Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DANNY R. BEARDEN, Petitioner v. GEORGIA

No. 81-6633

January 11, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:14 o'clock p.m.

APPEARANCES:

JAMES H. LOHR, ESQ., Chattanooga, Tennessee; appointed by this Court, pro hac vice.

GEORGE M. WEAVER, ESQ., Assistant Attorney General of Georgia, Atlanta, Georgia.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Bearden against Georgia.

Mr. Lohr, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF JAMES H. LOHR, ESQ., APPOINTED BY THIS COURT, PRO HAC VICE

MR. LOHR: Mr. Chief Justice, and may it please the Court, this case involves the revocation of an indigent's probation for his failure to pay a fine and restitution which was imposed as a condition of his probation.

Mr. Bearden has received a three-year probated sentence. The condition was that he pay $750 as fine and restitution. Two hundred dollars had to be paid almost immediately. This was paid by his parents. Within the next four months, he had to come up with and pay the balance, which is $550.

Approximately one month after this sentence was imposed, he was laid off. He became unemployed. From that period until the time of the revocation hearing, he did not gain employment, although the record shows that he tried to gain employment. He was without funds. He was without property. I think he was what we might call functionally indigent.

The trial court held the revocation hearing and revoked it on two grounds, as I understand what the trial court did. It revoked it on his failure to pay the fine and restitution. Secondly, it revoked it on his failure to report to his probation officer regularly. That, of course, was not a ground stated in the petition to revoke.

In fact, I don't believe there was any evidence to support that finding, and the Georgia Court of Appeals held that even if the trial court did rely upon the failure to revoke the probation -- or revoke the probation for his failure to report, that the revocation rested upon an alternate independent ground which was sufficient, and that was that he failed to pay his fine and restitution, which was a condition of his probation.

The Georgia Supreme Court denied a petition to review this discretionary appeal, and there are two other important factors I should mention in this case. First of all, the petitioner was serving his probation under what we call the Georgia First Offenders Act. Under that Act, when a person is convicted or enters a plea of guilty, the court suspends further proceedings and places him on probation.

If he successfully completes his term of probation, he is discharged without an adjudication of guilt, no criminal record, no criminal purpose. On the other hand, if his probation is revoked, the trial court then at the revocation hearing enter an adjudication of guilt and sentence the defendant to any sentence that it could have originally imposed. In this case, it would have been 20 years for the burglary and ten years for the theft by receiving.

The only condition is that he must be given credit for the time that he was on probation.

Now, in this case, when the trial court originally revoked his probation, it sentenced him to five years to serve. It was a three-year term of probation. It sentenced him to five years to serve. On a motion on behalf of the defendant, this was reduced to the remaining balance of his probation, in line with the Georgia case of Stevens versus State.

QUESTION: Mr. Lohr, do you think that a sentencing judge can at an original sentencing proceeding consider the fact that the defendant is indigent and couldn't pay a fine, and therefore decide to sentence the person to jail? Would that be valid?

MR. LOHR: In lieu of a fine?

QUESTION: The sentencing judge, who has options available to him at sentencing, the possibility of a jail term, the possibility of a fine, the possibility of probation on condition that a fine is paid, can the sentencing judge decide that because the person in fact is unemployed and indigent, and therefore unlikely that he could pay a fine, and would be a poor risk on probation, should be sentenced to jail? Is that all right?

MR. LOHR: I think, if I might answer that question, if a high level of scrutiny is to be applied to this type of state action, I don't think it is okay. If a low level is, then I think it is. If I might explain, as I understand your hypothetical, the person could have been placed on probation except for the fact that he couldn't pay the fine. That indicates to me that there is no additional threat to society. There is nothing being achieved by protecting society simply because he was poor.

As far as rehabilitation goes, I don't think the state is achieving anything by putting him in jail for rehabilitation under these circumstances.

Now, there is the element of deterrence, let's say, to other individuals. For example, other indigents may see this indigent -- in their mind he may be getting off scot free. In other words, he is not -- doesn't have to pay a fine because he is too poor, and he doesn't have to go to jail. There are other ways that the state can enforce or achieve the policy of deterrence other than the payment of a fine or jail. Those aren't the only two options.

