# Petitioners Brief — Hunter v. Dean

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1261%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 967

## Text

Supceme Court, U.S, ~
FILED

JUN 12 1978

ee ee JR., CLERK

IN THE

Supreme Court of the Anited States

No. 77-6248

JACQUELYN E. HUNTER,
Petitioner,

GERALD WALLACE DEAN, SHERIFF,
Respondent.

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF GEORGIA

BRIEF FOR THE PETITIONER

JAMES C. BONNER, JR.
Prisoner Legal Counselling Project
475 North Lumpkin Street
Athens, Georgia 30601
(404/542-4241)

Counsel for Petitioner
OF COUNSEL:

C. Michael Abbott
Robert D. Peckham
Christopher J. Hamilton
Thomas J. Killeen

aD
Washington, 0.C. e CLB8 PUBLISHERS e LAW PRINTING CO. @ (202) 393.0625

(i)

TABLE OF CONTENTS
Page
ok Se ee ee ee ee l
Fe aS Si skcbe Cine a tk dticthierdsi. aw |
QUESTION PRESENTED. ...........ccceesecceccveers 2
PERTINENT CONSTITUTIONAL AND STATU-

BEE CURE ve W hen eeu cede bhcceeeereeee ee. 2
SEALBOGEINE GE BEE CABG 6. is ciccccccceccccccctecs 3
I enh a dacs pean camS weeds ks 8440s edhe 5
FREESE a nae AR eee aie pean ade A 24

TABLE OF AUTHORITIES
Cases:
Antazo, In re, 473 P.2d 999 (Calif. 1970)............. 12,17
Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006,

ee EES 0s nk on ceo ph Mabnddawnce’ 64:00 8
Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 280

SUEDE AsDLUdO de 05.0 ¥9boneeene ahaa teabiisceaseae ie 4
Barnett v. Hopper, 548 F.2d 550 (Sth Cir. 1977)..... 4,12,17
Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31

A EL oe RR ae shen oe 6,10,13
Calhoun v. Couch, 232 Ga. 467, 207 S.E.2d 455

Cee ada ibetet edb nd Oo oe bik UCN tt d Cae a cee ete 4
Dandridge v. Williams, 397 U.S. 471,90 S. Ct. 1153,

Sy Ree Be ID ob ind awn bone Addo bake be voeees 7
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814,

EIR TS St Her eat ho na 8
Durst v. United States, _... U.S. _.___ , 98 S. Ct.

ae I BLED MOR vias dire dic Kad acdsneenecees 12

Fuller v. Oregon, 417 U.S. 40, 94 S. Ct. 2116, 40
Sse U COMED sb evcabcccdnvtse Kur choses tenes 17

(ii)

Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 2593,

pT) ne rere ray Fe Pry Ere 8
Graham v. Richardson, 403 U.S. 365, 91 S. Ct.

1848, 29 L.Ed.2d 534 (1971) ...... cece cece eee eee eee 6
Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100

LMA GPE CIGGG) . « ccicscnecddabs be eewasebes 5,7,10,23
Griffiths, In re, 413 U.S. 717, 93 S. Ct. 2851, 37

LADS SOD CIOS) oso vinneiccan siden ceeds Vabens 6
Harper v. Virginia State Board of Elections, 383 U.S.

663, 86 S. Ct. 1079, 16 L.Ed.2d 169 (1966)........ 7,13
Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791

COPED nc ncecéviyesdudasntneedsenvees ares ones passim
James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32

Re OUTED Ved cbcindaart ee asp baneteebarnacatiee 6
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,

32 B Ce BST, SS Games PU NP RE Fe cecsnccbecsccvece 6
Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315, 39

Rae PER CMP Ci vceidecertnqabe Ceneubeecaer 10,13
McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283,

RF Lc EER conto cdusvecsbhaccetvass ned 6,10
Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53

EL BEDE CS TT rede ei iivticteceeadeeeeiuscetbec 7
Marshall v. United States, 414 U.S. 417, 94 S. Ct.

700, 38 L.BG26 GIG (ISTE) oo cic ccccieveccccscccce 13
Mayer v. City of Chicago, 404 U.S. 189, 92 S. Ct. 410,

5G LG ew COO a coo iee re vec it vee eel ecdpeden ees 8
Morris v. Schoonfield, 399 U.S. 508, 90 S. Ct. 2232,

26 LS FER CASTER i vibe Hee er eek ee ees os bee 22
Morrisey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593,

Ce hs | eer ts Sy pl ee 8

North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct.
TOTR, BF Wt DR OO UIE vob vs cvccevdbasks stuns 19

(iii)

Pennsylvania v. Ashe, 302 U.S. 51, 58 S. Ct. 59, 82

OD on ans oickd mode ticle dine it ke Othe Ahern’ wi 18
Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L.Ed.2d
EEE Sia s'a's kaw oan 6 tivated tb debledcb basen < 10
Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16
IED ss so cnlu'be 4.0 debs 68 PSE 0d oaiv o &5660 6
Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417,
EE EE os on be cn op Stade bb eed bao Ry ov os 19

