Cases by Issue - Payment of Fine

Bearden v. Georgia - Oral Argument

Wed, 18 Feb 2009 07:11:08 +0000

Case:

Bearden v. Georgia

Media File:

81-6633_19830111-argument.mp3

Related Transcript:

81-6633_19830111-argument_transcript.xml

Transcript:

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

Chief Justice Burger: We will hear arguments next in Bearden against Georgia.

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

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.

Unidentified Justice: 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?

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

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

Mr. Lohr: --That's correct.

Those were the only two non-boilerplate conditions.

Unidentified Justice: 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.

Unidentified Justice: --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.

Unidentified Justice: 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--

Unidentified Justice: Or do you know?

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

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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?

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.

Unidentified Justice: And that he didn't even have it?

Mr. Lohr: At the time--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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?

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Right.

Right.

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

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: That is not my question to you.

Mr. Lohr: --Whether or not he made a bona fide effort?

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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, in this case--

--Would you please answer my question?

I am helping him.

0 [Generallaughter.]

Go ahead, answer the question, counsel.

Mr. Lohr: I... Could you repeat that, please?

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Right.

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

Unidentified Justice: Right.

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--

Unidentified Justice: Did you forget it?

Mr. Lohr: --No, I didn't forget that.

Unidentified Justice: Thank you.

0 [Generallaughter.]

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.

Unidentified Justice: 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.

Unidentified Justice: I see.

Mr. Lohr: That's correct.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: Yes.

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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Well, all right.

He loses his job, and it is no fault of his own.

He was hired as a replacement strike worker--

0 [Generallaughter.]

--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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: I thought you just said that.

Mr. Weaver: --Well, I think a trial court could reasonably use--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Are related to his probation worthiness.

Mr. Weaver: --Yes, sir.

Unidentified Justice: 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.

Unidentified Justice: I think that is what the issue in the case is.

Mr. Weaver: Yes, sir.

Now--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: It is not altogether clear, is it?

Mr. Weaver: --Your Honor?

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

Mr. Weaver: No, sir.

No, Your Honor.

0 [Generallaughter.]

In the case of... Pardon me.

0 [Generallaughter.]

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.

Unidentified Justice: --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.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10 a.m..

Attribution:

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Featured:

Tate v. Short - Oral Argument

Thu, 23 Aug 2012 18:12:48 +0000

Case:

Tate v. Short

Media File:

324_19710114-argument.mp3

Related Transcript:

324_19710114-argument

Transcript:

Argument of Norman Dorsen

Chief Justice Warren E. Burger: We’ll hear arguments next in Tate against Short.

Mr. Dorsen you may proceed whenever you are ready.

Mr. Norman Dorsen: Thank you.

Mr. Chief Justice and may it please the Court.

This case, arising in Texas is a sequel to the decisions last term in this Court in Williams v. Illinois and Morris v. Schoonfield.

It involves the imprisonment of an indigent for an inability to pay certain fines imposed for traffic offenses.

The facts are not in dispute.

Petitioner, Mr. Tate, committed several traffic offenses in 1966.

These offenses included driving without an operator’s license, driving a car with expired license plates and going through a red light.

Neither alone nor taken together were these offenses punishable by a jail sentence.

They were --

Justice Potter Stewart: How many different times was he arrested for driving a car without an operator’s license?

Mr. Norman Dorsen: There were nine offenses.

Justice Potter Stewart: Operator’s license?

Mr. Norman Dorsen: I think there were three of those.

Justice Potter Stewart: Any indication why he didn’t go down and get a license?

Mr. Norman Dorsen: No, there’s nothing in the record on that.

Justice Potter Stewart: How much do they cost?

Mr. Norman Dorsen: I don’t know that.

It's probably $10.00 or so, $2.00.

Justice Potter Stewart: $2.00.

Mr. Norman Dorsen: Neither alone, as I said, or taken together were these offenses punishable by a jail sentence.

Petitioner was tried on two of the traffic offenses in 1966 in the Houston Corporation Court, a court whose jurisdiction is limited by statute to offenses punishable by fine alone.

He was convicted on the two offenses and fined $75.00, but the judgment was not executed.

This was explained by petitioner at the subsequent habeas corpus hearing on the ground that he had paid a lawyer to appeal the convictions. In fact, the lawyer failed to perfect the appeal.

If the appeal had been perfected, petitioner would have been entitled to a trial de novo in the county court and relieved, at least temporarily, from the obligation to pay the fines.

Instead, as I’ve said, the convictions became final, but there’s nothing in the record to indicate that petitioner ever knew that this had occurred.

Petitioner’s attorney incidentally has since been disbarred for other reasons.

Petitioner was not tried on the remaining traffic tickets until August 7, 1968.

He appeared then in the same corporation court, the court with jurisdiction only to punish by fines, and he pleaded guilty to the other charges.

The judge imposed fines which when added to those outstanding from 1966, totaled $425.00.

Petitioner being indigent was unable to pay the fine.

Pursuant to Texas statutes and the Houston Code, he was dispatched forthwith to the Houston Prison Farm to serve 85 days in jail, or one day for each $5.00 of the fine, the statutory rate in Texas.

The relevant statutes are found on page 3 of our brief.

Now, this was on August 7, 1968.

On August 28, 1968, petitioner commenced a habeas corpus action and was released the same day on a bond posted by a friend.

He had served 21 days and the unpaid fine was now $320.00 which would subject him to 64 additional days in jail.

Justice Harry A. Blackmun: That same friend didn’t help him out with the fines?

Mr. Norman Dorsen: No he did not Mr. Justice Blackmun.

The hearing on the habeas corpus petition was held in the County Criminal Court on August 30, excerpts from the record of which appear in the back of petitioner’s brief, not in the brown appendix.

The certiorari petition contains the entire record of the habeas corpus petition -- of the habeas corpus hearing.

The County Criminal Court denied the habeas corpus petition and the Texas Court of Criminal Appeals affirmed and the case then came here on certiorari.

There’s one further important factual point I’d like to make at the outset.

Although the state in its brief seems to dispute the fact that petitioner was indigent as of August 1968, when he was sent to jail for nonpayment of the fine, it is in fact perfectly clear from the record that the state had stipulated during the hearing in the habeas corpus petition that petitioner was “poverty stricken and that his whole family has been for all periods of time therein, and probably always will be.”

This is in the appendix brief, page 7a.

Justice Thurgood Marshall: Did he own a car?

Mr. Norman Dorsen: That does not appear in the record.

The reason that that was not explored Mr. Justice Marshall is that the garnishment provisions in the law of Texas exempt levying on the car of a married man, so that car couldn’t have been used to pay the fine.

Justice Thurgood Marshall: Well, he could’ve sold it?

Mr. Norman Dorsen: Well, he might have done that.

Justice Thurgood Marshall: Well, what happens if a man has 64 charges of driving without a license, reckless driving and doing bodily harm with an automobile and he’s broke?

Mr. Norman Dorsen: Well, the first thing that has to happen is -- if he has no money, the court as this -- the lower court, the criminal court as this Court said in the Williams case last year has several alternatives.

One is, if he has the possibility of earning some money to stretch out the fine over a period of time.

If that won’t work, another alternative is to find a job for him or put him to work on at the prison farm or something of the sort, but not to confine him 24 hours a day.

Justice Thurgood Marshall: Well you know the prison farm isn’t --

Mr. Norman Dorsen: No, no.

What I have in mind there is what the A.B.A. in its minimum standards of sentencing provides, they call that partial confinement.

The study by the A.B.A. concluded that in the case of the kind --

Justice Thurgood Marshall: Well, I’m sure Texas doesn’t have one?

Mr. Norman Dorsen: No, they do not, they do not.

Chief Justice Warren E. Burger: Would that be a constitutionally any less offensive if he was only confined 12 hours a day instead of 24?

Mr. Norman Dorsen: Well, if he were confined only for the purpose of having him work out on a job, the fine we suggest would not be constitutionally offensive.

In other words, if the man cannot pay, if it’s clear as Mr. Justice Marshall’s hypothetical put it that he wasn’t able to pay, our first constitutional requirement following the Williams opinion is that perhaps he might pay if the fine is stretched out over a period of time.

Chief Justice Warren E. Burger: Wouldn’t that be something at least resembling involuntary servitude if the sentence of the court was that he fend 12 hours a day at the local prison farm, at least eight hours of which should be spent working at $2.00 an hour?

Mr. Norman Dorsen: I don’t think it would be because of course there is a specific exception in the Thirteenth Amendment for persons convicted of a crime, but even more important that --

Chief Justice Warren E. Burger: But this --

Mr. Norman Dorsen: The state -- we are not claiming, I wish to be perfectly clear, we are not claiming that the state is powerless to get at the kind of person that Mr. Marshall’s -- that Mr. Justice Marshall’s question referred to.W

e say that the state can take certain action.

The first thing they should try to do is to use the installment method.

If that doesn’t work, if there’s no likelihood that the installment method would work, the kind of arrangements for working off the fine over a period of time might be an alternative.

Now, the A.B.A., the commission to study the federal penal code, all examined this extremely difficult problem because on the one hand as I’ve indicated, the state should not be powerless to proceed against an individual.

On the other hand, the underlying principle of the Williams case as I understand it is that for the person who is without funds to put him into jail immediately, which is what happened here.

There was no hearing, there was no exploration of the possibility of using these other techniques, we say that in a situation like this, the court should deal carefully, to use the phrase that Mr. Justice White used in his concurring opinion in the Morris case, with the man who is without funds, not exempt him, not exempt him because as I think the Chief Justice’s opinion pointed out, there could be a reverse discrimination in the case of a person who is indigent who won’t be able to be proceeded against in any way at all, we are not claiming that.

We’re saying that if a man has, as this man had, fines totaling $425.00 or whatever the sum would be that the lower court must deal with that person individually, that there must be a hearing, this also is suggested by the A.B.A. and by the commission to reform the criminal law, and deal with him in terms of his particular situation.

It’s possible in this case for example since he was getting a veteran’s check I think of a $104.00 a month that he would’ve been able to pay out the fine say $5.00 a week or something of this sort.

The infirmity in the procedure here we’re suggesting is the immediate transference of an individual who is poor to jail without exploration of the various alternatives that were reviewed in the Williams case.

Justice Thurgood Marshall: Will that if this get a -- this $425.00 out of figure?

Mr. Norman Dorsen: Pardon me?

Justice Thurgood Marshall: $425.00 figure, I would assume maybe he got a $100.00 a month, he could’ve paid that two buck fine.

Mr. Norman Dorsen: Well, he had a wife and two children and a $104.00 a month --

Justice Thurgood Marshall: Well, for example he could’ve bought a little less gasoline and paid the $2.00 fine.

Mr. Norman Dorsen: Well --

Justice Thurgood Marshall: And I want to suggest the one thing, it might turn out to be it was gasoline.

Mr. Norman Dorsen: Well --

Justice Thurgood Marshall: What I mean is $2.00-fine is different from a $100.00?

Mr. Norman Dorsen: I think that’s right.

The problem we have on this record, Mr. Justice Marshall, which is -- which from another point of view is relevant to the question you’re raising is that the trial court did not do what we say is constitutionally required, and that is explore the very questions that you’re raising.

What we’re saying is that the lower courts in these situations can not just take a person who hasn’t got the funds and put him in jail.

We are not disputing the implications of your question, as I understand it, Mr. Justice.

We’re saying that as the Williams case said, the choice is illusory for a man without funds.

That does not mean he should be exempt.

I want to emphasize that again and again because I think that’s a critical factor in cases of this kind, but that the lower court cannot just take him and put him in jail that more is required by the constitution to fulfill the mandates of the cases cited in Williams and the philosophy of the Williams case itself as I read it.

Justice Potter Stewart: And that's or you say Mr. Dorsen could be met by Texas if it showed upon investigation, find that this man is to be sure not able to pay the whole $425.00 now, but that he can reasonably afford to pay $10.00 a month --

Mr. Norman Dorsen: That’s correct.

Justice Potter Stewart: -- that he does get it the very least a $104.00 a month from the veterans --

Mr. Norman Dorsen: That’s correct sir.

Justice Potter Stewart: -- whether or not he’s employed or --

Mr. Norman Dorsen: That is correct sir.

Justice Potter Stewart: -- and that -- so then they are in to do that, and he doesn’t pay the $10.00 a month, can they then put him in jail?

Mr. Norman Dorsen: Well we would say in a case like that that the court should then hold the kind of informal hearing --

Justice Potter Stewart: Well, it’s had the hearing and it’s found that he can afford to pay $10.00 a month out of a $104.00 a month, then he doesn’t pay it, then can they put him in jail?

Mr. Norman Dorsen: I would say that’s a case of willful refusal to pay and they could put him in jail.

We are not claiming that in the case like that and I think that the Chief Justice’s could express the reserve --

Justice Potter Stewart: And that even this Court -- even this Court which other Texas law has no power to do anything but fine people as you point out, nonetheless you concede that under the constitution, it could put him in jail if he didn’t pay the $10.00 a month?

Mr. Norman Dorsen: We would concede that the willful refusal and I think it’s pertinent in that connection because I’m glad that became clear that --

Justice Harry A. Blackmun: Mr. Dorsen, let me interrupt you now and help me out in this respect.

I’d like to change the facts a little bit.

I suppose if the statute were only one sided, that for this offense, ten days in jail, would you be here then, rich or poor?

Mr. Norman Dorsen: If the fine were only $10.00?

Justice Harry A. Blackmun: No, if there were no fine, the statute were ten days in jail for this offense, the statute ordinance?

Mr. Norman Dorsen: I assume we would not be.

Justice Harry A. Blackmun: You would not be here.

I guess my question then is, if you were to prevail here in this lawsuit, would not the resulting tendency in ordinances and statutes be to make all these offenses punishable only by imprisonment?

Mr. Norman Dorsen: There might be such a tendency.

It’s hard to speculate that what would happen in each state.

The fact of the matter is I think Mr. Justice Blackmun that many states now provide for the kind of arrangement that we are suggesting and some of those as I understand it to have -- have not changed the law regarding to sentencing.

But I would like to emphasize one other point which I think is related to your question.

The state makes much of the point and I think that perhaps one or two of the questions that have been asked indicate a concern about it that this is a scuff law.

That this is a fellow who’s just oblivious to the normal restrictions that all of us would feel are binding in connection with operating a motor vehicle or a license, and therefore, perhaps he should go to jail.

Now our position on that is two-fold. One that the state, as you suggest, can provide for jail sentences in cases of this kind, repeaters, people who are chronic violators.

The State of Texas, the legislature of the State of Texas has not chosen to do that.

The second point I would -- but we are emphasizing that that would be a perfectly valid mode of correctional philosophy.

The second point we would emphasize on this problem of, to use the word the state uses, the scuff law, is that if people are going to go to jail for being scuff laws, rich people should go to jail as well as poor people.

That if a fellow were a playboy or a fellow who had some money in one way or another and violated the traffic laws of the State of Texas, and I assume there have been some people who’ve done that in Texas as well as in New York and other states, we say that the law should be applied equally to the rich and the poor.

Texas could decide to put them in jail.

We are not at all disputing that power.

In this connection --

Justice Harry A. Blackmun: My only suggestion is that if you prevail here, you may provide an impetus for just that thing, and of course it ties in with the thinking of some people that one of the solutions to our traffic carnage is to impose differ --

Mr. Norman Dorsen: That may well be.

I would not to dispute that as an original question.

I might say in connection -- in terms of the state’s interest, the state at several points and very understandably from its viewpoint, suggest that this would be terrifically inconvenient for the state to do, terrifically inconvenient to do the kinds of things that the A.B.A. has suggested, that the commission to reform the federal law, Federal Criminal Code has suggested that Maryland now does, that Delaware does, that California does.

Now, we say that that is -- that the inconvenience problem is to use the vernacular, a red herring, that all the state already has a probation apparatus.

It already has people who are concerned with sentencing -- the statutes of the State of Texas provide incidentally for installment payments of fine above $200.00 in another connection.

If you are fined above $200.00 and there’s a conditions for probation -- as a condition for probation, the court is in powered under the Texas Criminal Code to provide for installments that they don’t -- that the state doesn’t find that inconvenient.

And the American Bar Association which went through for all of this, at great care, concluded that it is not too much to ask in the interest of equal protection to treat the people without funds of little bit more carefully.

I might say, I pass the point by, I suppose it may have been implied in what I said that this case is really like Williams in the critical respect that the maximum sentence that can be provided for offenses of this kind is zero days, which brings it within the opinion of the Chief Justice and the concurring opinion of the due process theory by Mr. Justice Harlan.

The amicus curiae, I might say, the National Legal Aid and Defender Association, which has come into this case, amicus curiae suggest that this is even a worst case than Williams, a more severe deprivation of constitutional rights because here, you’re not just adding to an existing jail term but you're substituting jail for a pecuniary penalty.

Justice Potter Stewart: What was the maximum fine I wonder that he could’ve totaled, aggregate fine?

He did get a $425.00, how much could’ve he been fined, a few thousand?

Mr. Norman Dorsen: It’s not clear on the record.

The maximum that this Court could impose for any offense was $200.00.

Justice Potter Stewart: Per offense?

Mr. Norman Dorsen: That’s right.

So 1800 would’ve been the presumably the absolute jurisdictional limit, but they may have been the sure the limits for --.

Now there’s another aspect to this case, it is not our principle point, but we would like to stress it, and that is that the idea of exchanging a man’s freedom for $5.00 a day strikes us as being itself implicitly irrational.

When one thinks about how any person in the middle class or with comfortable means or just not an indigent, would feel about his freedom and to translate that precious thing, being the most precious thing we have for $5.00 seems to us over the line.