So, if we look at strict scrutiny, so to speak, it is not necessary to put him in jail. There are other less intrusive ways to accomplish that deterrence. If we are looking at just a rational basis, then I think the judge can do it, so long as the fine is -- or the jail term is in some way commensurate with the fine.

Now, the second point I just want to mention, that I am sure you are aware of, that the fact that his probation was revoked because he was too poor to pay the fine resulted in the adjudication of guilt which has several other consequences, among which he loses his right to vote, he loses his right to hold public office, and certain other rights that citizens who are not convicted of a felony of moral turpitude hold.

First of all, I would like to consider the cases of Williams versus Illinois and Tate versus Short. This Court in the case of Williams versus Illinois held that it was unconstitutional to incarcerate the defendant beyond the limits of incarceration which by statute apparently the state determined as necessary to achieve the penalogical interests of the state.

Now, in this present case, apparently the trial judge made a determination that this individual did not need to go to jail in order to satisfy the penalogical interests of the state. It wasn't a legislative determination. It was apparently done by the trial judge.

QUESTION: The trial judge, I take it, thought that what you referred to as perhaps inartfully, at least in my opinion, less intrusive methods might be used to achieve society's goal without having to send him to jail at that stage.

MR. LOHR: That's correct. The probation and the other -- and the conditions that were imposed upon his probation would satisfy the penalogical interests of the state.

QUESTION: What were the conditions that were imposed?

MR. LOHR: They were the standard -- in addition to the fine and restitution, they were the standard conditions, not to associate with --

QUESTION: Yes, but fine and restitution were the two non-boilerplate conditions.

MR. LOHR: That's correct. Those were the only two non-boilerplate conditions.

QUESTION: Did the defendant ever ask to have that term of condition modified -- term of probation modified or extended or reduced or --

MR. LOHR: No, he never made that request.

QUESTION: He had that right, I suppose, under state law.

MR. LOHR: Yes, the trial judge retains the jurisdiction over probation cases beyond that term of court for the term of probation, and I think at any time the trial court could upon a reasonable showing modify the conditions of probation.

QUESTION: Do you know if -- do you know if the obligation, the condition about restitution and paying a fine, did they survive the revocation of probation?

MR. LOHR: I have not --

QUESTION: Or do you know?

MR. LOHR: I have not been able to find any cases right on point on this --

QUESTION: Well, I know, but in this particular case, if he went to jail, was he free from the conditions of paying the fine?

MR. LOHR: I don't believe he is. I believe he is going to be obligated to pay the fine and restitution until, even after the jail term, you know, until he pays it. It probably will never be collected, in fact.

QUESTION: At the time restitution was requested of him, did he make any showing or statement to the judge that he was indigent and therefore couldn't make restitution?

MR. LOHR: At -- We are at a disadvantage here. Apparently there was no transcript taken at the time the plea was entered and he was placed on probation. We have searched for it, and we can't find it. I was not present at that time.

QUESTION: So we have to presume that everything that was done to support the constitutionality of the order below was done, since we don't know?

MR. LOHR: Well, the only thing we have in the record is that in his testimony on his probation revocation hearing, he did testify that he agreed to pay the fine at the time the condition of probation was entered, and I am assuming that he agreed to it. He had a job at that time, and felt like he could pay it.

QUESTION: Well, what did he steal, or what was the theft?

MR. LOHR: The burglary, and I think the theft by receipt, were one and the -- arose out of the same incident, but it was breaking into a mobile home and apparently taking some items out of the mobile home.

QUESTION: Was there any finding of the value of the items?

MR. LOHR: Again, I really don't know. There is no record of what happened back when he was placed on probation. So I don't know what --

QUESTION: Any indication of what he did with those items? I mean, at one point I presume he could have made restitution if he had simply still had the property by just giving the property back.

MR. LOHR: All I can -- All I can represent to this Court is what the District Attorney has led me to believe in talking to him, the one that was apparently there at the time.

QUESTION: Your argument really then is quite abstract, isn't it, and quite apart from the particulars of this case, where your client was convicted of theft, presumably at one time had the ability to make restitution, accepted a sentence imposing restitution, and now simply wants to shed the whole thing.

MR. LOHR: Well, we are assuming some things here, and I don't know that in fact he had the ability to make restitution out of the goods that were stolen.

