cases would not even be a germane factor.

In some case, very serious crimes, there would not be any factor at all to consider.

But nevertheless, the court should not be deprived of the opportunity to recognize that someone is perhaps a better risk for probation because of their ability to pay a fine into the court under such circumstances as the court dictates.

Now, to ignore that factor would in fact, be to ignore reality and I believe that an example of the reality of that is that since 1945, the federal rules of criminal procedure have provided that a pre-sentence investigation shall contain an information about the defendant's financial condition along with many other factors.

The decision to grant probation is in fact difficult or perhaps more difficult in the decision of what number of years to give one who is going to be incarcerated, has great consequences for the defendant obviously, and also for society.

We submit that the trial judge should not be encumbered in carrying out this very difficult function.

Justice John Paul Stevens: General Parker, did you say earlier that the petitioner here is actually out on her won recognizance during the pendency of the proceeding?

Mr. G. Stephen Parker: Yes sir, she was granted a personal recognizance bond of some type but the U.S. District Court from the middle district of Georgia, and I believe that occurred after a federal habeas petition was filed.

The petition was held in advance pending exhaustion of state remedies.

But she was out on this --

Justice John Paul Stevens: So, she's till out right now then?

Mr. G. Stephen Parker: Yes sir, as far as I know, she is.

Justice William J. Brennan: How much time had she served before she was released on that first offense.

Mr. G. Stephen Parker: The guilty plea was entered on December 13, the habeas corpus hearing was on February --