And of course the American Bar Association,in rather strong language, in rather strong language made a similar point in which it said, I think it’s on page 12 of our brief that -- page 16, I’m sorry, page 16 of our brief, saying it even more strongly than we did that the exclusive use of a dollar a day ratio both presents the possibility of a brutally long sentence and provides as a measure, an arbitrary figure which makes no economic sense and which bears no relation to the factors which ought to govern the choice as to the length of the sentence.

Chief Justice Warren E. Burger: When was the statute passed in Texas?

Is it some statute from that in the turn of the statute?

Mr. Norman Dorsen: It’s a rather old statute, I believe.

Texas -- a hundred years ago, 120 years or I think in 1850 had a statute which provided for installments of some kind.

It was repealed I think in -- well that the state will correct me on that, but it’s not a new statute in the State of Texas.

Chief Justice Warren E. Burger: Well, I suppose you’d agree in terms of the economic argument you’re making that at the turn of the century, $5.00 a day might not be irrational, might not have been irrational?

Mr. Norman Dorsen: Yes.

Well that’s correct.

I -- we’re not making a moral judgment on the legislature of Texas in making this claim.

I think perhaps notions of fairness of change as well as the declining value of the dollar, and it seems to me that as one court, an Ohio court incidentally held, we cite the case in that long footnote on page 16 that $3.00 a day was irrational.

We would say $5.00 a day is just unacceptable in terms of fundamental fairness and --

Justice Thurgood Marshall: It would be the same if there was a thousand dollars to pay your argument would be the same?

Mr. Norman Dorsen: That’s correct.

I’m just emphasizing this other aspect which is a separate point, and it is not as you point out a principle point.

Chief Justice Warren E. Burger: I take it if you from your argument that he could be put on a state prison farm and required to work eight hours a day out of $2.00 an hour rate or something, perhaps something geared to the minimum --

Mr. Norman Dorsen: Yes.

Chief Justice Warren E. Burger: -- wages under the federal act that he could also be put on a road gang, on a construction job, or any other work under compelled state supervision.

Mr. Norman Dorsen: I think he could be.

I would not think that the state should use that as its first alternative.

I think they should follow the recommendations made by the American Bar Association and the commission that --

Chief Justice Warren E. Burger: When you say the state should follow, you’re then talking in terms of advice to the state legislatures.

How can this Court or any court give advice to the state legislatures?

Mr. Norman Dorsen: I did not mean to put it that way.

What I’m suggesting is that we deal here with the deprivation of liberty.

It seems to us fully consistent with this Court's hearing -- opinions in a variety of cases that the state should use the least restrictive means in enforcing its laws.

Now this fellow, as we discussed earlier happened to be someone who was of a special kind perhaps, but that does not mean he’s an outlaw that he should be, you know, condemned totally.

He should be given an opportunity to pay it off, and he could have perhaps and this incidentally is relevant to our second principle point and that is that the lower courts in these cases, we assert respectfully, have to hold some kind of hearing.

Some kind of proceeding to find out what’s happening in these cases and they can not be just mass produced justice and a -- an automatic incarceration.

If I have any time left, I’d like to just reserve a minute or two for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Dorsen.

Argument of Joseph G. Rollins

Mr. Joseph G. Rollins: Mr. Chief Justice and may it please the Court.

At the outset, we would like to discuss what this case does not concern.

It does not concern any troubles that Preston A. Tate that may have had with his lawyers.

We think that this is not in the case nor is it -- does it involve any arbitrary action on the power of the State of Texas in charging $2.00 for a driver’s license, that’s not in the case.

The case actually boils down to the fact that this man, Preston A. Tate, ran a red light in the City of Houston and the policeman stopped him and as part of their routine procedure, they asked him to show his driver’s license.

He didn’t have a driver’s license.

He went in to corporation court, plead not guilty.

The jury found him $50.00 -- fined him 50 on one offense, they could’ve gone at 200, they fined him 25 on the other.

That very same day at 6 p.m. that evening he ran a stop sign and fortunately, a policeman saw him and stopped him and again he was arrested, and then subsequently he ran up a total of nine traffic offenses.

Justice Potter Stewart: What was he -- did I understand you say that he -- Texas found him guilty of two offenses for not having a driver’s license on a single day?

Mr. Joseph G. Rollins: No sir, the day of his trial, the day that the jury found him guilty and fined him a $50.00-fine and a $25.00-fine that same evening -- the offense had occurred I think a week or so earlier, but then on then on the day of his --

Justice Potter Stewart: Yes but -- the day of the trial, you mean he was coming homing from the trial?

Mr. Joseph G. Rollins: No -- I doubt it Your Honor, because it was 6:30 something p.m., and I don’t believe that he would be coming home from the trial, but nonetheless, it was the same day.

He ran a stop sign and again was arrested, or given a ticket, he wasn’t arrested and that is something else that we would like to point out here.

They say that he was immediately and forthwith taken to jail.

He, over two years, expired between the time of these offenses and the time of his habeas corpus hearing.

And although he might have had a wife and child at the time -- and two children at the time of the habeas corpus hearing, he had no children when he committed these offenses.

In other words, there was enough time lag in there for him to father two children.

So I don’t think the State of Texas has really been forthwith on this thing.

In fact, I think perhaps we could be -- if we were to be criticized, we could be criticized in dragging our heels, and not bringing this thing to the head before now.

Another thing in the petitioner’s brief, they question the jurisdiction of our corporation court and I think he answered his question when he stated that the corporation court could put a man in jail after he had failed to pay his installments.

Well now, if we can put him in jail after failing to pay the installments, we could -- we’d have the jurisdiction beforehand.

And besides, our Texas Supreme Court and Texas Code of Criminal Appeals says that the corporation courts and the JP courts have the right to enforce their orders by incarceration, and I don’t -- that is in our briefs, and I don’t think that it would serve any purpose to argue that further.

The --

Justice Thurgood Marshall: What effort was made during this year of two period to collect the fines?

Mr. Joseph G. Rollins: That Mr. Justice Marshall, I don’t know.

Justice Thurgood Marshall: Well now at the hearing when he was sent away, what happened there other than that you don’t have the money so you go?

Mr. Joseph G. Rollins: Yes sir, that’s it.

Justice Thurgood Marshall: That’s all?

Mr. Joseph G. Rollins: Yes.

Justice Thurgood Marshall: Well, it would’ve been possible to find out whether he could’ve paid it in installment?

Obviously, the judge could’ve asked one question “Can you pay this $10.00 a month?”

Mr. Joseph G. Rollins: There is no provision in our law for paying a misdemeanor of this type out in installments.

Justice Thurgood Marshall: Well, is there anything in your law that prohibits it?

I would assume --

Mr. Joseph G. Rollins: I’d --

Justice Thurgood Marshall: -- at least I would assume that in this particular case, if the judge had said on the day he was fined $75.00, you have got two years to pay this $75.00.

There would be no question about that.

You could do that under the Taxes law, could you?

Mr. Joseph G. Rollins: Two years?

I don’t believe, Mr. Justice Marshall that --

Justice Thurgood Marshall: Well isn’t that what happened?

It was two years before he got around to ask him for it?

Mr. Joseph G. Rollins: It was two years before they -- actually what happened here, they had some capiases out for him on some of these other subsequent offenses, and they finally arrested him.

They finally ran him down.

Now whether we didn’t run hard enough for not, I don’t know.

Justice Thurgood Marshall: You didn’t deliberately delay that that was --

Mr. Joseph G. Rollins: No sir, no sir.

In fact he was, as I say, and I was not on this case in the trial court level, and I’m not as acutely familiar with the facts as I should be, but my understanding is that there was about seven capiases working on him simultaneously.

They were looked -- our police department was looking for him.

Justice Hugo L. Black: Did he have all one of the defense for these cases?

Mr. Joseph G. Rollins: Seven of them were nolo contendere, and two that the jury -- he pled not guilty on two, the jury found him guilty.

Justice Hugo L. Black: What was his defense?

Mr. Joseph G. Rollins: I don’t know sir.

I don’t -- when a person gets caught red handed running a red light, I really don’t see a much defense.

Justice Hugo L. Black: Well, I asked what his defense was, or has been?

Mr. Joseph G. Rollins: In the habeas corpus hearing, their only defense was that he was too poor to pay the fine.

Chief Justice Warren E. Burger: To pursue Justice Marshall’s question about installment payments, I assume Texas charges interest on its outstanding fine, wasn’t it?

Mr. Joseph G. Rollins: No sir, we do not.

Chief Justice Warren E. Burger: So at least he doesn’t have $3.00 a month interest running on him --

Mr. Joseph G. Rollins: No sir.

Chief Justice Warren E. Burger: -- on that $10.00?

Mr. Joseph G. Rollins: No sir.

And to continue with Justice Marshall’s question, I don’t believe that a judge, or justice of the peace would have the authority under our law to set up his own little time payment plan.

I don’t believe that when the law says that the fines shall be collected in certain manner, I don’t believe that each JP in all of our many counties could set up his own little empire so to speak on how he’s gong to collect these fines.

Justice Thurgood Marshall: I assume you’re also make the point that it’s different from when he first was picked up and convicted and got $75.00 if the judge had said “Either this or you go to jail.”

And this case where by the time they got around to him, he had nine other charges against him. I think those are two different cases, don’t you?

Mr. Joseph G. Rollins: As far as the equity is yes, but as far as the law is concerned, we think that the -- when the man could have -- if he had just obeyed the law right there, none of this trouble would’ve happened, but he chose to disobey the law.

He chose to drive without a driver’s license for -- he admitted on the habeas corpus two-and-a-half years and as of last week, he hadn’t got a driver’s license yet. And we don’t think that of course as far as the question of law involved, the degree of a man’s perversity probably shouldn’t have anything to do with it, but nonetheless, it certainly should be something that we should not be blind to.

Justice Thurgood Marshall: Mr. Rollins, my final point is the same judge does have right of probation, and do you not have a probation department in Houston?

Mr. Joseph G. Rollins: No sir, not on this --

Justice Thurgood Marshall: I think that they could it -- no, but I’m -- you do have a probation department?

Mr. Joseph G. Rollins: The district attorney has a probation department, and they -- but on this type of fine, there is a city ordinance which allows the judge to delay collection of the fine 30 days --

Justice Thurgood Marshall: I see.

Mr. Joseph G. Rollins: -- upon application of the defendant.

He did not do this.

Justice John M. Harlan: How do you distinguish the Williams case in last term from your case?

Mr. Joseph G. Rollins: Your Honor, the Williams case by the specific language of the court, and I think at least ten times in Mr. Chief Justice Burger’s opinion, he emphasized that what the Court was condemning in Williams was an instance where they had a statute which provided for imprisonment, regardless.

And in addition in this same statute, there was a provision for a fine and what this quote said, at least the way I read it and I believe that’s what the concurring opinion in the Schoonover case also said was their interpretation of it, was that this quote said that when you transmute a fine into equivalent jail time that that cannot extend beyond the maximum jail time provided in the statute.

That was what was before the Court.

They -- I believe you all said that you had a very limited question, and that’s what you decided on, but I was impressed by the number of times that Mr. Chief Justice Burger in his opinion kept referring to that circumscription of the case to a cases where it extended the total incarceration period beyond the period set forth in the statute.

And in this case, this is a case where the only sanction for a violation of this statute was a fine only.

We submit and we think we have shown it in our briefs that in cases like this that our other statutes which provide that upon failure to pay a fine, it maybe laid out in jail at $5.00 a day.

We think these two statutes should be construed in para materia.

In other words, to show that the legislature intended that the man should not get off scot-free, but that if he would pay the fine that’s fine.

If he couldn’t, then he would have to lay it out in jail.

Chief Justice Warren E. Burger: Mr. Rollins, in the appendix, the opinion of the Court in Williams last year, there was an effort to summarize what various states did.

And as to Texas of course, it didn’t purport to be complete, but it was recited that he maybe, the defendant found guilty and fined, maybe put to work or imprisoned for a sufficient length of time to discharge the amount.

Is there a provision, a workout provision, under Justice of the peace fine, or --

Mr. Joseph G. Rollins: Your Honor, I can answer that for the City of Houston, that we have an ordinance which provides that if he will go -- voluntarily go to what we call our P. Farm, he can work that out at $7.50 per day.

Tate refused to go to the P. Farm incidentally, but I don’t think that’s here --

Chief Justice Warren E. Burger: Well, wouldn’t you think that’s -- how does that appear?

Does that appear in the record?

Unknown Speaker: What was that?

Is that here?

Mr. Joseph G. Rollins: Is that -- was that in the habeas corpus?

It’s not in the record.

Chief Justice Warren E. Burger: Well that’s a rather important aspect in view of what was said in the Williams case about alternatives, wouldn’t you think?

Mr. Joseph G. Rollins: Your Honor, the -- actually as far as principle is concerned, I don’t see that there’s any difference in incarcerating him or he can just lie around in jail and talk to the boys in the cell, or go out and work on the prison farm.

It’s --

Chief Justice Warren E. Burger: Well maybe we might conceivably take a different view of the matter?

Mr. Joseph G. Rollins: Yes sir, that’s obvious sir.

But you asked me the question called, I can’t see that the principle is that the man is being restrained of his liberty involuntarily.

Chief Justice Warren E. Burger: Professor Dorsen didn’t -- certainly, he didn’t argue that there was anything constitutionally impermissible, you recall, I’m not sure --

Mr. Joseph G. Rollins: But, I couldn’t understand --

Chief Justice Warren E. Burger: -- necessarily would agree with that, but since all of the treatment of this difficult problem has dealt in terms of alternatives, it’s conceivable that even at the rate of about a dollar an hour which Texas allows, plus presumably some food on a workout day, you might have a different case from the case you have without that evidence in the record.

Mr. Joseph G. Rollins: Your Honor, did you say a dollar an hour?

Chief Justice Warren E. Burger: You said a 8 -- $7.00 and a half a day.

Mr. Joseph G. Rollins: Oh!

That is on our -- that’s the city ordinance.

Chief Justice Warren E. Burger: That’s roughly --

Mr. Joseph G. Rollins: Yes sir.

Chief Justice Warren E. Burger: -- a dollar an hour and I suppose they give the man something to eat when he’s -- during this working day?

Mr. Joseph G. Rollins: Yes sir, I can say that we feed real good.

But --

Chief Justice Warren E. Burger: Only -- that might be quite a different case from the one you have here?

Mr. Joseph G. Rollins: Your Honor, I cannot see the difference.

The man -- well, what would be the difference then?

And my answer to that question by asking a question, what if we had a chain gang and lease the amount to the private road contractor and say now “If you go out here and work on this chain gang out in the hot sun, well, we’ll let you off a lot sooner.”

I can’t see the difference in principle and the idea is that man is being restrained from getting out in society, that’s the punishment.

And we believe that in a case like we have here where the legislature has stated that sanction shall be a fine, and then another statute which we think ought to be construed in para materia that if he does not pay the fine, then he has to go to jail.

We think that that is entirely different and we would submit, there’s two early cases out of California which we did not include in our brief, but I would like to submit to the Court, it’s In re. Wadley in 23 Pacific 190 and In re. Rosenheim, 23 Pacific 372.

Chief Justice Warren E. Burger: Will you furnish us with the memorandum of those citations --

Mr. Joseph G. Rollins: Yes sir, I certainly will.

Chief Justice Warren E. Burger: -- and your friend?

Mr. Joseph G. Rollins: And Your Honor, I would like to point in the Wadley case, in a concurring opinion, Mr. Justice McFarlane mentioned that there -- classified the three types of sanctions for misdemeanor fines: imprisonment only, fine only, imprisonment plus fine.

In In re. Rosenheim, there was a situation very similar to the situation that was before you all in Williams.

And the court there, in the California court said that the language of the statute had an ambiguity because if the legislature had really wanted or had clearly wanted the fine to be transmuted to jail time and added on to the imprisonment time, they could have clearly so said, but that they didn’t, and that the misdemeanor had a constitutional right for California to pursue its policy of strict construction of the statute against the state and for the prisoner.

In which case and they further stated that if the loose construction that the state wanted in that case were followed, then it was possible for a judge to do by indirection what he could not do by directly and I believe you all used that same phrase in Williams.

Justice Harry A. Blackmun: Mr. Rollins.

Mr. Joseph G. Rollins: Yes sir.

Justice Harry A. Blackmun: How long have you had your P. Farm ordinance?

Mr. Joseph G. Rollins: Long before the times germane year.

Justice Harry A. Blackmun: Is it judicially noticeable?

Mr. Joseph G. Rollins: Your Honor in Texas, city ordinances are not.

Our Supreme Court or our District Courts cannot take or do not take judicial knowledge of city ordinances.

They do have city charters.

So in strictly legal point of view, I would presume that a court could not take judicial knowledge of a city ordinance which sets up the --

Justice Potter Stewart: Well, what the Texas law might be is to judicial notice doesn’t necessarily govern what the law might --

Mr. Joseph G. Rollins: Well --

Justice Potter Stewart: -- be here as to judicial notice?

Justice Harry A. Blackmun: In any event, why don’t you supply us with a citation of those ordinances or copies of them -- of it when you give the other citations --

Mr. Joseph G. Rollins: Yes.

Justice Harry A. Blackmun: -- as the Chief Justice has suggested?

Mr. Joseph G. Rollins: Yes sir.

It is in our city code and if the Supreme Court can take judicial knowledge of our City of Houston Code, well the problem is solved.

And --

Chief Justice Warren E. Burger: Even if we can judicially notice those factors, we can’t judicially notice that the record in the habeas corpus proceeding shows that he refused to take this alternative.

In fact, the record is blank on this.

Mr. Joseph G. Rollins: No sir, if it’s not in the record, I don’t think he can.

Chief Justice Warren E. Burger: Is there any -- was that before the Texas Appellate Court?

Mr. Joseph G. Rollins: Your Honor, I don’t know.

I don’t think it was.

Chief Justice Warren E. Burger: Well, I have no idea whether a motion to supplement the record would be granted or not, but you’re certainly are free to make such a motion?