QUESTION: Well, but if you don't know, if the record is silent, isn't there a presumption in a case such as this that the findings are in support of constitutionality?

QUESTION: Doesn't the record show that as a matter of fact the only way he paid the original $200 was to pay it from his mother?

MR. LOHR: That's true.

QUESTION: And that he didn't even have it?

MR. LOHR: At the time --

QUESTION: Doesn't the record show that?

MR. LOHR: Yes, it does. He either borrowed it or his mother gave it to him to pay. That's correct.

QUESTION: The record shows that.

MR. LOHR: That's correct. And he had a job at the time, and about a month later became laid off.

QUESTION: Doesn't the record also show the amount of the restitution, the $200 on one charge and $50 on the other?

MR. LOHR: That was the restitution. That's correct.

QUESTION: So isn't it fair to assume that's the amount he had to restore? I mean, that must be the value of what he stole?

MR. LOHR: It would seem reasonable to assume that, yes.

QUESTION: It is also true, isn't it, that your client signed the order of probation in which in effect he agreed that in violation of the terms of probation the court may enter an adjudication of guilt and proceed as provided by law?

MR. LOHR: Yes, he signed that. That's correct.

QUESTION: Both counsel and petitioner signed it.

MR. LOHR: Yes, both counsel that represented him at that time. That's correct.

In the case of Tate against Short, again, this Court, in citing from a concurring opinion in Morris versus Schoonfield, stated that it doesn't matter if the fine is accompanied by a jail term or not, and again, in this case, it was not -- it was not accompanied by a jail term, but only by a probationary period of time. If a jail term of an indigent extends beyond -- excuse me. Or whether or not the jail term extends beyond the statutory maximum. And of course it didn't in this case. It still held there that it is in violation of the equal protection clause in order just to convert a jail term -- or, excuse me, a fine into a jail term.

And it appears that that is what we -- what happened here, and it wasn't any attempt by the trial court to substitute a jail term equivalent to the $550 he owed.

QUESTION: Is there some table from which the trial court could have found an equivalent term?

MR. LOHR: That poses a real difficult problem with that -- with that approach, simply because how do you know how much one day is worth?

QUESTION: Well, I thought you were arguing that -- the intimation seemed to be that the trial judge should have made the effort. I agree with you. I think it would be quite difficult. Then why do you argue that he should have made the effort?

MR. LOHR: The only reason I guess I made that point is, it has been suggested -- I believe it was in Justice White's opinion in Wood against Georgia that there should be some -- when a person's probation is revoked for his failure to pay a fine, that there should be some relationship between the amount of jail time and the amount of the fine, and I guess the reason for that is is that apparently the state needs some -- needs to satisfy its interest in deterrence, satisfy its interest in retribution.

QUESTION: Well, do you think the suggestion is that perhaps the judge should consider the nature of the offense, and decide considering the offense and the nature of the defendant what punishment is appropriate, whether it is jail, or a fine, or in either case how much or how long it should be?

MR. LOHR: Well, I think the Judge has wide discretion at the time of sentencing, at the time he places a person on probation or puts him in jail or imposes a fine. I think he has wide discretion. I think he needs to maintain that.

QUESTION: Do you think that a judge who is considering whether to continue someone on probation should reasonably consider whether the person has a job, and if not, the extent to which he is a risk to society, being a convicted felon and not having employment? Is that appropriate?

MR. LOHR: I don't think it's appropriate to consider that a person who does not have a job becomes a greater risk to society than a person under the exact same circumstances that does have a job, or a person that is poor is a greater risk to society than an individual who is rich under the exact same circumstances. So, if we are looking at the trial judge's ability just to look at whether or not the person is rich or poor, I don't think they should consider that in making that initial determination.

QUESTION: Do you think -- historically in the books there were a lot of provisions that prescribed the punishment for a certain criminal act, 30 days or $30. Now, here is a legislative judgment. Suppose a legislature said, if you steal something that is worth $200, you either pay a $100 fine or go to jail for five days. Those are equivalent. And we just think that if you can't pay the $100, you have got to do something, so we are going to send you to jail for five days.

MR. LOHR: Again, I am going to have to answer that, if you apply the strict scrutiny approach, I think there are other ways that the state can accomplish its interests.