Mr. Joseph G. Rollins: Yes sir, I will certainly do so.

And Your Honor, in what little time I have remaining, I would like to protest very vigorously about this idea of making the State of Texas or City of Houston or any other state kind of adopt, I guess it’s going to be something like the American Automobile Association has for their subscribers.

They go out and pay the fines for you and its just all the part of the service.

We don’t think that the Fourteenth Amendment by the wildest stretch of the imagination could require a state to set up a credit card classification of petty crimes and misdemeanors that --

Chief Justice Warren E. Burger: Well, are you referring now to the installment?

Mr. Joseph G. Rollins: Yes sir.

That’s -- in other words, that’s what really what you’re asking is that or what he’s asking is that the sheriffs and chiefs of police just set up credits with people like Preston Tate and let him pay it out at so much a month or at then how it’s going to take the wisdom of Solomon and the sophistication of a computer that hasn’t ever been invented to correlate the man’s family size, his personal sensitivity, his -- the value of his car which he has committed the crimes with and all of that into a jumble and come out and say “Alright now, for you, it’s going to be $4.75 a week.”

And then does he propose that in addition to having Solomon setting judgment on this that then we have another hearing on -- say that I have a $2.00 parking meter violation in the City of Houston and I go down there say “I’m too poor” then are we going to have a separate hearing on my guilt vel non.

And then another hearing on whether I was telling the truth when I said I was too poor?

And if I was just about half right on that too poor, well then is the judge going to have to figure out how we’re going to space those payments out?

And another thing, if we have these installment payments, the people are going to start getting behind that’s just human nature then we’re going to have all sorts of Civil Rights cases coming up about our -- the way our deputy clerks go out and try to collect the fines that they used harsh language.

And we’re going to -- we think that this is just leading to a Serbonian bog that we never will see our way clear off.

And I think that before we stretch the Fourteenth Amendment to mean something that clearly was not written in it, I would like to leave in parting with the idea that the poor people in Houston in Texas outnumber the rich.

They’ve got the ballot and the suffrage, and if they think the way we have collected their fines is wrong, they can elect city councilmen and state legislators to change the law.

That the poor people of Texas have not done so would be indicative that this law and the way we carry it out is not oppressive and is not unworkable.

But especially since the Fourteenth Amendment did not have the -- and I would like also to point out that the same Congress that wrote the Fourteenth Amendment was also the same Congress that passed on our constitution, and that we had to submit that constitution and ratify the Fourteenth Amendment before we could get back in the Union.

That same Congress that wrote the Fourteenth Amendment thought our state constitution was all right.

And we submit that this is strictly a matter of local concern and that it would be beyond the wildest stretch of imagination to require the State of Texas to -- and the City of Houston to set up this installment payment, But Your Honors if you do, please tell us exactly how to work it because the District Courts are going to be working overtime each one with the mutually conflicting subjective idea of what a proper installment should be and the proper collection procedure should be.

And I can see of all three-man courts being convened all over Texas and all over the nation for matter, trying to determine whether the installment payment met the hood cost of living index or whether we should go on the guaranteed minimum income as an index for fiscal or in penal responsibility.

And then Your Honor, I would like to add one thing.

What about the people that just won’t pay?

We ought to have some right to do that and we submit that it is our local -- that this is within the province of our people and our legislators.

Thank you.

Justice Hugo L. Black: Do you have any law in Texas to provide for the forfeiture of automobiles that used by people constantly?

Mr. Joseph G. Rollins: No sir.

The -- a married man -- a married man’s automobile is not subject to execution.

We had a populist inspired legislature in the early 1880’s that just took care of what the constitution didn’t take care of and if a man, if a married man is prudent enough in Texas not to have a bank account, he can go free.

Chief Justice Warren E. Burger: Mr. Dorsen.

Rebuttal of Norman Dorsen

Mr. Norman Dorsen: Thank you Mr. Chief Justice.

I think that first of all that some of the catalogs of alleged horrors that my friend from Texas has referred to are really unrealistic, and I would just refer the Court rather than go in to the details to the case cited in our reply brief, Arthur v. Schoonfield which is the Maryland case that was back on remand from the Morris v. Schoonfield case, in which the three-judge court, there are only two judges sitting, the three-judge federal court reviewed in detail the new Maryland statute and showed, I think, very clearly in that statute and in the way the court discusses it how this method of collection can work consistently with Williams and Illinois and without undue burden on the state.

I’m advised by my co-counsel from Texas that the P. Farm that was referred to that is not discussed at all in the record, is not really what -- I had first thought my friend from Texas was referring about.

As I understand it from Texas council that everyone goes to the P. Farm, the so called P. Farm, but the people who work there, who agree to work get $7.00 a day for working.

Now, that’s not the same thing as I was suggesting before, because what we were suggesting before was, absent the willfulness problem which I certainly want to reemphasize that the state is not powerless under the constitution to incarcerate somebody who willfully refuses to pay the fine.

But absent that --

Justice Potter Stewart: The P. Farm, is that capital P period for abbreviation for prison, or is it pea where they grow peas?

Mr. Norman Dorsen: I think it’s the first, the former.

That we stand on the alternatives as discussed in the Williams case.

I want to be very clear about that, that the installment process is one process and the work process is another.

But 24-hour a day confinement is not necessary in the absence of willfulness to deal with this problem.

And as I said a moment ago, the Maryland case and the Maryland statute I think make this abundantly clear.

Another case recently decided by the Supreme Court of California almost unanimously which is in the appendix to our reply brief, the Anzano case reaches the same conclusion.

I just want to clear up finally in half a minute a timing problem that may not been completely clear and this is my final point.

And that is that after Mr. Tate was convicted and fined $75.00 in 1966, as far as this record shows and there was no attempt to impeach Tate’s testimony at the habeas corpus hearing on this point, as far as the record shows, he had no way of knowing until 1968 that that money was due.

His lawyer had been disbarred and his lawyer apparently had failed and this case also to perfect the appeal.

We think in conclusion Your Honors that --

Justice Hugo L. Black: What -- Can I ask you what Mr. Tate’s occupation is?

Mr. Norman Dorsen: I’m not sure what his occupation was.

He had some odd jobs, but I’m not sure what his occupation was.

Justice Hugo L. Black: What kind of car was this?

Could you show there.

Unknown Speaker: Chrysler.

Mr. Norman Dorsen: What?

Unknown Speaker: Chrysler.

Mr. Norman Dorsen: Chrysler, I don’t know the year?

Do you?

No?

We --

Justice Hugo L. Black: Doesn't show the model?

Mr. Norman Dorsen: Doesn't show the model?

Well I’m just going to say in conclusion that we regard this case in the essential principles as indistinguishable from the Williams case and we therefore respectfully request the Court to reverse the judgment below.

Thank you.

Chief Justice Warren E. Burger: Thank you Professor Dorsen.

Thank you Mr. Rollins.

The case is submitted.

Featured:

Morris v. Schoonfield - Oral Argument

Thu, 23 Aug 2012 18:30:47 +0000

Case:

Morris v. Schoonfield

Media File:

782_19700422-argument.mp3

Related Transcript:

782_19700422-argument

Transcript:

Argument of Robert G. Fisher

Chief Justice Warren E. Burger: Number 782, Morris against Schoonfield.

Mr. Robert G. Fisher: May it please the Court.

My name is Robert Fisher.

I represent a class of plaintiff appellants.

The class is defined as those people who are incarcerated in the Baltimore City Jail and we have defined it as a continuing class.

We brought this action in July 1968 and there are currently about a 150 people in the Baltimore City Jail under the statute that we are attacking.

This case is different from the Williams case that the Court has just heard, in that there, only I -- and unusual application of the jail or fine statute was being contested.

The situation where the judge gives both the maximum jail sentence and a fine, and the person is required to serve more than the maximum amount allowed.

Our case covers all types of incarceration for non-payment of fines except the contumacious refusal to pay situation.

We're not concerned with that.

Our case involves a two-dollar rate instead of a five-dollar rate.

It is a mandatory rate as the statute says the judge shall commit him and then pursuant to the terms of the statute, then the statute provides a two-dollar rate.

Justice Hugo L. Black: $2.00 per day?

Mr. Robert G. Fisher: I'm sorry?

Justice Hugo L. Black: $2.00 per day?

Mr. Robert G. Fisher: $2.00 per day.

Justice Potter Stewart: Your statute has been substantially amended and I -- but I expect you're going to tell us about that in due --

Mr. Robert G. Fisher: That's right Your Honor.

The new statute should be enforced, but it is not.

I called the Chief Judge of the Municipal Court of Baltimore City yesterday, and he said he had never heard of the new statute.

He asked me to send him a copy which I did.

I called the jail and they said they had not heard of the new statute and that nobody was getting out under it.

The new statute by the way just gives a judicial remedy.

It does not say that everybody who's committed under the old statute should get out, and only gives them a right to apply to the justice that committed them for re-determination under the new statute and it does not guarantee that we -- they will get out.

Justice Potter Stewart: It gives a judicial -- excuse me, excuse me.

Justice Hugo L. Black: I'm just going to ask does it have a date and rate, in the new statute?

Mr. Robert G. Fisher: It has a minimum rate of $10.00 per day.

Justice Potter Stewart: So, it gives a judicial potential, judicial remedy to those now in jail, and it also for the future sets up a -- quite inconsistent doesn't it?

Mr. Robert G. Fisher: That's right.

If Your Honor, it gives a potential remedy, but it doesn't require that they be notified of the existence of the remedy and the Chief Judge of the municipal court doesn't know about it a week after it was passed.

Our --

Justice Potter Stewart: -- now you told him.

Mr. Robert G. Fisher: Our people that are locked up in jail where they don't have television or newspapers or radios supposed to find out about it.

So they --

Justice John M. Harlan: Is that new statute part of your papers that was submitted here?

Mr. Robert G. Fisher: I'm sorry sir.

Justice John M. Harlan: Is the new statute part of your papers?

Mr. Robert G. Fisher: No, it is not Your Honor, but it is substantially the same as a copy that was printed in the brief of the state conceding jurisdiction and in addition, solicitor -- city solicitor Russell has sent, do I understand, copies of the new statute to the Court.

Justice William J. Brennan: May I ask, does this case involve offenses for which a fine only is provided?

Mr. Robert G. Fisher: Yes it does Your Honor --

Justice William J. Brennan: This does involve the traffic offense so that we are talking about --

Mr. Robert G. Fisher: That's right.

I'm aware of the colloquy before me and I notice that the Attorney General of Illinois said that it would be disastrous because there'd be no way to compel people to pay traffic fines, it serves a very good way of compelling people to pay traffic fines, and that is to take away their license if they don't pay the fine, and they're other traffic remedies.

So I -- let me explain how we got here.

I have very little time, and then maybe I can start of with my argument on the equal protection and due process, cruel and unusual punishment, excessive fines and involuntary servitude when we come back after lunch.

We commenced this action under 42 United States Code, Section 1983 for an injunction of the warden of the Baltimore City Jail from -- to restrain him from holding people unconstitutionally detained, and for a declaratory judgment that the statute is unconstitutional on its face.

The District Court held that the statute was constitutional on its face, but that it was unconstitutional as applied in two respects.

In the first place, it said it was --

Chief Justice Warren E. Burger: I think we'll suspend for lunch now Mr. Fisher and pick up after lunch.

[Luncheon Break]

Mr. Fisher, you may pick up where you left off.

Mr. Robert G. Fisher: Where I left off Your Honor was the decision of the three-judge District Court.

It upheld the Maryland $2.00 a day statute as constitutional on its face, but it held that in each case, the sentencing judge had to hold a hearing to allow persons to be committed to tell a judge about their indigency and give him an opportunity to decide whether or not do reduce the fine or to put them on probation or to allow them to pay in installments or to commit them.

And it also held that as the statute was being applied with respect to costs at that particular time, the statute was unconstitutional.

For costs of people who were not being jailed, for costs in all cases, but they were in some cases and under the Rinaldi versus Yeager case, this was a discrimination and denial of equal protection, and at that particular time, the statute could not constitutionally be applied in the State of Maryland to jail people for non-payment of costs.

We have appealed from the statute under -- from this decision under the authority of Article XXVIII, Section 1253, and our basic contention in this Court boils down really to one premise, and that is that one 24-hour day in jail with all of that entails in terms of the stigma in the community and that fact the man may loose his job, the fact that man maybe subjected to the unpleasant experiences of the jail, one 24-hour a day in jail does not equal dollars.

The poor man is being punished more severely than the rich man if the rich pays $2.00 and the poor man goes to jail for 24-hour a day.

We submit that this goes to the -- initial is so fundamental that it's written in stone on the front of this Court House, equal justice under law.

Justice Potter Stewart: How far would that argument go?

Let's assume a $10.00 fine on a person and that person -- all that all that person possessed in the world is $10.00 as compared to a $10.00 fine on a person who had a million dollars.

Now That would be unequal protection, wouldn't it, under your standard?

Mr. Robert G. Fisher: Well, the way our society looks at the man who has paid the fine is different from the way our society looks at the man who's going to jail.

The man who's going to jail is a criminal.

The man who has paid the fine as somebody who might have gotten a traffic ticket.

Justice Potter Stewart: And that's not what the Maryland legislature has said.

Maryland legislature said they are equivalent.

Mr. Robert G. Fisher: It's -- they are not --

Justice Potter Stewart: That's the way society as represented in the Maryland legislature disagrees with you, doesn't it?

Mr. Robert G. Fisher: Well, no.

The Maryland legislature has another purpose in passing the statute and that is compel people with money to pay.

The Maryland legislature has deliberately made the alternative to non-payment a harsher penalty so that people will choose the -- who with money will choose the alternative of paying and that's the dominant -- we submit, that's the only purpose behind the statute.

The other side disagrees, but that a certainly the dominant purpose of this statute.

The legislative history makes that clear to collect money from those who can't pay by threatening them with jail.

Now --

Justice Potter Stewart: And by jailing those who don't pay, isn't that correct?

Mr. Robert G. Fisher: If you jail those who don't pay, you're punishing a man unfairly in a greater amount than the judge adjudicated in order to make somebody else pay.

He's a sacrificial goat so to speak for the man who doesn't want to pay and has being made to pay and we submit this --

Justice Potter Stewart: What's to happen to the scofflaw who collects dozens and dozens of parking tickets in his friend's automobile and who hasn't got a nickel to his name?

Mr. Robert G. Fisher: We have an intervener in this case who's in that very position.

He had something like $1,200.00 worth of fine.

He was a scofflaw.

He was a school teacher.

He went to jail for -- he would have gone to jail, but for this case for over a year, whereas another scofflaw who had $1,200.00 would not have gone to jail at all.

The school teacher lost his right to teach school.

He can never teach school in the State of Maryland again because they found out; they found out that he had been sent to jail.

The man who pays the $1,200.00 because he's got a -- they never find that out.

Chief Justice Warren E. Burger: Do you think the appraisal would have been higher if he had just -- if they found out that he just had scoffed at the law for $1,200.00 worth of traffic tickets?

Mr. Robert G. Fisher: They never would have found out if he had the money to pay.

Chief Justice Warren E. Burger: Oh, now, you're talking just about a practical aspect.

Mr. Robert G. Fisher: No.

I don't think I am.

I think when you're talking about the way justice treats two people, you're talking about a fundamental aspect --

Chief Justice Warren E. Burger: How do you think they should have treated him?

Mr. Robert G. Fisher: The scofflaw?

Chief Justice Warren E. Burger: Do you suggest that he could not have paid that fine?

Mr. Robert G. Fisher: I think that as a matter of wisdom, the State of Maryland should provide a statute that sends scofflaws of all kinds to jail.

If scofflaw should be sent to jail, all scofflaws should be sent to jail and the State of Maryland can make that decision, and I think it should have made that decision.

What the State of Maryland cannot do is ruin the career of one's scofflaw in order to make another scofflaw pay.

Chief Justice Warren E. Burger: Well, I realize, we're not arguing the school teacher's case today --

Mr. Robert G. Fisher: No.

Chief Justice Warren E. Burger: -- but for years that this an analogy and I'm lost.

If he was a school teacher presumably, he got paid for teaching school, what would be unjust about sending him to jail when he could've paid and didn't?

Mr. Robert G. Fisher: He didn't have $1,200.00 on the day that he was supposed to pay.

He could've paid if he'd been allowed to pay in installments.

Chief Justice Warren E. Burger: Of course, the law afforded him an opportunity to pay it installment in the first instance?

Mr. Robert G. Fisher: No, it did not.

Chief Justice Warren E. Burger: He didn't get on these traffic tickets on one day or one week, did he?

Mr. Robert G. Fisher: Oh, no, he did not, that's true.

He did -- the law afforded him an opportunity not to commit a crime.

It also afforded that opportunity to the scofflaw --

Chief Justice Warren E. Burger: Wait a minute, wait a minute.

It afforded him an opportunity to pay two, four or $6.00 each time he got the tickets, that's what I'm talking about.

And now, you suggest that there's something inherently unfair about the fact that the boom was lowered on him finally at the $1,200.00 mark?

Mr. Robert G. Fisher: I think there's something unfair -- apparently unfair that the boom was lowered on him when it was not lowered on somebody else who led his traffic tickets accumulate.

Two people, justice has taken her blindfold off and look at this man and the only thing that she has seen that's different from the other man as the fact that he doesn't have $1,200.00 today.

She's suppose to keep that blindfold on that --

Chief Justice Warren E. Burger: But so far as I'm concerned, your school teacher analogy doesn't help you or this -- or your case very much.

I'm puzzled yet by what it supposed to do with it.

Mr. Robert G. Fisher: Well, let's -- I was asked about the scofflaw, this is the actual -- these are the actual facts.

Let's take another person who's committed disorderly conduct case and he's done it only once and he's fined once --

Chief Justice Warren E. Burger: The single instance case.

Mr. Robert G. Fisher: Single instance's case.

Chief Justice Warren E. Burger: Do you think that's the same as the school teacher who let $1,200.00 for the traffic tickets accumulate?

Mr. Robert G. Fisher: The statute makes no distinction between any of a great variety of cases.

The usual case is obviously not to stop scofflaw case.

The usual case is a person who gets a $25.00 fine or $50.00 fine.

Justice Thurgood Marshall: Well Mr. Fisher, you're in further trouble because I've never heard of a school teacher being able to plead that he was a pauper?

Mr. Robert G. Fisher: Well, this school teacher was not a pauper.

He just didn't have $1,200.00 at one time.

Justice Thurgood Marshall: He could've gotten it unless the banks were all closed up.

Mr. Robert G. Fisher: No.

Actually, he was a part-time school teacher and he probably --

Justice Thurgood Marshall: But he wasn't a pauper?

Mr. Robert G. Fisher: He did not have $1,200.00, but he --

Justice Thurgood Marshall: But is there anything that he couldn't get $1,200.00?

Mr. Robert G. Fisher: He signed an affidavit that he would -- could not get to raise the money, and I assume that --

Justice Thurgood Marshall: I agree with the Chief Justice argument.

I would hate to see this case turn on that case.

Mr. Robert G. Fisher: Well, it does --

Justice Thurgood Marshall: Hypothetical or not.

Mr. Robert G. Fisher: It does not turn on that case.

It turns on a statute which covers all sorts of cases.

It covers the man who doesn't have $10.00, who gets a $10.00 fine and goes to jail for five days.

It covers the scofflaw, it covers the man who gets five $50.00 fines in a row for five counts because he --

Justice Thurgood Marshall: Well, does your case -- your case, not the statute, cover a man who lies?

Mr. Robert G. Fisher: No.

Justice Thurgood Marshall: Who's not a pauper?

Mr. Robert G. Fisher: No.

Justice Thurgood Marshall: Who could get the money?

Mr. Robert G. Fisher: No, no, it certainly does not.

That's the case of the person who contumaciously refuses to pay.

Justice Thurgood Marshall: Well unless conditions have changed in Baltimore, if you have that many convictions of any kind, you loose your job as a teacher when you pay the fine or anything else.

Mr. Robert G. Fisher: Well, there are people who go and pay fines and nobody ever hears about it.

Many people --

Justice Thurgood Marshall: I said where they do hear about it?

Mr. Robert G. Fisher: Well, they may --

Justice Thurgood Marshall: And I would assume that the $1,200.00, it was in the newspapers?

Mr. Robert G. Fisher: Well, it might be, it might be.

But there are certainly are other people who do not make the newspapers because hundreds of people are --

Justice Thurgood Marshall: One other man that had $1,200.00 and paid the fine, where did you find that out except the newspapers?

Mr. Robert G. Fisher: I was hypothetically creating that other man.

Justice Thurgood Marshall: I see.

Mr. Robert G. Fisher: But I'm sure, there are such people.

Chief Justice Warren E. Burger: Mr. Fisher, well, we have you stopped for a moment.

I can sympathize with your arguments about $2.00 a day for 24-hour a day.

What if the Maryland legislature had said that it should be tied to the minimum wage established by the Department of Labor which I think is a $1.60 an hour now, isn't it?

If that so, that'd be $38.48.

Suppose they fixed it to that and you got $38.48 credit on a fine for every 24 hours he served in jail, would you have problems?

Mr. Robert G. Fisher: I would still have problems, but I would have less problems.

What Your Honor is suggesting is a sort of a separate but equal doctrine whereas a man without money is punished separately and -- in a way that's suppose to be equivalent.

And because of the other problems that attend the jail punishment, I don't think that it's possible to equate jail punishment and the fine punishment.

But certainly, that would be a much better situation than we have here where we have a $2.00 statute which is designed to be unequal, because it's really designed to compel the person with the money to pay.

This statute cannot simultaneously have the two purposes that had been advanced for it, one to equate jail and time and fine money and two, to compel people who don't have money to pay -- that do have money to pay.

Justice Potter Stewart: Because the premise of the latter proposition is that it's much easier to -- to go to jail is much more unpleasant than to pay.

Mr. Robert G. Fisher: Sure.

Justice Potter Stewart: Isn't it?

Mr. Robert G. Fisher: Sure.

Justice Potter Stewart: That they're not equal?

Mr. Robert G. Fisher: That's right.

Now, what Your Honor is suggesting is that the state might design a new statute.

Actually, they have attempted to do it.

I think the State of Maryland has recognized the unconstitutionality of this statute in passing the new statute and they have attempted to improve upon it and they have raised the figure to $10.00 a day.

What Your Honor is suggesting that that is certainly more equal and better, but it is --

Justice Potter Stewart: No.

Isn't really dusting it Mr. Fisher, I want to know what you have to say about it?

Mr. Robert G. Fisher: Well, what I say is its more equal but it still no equal.

It's a type of separate but equal doctrine that that just cannot be equated.

Now, there are other things that the state can do in order to punish the man or deter the man that are more equal to a fine that he cannot -- that one of the arguments that's been raised says there's no way that the state can punish these people; no way that they can deter them and that just is not true.

There are other things that can be done.

One that we've suggested is that man can be allowed to pay in installments.

This is actually fulfilling the sentence of the judge who sentenced them.

He wanted them to pay a fine.

He thought that was the deterrent.

The state legislature provided that the judge could fine him.

They expected him to use his best judgment in deciding what was appropriate.

He decided the fine was appropriate and the way that he can carry out the state legislature's intent in the situation is to allow the man to pay on terms that he can pay.

This is certainly a more equal alternative.

Now, suppose the man cannot pay, he can still put him in jail as the model penal code suggests, if the man fails to make a showing that he has made reasonable efforts to make the money, get the money.

In that case, they'll be putting him in jail for contempt or for some additional act or omission, he can take away his driver's license.

As the Rinaldi versus Yeager case suggested, they can garnish his salary if he has any or collect the judgment by attachment, probably not a feasible way of doing it.

They can put him on probation with conditions that he worked in the court house, you don't have to lock him up in maximum security in order to get some work out of him.

They can send him to driver's school.

I anticipate that Mr. Russell is going to talk about mootness and I would like to reserve some time so that I can answer whatever he has to say about the mootness.

So, I'm going to sit down at this point.

Chief Justice Warren E. Burger: Very well.

Mr. Russell.

Argument of George L. Russell, Jr.

Mr. George L. Russell, Jr.: Mr. Chief Justice and may it please the Court.

My brother is correct.

The first argument are intend to make is that this case is moot in light of the statute recently passed by the Maryland legislature as an emergency Bill in Title Chapter 147 and it was signed by Governor Mandel on the 15th of April.

This statute under Section 6 is retroactive in its application and therefore, the plaintiffs or the appellants in this case may take advantage of it.

It provides that any person incarcerated for default of payment of a fine may apply for a hearing or by general order of the court may have a hearing on his indigent status.

The court after conducting an inquiry if it finds that this individual is unable to pay the fine immediately, the court may provide installment payments.

If the court finds that installment payments are not feasible under the circumstances, then may offer to the defendant substitute punishment, and this is the theory under which Maryland has enacted its legislation.

The theory that there must be an alternative punishment appropriately imposed upon a defendant upon whom financial criminal sanctions would have no relevancy.

And in this case in the Maryland statute, the court cannot impose a confinement that exceeds $10.00 a day.

That is to state that the -- if the fine is $500.00 and the court finds that the defendant is indigent, it may state that I believe that one day in jail is sufficient, but the court cannot impose a sentence which would exceed $10.00 a day; that is the minimum that it can allow.

Justice Potter Stewart: When did that legislation become effective?

Mr. George L. Russell, Jr.: April 15th, immediately upon signing by the governor and that is the reason that my brother anticipated the mootness statute because we propose that this is the law of the case under prior Supreme Court rulings.

Now as to the philosophy under which their substitute punishment --

Justice William O. Douglas: It would hardly be moot technically because they're still in the jail?

Mr. George L. Russell, Jr.: Well, that is true.

Justice William O. Douglas: Is more -- be more accurate to say that there is a new state remedy?

Mr. George L. Russell, Jr.: They have this remedy available to him upon application or by general order of the court.

That is to say the statute anticipates that perhaps the Chief Judge of the municipal court or the Chief Judge of the supreme bench of Baltimore City can by general order make this available for all of the --

Justice William O. Douglas: Has there been any such general order?

Mr. George L. Russell, Jr.: Not to my knowledge, no sir.

Chief Justice Warren E. Burger: The true mootness perhaps could have done right on -- by action yesterday by an appropriate general order, could it not?

Mr. George L. Russell, Jr.: Except to the extent that substitute punishment as a philosophy is not a denial of equal protection of the law.

I think that my brother is arguing that the whole theory of substitute punishment, alternative punishment is a violation of Fourteenth Amendment.

Justice Thurgood Marshall: Mr. Russel, if you did have the alternative in the State of Maryland, you have a judicial order which would have released this man yesterday, is that right?

Mr. George L. Russell, Jr.: That is correct sir.

Justice Thurgood Marshall: Well, what reason are you here other than seeking to get this Court to approve a law that doesn't apply anymore?

Mr. George L. Russell, Jr.: I understood that my brother was raising the issue that the theory of substitute punishment is a denial of equal protection of the laws.

That is under any circumstances, if a man is indigent where the statute only provides as a penalty of fine, that it would be unconstitutional to give as an alternative punishment to an indigent man confined in jail.

Justice Thurgood Marshall: Well it makes no difference as to whether we agree with the petitioner or the Chief Judge of the supreme bench issues an order, either way, this petitioner that gets out if it?

Mr. George L. Russell, Jr.: These petitioners already out except for the one petitioner who is serving 21 years in the Maryland penitentiary, and he alleges that he will have difficulty getting parole because a fine is been imposed upon him.

Well, this statute provides him for -- with the remedy if he can get a job that and could becoming -- and an earnings capacity or have the capacity to make money, he could be afforded the installment program.

But the --

Justice Potter Stewart: But the new law your point is, the new law with all its ameliorations nonetheless still does preserve the theory of substitute punishment?

Mr. George L. Russell, Jr.: Yes sir.

And this is the fair --

Justice Potter Stewart: And that if you understand your brother on the other side attacks continues to attack in that it is that that you're here to do -- to defend?

Mr. George L. Russell, Jr.: Address myself to, yes sir.

Now, to get involve with the theory of substitute punishment, I think one must view first of all the function of the State of Maryland; that is to provide sanctions so that people will obey its criminal laws.

Now, we've created the class of people in Maryland, those who can pay fines and those who are too poor to pay fines.

And so that state has been left with the obligation to the overwhelming class in the state, the law abiding citizens to impose criminal sanctions to protect the law abiding citizens of Maryland from those who violate the laws of Maryland and do not have funds or intend to plead poverty as a defense to punishment.

Maryland in its judgment has stated that there shall be a substitute punishment or alternative punishment, and this was the theory of Judge Thompson's majority opinion, and the statute of course codified it.

Now, to the extent that my brother feels that Maryland has not been wise in its judgment, that there are other alternatives that the State of Maryland could've made, that may have been better, that may have been reach the problem better.

This Court has said time and time again that the equal protection of the laws does not require this Court to substitute its judgment for that of the Maryland legislature or indeed any state legislature as long as it meets the requirement of the constitution.

And as I understand it and I propose that the Equal Protection Clause requires only that the remedy be reasonable and that it be related to a legitimate state interest.

And in this case, deterrence of criminal activity or deterrence of the violation of criminal laws is a legitimate function of the state, and we believe that the alternative punishment is rationally related to it and under the cases that this law should be upheld.

Justice Thurgood Marshall: Well, how is it that a man who's a millionaire commits the exact same crime as the pauper, and the millionaire pays a fine and the pauper goes to jail?

Mr. George L. Russell, Jr.: The problem is --

Justice Thurgood Marshall: Is it that simple?

Is the problem that simple?

Mr. George L. Russell, Jr.: The problem as I view it sir, is what sanctions does the State of Maryland have to prevent people from violating the laws?

Now --

Justice Thurgood Marshall: By saying that everybody who violates this law goes to jail; that's one way of doing it, and that wouldn't violate the constitution?

Mr. George L. Russell, Jr.: That may well be the result if the Court finds as that many cases upheld, particularly the New York case and it's been suggested in a Washington case that any conclusion that the alternative punishment theory is not constitutional would cause the kind of irreparable harm what would result from imprisonment for everyone.

Justice Thurgood Marshall: You mean it would be irreparable harm to imprison a millionaire?

Mr. George L. Russell, Jr.: Imprisonment results a irreparable harm to anyone in my judgment Your Honor.

Justice Thurgood Marshall: But the only thing I see here in my case in yours is I say that when you put a poor man in jail and let the man who can pay his fine, pay his fine or you can say everybody that commits this crime shall go to jail?

Now, I don't see how either one while the last one hurts anybody?

Mr. George L. Russell, Jr.: Well, that's I think that in theory --

Justice Thurgood Marshall: Under the Equal Protection Clause, it doesn't hurt anybody?

Mr. George L. Russell, Jr.: Well, the answer I would propose is that the Equal Protection Clause does not require the same punishment for all people.

Justice Thurgood Marshall: Absolutely not.

Mr. George L. Russell, Jr.: It does not require -- it simply requires that when you make a classification of a group of people that this classification be a reasonable one in that the -- it's be related to a legitimate state interest.

Justice Thurgood Marshall: I'd be interested in the case you'll cite to me which says that you can make poor people a class that the state can --

Mr. George L. Russell, Jr.: Well, this is why we're here Your Honor.

There has been no Supreme Court case that has stated as such --

Justice Thurgood Marshall: You got anything close?

Mr. George L. Russell, Jr.: -- that poor people can be made a class.

Justice Thurgood Marshall: You got anything close?

Mr. George L. Russell, Jr.: Oh, we have the authority that Chief Judge Thompson relied on the Privitera case.

You see, the approach as we view it Your Honor is whether the state has a legitimate interest in imposing sanctions on people who are unable to pay fines.

We simply cannot have a system of justice which would call for charge account justice where by a man would violate the law and then bleed poverty and simply tell the court to put it on the account, and this is what exactly would result, it would be application under the theory that has been offered by the court here.

The Equal Protection Clause says not go so far, that is our position, that it's impossible to equate imprisonment with fines.

Justice Thurgood Marshall: Do you mean that in the State of Maryland in its criminal process can say that a pauper is in a class by himself, and shall have sentences based on him solely because he's a pauper?

Mr. George L. Russell, Jr.: A sentence may it please the Court is not being imposed upon him solely because he's poor.

Justice Thurgood Marshall: Why?

Mr. George L. Russell, Jr.: It's being imposed upon him because he's violated the law.

The sanctions available to him under the law are useless because he is poor and therefore the State of Maryland had provided an alternative punishment.

Justice Thurgood Marshall: The alternate punishment is also given to the rich man.

He could either pay his fine or go to jail, right?

Mr. George L. Russell, Jr.: That is correct sir.

Justice Thurgood Marshall: So, the poor man doesn't have that alternative?

Mr. George L. Russell, Jr.: Well, this is true, but I do not view this as being such a disparity as to violate the constitution.

Justice Thurgood Marshall: Is it solely because he's poor that he goes to jail?

The only reason he goes to jail is because in the same category of everybody convicted of this one crime, everybody convicted of a crime, the only man who must go to jail is the poor man.

Is that true under the statute?

Mr. George L. Russell, Jr.: Under the statute, he --

Justice Thurgood Marshall: Well, how can you justify it?

Mr. George L. Russell, Jr.: I justify it because the State of Maryland otherwise would be powerless to impose sanctions upon people who are unable to pay fines.

What is the alternative?

Justice Thurgood Marshall: So, you take away the right of a man to be considered the equal of every other man.

I understood that this poor man in the court is exact the same rights as the wealthiest man in the state.

Mr. George L. Russell, Jr.: That's just true, he has his --

Justice Thurgood Marshall: How could he?

He ends up in jail.

Mr. George L. Russell, Jr.: Well, he ends up in jail because he violated the law.

Justice Thurgood Marshall: No.

I'm talking about those who have been convicted, the class I'm talking about are those who have committed a crime, been tried and convicted, and you singled out of that class the paupers, and give him special treatment.

Mr. George L. Russell, Jr.: We give special treatment to other people also.

We give special treatment to recidivists.

We give special treatment to many people as this Court has stated, they're many factors that come into play.

Poverty is one factor that we here on today, but --

Justice Thurgood Marshall: I don't assume that recidivist is a recidivist because he wants to be and did it deliberately.

I can assume that for a pauper.

Mr. George L. Russell, Jr.: I would concur that this should not be assumed for pauper.

Man is poor from no fault but his own, but I must assume that he willfully violated the law and assuming that he willfully violated the law, he then should not be able to escape or be able to elect -- dictate the kind of punishment he uses, or as to incur and under the present Maryland statute, the court is given wide latitude as to the amount of confinement.

For instance, in the case where the statute provides only a fine that confinement shall not be more than 15 days.

However, it can be shorter time as the judge feels in his wise discretion that the case before him dictates.

Chief Justice Warren E. Burger: Can the judge allow him to pay the fine on installments?

Mr. George L. Russell, Jr.: Yes sir.

That is provided in the statute also.

The commitment of a man is the last alternative that the court has before it.

Installment payments as a condition of probation, payment at once or the judge in his discretion and I'm speaking now where the statute calls only for fine because I do not deal with the problem where the statute provides for imprisonment, and the court and as the alternative makes a fine and commits him.

Our statute states that in that case, he shall not serve more than one-third of the term provided for imprisonment or 90 days whichever is less.

But the problem arises of course in the case where only a fine is provided as a penalty and I submit that it is not a denial of equal protection of the laws to offer to this man or to impose upon him an alternative punishment since he is unable because of his poverty which obtained about through no fault of his own and presumably for the purpose of this case to no fault at anyone.