QUESTION: Well, that is just shorthand for saying that you think that the statute is bad.

MR. LOHR: That's correct. That's correct. But you see, there would be other ways then that the state could accomplish its same deterrent interest.

QUESTION: Well, the legislature didn't think so.

MR. LOHR: It seems to me that if a person is unable to pay -- Now, for a person that could pay, it may be a legitimate choice, but for a person that is unable to pay, he really has no choice at all. It is just, go to jail, for him. It seems to me that there should be some other type of provision made, that the state could, with some sort of a work release program, have him do public service work. There are all sorts of options open to the state.

And just because it is not paid immediately does not mean that it may not be paid down the road. So, for a person who is indigent, I don't believe that that is a valid option.

QUESTION: But wouldn't that depend a good deal on the crime committed? You have an individual that plead guilty to burglary. I can think of all sorts of crimes that would not suggest that the individual would be a very good risk. So if you have no alternative but to him on work relief or doing public service, would that not be a bit dangerous for the public generally?

MR. LOHR: Well, I think the determination of whether or not a person is a risk to society, is going to pose a threat to the other individuals around him, needs to be made independently of whether or not this person is rich or poor.

QUESTION: Right. Right.

MR. LOHR: Now, I agree that in a case of burglary, it would seem -- if you compared it to a traffic violation --

QUESTION: Surely.

MR. LOHR: -- there is a greater probability that the court is going to find that he needs to be incarcerated to protect society, but apparently that is not the situation in this case.

QUESTION: Have you considered that one of the consequences, if you prevail, is that judges in the courts dealing with these -- matters of this kind are going to have a tendency, or at least they are going to be encouraged to simply impose -- have several alternatives: impose a fine, saying, if you pay this fine in cash or post a bond within 48 hours, then the sentence will be suspended; otherwise, imprisonment -- that that may be the tendency, or the judges will, as a second alternative, simply forget about restitution and all, which is beginning to be rather illusory, and simply convict and send all these people to prison?

MR. LOHR: I have considered that. For an indigent, it really doesn't make a lot of difference. He can't pay the fine, and if it is a condition of being free, he is not free. By definition, he can't pay it, so he is going to go to jail, regardless of what the judges do.

QUESTION: Well, he may be able to get somebody to put up a bond, if they can't lend him the money, to put up a bond to see that it is paid. Here there was no security for the balance of this fine, was there?

MR. LOHR: No, there was no security.

QUESTION: There was just a promise to pay.

MR. LOHR: Right. It would have an effect, I think, possibly on the trial court's decisions on close cases. For example, in this case, where a person is employed and it looks like he might become unemployed, the court may say, well, I am not going to fool with a fine. Let me just impose a jail term. That may be the result. I should --

QUESTION: Well, didn't one of us say exactly that in Tate against Short, in the concurring opinion?

MR. LOHR: I believe so, and I believe, Justice Blackmun, you did not entirely disapprove of that.

QUESTION: As a matter of fact, it has been said in probably half a dozen cases, at least, that this trend will probably lead to that kind of a result.

MR. LOHR: It may very well do that. Just because -- if it is in fact in violation of the Constitution. I don't think that we necessarily can look at the results to determine whether or not it is in violation of the Constitution.

QUESTION: Mr. Lohr, do you think that the judge in revoking probation can consider whether the defendant has made a bona fide effort to be employed, and therefore earn the money to pay the fine, in determining whether to revoke probation?

MR. LOHR: I think that if a person wilfully fails to pay the fine, or squanders his resources --

QUESTION: That is not my question to you.

MR. LOHR: Whether or not he made a bona fide effort?

QUESTION: Right, to be employed, and to get out there and hustle and earn the money to pay the fine, and the judge feels maybe that wasn't done. Is that grounds for revocation of the probation?

MR. LOHR: I don't believe it is. I don't believe it is. If the condition of probation that an indigent --

QUESTION: So somebody can just sit around and not make a bona fide effort to get a job and pay the fine that has been ordered, that he has agreed to pay when the probation was originally imposed. Is that right?

MR. LOHR: I think that is where my argument would lead me, yes.

QUESTION: He can sit around and not only not pay the fine, but not make restitution of the value of the property that he has stolen.