Now, to do otherwise would be asking this Court or would as I believe the -- to ask -- the appellants would be asking this Court to correct every inequity that existed in our society because of the poverty that's there.

And while this is a praise worthy objective, I think it's the function -- I do not feel that it is a function of the court to interject and to substitute its judgment for the Maryland legislature how the poor the court may believe it they have been expressed.

Although, I submit that this is perhaps the most enlightening statute in the nation insofar as the punishment is concerned, I believe that the cases have held and this Court has held many times before that the court simply will not substitute its judgment.

Now, the sole question therefore as I view it is whether the alternative punishment theory is constitutional, not whether -- it is the best alternative that could be offered, but whether it is a meet the requirements of the Equal Protection Clause, and I say that it does because it's a reasonable classification, and secondly because it is related directly to a legitimate state interest.

The Court asked in the prior case about some statistics, and I thought that I would offer to the Court.

In Maryland, there are 99,000 traffic case is tried in one year.

Now, that is in Baltimore City and out of the 199,000, 157 were committed in default of payment of fines.

Now, we view it or offer that it's less than 0.3 % of those cases tried that people are incarcerated because they cannot pay the fines.

In some cases in the criminal courts of course, people are committed into fault to payment of fines, and then suddenly, the money arrives.

And they of course are given credit for the time that they've served and the balance is paid and their release is effective.

Justice Hugo L. Black: Well, would a traffic -- would the statistics and traffic violators really be your fair showing are the pattern of statistics in all kinds of crimes?

Mr. George L. Russell, Jr.: I think that the statistics of traffic violators would be lower.

I think, more people are committed a default to fines in the criminal court than would be in the traffic court.

Justice Hugo L. Black: And that it is true wouldn't it that you'd assume that if you had a law for instance that made every company, wholesale nation, they won't say a company or the nation be a license of $15.00, you wouldn't have much trouble for that $15.00, and you wouldn't have much trouble collecting the fine that could be imposed as a rule on a traffic violator, would you?

Mr. George L. Russell, Jr.: This is true.

I think that is the direct --

Justice Hugo L. Black: Same offense?

Mr. George L. Russell, Jr.: Yes sir.

I think that's a fair assumption.

Normally if a man is able to own an automobile or he's driving one, usually in 99.9% of the cases at least in Maryland, I n Baltimore City, they'll come up with the money with the fine.

Chief Justice Warren E. Burger: Now, the figures you gave us first, that 3 %, was that --

Mr. George L. Russell, Jr.: 0.3 % Your Honor.

Chief Justice Warren E. Burger: 0.3 %, was that traffic or non-traffic?

Mr. George L. Russell, Jr.: That was traffic.

Non-traffic, the statistics are bit different.

Now, figures here are indicate that in the six-month period, 2048 individuals where committed in the criminal court for default of payment of fines.

Chief Justice Warren E. Burger: Out of the total of how many?

Just approximate, we don't need the precisely -- I lost that figure.

Mr. George L. Russell, Jr.: It's about 4%.

Chief Justice Warren E. Burger: Well, go on with your argument, and if that shows up --

Mr. George L. Russell, Jr.: Well, my brother has indicated in his brief that he felt that the Eighth Amendment of the Constitution was violated as well as the Thirteenth Amendment of the Constitution, and just to -- because I only have one appearance here, I would like to state that vis-a-vis these cases that we feel that the Maryland statute that we believe was the law of the case now, in anyway violates either those amendments to the constitution.

Involuntary servitude or slavery or cruel and inhuman punishment or nor do we have the problem of excessive fines here.

All of the fines imposed are within the statutory limits and I simply want to acknowledge that we have reacted to this argument in our briefs, and we'd be prepared to answer any questions on those particular issues.

But as to the Equal Protection Clause, I feel viewed in its totality and viewing the function and the duty that's states that have to its individual inhabitants to impose sanctions upon individuals and to determine the need to have sanctions and that this statutes meets the constitutional burden to the extent that it provides an alternative punishment for individuals who are unable to pay fines, and that this alternative punishment theory meets all of the requirements in constitution.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Russell.

Mr. Fisher?

Rebuttal of Robert G. Fisher

Mr. Robert G. Fisher: Your Honor, Mr. Russell and I are talking about different statutes.

He is defending the new statute and we're attacking the old statute.

There is nobody as far as I know that has been committed to jail in Maryland so far under the new statute.

The Chief Judge and the municipal court just found out about that statute, 2:30 yesterday afternoon from me.

There are a 150 people in jail today under the old statute.

Chief Justice Warren E. Burger: But it furnishes them with the -- it does furnish in the administrative means of softening that, does it not?

Mr. Robert G. Fisher: It does not furnish any interpretation that I can see of the power to release these people by general order because one of the provisions of the new statute is that each case has to be decided on its own merits, and the $10.00 figure is only a minimum figure.

So, if the judge were to deal with all of these people by general order, he would be violating that part of the statutory scheme.

Chief Justice Warren E. Burger: So let's lay aside the general order mechanism.

Individually each incarcerated person or a person now on bail as your client has in some form of the administrative remedy available, does he not?

Mr. Robert G. Fisher: Well --

Chief Justice Warren E. Burger: Quasi judicial remedy?

Mr. Robert G. Fisher: They do if they find out about it.

The statute doesn't provide that they're supposed to -- that they're to be notified.

They are indigents.

They don't have lawyers.

They're in jail where they don't have access to news media.

Chief Justice Warren E. Burger: Well obviously, the people that you're talking about, the people you're representing here today now before us do know about through you?

Mr. Robert G. Fisher: Well, we representing the whole class of people who are defined as those people that are in the Baltimore City Jail, and those people that have detainers against them and we also submit that our request for declaratory judgment covers all of those people who have been in jail since the beginning of the lawsuit because they have an interest in this case.

So, the burden is always on the state -- on the party asserting mootness to prove it and they're in no position to assert mootness at this point.

In addition that the new statute would require these people to be re-sentenced in effect with the possibility that they could get a penalty that is more severe than the penalty they originally got, the fine and I submit that there are double jeopardy problems there and ex post facto law problems there.

So, this new statute simply is not a way out when you have people that are actually in jail under the old statute at this time and no evidence of the new statute has actually come into force other than up in the sky somewhere.

Justice John M. Harlan: Does that retroactive apply to these people?

Mr. Robert G. Fisher: All -- no.

Yes and no I should say Your Honor.

The new statute merely gives them a remedy to ask to have their sentences re determined under the provisions of the new statute.

Justice John M. Harlan: New statute.

Do you question the statute subject to that?

Mr. Robert G. Fisher: Well --

Justice John M. Harlan: I mean, I know you say he is not hefty here, what your view about that?

Mr. Robert G. Fisher: I submit that in the broad argument that I've made that jail could never be equated with money.

So, I would have to question it, but I'm not really questioning it today because I got a $2.00 statute and under no circumstances can $2.00 be equated with 24 hours.

So, I don't have to attack $10.00 and I'm in a much better position to attack $2.00.

There is no overriding state interest in punishing poor people at a greater rate than rich people in order to make rich people pay.

There is no overriding that justifies having justice take her blindfold off and give poor people a harsher penalty than the judge who was charge with the state law -- authorized by state law with determining the appropriate penalty determinant.

The state has other things that it can do to solve this problem.

I'm not asking this Court to tell the state what to do.

There are many different alternatives.

I'm not asking this Court to spell out for the state what they are.

I'm not -- I suggest an analogy that the constitution is the foundation of our justice system, and that state penal system is the structure that the state builds upon that foundation.

In this case, the system the state has built is off of the foundation of equal justice under law, and it is properly the role of this Court to establish that foundation.

Justice Potter Stewart: Can you take a fine and reduce it a judgment?

Is there any provision for that?

Mr. Robert G. Fisher: In the new statute, there is and I believe that could -- it could be also be --

Justice Potter Stewart: Under the old statute?

Mr. Robert G. Fisher: Under the old stat -- the old statute itself may not have provided that, but there are other provisions.

Justice Potter Stewart: Other provision of law that entitle the status creditor or reduce the fine to a judgment, then have all the benefits of the judgment creditor?

Mr. Robert G. Fisher: I believe so Your Honor.

Now that of course is that state's interest in collecting the fine.

If that is the purpose of the statute, there's no rational way that you can justify putting people who don't have the money in the jail.

That costs the state money and they get -- it prevents them from paying the fine.

Justice Potter Stewart: Is there a work, I forgot that there's -- there's not the same kind of work program here is there was in the previous case, am I mistaken of that?

Mr. Robert G. Fisher: No.

The state does not have a theory that it collects these -- the fine in work.

Justice Potter Stewart: Right.

Chief Justice Warren E. Burger: It is I'm sure equal protection thing here with perhaps or rather exaggerated hypothetical case.

Suppose -- first, I assume that when you talk about rich people, you mean any person who is able to pay, that is a plumber or an electrician who's making $600.00 to a $1,000.00 a month is what you call a rich person for these purposes?

Mr. Robert G. Fisher: Certainly.

Chief Justice Warren E. Burger: Now, suppose a group of plumbers and electricians and newspaper reporters would say all band together and say that there is a denial of equal protection because they must pay their fines in cash, whereas 13,412 people under your theory what the law to be didn't have any money to pay at the time and therefore, they were excused from paying the fine that the man is making a salary has been required to do so, is that a denial of equal protection in the other way?

Mr. Robert G. Fisher: It certainly would not be equal.

I think that poor people should be punished in some way.

I'm saying the state must find an equal way of punishing them.

It certainly cannot find a grossly unequal way of punishing them when it is not necessary to do so, and it has no compelling interest in punishing these people more severely than other people that are equally guilty of the same offense.

Chief Justice Warren E. Burger: But you do seem to concede that this other category I spoke of, electrician, etcetera.

Mr. Robert G. Fisher: I do.

Chief Justice Warren E. Burger: They would be discriminated against by having to pay a fine in the same circumstances where this indigent person did not pay?

Mr. Robert G. Fisher: As a matter of fact, the Court in Stratman v. Stad stated that it would be a denial of equal protection to let the poor man go and I'm not suggesting that he be let go.

I'm suggesting that the best thing to do is to do what the judge decided should be done, to find a way to make him pay his fine, and that can be done.

Your Honor asked the question in the previous argument about whether the new statute will be counter productive, where there a judge would start sending people to jail.

I think we have to assume that judges will act the way judges are suppose to act and keep their -- the blindfold on as far as the person's poverty is concerned, and that they will be sentence people fairly and judicially, even though they may under some new scheme not be able to send them to jail for non-payment of a fine.

So, I don't think -- I see my time is up.

I don't think that it will be counter protected.

Justice Hugo L. Black: How would you suggest that Maryland can handle this problem?

Are you saying that all punishment of money are necessary going because the denial of equal protection of the law?

Mr. Robert G. Fisher: Oh no Your Honor.

Justice Hugo L. Black: What is your -- the extent, what you say happens to the law?

Mr. Robert G. Fisher: I'm merely saying that the State of Maryland cannot select a class of people and treat them differently only because of their poverty.

If the State of Maryland has a number of different alternative ways, probation, ordering him to pay work, order them to work, ordering them to go to driver's school, taking away the driver's license, ordering them to pay in installments, punishing then if they did not make a showing of themselves that they'd made reasonable efforts to get the money.

There are a number of different ways that the State of Maryland can in its wisdom decide what to do about the situation.

Justice Hugo L. Black: Well, it requires a pretty good amount of wisdom, doesn't it?

Mr. Robert G. Fisher: Well --

Justice Hugo L. Black: Depend on what you're doing in these cases.

Mr. Robert G. Fisher: These are tremendous problems and they do require a great deal of wisdom.

But the foundation that that wisdom ought to be built on the principle that's even older than the jailer's fine statute that the law looks at a man without regard to his status in the community.

Justice Hugo L. Black: Would the law be invalid only as applied?

Mr. Robert G. Fisher: No.

Justice Hugo L. Black: To the indigent?

Mr. Robert G. Fisher: The law -- it would only invalid as applied to indigents, but the discrimination is apparent on the face of the law.

Justice Hugo L. Black: Therefore, it can't be done?

You can have a law that fixes a punishment by payment of money?

Mr. Robert G. Fisher: I'm sorry Your Honor --

Justice Hugo L. Black: Well, you have a situation where you claim that the law is invalid, either as applied on its face.

Mr. Robert G. Fisher: Correct.

Justice Hugo L. Black: Now, if it's invalid on it face, invalid as applied to everybody, what substitute can the State of Maryland or any state provide for punishment but money fines?

Mr. Robert G. Fisher: They can provide that if a man fails to pay this money fine, I'm assuming they'll continue to find most people provide a law that says the judge can either send up to jail or fine him in the first instances.

That in the case where it comes to the attention of the court that he cannot pay, they then must provide some other means for punishing him, deterring him, collecting money from him, than the one they have provided here which is to send him to jail at an unfair rate.

Justice Potter Stewart: I thought you are basic contention was that it would be unconstitutional to jail a person and lieu of a money fine at any rate, at any rate that there's a difference not only in the degree, but in kind between those two punishments, a constitutional difference in kind between the fine and imprisonment and that violates the equal protection to have any prisoner in lieu of the money fine.

Mr. Robert G. Fisher: When the Chief Justice asked question, I said that is -- that is my contention.

All I said I did not have to argue that in here because the $2.00 rate is unequal in any event and this is true of the rates in most of the state statutes.

They have some that are $1.00 rates.

Justice Hugo L. Black: But how would we decide that question fact, you say in any case, $2.00 is not enough.

How would we decide what is enough?

Mr. Robert G. Fisher: I don't know Your Honor.

If you had to decide that question, I think you can decide that is not enough, especially when the purpose of the state statute is to make an unequal punishment in order to collect the money from that can pay.

You can decide that easily and I have never heard anybody suggest to me that $2.00 is equal to 24 hours.

Nobody has actually asserted that to me in two years I been litigating this case.

Justice Hugo L. Black: Who is admitted $10.00?

Mr. Robert G. Fisher: I'm sorry?

Justice Hugo L. Black: Who is admitted $10.00?

Mr. Robert G. Fisher: Well, my position is that $10.00 is still not equal to one day in jail, but it --

Justice Hugo L. Black: And you get to going up until we could find some way of to say that well, not a work, but they requires with as much as in the man have to pay in money?

That's a pretty difficult task.

Mr. Robert G. Fisher: I would hope that you would never decide it on that basis.

I would hope that you would decide in accordance with my philosophy that one day in jail can never equal any amount of money because --

Justice Hugo L. Black: That would just settle this case.

Mr. Robert G. Fisher: I'm sorry.

Justice Hugo L. Black: That would just settle this case, wouldn't it?

It wouldn't settle them all, would it?

If we just decided that certain amount of money is too little to compensate for the fine.

Mr. Robert G. Fisher: If you just decide it that that would only settle this case, it would not settle the $10.00 case, or the $15.00 case.

Justice Hugo L. Black: Go and settle, the deep problem is raised for you gentlemen here today, wouldn't it?

Mr. Robert G. Fisher: No.

But it would settle the other case if you went further than I have asked you to go and reach the basic value judgment that jail and money cannot be equated, it would settle all the cases.

Justice Hugo L. Black: It would seems to me that your argument and it maybe right, I am not saying it's right or wrong, it seems to me that your argument and the other arguments made today on that side assume that no law can be passed, which makes it fair and on non-violation of the equal protection law to fix punishment by fines.

Mr. Robert G. Fisher: I do not -- I do not understand that.

Justice Hugo L. Black: Well, how can you pass a law that will equalize it?

Mr. Robert G. Fisher: Could equal two people, yes it can.

Justice Hugo L. Black: Here's a man with the $100,000.00, there's another one that makes $30.00 a week.

How could you equalize of your fine of money for those two?

Mr. Robert G. Fisher: It could be done and it has been done in country like Sweden where they have the day fine principle, where the judge attempts to sting the man's pocket book by an amount that will take into account how much he can pay.

Justice Hugo L. Black: Well, maybe he couldn't afford to pay any.

Mr. Robert G. Fisher: Then it seems to --

Justice Hugo L. Black: I assume that's true that some of them couldn't afford to pay any?

Mr. Robert G. Fisher: That's --

Justice Hugo L. Black: They are too poor.

Mr. Robert G. Fisher: That's probably true.

Justice Hugo L. Black: What you do then on?

Mr. Robert G. Fisher: You'd have to collect the money from the -- at a later time or in a different way?

Justice Hugo L. Black: They might not make another, it might be --

Mr. Robert G. Fisher: Well, then, you have to find some other way to --

Justice Hugo L. Black: Well you have to get down -- don't you finally, bedrock argument that punishment by fine is so inherently unfair and unjust and discriminating between people that it should be allowed.

Mr. Robert G. Fisher: Well, I don't get down not far Your Honor, but it's -- I understand how a person could see that.

Justice Hugo L. Black: We might have.

Mr. Robert G. Fisher: You like decide to do it, but I'm not urging you to.

Justice Hugo L. Black: Our Court would know how to avoid it.

Chief Justice Warren E. Burger: Thank you Mr. Fisher.

The case is submitted.

Featured:

Williams v. Illinois - Oral Argument

Thu, 23 Aug 2012 18:09:55 +0000

Case:

Williams v. Illinois

Media File:

1089_19700422-argument.mp3

Related Transcript:

1089_19700422-argument

Transcript:

Argument of Stanley A. Bass

Chief Justice Warren E. Burger: The nest case on for argument is Number 1089, Williams against Illinois.

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

Mr. Stanley A. Bass: Mr. Chief Justice, May it please the Court.

This is an appeal from the Illinois Supreme Court presenting the question whether Illinois statutes which authorize a pauper’s incarceration in excess of the maximum period prescribed by law, at the rate of $5.00 a day for payment of fine and Court costs.

Despite the fact that the defendant is willing and able to pay them, if given the opportunity, violate the Equal Protection Clause of the Fourteenth Amendment.

The facts which are undisputed are briefly as follows: the complaint was issued in June of 1967 against Willie Williams for the crime of theft of property not from the person, and not exceeding $150.00 in value.

A warrant was issued and a $2000.00 bail was set.

Williams was arrested on August 13.

The case was brought before the Court the following day on August 14 at which at the time bail was set at $2000.00.

Williams was remanded to jail on motion of the state, the case was continued to August 16.

On August 16, the case was again continued on motion of the state to September 6.

On September 6, the trial commenced.

The defendant appeared in the Court said, there was no Court reporter present.

The record shows that the defendant waived his right to a jury trial.

The case was tried before the judge without a jury.

Finding of guilty was made and the maximum of sentence of one year plus a $500.00 fine was imposed.

The $5.00 cost was also made part of the judgment.

And the judgment further ordered that the defendant stand committed in jail, if he would default from the payment of the fine and cost.

Sometime afterward the defendant contacted the civil legal aid service in the jail and a petition was presented to the sentencing judge, November of 1967, which prayed that the portion of the sentencing order of September 6, which directed that the defendants stand committed in default of payment of the fine and cost be vacated.

That further prayed that the defendant be granted sufficient time and wish to obtain the funds and wish to pay the fine and cost and further asked for such other relief as maybe just inappropriate.

The petition was made under oath and contained some of the following allegations, that defendant was indigent, inmate of the county jail.

He had no funds, no valuable property.

He had been unable to post bail.

He lacked $200.00, wished to post the 10% under the Illinois law.

He was unable to hire an attorney and that he was then unable to pay the fine and cost.

He further recited that he had been in jail since August 13 and had been unable to earn funds since that time.

And it further alleged that if the defendant were released from jail upon the expiration of the one-year jail sentence that he would be able to get a job and earn the funds to pay the fine and costs.

The state did not contravene the factual allegation but moved to dismiss.

The lower court dismissed the petition without evidentiary hearing and an appeal was taken to the Illinois Supreme Court.

The Illinois Supreme Court held that there is no denial of Equal Protection of the law, when an indigent defendant is imprisoned to satisfy payment of his fine.

The Illinois Supreme Court granted a stayed pending appeal, and for the stayed the mandate pending appeal to this Court.

It should be noted at the outset what is not challenged in this case.

We do not challenge the practice of incarcerating contumacious defendant who refuses to pay the fine nor do we attack the discretion of the sentencing judges who wish to make the punishment for the offender, nor do we attack defendant's obligation to pay that debt, nor do we attack --

Justice John M. Harlan: What was the total sentence that resulted from the application of the statute?

Mr. Stanley A. Bass: The total sentence would be one year, plus 101 days, which would be the $505.00 at the rate of $5.00 a day.

Justice John M. Harlan: A year and three months?

Mr. Stanley A. Bass: About a year and three months, yes.

That was diminished slightly by the good-time credits.

Justice John M. Harlan: Do you mean that he suggested that defendant that in light of that and the facts which he shown that the record in this event was not represented by counsel (Inaudible)

Mr. Stanley A. Bass: That's a possible question.

We did not urge the right to counsel the question for a number of reasons.

The first reason is that it was doubtful of whether or not the defendant would succeed in that because under Illinois law, the right to counsel depends upon a request for counsel.

Secondly, the possibility was substantial that if there had been a retrial, or would have been a reconviction with the same sentence, which would only have resulted in the issue coming up at a later stage, and possibly the defendant is spending more time in jail than he did with respect to this case.

Justice Hugo L. Black: What was the maximum sentence that could have been imposed?

Mr. Stanley A. Bass: The maximum sentence that could be imposed for theft of property, not from the person and not exceeding of $150.00 in value was one year plus a $500.00 fine.

If the person commits a subsequent offense, it's a felony, one to five years, if he commits theft of property from the person or exceeding $150.00 in value is 1:10.

Justice Hugo L. Black: Which classification did this come in?

Mr. Stanley A. Bass: Pardon me Your Honor.

Justice Hugo L. Black: Which classification did this crime come in?

Mr. Stanley A. Bass: This came in the lowest, the misdemeanor of one year plus $500.00.

Justice Hugo L. Black: Only in one year?

Mr. Stanley A. Bass: Yes.

Justice William J. Brennan: Mr. Bass, how long he would stay or he had actually been in prison under this statute?

Mr. Stanley A. Bass: How long would he actually be?

Justice William J. Brennan: Or how long has he in fact been?

Mr. Stanley A. Bass: Well, he was bailed out after serving five days of the fine.

Justice William J. Brennan: So, that is had he served the sentence itself?

Mr. Stanley A. Bass: Served the full sentence and at the conclusion of the sentence, he asked for bail and the Illinois Supreme Court five days after, he began serving --

Justice Potter Stewart: How long was he actually in jail?

Mr. Stanley A. Bass: Well, I think he received approximately 84 days, which is a normal good time credit.

So it would be a year plus five days minus 84, which would be the period from August of 1967 to May of 1968, about nine months.

What we do challenge in this case is the construction of the statute by the Illinois Supreme Court which authorizes 24-hour a day imprisonment over the maximum at the rate of $5.00 a day, despite the fact that the defendant has said without any opposition by the state that he will go out and get a job, and earn the funds to pay his fine if he is given the opportunity.

The state has indicated that it has two primary goals to be served, the practice of incarceration of indigence should be sustained because of those goals.

Those are deterrence of crime and collection of revenue from the fines.

But whatever the examination reveals that round-the-clock imprisonment of an indigent under these circumstances is neither necessary nor rationally related to the stated goals and that there are clearly less onerous alternatives and perhaps more effective ones to satisfy the state's interest.

Certainly, if the state's interest is in collecting the revenue by remitting the person to jail, they're not going to get the money.

And in addition, the state has to pay substantial amount of money to house prisoners in already overcrowded and overburdened facilities.

Justice Potter Stewart: Could the state insist that we pay the fine by working for the state, and I don't say in a workhouse or in a work farm or something like that.

Mr. Stanley A. Bass: Well, it's our position that the state could certainly do that as long they let him go at night.

In a hierarchy of alternatives that we have suggested, we have placed remitting to the work house as one of the possibilities, but the problem is in this case, that they keep the man in jail around the clock and there's absolutely no justification for incarcerating somebody at night merely because they're extracting his day life, that's wrong.

Chief Justice Warren E. Burger: Do you think the Supreme of Illinois had judicial power to shape that kind of solution to problem?

Mr. Stanley A. Bass: Well, we feel that the Illinois Supreme Court could easily have saved the statute by construction.

For example, the first provision -- the first sentence in the statute talks in terms of a judgment of a fine imposed upon a defendant, maybe enforced in the same manner as a judgment entered the civil action.

Just last November, the Illinois Supreme Court held that civil case.

It could not obtain the body execution that is jail to facilitate.

Absence of showing or refusal to pay, that's the lawyer's title of Phoenix versus Gerber, which we said in Footnote 19 on page 22.

Chief Justice Warren E. Burger: Is that -- was that done in the context of the old notions of imprisonment for debt?

Mr. Stanley A. Bass: No, the Illinois Supreme Court does not treat imprisonment as a result of a conviction as a debt which is considered within that prohibition.

But if the Illinois Supreme Court had construed the section, to require resort to the other alternatives before remitting the person immediately, The Illinois Supreme Court could have avoided the constitutional infirmity in this case.

Chief Justice Warren E. Burger: Well, then you don't complain about the rate of the workout, that this $5.00 a day if he goes home at night.

Is that it?

Mr. Stanley A. Bass: If he goes home at night, I think there maybe some question about whether or not $5.00 a day comports with a reasonable rate.

But certainly, $5.00 a day --

Chief Justice Warren E. Burger: Are you raising that here or not?

Mr. Stanley A. Bass: We do raise it.

But what we have it in this case is $5.00 a day not for the workday but the pleasure of his company during the night as well, and that certainly, under those circumstances, that's certainly not compensatory, certainly unjust compensation for -- not only taking his labors during the day but having him around at night too against his will.

Chief Justice Warren E. Burger: But you don't consider the compelled presence and requirements of work in the day -- daytime hours as a form of incarceration?

Mr. Stanley A. Bass: Well, we had originally suggested that the alternative of allowing the man to go out on his own is to be preferred.

But we're willing to acknowledge that there maybe situations where a person is unable to get a job, where the state is unable to get a job for him, do an employment service.

And as a last resort, the state might want to give him the public works program, the job.

They could make him work at the hospital or a boy's club or at the work farm.

But our point is what the state has done is much more onerous here.

Justice William J. Brennan: What -- suppose this was a civil case and he had cost, what does Illinois do?

Mr. Stanley A. Bass: Illinois does not imprisonment for nonpayment of cost in civil case.

It will clearly have an irrational discrimination here.

One can hardly think that costs are necessary to enforce a criminal law.

Justice Potter Stewart: You were suggesting I take it, just a moment ago, that there were circumstances under which the state could keep the man in jail around the clock, weren't you?

Mr. Stanley A. Bass: Well, I wasn't suggesting that.

But I can envision the possibility where after an adequate inquiry is made, it's determined that there's very, very, real probability that they let him out to go to the job during the day and they'll never see him again.

Justice Potter Stewart: Well, let's assume he refuses to work.

Mr. Stanley A. Bass: If he refuses to work, that might well be the contumacious type of conduct that could lead to remitting him to incarceration.

Justice Hugo L. Black: Mr. Bass, if that's true --

Justice Byron R. White: As a substitute for the fine?

Mr. Stanley A. Bass: Not as a substitute for a fine but as a means of collection or as a means of getting him to be willing to go and work.

Justice Byron R. White: You're position is you ought to -- all you want probably is money although it limits your remedy to that as long you think you can get it, as long as there are some chance of getting it.

Now, what if there is no chance of getting it, is there then --

Mr. Stanley A. Bass: Well, the state can provide the job.

If he absolutely sits down at the job --

Justice Byron R. White: What if he won't work?

Mr. Stanley A. Bass: Well, if he absolutely refuses to work, that is contumacious conduct.

That's a complete refusal to be cooperative.

Justice Byron R. White: Well then, what could state do?

Mr. Stanley A. Bass: Well, under those circumstances, the state might do, but it does with respect to a person who has the funds and that is say, you sit unless you work or pay.

Chief Justice Warren E. Burger: There was separate proceeding for that to determine this, the factual situation?

Mr. Stanley A. Bass: But not under the Illinois statute.

That's the problem.

No provision has made for any kind of inquiry or hearing or factual evidence to determine whether or not the defendant is refusing to pay or refusing to work, refusing to comply with his obligation.

Justice Byron R. White: Would you say that the state, in order to satisfy his obligation, he would always purport that incarcerating then 24 hours a day would have to offer him work?

Mr. Stanley A. Bass: Well, our position is that--

Justice Byron R. White: Would he work by the state?

Mr. Stanley A. Bass: Our position is that where liberty is involve, that the state is obligated to utilize alternatives rather than automatic remission to jail.

Justice Byron R. White: Well, I understand but how about that alternative, are they obligated to use that one too?

Mr. Stanley A. Bass: Well, the alternatives that we would suggest would be first, straight installment payments.

An economy that's based upon time payment, that's certainly not strange.

Secondly, garnishment, that is once he goes out, automatically seize a portion.

Third, possibility is to utilize a state employment service to find a job for him.

The last one would be to put him on the public works job, whether that would be out in the farm or out in the workhouse.

That's the last the last one.

Justice Potter Stewart: But what if no jobs are available in the community that he can get, must the state furnish him the opportunity to work on its own payroll?

Mr. Stanley A. Bass: Well, we think that it's unrealistic to think that there is no work at all these days, but if it were shown -- evidence did show that it was impossible to place him anywhere, we think that it would be permissible to require him to work at a designated place during the day.

Justice Byron R. White: Well, permissible yes.

But the state says, we don't want him, we better put him in jail.

We haven't got any place for him to work.

Mr. Stanley A. Bass: Well, it's our position that the interest of the society do not justify such as onerous exaction, such an imposition upon the liberty of the defendant.

It's interesting to note that the state which talks in terms of these alternatives really administratively feasible for a stance of cost is that administrative convenience is not a sufficient ground for such an onerous exaction.

But the second one is that Illinois, by passing a work release program has itself recognized that these alternatives are feasible.

Of course, there's one glaring defect in the Illinois work release program as applied to the person who is incarcerated for nonpayment of fine.

That's triple punishment.

Defendant is required to serve his year in jail, pay his fine with the earnings he gets during the day but he sits in jail at night.

And there's absolutely no justification why a person should have to sit in jail at night when he is out there during the day working off his fine.

Justice Thurgood Marshall: Mr. Bass, going back to this case, is there anything of this record that shows that his incarceration beyond the year is any different from a man being sentenced to two years?

Mr. Stanley A. Bass: Well, if I understand your question Mr. Justice Marshall --

Justice Thurgood Marshall: Well, for example, the release on work applies to a man that's serving the sentence of just one year and nothing else.

Mr. Stanley A. Bass: That's correct.

It applies to straight jail sentence.

Justice Thurgood Marshall: This is nothing just where people are put in because they couldn't pay a fine.

Mr. Stanley A. Bass: That's correct.

Justice Thurgood Marshall: So what is the basis of this argument?

I thought your argument was that put them in jail beyond the one year period solely because he was broke, was unconstitutional.

Mr. Stanley A. Bass: Right, let me explain that.

Justice Thurgood Marshall: Please.

Mr. Stanley A. Bass: With respect to a person who is doing a straight jail sentence, he's certainly receiving quite a benefit to be told that he can obtain some liberty during the day and he can hardly complain of that.

But the person who is being incarcerated for nonpayment of fine, the only interest that the state has is his money.

When they let him go out during the day to get that money, may then have completely undermined that by saying he must come back to jail at night.

There is no rational justification.

Justice Thurgood Marshall: Well, getting back to this case, is he out or in?

Mr. Stanley A. Bass: Williams?

Justice Thurgood Marshall: Yes.

Mr. Stanley A. Bass: He's out.

He was bailed by the Illinois Supreme Court.

Justice Thurgood Marshall: He was bailed out.

Mr. Stanley A. Bass: Yes.

Justice Thurgood Marshall: So how does the work release program come up?

He might never qualify for it.

Mr. Stanley A. Bass: Well, as to Williams, of course, the work release program was passed by the legislature effective January 1969 and all of the Williams proceedings occurred in 1967.

I was addressing myself to in the event that it were applicable to him or other persons similarly situated what the effect would be, and my point was that the work release statute shows that the administrative convenience argument doesn't hold up.

And secondly, that there's a glaring defect in it because it requires night time incarceration so which does no rational justification.

Justice Thurgood Marshall: Does it also require that he pay room and board?

Mr. Stanley A. Bass: That adds in injury by making a $3.50 a day.

Justice Potter Stewart: I don't -- perhaps you told us, but if so, I didn't get it clearly.

As I read the Illinois Revised Statute 1967, Chapter 38 Paragraph 180-6, its language would seem entirely to take care of your claim, however, I understand that it's been construed by the Illinois Courts in such a way as to mean something other than what it seems rather clearly to say.

Mr. Stanley A. Bass: Well, we certainly thought that the language of the statute could be interpreted literarily and would be granted for discharge.

Justice Potter Stewart: And how has Illinois suit reviewed? How the Illinois Courts construed it?

Mr. Stanley A. Bass: They've construed the language until all the legal means have been exhausted to mean that the defendant either must show, he's physically unable to work which is the Goldstones case and People versus Hardenbergh.

Or that no work is provided for him.

Now, there's always housekeeping available.

In fact, the record shows, the jail record of Williams is included in here on page 33 of the record.

And it does show that when he was serving his jail time, he worked in the laundry and he worked in the tailor shop and he worked in something beginning with 'K' which I think is the kitchen.

So that, all people that are in jail have the opportunity to work.

So person who is serving off or working off a fine is not going to be doing anything differently.

The state has attempted to suggest that the policy of deterrence requires the result reached in this case.

We dispute that contention for the following reasons.

First, the fact the Illinois is going under 180-6 to discharge a persons who are unable to work or for whom no work is provided is an indication that automatic incarceration of everybody who don't pay fines, not necessary to the enforcement of the criminal law.

We submit that the fine is certainly a different order of punishment than a jail sentence.

If the trial judge wishes to individualize the sentence, imposed a fine because he feels that the interest of society require no more than a fine.

It's inconsistent with that trial judge's determination then to have the defendant sitting in jail.

Justice Byron R. White: Are you arguing this is an equal protection matter or a due process involved?

Mr. Stanley A. Bass: There really a blend of equal protection and due process, almost all of this Court's criminal procedure --

Justice Byron R. White: How would you define your equal protection position?

How do you frame it?

Mr. Stanley A. Bass: We frame it in terms of the fact that the indigent is required to spend more jail time than the person with funds.

The fact the indigent defendant despite his willingness to work is deprived that the opportunity to payoff the fine but rather remitted to incarceration.

Justice Byron R. White: That's the consequence of the economic necessity to go into that kind of a –

Mr. Stanley A. Bass: Well, there is more to it than that.

There is a due process aspect to this extent that the state seems to be conclusively presuming that incarceration is necessary because the person might run away and they lose the risk, so to speak, and he'll run away from the job and he won't be around to pay the fine.

That type conclusive presumption in the absence any showing, any hearing, any inquiry, certainly doesn't comport with fundamental principles.

So, to that extent, there is this blend of Due Process into the Equal Protection.

The state's attempt to justify this 24-hour day incarceration for fear that some people might skip is not based upon any evidence.

Certainly, not in this record and I take it the state this arguing in a broad proposition that they're entitled to incarcerate somebody around the clock in any case regardless of the fact that a felon may come in and say, “Well, look, I have great possibility of getting a job.