QUESTION: Mr. Lohr, in this case --

QUESTION: Would you please answer my question?

QUESTION: I am helping him.

(General laughter.)

QUESTION: Go ahead, answer the question, counsel.

MR. LOHR: I -- Could you repeat that, please?

QUESTION: He can sit around and not only not pay the fine, but not make restitution of the value of the property that he has stolen.

MR. LOHR: Well, it seems to -- yes, I think so. Restitution I don't think carries any greater state interest than does the payment of the fine, and of course that is not the facts that we have in this case, but on the other hand, you just -- it seems to me that if we leave the trial courts with the discretion to determine whether or not a person has made a bona fide effort in order to obtain employment and to obtain funds, that that is just -- it is just opening the door.

I just don't see how a trial court is going to make that determination.

QUESTION: Well, there is a little of that element in this case, isn't there, where the trial judge on revoking probation commented that jobs were available for anyone who would come to the courthouse any day during the week, and that this defendant didn't do that, and some indication here that that is what this judge thought that happened?

MR. LOHR: Yes, Judge Loggins did mention that.

QUESTION: Right.

MR. LOHR: And he also mentioned that he recognized that there were times when people cannot find a job, even though they try.

QUESTION: Right.

QUESTION: Assuming I may ask a question, does the record show specifically the places he went to looking for work, and name the places, and that he also went to the state labor department? Does the record show that?

MR. LOHR: That's correct. That's in his testimony. There is no doubt --

QUESTION: Did you forget it?

MR. LOHR: No, I didn't forget that.

QUESTION: Thank you.

(General laughter.)

QUESTION: Counsel, wouldn't your client be better off if Georgia law permitted him to make a showing of a bona fide effort to raise funds as a defense to the probation? As I understand it now, even with the bona fide effort, even if the facts were 1,000 percent favorable, a total impossibility, he can still be sentenced to jail for, what is it, five years in this case, because he couldn't raise $500.

MR. LOHR: That's correct, and in fact, if there was a record showing that the provisions in Stevens versus State had been complied with, technically, he could have been sentenced, I suppose, for 20 years with ten years concurrent.

QUESTION: In this sentence, if I remember the record correctly, it was imposed not by the original sentencing judge, but by the judge at the time of the revocation. The original sentencing judge only sentenced him to one year, I think.

MR. LOHR: The original sentencing judge was three years' probation on one count and one year on the other.

QUESTION: I see.

MR. LOHR: That's correct.

QUESTION: But the five years was at the time of the revocation.

MR. LOHR: By a different judge, and at the probation revocation hearing there was no attempt to determine at that time whether or not his status with respect to his threat to society, with respect to the possibility of rehabilitation, with respect to these other state interests, these weren't even --

QUESTION: What was the ultimate sentence to jail? First five years. Then he lowered it to three with the credit. So what was the time he was going to spend in jail?

MR. LOHR: He would have had to serve approximately two and a half years in jail, but the Department of Corrections would have given him credit for good days, and so forth.

QUESTION: Yes.

QUESTION: Mr. Lohr, do you have any criticism of the Georgia statute, or merely of the way it was applied in this case?

MR. LOHR: Merely of the way it was applied.

QUESTION: The statute is very generous on its face, isn't it?

MR. LOHR: I believe it is. Yes, Your Honor.

If I may, I would like to reserve my remaining time.

CHIEF JUSTICE BURGER: Mr. Weaver?

ORAL ARGUMENT OF GEORGE M. WEAVER, ESQ.,

MR. WEAVER: Mr. Chief Justice, may it please the Court, in this case, the petitioner raises an equal protection challenge to the revocation of his probation. At stake is the broad sentencing discretion that this Court has often recognized to be vested in trial courts.

I would like to say at the outset that the equal protection issue here is not the typical equal protection question this Court faces. Most equal protection issues involve broad, sweeping legislative action that is at least to some degree over-inclusive. Here we have a single sentencing decision by a single trial court, highly individualized, a revocation of probation which was an act of discretion by a trial court.

That is one reason why the respondent submits that the Court should employ the reasonable basis test of equal protection review. Another is that the conditions this Court has specified in the past to the application of higher scrutiny are simply not met in this case. Strict scrutiny, we feel, would be inappropriate because there is no suspect criterion that is the basis for the state action here. Moreover, no fundamental right is burdened for equal protection purposes.

A person on probation has no right, fundamental or otherwise, to probation. Moreover, his fundamental rights may even be limited by his probationary status.

As to intermediate review, this Court has reserved that level for the review of state classifications which are based on what some have called semi-suspect criteria, usually immutable characteristics, as gender or illegitimacy, but in this case there is no such characteristic that is the basis for the state action.

Another reason why the respondent --

QUESTION: Well, I suppose the defendant who is on probation has some kind of a liberty interest in remaining out of jail, does he not?

MR. WEAVER: Yes, Your Honor, I think he has a conditional liberty interest, and that liberty can only be taken away if the requirements of the due process clause are met. This Court established what those are for probation revocation in the case of Gagnon versus Scarpelli. In this case, the requirements of the due process clause were clearly met. There has been no contention, as I understand it, from the petitioner.

QUESTION: Well, can he have his probation revoked solely because of circumstances beyond his control? For example, he is told as a condition of probation not to leave the state, and he is kidnapped, and is taken forcibly across the border. Can probation be revoked for that reason?

MR. WEAVER: I would say no, in that situation.

QUESTION: Well, all right. He loses his job, and it is no fault of his own. He was hired as a replacement strike worker --

(General laughter.)

QUESTION: -- as a permanent employee and then fired. Now, can he be -- can probation be revoked because of that?

MR. WEAVER: Well, Your Honor, in your hypothetical, I would say the revocation in those circumstances would be arbitrary, and therefore would violate the equal protection clause.

QUESTION: All right. What saves it here, where he says, I lost my job, and I have been trying to get work, and I can't, so I can't pay the fine.

MR. WEAVER: Justice O'Connor, I think the trial court could rationally have concluded that the petitioner's loss of his job and his failure to pay the fine, his inability to pay the fine from the record increased or made him a less acceptable probation risk. It seems to me that that follows from the ability of a trial court to consider financial resources and employment situation in the original sentencing decision.

QUESTION: Do you mean that a person who is poor is a bigger risk than a person who has money?

MR. WEAVER: No, sir. I am saying that a person --

QUESTION: I thought you just said that.

MR. WEAVER: Well, I think a trial court could reasonably use --

QUESTION: A trial court could say that?

MR. WEAVER: A trial court could reasonably use a person's financial resources and their employment history as an index to their likely probation success.

QUESTION: No, to the likelihood that they would commit a crime, is what you were talking about.

MR. WEAVER: Likelihood that they would commit a crime and probation success.

QUESTION: So a poor person is more likely to commit a crime than a person with money? And you are speaking as a state Attorney General?

MR. WEAVER: Your Honor, I am saying it is reasonable to use -- Let me put it this way. When a trial court is faced with sentencing a defendant, in this case deciding whether to put a defendant on probation or not, the trial court must make a prediction. Under Georgia law, he must decide under the statute whether it is likely that the defendant will again engage in a course of criminal conduct. Now, what is to help him make that prediction?

I am saying that the financial resources available to the defendant and his employment history are two indices. They are imperfect, Your Honor. I admit that. But they can rationally, reasonably be used to predict the future behavior of the defendant. That is the whole reason why they are considered in the first place.

Now, that is the primary position of the respondent, that financial resources and employment background are a reasonable indication of likely probation success of a defendant. Let me illustrate my argument by making a comparison to two other cases decided by this Court.

In Vance versus Bradley and Massachusetts Board of Retirement versus Mergia, the Court considered mandatory retirement schemes. The Court held that the mandatory retirement schemes were reasonable and therefore not unconstitutional. This Court said that, even though there were employees under both of those schemes who could still perform the tasks.

In other words, it was reasonable for the Congress in one case and the Massachusetts legislature in the other to use age as an index to the physical capabilities of workers, even though there are exceptions.

Similarly, in the case before the Court, the respondent submits that it is reasonable for a trial court to use financial condition and employment history as an index to the likely probation success of the defendant. That is the whole purpose for considering those elements, not only on revocation, but also in the original sentencing decision.