I could earn enough funds in perhaps a week or two to pay off this fine.”

But -- and the state says, it wants the revenue from collecting these fines, and yet that state does precisely by incarcerating the person and depriving him the opportunity to go out to work.

Chief Justice Warren E. Burger: Did you put in the evidence in this case what the reasonable value of services would be in the place of $5.00 a day?

Mr. Stanley A. Bass: Well, there's no evidence in the record to that effect.

Chief Justice Warren E. Burger: Would that, in your judgment, as a constitutional matter, would that have to be tailored to his capacities or could the Illinois legislature fix another figure such $16.00 a day or based on the minimum wage which I guess is a $1.60 times eight hours.

Mr. Stanley A. Bass: Clearly, the evaluation is a legislative matter.

However, there is a point when 24-hour incarceration for $5.00 a day is so obviously unjust compensation as to render it on Constitution because we have to remember that the defendant here is being kept for longer than the work day.

Chief Justice Warren E. Burger: Well, my problem with your argument counsel is that I can understand someone rationally fixing a rate for his services.

I have some difficulty seeing how you put a rate on his liberty by the hour.

You seem to imply that they might rationally fix some X dollars per hour for depriving him of his liberty.

Where is your basis for doing that?

How do you measure the value of a man's freedom?

Mr. Stanley A. Bass: Well, it seems to me that the remission to incarceration at a certain value is the last resort.

It's our submission in this case that the state should have done something before they resort to that alternative.

And the state didn't.

Despite the fact that the defendant said he could go and get the money on his own, the state wouldn't have to keep him in jail and to work off the fine at whatever value they assigned.

He said that he could go out and get that money.

And the state instead of even inquiring into the credibility of the weights of those contentions which the state did not meet simply denied the petition without evidentiary hearing.

And the Illinois Supreme Court rather than adopt the type of construction that could save the statute, simply said, there is no denial of Equal Protection when an indigent is required to work off his fine.

The heart of this thing is that there is no equivalent between the rich man's choice that is whether anyone is to pay or sit in jail and there are some people who would like to do that.

And the exactions on the indigent requiring him to sit in jail, that is simply an inequality and that is (Inaudible).

I'd like to save a few moments for rebuttal, if I may.

Chief Justice Warren E. Burger: Well then, thank you.

Mr. Thompson.

Argument of James R. Thompson

Mr. James R. Thompson: Mr. Chief Justice and May it please the Court.

In 1927, Mr. Justice Holmes referred to the Equal Protection Clause as the last resort of constitutional arguments.

Reading the opinions of this Court will show that we have come quite a ways since that characterization.

In fact, Judge Skelly Wright of the United States Court of Appeals for the District of Columbia recently referred to the Equal Protection Clause as the cutting edge of our expanding constitutional liberties.

One of the issues that's involved in this case before the Court today is whether that cutting edge will press so deeply not only into the statutory scheme in the state of Illinois, the statutory of scheme of the other American states in the Federal Government, to compel those states and the Federal Government to adopt the system of criminal justice administration.

Greatly different from that which they have adopted by the legislative process in the name of the explication of the Equal Protection Clause.

I think we should consider at the outset what some of the interests are in considering the context or setting of the Equal Protection argument in this case.

As Mr. Justice Brennan referred to it in the concurring opinion of Allen versus Illinois just some weeks ago, the constitutional claims must be considered in context.

And we think the context of the Equal Protection claim here is an important one.

First, the history of incarceration to work off a fine which cannot or will not be paid is an ancient one far outdating the American legal system.

Mr. Justice Black said in his opinion for the Court in Kotch versus the Board of River Pilots some years ago and in a dissenting opinion in Harper versus the Virginia Board of Elections, the history of a practice in important in considering whether or not that practice violates the Federal Constitution.

Similarly, the widespread usage of a particular feature of a criminal justice system by the states and by the Federal Government is also important in assessing its validity under the Federal Constitution as was noted for the Court in the opinion in Roth versus the United States for the fact that not only in all American jurisdictions and the Federal Government ban the dissemination of obscenity but most of the civilized nations of the world did as well, we think it's equally relevant then to consider in the context of whether or not Equal Protection has been violated here, that all of the states of the Federal Union for years and years and years and the English Government before that have allowed the incarceration of those who cannot or will not pay their fines until the fines has worked off.

The impact of this Court's holding that the Illinois system is unconstitutional must also be considered, we believe, for this Court to decide how far they will take the Equal Protection Clause because if the challenge to Illinois statute is successful in this Court today, similar challenges will follow.

Challenge to the bail system, the claim that the requirement of a monetary bail in any case is irrational.

If other factors will show or seek to persuade that the defendant will not flee.

Justice Byron R. White: How many states have got a statute, where the Illinois statute here, or as construed, the Illinois statute is construed?

Mr. James R. Thompson: At least 48, Your Honor.

Justice Byron R. White: 48?

Mr. James R. Thompson: At least 48.

Justice Hugo L. Black: Which of the two do not have it?

Mr. James R. Thompson: Well, New York has a statute where there is to be a hearing on the question of whether or not the indigent can pay the fine and if he cannot pay the fine, they go back and re-sentence and they don't follow exactly the same procedures in Illinois and I'm informed by counsel in the case that you are to here following this one that Maryland has recently changed its statute in light of the opinion below in the Schoonfield case.

But to my knowledge, all the rest of the states of the American jurisdiction have statutes similar to Illinois so as the Federal Government.

Justice Potter Stewart: Many of them, as I understand it, do not -- I have so -- do not have Illinois as the provision that Illinois has that if a man in fact is unable to work off his fine, he must be released and am I not right that many states to apply that sort of a release --

Mr. James R. Thompson: Illinois' policy is more benign in this regard because Illinois does allow discharge where no work is available or where his physically unable to work.

Justice Potter Stewart: That's what I thought.

And many of those other 47 states do not.

Mr. James R. Thompson: That's correct.

Justice Potter Stewart: Am I mistaken about that?

Mr. James R. Thompson: That's right.

That follows, I think, our policy of regarding the incarceration for failure to pay this fine as the equivalent of the collection of money by collecting in labor and obviously if we can't collect in labor, the man has no business in jail.

But some other states justify incarceration in lieu of payment of fine on an alternative punishment theory and since they don't depend upon the collection of revenue theory, it's easy to see why they don't discharge for failure to provide work.

Justice Thurgood Marshall: But in this case, if the statute said one year, maximum of one year period and the judge thought that this was a horrible case, and the man said get more time.

He couldn't get him for about a year.

Mr. James R. Thompson: He could not.

Justice Thurgood Marshall: But if the statute says as it does here, the year and a $500.00 fine, the judge -- it's undisputed the judge knows this man is a pauper.

Mr. James R. Thompson: I think that's a fair inference to draw.

Justice Thurgood Marshall: Well he had his -- I assume he had probation.

I mean he had a sentencing report, I'd assume so.

And so he says, well I can't give this man any more time but I can give him a hundred more days by merely giving him the $500.00 fine.

On the other hand, if the probation report said that this man is a millionaire that has a hobby of stealing, he couldn't do it.

Mr. James R. Thompson: A judge could say that, Your Honor.

The record does not reflect Judge Giles said in this case.

Justice Thurgood Marshall: Well, I mean the judge couldn't give that man a hundred more days.

Mr. James R. Thompson: That's correct, he could not --

Justice Thurgood Marshall: No way under the sun.

Mr. James R. Thompson: That he could not give him an additional 101 days as punishment neither could he give the indigent man an additional 101 days as punishment.

Justice Thurgood Marshall: What he gives him?

Mr. James R. Thompson: He could simply impose a fine which --

Justice Thurgood Marshall: Which he knew he couldn't pay.

Mr. James R. Thompson: Which he knew he couldn't pay.

Justice Thurgood Marshall: And you don't think that's giving him a hundred days.

Mr. James R. Thompson: No sir.

We do not equate that 101 days it takes to work off the fine to give the state your labor for 101 days as the equivalent of 101 days of straight punishment under the statute.

Justice Thurgood Marshall: The difference being?

Mr. James R. Thompson: The difference being that in one case, he is in there to give the state the value of his services.

Justice Thurgood Marshall: But in both cases, he's in the same jail.

Mr. James R. Thompson: That's correct.

Justice Thurgood Marshall: In the same cell?

Mr. James R. Thompson: Yes sir.

Justice Thurgood Marshall: But after the one year, he's serving something different.

Mr. James R. Thompson: In terms of the theory of why the state has in there, that's correct.

Justice Thurgood Marshall: The theory?

What about the man's theory?

He's in jail.

Mr. James R. Thompson: Well in terms of what happens to the man, obviously there's no difference between the two.

Justice Byron R. White: Do you do different work after the one year?

Mr. James R. Thompson: Not necessarily.

Not necessarily.

Justice Byron R. White: Why do you keep him overnight?

Mr. James R. Thompson: Well, I suppose one reason we keep them overnight --

Justice Byron R. White: If your theory isn't some substitute kind of punishment, but you're really just collecting your fine.

Mr. James R. Thompson: Yes.

Justice Byron R. White: If he doesn't work for night and day, I suppose, why don't you let him go when he isn't working?

Mr. James R. Thompson: I don't think I have nothing the record to support this but I don't think that the value of work off system insofar as it applies to a jail system, considering the people who are convicted and have no money to pay their fines who would stand very long if they were permitted to be released at night.

I think there would be a substantial percentages of failures to return to the jail during the day.

Justice Byron R. White: But Illinois, in taking this approach currently would keep a person as long as necessary to work off the fine at that rate.

Mr. James R. Thompson: No sir.

Justice Byron R. White: Even though the -- what's the --

Mr. James R. Thompson: Illinois has a maximum limitation of six months no matter what the fine is.

It cannot serve longer than six months in the working off with the fine.

Illinois is one of the few states to have such a maximum period.

Justice Byron R. White: But he -- he will stay -- he can't stay in jail more than six months beyond the maximum term of imprisonment for the offense.

Mr. James R. Thompson: No, no he can -- if he is given the maximum term of imprisonment for the offense, he would stay in jail beyond that maximum term only for so long as it takes to workout the fine for $85.00 a day or six months, whichever is greater, whichever is less.

Justice Byron R. White: So he can stay in jail six months longer than the maximum term of --

Mr. James R. Thompson: Yes sir.

Justice Byron R. White: -- imprisonment.

Mr. James R. Thompson: That's correct, that right.

Now, in the brief of the appellant, an attempt is made --

Chief Justice Warren E. Burger: Before you get to that counsel, how far back is the $5.00 a day measure go?

Mr. James R. Thompson: I think that --

Chief Justice Warren E. Burger: Can you go over from an old statute?

Mr. James R. Thompson: No sir, back in the early 1900s, the rate was $1.50 a day.

I'm not sure precisely how far back it goes but I think it's relevantly recent, $5.00 a day provision.

And it's among the highest in the country in terms of work off statutes.

I think only a very few states have a higher rate, $8.00 or something like that I think being the maximum.

Most of them averaging around $5.00 or in some cases even less.

Ohio recently declared unconstitutional the $2.00 a day, I believe.

But they vary.

But Illinois is fairly high up in the list.

Justice Byron R. White: Do you charge him for his board room?

Mr. James R. Thompson: Not under the work off system as such, I think it's probably reflected in the value of his labor, in other words, we're not saying your labor is only worth $5.00 a day to as we're probably really saying to him that your labor is worth at least $11.00 a day to us because it costs about $6.13 to keep him.

Justice Byron R. White: When he's serving his year.

Mr. James R. Thompson: Yes.

Justice Byron R. White: When he's serving his initial year, you got a year here?

Mr. James R. Thompson: That's correct.

Justice Byron R. White: Did it work?

Mr. James R. Thompson: I think his record in the appendix reflects that he was assigned to the tailor shop or the kitchen so I presume he worked.

Justice Byron R. White: Which is the same as he was assigned after that?

Mr. James R. Thompson: I presume that's correct.

Justice Byron R. White: Why doesn't he get credit on his fine for that work?

Mr. James R. Thompson: Well, I suppose on the theory that it's a sort of consecutive sentence idea.

I mean if he were convicted say of two crimes, defendant under Illinois law could be sentenced consecutively.

Justice Byron R. White: Well, what would have to go -- while he's serving his year, assume he refused to work?

Mr. James R. Thompson: During the first year?

Well, I assume he might be put into the disciplinary cell or subject to discipline of some kind or loses good time, probably, most likely a remedy that will be employed.

If he refused to work, if he refused in his lawful assignment in the prison system, I assume he would lose his good time.

That would be an incentive for him to work.

Justice Byron R. White: But why?

What good reason is there for not crediting the work he does during his regular prison term on his fine?

The state is collecting that value from him.

Mr. James R. Thompson: Yes it is.

I assume though that the state is entitled to put its regularly sentenced prisoners to work even though no fine has been imposed and as an incidental benefit to the state, flowing from the year's imprisonment, they're entitled to collect that labor.

Justice Byron R. White: Do you pay people for working in your --

Mr. James R. Thompson: There are some projects in the city jail which prisoners may obtain a small amount of paid form even though they're not working out fine.

Although sometimes the pay is in the form of privileges or tobacco or things of that sort but it's really not a reimbursement scheme and such.

But to answer your question, I think that if the man was sentenced simply for a year in jail, the state is entitled to exact that year in terms of his time in the normal theory of a jail punishment and they're also entitled to the benefits of his labor, I think during that period.

But the sentence in this case was a year in jail and a fine of $500.00, a sentence permissible under Illinois law, sentence which is not challenged in this Court on grounds of constitutionality or rationality.

The state is therefore saying to Willie Williams, we are entitled to keep you in jail for a year to derive whatever incidental benefits flow to the state from that year of service in jail and we are also entitled to collect from you a $500.00 fine or its equivalent in labor.

And I don't think it's irrational for the State of Illinois to say that in so far as the collection of the benefits from the labor are concerned, they must be served separately.

In other words, that the fine work off must follow the year's work off and that he need not, under a rational scheme of prison administration, be given credit for the fine work off during the course of the first year.

Justice Hugo L. Black: They in fact show an indigent is forced to serve a lot of time that a man who's not an indigent would not have to serve?

Mr. James R. Thompson: Well, a man who was an indigent must work off his fine in the same jail that men go to who are sentenced.

Justice Hugo L. Black: Same jail but you don't have to work off his fine at the same jail that the millionaire would have to work it.

Mr. James R. Thompson: As a millionaire, who pays his fine, that's correct.

Justice Hugo L. Black: Well, that's the difference practically speaking.

Mr. James R. Thompson: That's true.

Justice Hugo L. Black: And that's your real issue.

Mr. James R. Thompson: That's true.

The question, that that raises, is does that violate the Equal Protection Clause?

And that was the question that was raised in the brief and that is a question which this Court has never really considered.

And I'd like to turn for my remaining moments of argument to an examination of how this Court's previous cases, setting forth what the requirements of the Equal Protection Clause are that touch this case.

Obviously, the traditional test that this Court has talked about in Equal Protection cases is what class has the state set up?

In this case, those who do not, for whatever reason pay their fine.

What scheme has the state adopted to deal with that class?

In this case, the work off system.

What interests of the state does that scheme serve?

In this case, transit crime by preserving the value of fines and the Courts which impose fines as a component of our criminal justice system and the collection of revenue which fines bring in.

The final question under the traditional test, does the state's scheme rationally relate to the end result which they seek to achieve?

And in this case, we say it does because the work off system of Illinois offers the opportunity for the state to keep its fine system viable and at the same time to collect the equivalent of fine and the labor of the defendant.

Justice Byron R. White: What is Illinois' collected fines usually?

Mr. James R. Thompson: I'm not certain Your Honor but it's certainly in the high millions of dollars when you count in the fines collected by the Courts which handle cases in which the fine is the only punishment, including traffic offenses.

I'm sure it's in the high millions and as a practical matter, offers the source of support for those Courts which enforce misdemeanor and petty offenses and traffic offenses without the revenues derived from the imposition of fines.

Especially in traffic cases, it would be extremely difficult for the State of Illinois under its present budget to support those Courts.

Justice Thurgood Marshall: Mr. Thompson, I assume that the jails are overcrowded in Illinois lately than place else.

Mr. James R. Thompson: Not necessarily, Mr. Justice Marshall.

Justice Thurgood Marshall: Really?

Mr. James R. Thompson: It adds and flows -- I was out to the Bridewell Jail just a few weeks ago and they are not overcrowded in the Bridewell.

It depends on a number of factors, sometimes they are overcrowded, sometimes there is space available.

Justice Thurgood Marshall: You mean, the need as to workers?

Mr. James R. Thompson: No, but crime doesn't follow a steady pace.

Justice Thurgood Marshall: Do you think that the statute in Illinois was passed putting a head tax on everybody of $100.00 a year and all who didn't pay it went to jail, would be valid?

Mr. James R. Thompson: Well, I think the State of Illinois would be entitled to impose a tax, a revenue collecting tax on all of its citizens and to provide some means for alternative collection if the man failed to pay it.

Justice Thurgood Marshall: The man that couldn't pay it?

Man that couldn't have a $100.00 in his life, you could put him to jail because he didn't have $100.00.

Mr. James R. Thompson: We could extract the value of his labor and services to the state and if necessary, to accomplish that objective --

Justice Thurgood Marshall: Do you think that's true in the year of 1970 to put a man in jail because he doesn't have money?

Mr. James R. Thompson: Well, I would draw a distinction, your honor between your hypothetical in my case for this reason.

We're not dealing in the Williams case with an ordinary citizen who has been taxed and who has failed to pay.

We're dealing with a man who has committed a criminal offense, has had a trial which was presumably fair, has been found guilty and has been sentenced to a criminal fine.

Now, I think the state is entitled to draw different assumptions with regard to Willie Williams and what is necessary to extract the value of his services than it is with a taxpayer.