The respondent also contends to the Court that --

QUESTION: Mr. Attorney General, would that be permissible as a matter of constitutional law if, say, his probation period lasted for three years, and he paid the $550 within the deadline, he used his last dime to pay the $550, and periodically his condition is reviewed, and the judge finds out he is totally broke, he has no money at all, he is indigent. Could he then say, well, I think I am going to revoke your probation because I don't think you are a good risk any more?

MR. WEAVER: No, sir. There would have to be the violation of a condition of probation. And I think the violation should have some --

QUESTION: What if one of the conditions is that he must appear to the judge periodically to be a good probation risk? Say the state statute permitted a re-examination from time to time of the condition of the probationer. Would that be constitutional?

MR. WEAVER: If he violated a condition of probation, and the trial court --

QUESTION: Well, one of the conditions is, he satisfy the judge that he is still not a risk to society and that he is just generally still a good risk, and you leave that to the wide discretion of the sentencing judge, who always has very wide discretion in these matters. Why couldn't you let the judge just re-examine it every six months, and he just decides, well, I am not sure about you any more, you don't have any money.

MR. WEAVER: Your Honor, if that is a valid condition of probation, I would agree with you.

QUESTION: Well, that is my question. Is it a valid condition?

MR. WEAVER: I'm not sure that it is. I think that conditions should be sufficiently specific so that it can be understood, and it has some connection with the probation worthiness, to put it in the best way I can.

QUESTION: Well, but I think your argument is that indigency is related to probation worthiness. I think that's what your argument comes down to.

MR. WEAVER: I am saying that a person's financial resources --

QUESTION: Are related to his probation worthiness.

MR. WEAVER: Yes, sir.

QUESTION: If that is true, I would not see any constitutional objection to a statute such as I hypothesize.

MR. WEAVER: If that kind of condition would be legitimate, then I think probation probably could be revoked.

QUESTION: I think that is what the issue in the case is.

MR. WEAVER: Yes, sir. Now --

QUESTION: Suppose the original case comes up, and the judge says, there are two people involved here. One has $500, and a job that pays $10,000 a year, and the other one is broke, so I find one guilty and I release the other one. He couldn't do that, could he? Could he?

MR. WEAVER: I'm not sure, Your Honor. I think a trial court can consider the financial condition of the defendant in sentencing him, but if there is that kind of wide disparity, I think you might even have an Eighth Amendment problem, a cruel and unusual punishment situation, where you have that kind of disproportionality between sentences for people who have committed the same crime.

QUESTION: Wouldn't some of the consideration you are talking about depend on the crime with which the person was charged? I mean, a trial judge could reasonably suppose, I suppose, that a person who was indigent would be more likely to commit petty theft than someone who had $100,000 in the bank, but I suppose he could also suppose that the one with the $100,000 in the bank might be more likely to kite a large check than the person who was indigent. Both of them are crimes.

MR. WEAVER: Yes, sir. I think a trial court could reasonably come to those conclusions.

Now, let me make it clear. I am not saying that the conclusion that this defendant was a greater probation risk is the only conclusion the trial court could have come to, but under the rationality standard, it is not required that there be no reasons to the contrary.

The key words that this Court has used to describe state actions which fail to comply with the rationality standard are "arbitrary" and "irrational." And the respondent submits that in this --

QUESTION: Is that a due process kind of a concern rather than equal protection? Are we concerned with fundamental fairness here in talking about arbitrariness of the decision?

MR. WEAVER: Well, the due process clause is broad enough, I think, to include this issue, but as I understand the prior decisions of the Court, the equal protection clause has been used to decide whether state action is arbitrary or irrational. In the line of cases --

QUESTION: It is not altogether clear, is it?

MR. WEAVER: Your Honor?

QUESTION: It is not altogether clear what the basis of some of these prior decisions --

MR. WEAVER: No, sir. No, Your Honor.

(General laughter.)

MR. WEAVER: In the case of -- Pardon me.

(General laughter.)

MR. WEAVER: In the case of Ross versus Moffitt, this Court summarized some previous decisions of the Court that dealt with state actions which had erected insurmountable barriers to indigents seeking a review of their criminal convictions, and in Ross versus Moffitt, which Justice Rehnquist wrote, the Court said that although those prior cases could be fit -- they could be fitted under either the due process or the equal protection clause, that the Court considered them to be best explained under the equal protection clause.

Now, I would like to address myself to this issue. My opponent has mentioned Williams versus Illinois and Tate versus Short. In those cases, this Court decided that the additional punishment imposed upon indigents solely because of their indigency served no legitimate state interest.

QUESTION: And therefore violated what?

MR. WEAVER: Well, the equal protection clause, I would say. The Court pointed out that when the two defendants in those cases were sentenced, there was a declaration by the state that the state's penal interests did not require the additional punishment later imposed upon the indigents.

Now, in the case before the Court, I submit that there is no -- even assuming that analysis, there is no declaration by the state that the state's penal interest is satisfied here without imprisonment. You have to remember, this is a probation case. Tate versus Short and Williams versus Illinois were not probation cases. This defendant, this petitioner was put on probation, which is a conditional release, and he has to comply with certain conditions of probation. So, it is a tentative release.

Moreover, in this case, the petitioner was put under the First Offenders Act of Georgia. The Georgia Supreme Court has said in a case called State versus Wiley, which is at 233 Georgia 316, that the purposes of first offender's probation are not the same as ordinary probation. The Court has said that unlike other probated sentences, the defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner may be rehabilitated.

So, first offender's probation in Georgia is even more tentative than ordinary probation. So I submit we don't have a declaration here as in Tate and Williams that the state's penal interest was satisfied without imprisonment.

Now, I would like to also point out to the Court that the revocation in this case can rationally be argued to help maintain public confidence in the criminal justice system. Surely, public confidence would seriously be eroded if a person like the petitioner could not only escape imprisonment, but even escape a conviction without having kept the conditions of his sentence. And this concern is especially great here, because the petitioner was sentenced under the First Offenders Act of Georgia. Not only will he escape imprisonment, but also a conviction.

Respondent submits that to maintain public respect for the administration of justice, this revocation, this state action here can rationally be seen as furthering that interest.

In summary, Your Honor, what we have here is a trial court faced with a difficult sentencing decision. The trial court was faced with a defendant who had plead guilty to burglary and theft by receiving charges. He has no prior felony convictions. He says that he can pay a small fine and restitution, and he appears to be employed.

Based on those premises, the trial court places him on probation, gives him a very lenient sentence, and even gives him the benefit of the First Offenders Act. Eight months later, the petitioner comes back in for revocation of his probation. He has failed to keep the conditions. He has not paid his fine and restitution, and is now unemployed.

Now, a lot of questions could be asked about the trial court's decision to revoke probation. It could be asked whether it is wise, enlightened, progressive, humane, but those are not the issues. The issue is, was the decision arbitrary, was it irrational?

The respondent submits that whatever might be said about the decision of the trial court, it was clearly rational. Therefore, it meets the dictates of the equal protection clause of the Fourteenth Amendment, and the judgment of the Georgia Court of Appeals should be affirmed.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Lohr?

REBUTTAL ARGUMENT OF JAMES H. LOHR, ESQ., APPOINTED BY THIS COURT, PRO HAC VICE

MR. LOHR: Mr. Chief Justice, I have just a couple of points. First of all, as I understand the state's position, it is that the petitioner's loss of his job and his inability to pay his fine and restitution placed him in the position of being easily led to commit another crime. I disagree with that. I believe it is a false assumption, the one that was disapproved of in Griffin versus Illinois.

And the state seems to be riding a different horse. It is not saying that the failure to pay the fine and the restitution was -- caused him to be a greater threat to society. It was his indigency. In other words, the real reason for the revocation of his probation was his indigency.

With regard to public confidence, it is hard to pin down, but it seems to me that people are not going to have much faith in a criminal justice system that puts an individual in jail because he is poor and under the same circumstances when a rich person is going to be able to go free. In Rodriguez, this Court reviewed Griffin, Douglas, Williams, and Tate, and in Justice Powell's opinion it was stated that where a person because of lack of wealth was completely unable to pay for a benefit, and as a result there was an absolute deprivation of that benefit, that the Court has struck down those types of state actions, and I submit that in this case, because of his lack of wealth, he was unable to pay for the benefits which flow from being on first offender's probation, and that he was completely deprived of those benefits.

For these reasons, I would respectfully submit that this Court should reverse the Georgia Court of Appeals.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:58 o'clock p.m., the case in the above-entitled matter was submitted.)