Justice Thurgood Marshall: What's the difference between Willie who doesn't have $1.75, paying the tax or paying the fine?

Mr. James R. Thompson: Well, the difference is simply I think that the state --

Justice Thurgood Marshall: The state doesn't need the money that he has, is that correct?

Mr. James R. Thompson: Well, I think on the broad scheme -- on the broad scale, you could certainly say that they do.

Justice Thurgood Marshall: Well, didn't the judge, when he sentenced this man know that he wasn't getting a single dollar out of Willie?

Mr. James R. Thompson: Well, I'm sure --

Justice Thurgood Marshall: Didn't he?

Mr. James R. Thompson: I'm sure he presumed that Willie Williams is not going to come up with $500.00 in cash, that's right.

Justice Thurgood Marshall: All he wanted was to extend the one year sentence, that's all he was interested in doing.

Mr. James R. Thompson: I don't think that that is necessarily a motive which you can ascribe to the judge.

Justice Thurgood Marshall: Well can you give me any other one?

Mr. James R. Thompson: Yes, I think he was saying that the circumstances of Williams' crime, whatever they were, and the record does not show it, warranted the maximum penalty provided for by law.

Justice Thurgood Marshall: Which is a hundred -- so far as jail was concerned was a hundred -- one year.

Mr. James R. Thompson: That's correct and then so far as the fine is concerned, the maximum fine.

Justice Thurgood Marshall: So, he sentenced him to one year and 100 days.

Mr. James R. Thompson: That is the net result of the sentence, that's correct.

Justice Thurgood Marshall: And you don't see anything wrong?

Mr. James R. Thompson: No sir, I don't.

Justice John M. Harlan: What effect, suppose we were to hold, just assuming we were to hold that that provision is unconstitutional because it denies equal protection.

Mr. James R. Thompson: Yes sir.

Justice John M. Harlan: In fact, although it does not do so theoretically, but in fact, what are we to hold?

What effect could it have on the administration of the law in Illinois?

Mr. James R. Thompson: I think the extraordinary effect on the administration of criminal justice, not only in Illinois but in all the states.

Justice John M. Harlan: Where would it be?

Mr. James R. Thompson: In several areas, first, a holding of that time would necessarily take this Court far beyond the rationale of Griffin versus Illinois which provided for the first time that the state must attempt to remedy the imbalance between the poor and the rich, so far as the administration of criminal justice is concerned.

But the impact to that opinion so far has always been confined by this Court to those stages of the criminal justice process which determined guilt or provide for a first appellate review of guilt.

This Court has been very, very hesitant, in fact has not at all taken the rationale of Griffin beyond those narrow bounds.

It seems to me that --

Justice John M. Harlan: I'm trying to find that I would block the state of Illinois is in anyway, I wouldn't talk about rationale and (Voice Overlap).

Mr. James R. Thompson: Well, alright.

Justice John M. Harlan: I will not -- how will it really affect the administration of the law in Illinois?

Mr. James R. Thompson: This is what it would do.

Justice John M. Harlan: Adversely.

Mr. James R. Thompson: As to those cases where the only penalty provided by law was a fine --

Justice John M. Harlan: Which could be changed.

Mr. James R. Thompson: Which could be changed except that that would have an extremely harsh impact on the administration of criminal justice because --

Justice John M. Harlan: Why would it?

Mr. James R. Thompson: Well, in the traffic area, for example, a state would be low to provide that the only possible penalty that could be imposed in a traffic case was a jail sentence.

I think we would have chaos in traffic law enforcement.

And I think the same would be true in a number of petty offenses and misdemeanor cases.

Justice Thurgood Marshall: Well, that's getting to what I was talking about.

Mr. James R. Thompson: Right.

The second thing that it would do is that it would encourage spurious claims of indigency and that it would impose on the Court's least able to handle it, a burden of determining something new in a case, not only must they first determine guilt, but after determination of guilt, if there was a claim on indigency and that a fine could not be paid, they would have to hold a hearing to determine whether the man was in fact indigent.

Now, it's one thing to require a hearing of that sort in a criminal court where the issues is does he have the money for a transcript on appeal or a lawyer on appeal where the judge may have on his call one or two or three or five cases a day.

It's quite another thing to say for example to the Municipal Court of Chicago, in a traffic case where a judge may have two or three or 400 cases on his call per day that whenever he is confronted with the claim of indigency, he must stop and determine that fact in order to decide whether or not the defendant is going to have to work off his fine under the Illinois work off system.

Justice Thurgood Marshall: I preclude that that's true.

There are few in the illustration you've mentioned, to driving automobiles around to the country, couldn't pay a $5.00 fine.

Mr. James R. Thompson: I'm not so sure that's true, Your Honor because first, suppose the fine was substantially greater than that --

Justice William J. Brennan: Well, do you have any statistics, how many traffic offenders who can't pay their fines are required for work off?

Mr. James R. Thompson: No I don't, no I don't.

Justice William J. Brennan: Do you know that this actually happens?

Mr. James R. Thompson: Yes I do, it does actually happen but the percentage figures I don't have.

I think it happens fairly often, I think it happens fairly often.

Justice Thurgood Marshall: I had some experiences of prosecutions in my state.

I do not recall a single one where they were not able to pay except somebody who had stolen the car or something of that nature.

Mr. James R. Thompson: Well, Your Honor I think --

Justice Thurgood Marshall: What this amounts to, which has to be paid is that it imposes a punishment upon a man who has no money, cannot possibly be imposed on a man who has money.

Mr. James R. Thompson: Well, if I accept it Your Honors.

Justice Thurgood Marshall: Isn't that right?

Mr. James R. Thompson: If I accepted your premise, I would agree with you.

I cannot, under the terms of my argument, accept the premise that it imposes initial punishment.

Justice Thurgood Marshall: But I' not talking about the premises.

I'm talking about terms of fact.

Mr. James R. Thompson: In fact, he goes to the same jail as a man who is sentenced to a straight jail term, that's correct.

And in fact as a man pays his fine, he does go to jail.

Justice Thurgood Marshall: In fact, it amounts sending a man to jail without his fine and who is indigent, you do not send a man to jail who has money and is not indigent.

Mr. James R. Thompson: And who pays the fine, that's correct.

Justice Thurgood Marshall: That's right.

Mr. James R. Thompson: That's correct.

Justice Thurgood Marshall: That's what it results.

Mr. James R. Thompson: That's just what happens.

Justice Thurgood Marshall: And the question is, does that violate the Constitution?

Mr. James R. Thompson: It does not violate the Constitution because under this traditional Equal Protection test which this Court has set up, if we shown irrational class, those who do not pay, rational state objectives to be achieved in a rational connection between the two of the work off system.

It doesn't violate Equal Protection even though it may treat some people differently than others.

But even if we move beyond that traditional test, as this Court has moved in some areas.

For example, in the Shapiro case, testing whether or not a one year's residency require it for welfare, violated the Equal Protection Clause where Mr. Justice Brennan said that in cases involving the exercise of constitutional right, you have to show a compelling state interest, not merely a rational relationship or some other cases which have essentially used a balancing approach to the advantages gained by the state, outweigh the disadvantages to the defendant.

We believe that the interest of the State of Illinois and the rest of the states of the union, in preserving the idea that this does not violate Equal Protection, this and allied practices such as the area of bail, is so strong that it outweighs the disadvantage to the indigent defendant even if the test is compelling state interest or the balancing of advantages to one side.

Justice Thurgood Marshall: I'm going to state your balancing in a little different way.

Let's forget about the theories.

What you're saying is that the state has such a compelling interest in making indigent serve time that no one else has to serve in the state.

It has simply brought the state's efforts to fall.

Mr. James R. Thompson: I think that if this Court were to hold that indigency excused a man from incarceration under the work off system, that the threat to other state interests, including the maintenance of the whole fine system, the maintenance of the Courts which enforce the fine system, especially in those cases where the fine is the only penalty and the maintenance, the monetary bail system and the potential saddling of all those Courts with spurious claims of indigency which do not now arise because a man knows if he doesn't pay his fine, he's going to jail to work it off, are so compelling that they outweigh whatever disadvantages there are in sending an indigent man to jail to work off his fine.

Justice Thurgood Marshall: I have a hard time convincing the indigent is that reasonable but --

Mr. James R. Thompson: We probably would.

Justice Byron R. White: And the federal system, do you know what the statute is?

Mr. James R. Thompson: Yes, Your Honor, the man goes to jail for no more than 30 days in lieu with paying off the fine.

The Federal Government has it too.

Justice Thurgood Marshall: All for hearing on it?

Mr. James R. Thompson: I beg your pardon?

Justice Thurgood Marshall: Is there also a hearing before that's done?

Mr. James R. Thompson: Under the federal statute?

Justice Thurgood Marshall: Isn't it?

Mr. James R. Thompson: I'm not sure about it, Your Honor.

Justice Thurgood Marshall: Well in practice, would you -- will it?

Mr. James R. Thompson: In Illinois there is no such, Your Honor.

Justice Byron R. White: Do you think, the intermediate position is also destructing your statement which I gather about putting a man who can't pay his fine immediately, putting him on probation (Inaudible) and he would work outside, I take it that is a provision in Illinois.

Mr. James R. Thompson: Well, we do.

Justice Byron R. White: And I suppose that work offs may be cheaper and more efficient way of control but what's so destructing about state interest when a felon says, “I got a job, I can get a job and I will work to pay in installments.

And I'll be on probation which is more than every week?

Mr. James R. Thompson: Well, there are two considerations, I think Mr. Justice White, if we're going to consider the question of alternatives to the work off system which are thought to be less onerous to the indigent defendant than the work off system.

The first question which arises is, is it within the province of this Court to examine whether there are viable alternatives?

Or must this Court, in an Equal Protection case refrain from deciding what is a wiser, what is a more humane, what is a more just system of the enforcement of the criminal laws.

Justice Byron R. White: Well, I know but you are talking about state interest.

Mr. James R. Thompson: Yes sir.

Justice Byron R. White: A compelling state interest.

Mr. James R. Thompson: That's correct.

Justice Byron R. White: And if there is a viable alternative why they'd put your (Inaudible) about compelling state interest (Inaudible).

Mr. James R. Thompson: Well, I'm not sure.

If we were -- if we were following the traditional test of Equal Protection cases, we would not stop to inquire whether there were in fact alternatives.

But if we are following what's been called the balancing test or the compelling state interest test, I'm not sure even there that the same rule doesn't carry over.

In other words, if this Court can find a compelling state interest which is carried out by a rational scheme which the state has selected, we think the work off system, standing by itself is a rational scheme.

Then I'm not so sure that even in a compelling interest case, if this is one.

That this Court can say, but we will strike down the rational scheme because there are other rational schemes which contain less disadvantage to the defendant.

As this Court said just a few weeks ago in the Dandridge case talking about the maximum grants on welfare payments.

The language of Mr. Justice Stewart, reiterating again words which have been used for years in equal protection cases.

It may well be that there are other policies which are available at the State of Illinois but the question is, can this Court, under the Equal Protection Clause make the state used.

In Illinois, as this Court sits today, we have a legislature sitting and we have a constitutional convention sitting.

And I think the arguments of Mr. Bass has made to this Court today are more properly directed to those two bodies.

Thank you.

Chief Justice Warren E. Burger: Mr. Thompson I have a question, it won't take too long I hope.

Is it possible that in considering these various alternatives that a holding along the lines, holding adverse to the State of Illinois in this case, could lead judges to impose direct prison penal sentences without the alternative of a fine and then produce what is a new term to me these days, counterproductive consequences?

Mr. James R. Thompson: I think that's entirely clear.

I think one of the results of such a holding would be that some judges would simply impose maximum jail sentences where they do not now impose jail sentences.

I couldn't say that all judges would do that.

Justice Thurgood Marshall: Well, that doesn't apply to this case?

Mr. James R. Thompson: No sir, it would not apply to this case.

Justice Thurgood Marshall: You gave the over maximum.

Mr. James R. Thompson: In this case, he could not give anymore, that's correct.

Chief Justice Warren E. Burger: Now, my question was addressed to the consequences of a holding, not to any consequence on this particular case.

Mr. James R. Thompson: I think the danger of that as a consequence to the holding is great danger as to the consequence to this holding for the bail system, for the whole system of fines in the Courts which force that question.

Chief Justice Warren E. Burger: Thank you, Mr. Thompson.

Mr. Bass you have five minutes left?

Rebuttal of Stanley A. Bass

Mr. Stanley A. Bass: I don't think I will use that up, Your Honor.

Chief Justice Warren E. Burger: What do you think about this last thing that if you seem to have some spare time, do you think there's a so-called counter productive possibility or potential here?

Mr. Stanley A. Bass: I don't think so, Your Honor.

I think that the traffic courts have utilized the fines as a method of keeping the system supported.

I don't think there's any reason to believe that the traffic courts are going to change their practices overnight.

Chief Justice Warren E. Burger: Well, I wasn't thinking so much of traffic court as the misdemeanor court dealing with behavior not as serious as the behavior involved in this case.

Mr. Stanley A. Bass: I think we're entitled to trust the trial judges' discretion.

If they want to individualize the sentence, they should be allowed to do so.

If they think that a fine is called for rather than imprisonment, they will impose a fine.

If they feel that incarceration is called for, they will impose incarceration.

Chief Justice Warren E. Burger: The matter of your view then I take it is that there is no potential for the -- what I've characterized as counterproductive results.

Mr. Stanley A. Bass: The potential is there but I think we have to test the Courts.

I think the potential will not be realized.

I did want to make an observation with respect to the state's complaint that they'll have difficulty administering these evidentiary hearings going to the financial ability of the defendant.

I'd always thought that was a basic principle of American law that it's not better to let a man rot in jail because it was easier for the state's administrative machinery to have to dispense with hearings.

But besides, the lower court judges right now, under the Illinois statutes conduct inquiries into the defendant's background, etcetera in setting bail.

There's a statute right now that requires such inquiries, so I don't understand how the state is going to be put to any substantially greater hearings that it engages in right now.

Justice Harry A. Blackmun: Well, Mr. Bass, what would you think of an overt system by state or a criminal court system which says where it's determined after investigation that a defendant cannot pay a fine, we just won't impose a fine but we will impose an alternative, what we think is some equivalent jail sentence.

Mr. Stanley A. Bass: That's not an equivalent, that's the problem in this case.

If the state feels that he cannot pay, they still must do something less than putting him in jail.

A fine is not the equivalent of jail.

That is obvious and if the state wants to get the revenue, there are ways of collecting it.

If the state feels that a fine is the type of punishment, that's different from jail.

If that's appropriate, then that's the punishment that the state should stick to.

We're not telling the trial judges what to do.

We're simply talking about the manner in which the state gets that exaction.

If the judge determines money is the sanction that should be the sanction.

I did want to point to a reference in terms of cost, it was estimated that in the City of Chicago between 1907 and 1921, when prison costs were relatively low, the city lost $5 million in uncollected fines and incurred an additional expense in prison maintenance of $5 million, a total cost of $10 million.

Justice Thurgood Marshall: (Inaudible)

Mr. Stanley A. Bass: Well, we don't have those figures.

I'm sorry Your Honor.

I believe that the traffic courts have been granting installments on some occasions but I don't have the exact figures.

But in terms of the cost problem, the economics of it is not so clear at all that the state will be bankrupted by a ruling.

Justice Byron R. White: I suppose that it will be hard to contain that (Inaudible).

Mr. Stanley A. Bass: Well, to the extent to which the offense is punishable by fine only, we would be dealing with the situation of poor people being subjected to a sanction different from the sanction as to rich people.

Justice Byron R. White: So, now you would say that if we agree with you in this case, we agree to the same (Inaudible)?

Mr. Stanley A. Bass: Well, you don't have to reach that in this case, but we would submit --

Chief Justice Warren E. Burger: But we take that step, don't we?

Mr. Stanley A. Bass: We would submit that if the judge determines that -- well, first of all, if the offense is serious enough to warrant incarceration of an individual would seem to underlie a lot of these, letting an indigence to get away with violating the law with impunity.

This legislature has the ability to set up imprisonment as an alternative but if the offense is not serious enough to require an exaction greater than the fine, there's not justification for putting people in jail simply because they don't have the way with all to pay that.

Chief Justice Warren E. Burger: You've almost -- you've almost gone around the circle now on my counterproductive proposition.

You said the legislature might respond by making greater class, number of classes of crimes subject to imprisonment which are now subject only to fines as a response to a holding that you can't have an alternative for a poor man.

Mr. Stanley A. Bass: Well, it's possible that the legislature has always had the discretion to determine what penalties are appropriate for what offenses but we're talking about this situation is an automatic system that puts people in jail without any inquiry whatsoever as to whether or not the money, that the state says is the appropriate sanction, the fine, can be satisfied in the means less onerous.

Justice Potter Stewart: Well, the legislature has done this, isn't it?

It's the legislature that has all these powers, this is exactly what the legislature has done in this case.

Mr. Stanley A. Bass: The legislature has not, according to the construction put on the statute by the Illinois Supreme Court.

The legislature has not allowed these alternatives to work.

The legislature --

Justice Potter Stewart: The legislature has proved, as I understood that this case is about that the Illinois legislature has said that if a person is convicted and he cannot pay his fine, he can be put in jail instead.

Mr. Stanley A. Bass: Well that's what they've said.

Justice Potter Stewart: That's what the case is about and that's -- the legislature has done this, isn't it?

Mr. Stanley A. Bass: Well, but our point is that the legislature may unconstitutionally do that.

Justice Potter Stewart: But it may, according to you submission, as I understand it, say that the punishment for any offense can be a fine up to $5.00 or imprisonment up to five days, isn't it?

Mr. Stanley A. Bass: The legislature may prescribe maximum penalties, yes.

Chief Justice Warren E. Burger: Thank you Mr. Bass, thank you Mr. Thompson.

The case is submitted.

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