San Antonio Independent School District v. Rodriguez,
411 U.S. 1, 93 S. Ct. 1278, 36 L.Ed.2d 16 (1963) ...6,7

Schilb v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30

SEE ee ee 12
Schware v. Board of Bar Examiners, 353 U.S. 232,
77 S. Ct. 752, 1 L.Ed.2d 796 (1957)....... Peeeeeee 17
Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322,
PC 5% buddebvakeee ddenscceceecs 6
Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92
ee as 50d hare day ORGS Rid dccee cece 17
Skinner v. Oklahoma, 316 U.S. 535,62 S. Ct. 1110, 86
EE er re 5,6
Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6
ee cu ie eWdesny ben’ eels eo ®
Tate v. Short, 401 U.S. 395, 91 S. Ct 668, 28
DS cain 5 o's 40d u betiph Cubs cine passim
United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707,
i Ss sdatnydivaeoebboesceccdess 15
United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589,
ci cnc at ianesi ions weceeoat 19
Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497,
i POD ac soa oak tdbinebweecttecedess 21

Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018,
PRE EB TE ern err passim

(iv)
Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079,.
SP ey See IN aes cai e ce Seder ede eBGcsew certs 18
Williams v. Oklahoma, 358 U.S. 51, 79 S. Ct. 421,
F Ue SE ROTO Gi Cates cdkaddddgctotecess oases 18
Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct.
Pe Se OR EATON wc cbdews ib ecenvedsceces 19

Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064,
FP EMG SEP UNOOED hdc dccccsvicerdsccseose 17,19,20

IN THE

Supreme Court of the Anited States

No. 77-6248

JACQUELYN E. HUNTER,
Petitioner,

Vv.

GERALD WALLACE DEAN, SHERIFF,
Respondent.

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF GEORGIA

BRIEF FOR THE PETITIONER

THE OPINION BELOW

The opinion of the Supreme Court of Georgia (App. 8-13)
is reported at 240 Ga. 214, 239 S.E.2d 791 (1977).

JURISDICTION

This Court has jurisdiction of this case under 28 U.S.C.
1257(3) because:

(a) the subject of the Petitioner’s claims in the pro-
ceedings in the State courts below was her right under the

2

Equal Protection Clause of the 14th Amendment not to be
subjected to an invidious penal discrimination simply on
account of her poverty, and

(b) the judgment below was rendered on 28 November
1977 in proceedings for a writ of habeas corpus, a civil
action, and the petition for a writ of certiorari, filed on 23
February 1978 and granted on 17 April 1978, was timely
under 28 U.S.C. 2101(c) and Rule 23(3) of this Court.

QUESTION PRESENTED

Once a State court has determined that probation is the
appropriate punishment for a particular offender in a particu-
lar case, may it, consistently with the Equal Protection
Clause of the 14th Amendment, bar the offender from
probation and require her to serve her sentence in confine-
ment solely because of her involuntary inability to prepay a
fine imposed as a condition precedent to probation?

PERTINENT CONSTITUTIONAL AND
STATUTORY PROVISIONS

The Equal Protection Clause of the 14th Amendment:
“No State shall... deny to any person within its jurisdiction
the equal protection of the laws.”

Georgia Laws 1964, p. 496 (Georgia Code Annotated 27-
2529): “In any case where the judge may, by any law so
authorizing, place on probation any person convicted of a
felony, such judge may in his discretion fine such person so
convicted not more than $2000 as a condition to such

3

probation; Provided, such defendant shall not be entitled to
any rebate or refund of any part of such fine so paid, in any
case such probation shall be revoked by law.”

Georgia Laws 1972, pp. 604, 609 (Ga. Code Ann. 27-
2709: “‘The court may, in its discretion, require the payment
of a fine or costs or both as a condition precedent to probation

Georgia Code Ann. 27-2901: “Every fine imposed by the
court under the authority of this Code shall be paid
immediately or within such reasonable time as the court may
grant.”’

STATEMENT OF THE CASE

On 13 December 1976, the Petitioner, a 17-year old black
girl and a first-offender, pleaded guilty to a burglary charge in
the Terrell (Georgia) Superior Court, as did a co-defendant.

Prior to pronouncing sentence, the judge asked the de-
fendants if they could pay fines. The father of the co-
defendant indicated that he could. The Petitioner indicated
that she thought that certain cousins would pay one for her
(App. 3).

The judge sentenced them to serve two years in prison but
he stipulated that the sentences would be probated upon
payment by each of fines of $165, half of the court costs, and
$50 as fees for the lawyer that he had designated to assist
them (App. 4).

Her co-defendant’s fine, his share of the costs, and his
attorney’s fees were paid and he was released on probation.
The Petitioner’s were not paid and she remained in custody.

In February 1977, with the assistance of volunteer
counsel, she filed in forma pauperis in the Terrell Superior

4

Court for a State writ of habeas corpus. She challenged her
confinement and her exclusion from probation solely for her
involuntary inability to prepay her fine and the costs as a
violation of her right to the equal protection of the laws
despite her indigency (App. 5). Basically, she sought a
modification of her sentence so that she could pay those sums
in installments during probation.

The trial judge struck the requirement that she pay $50 for
attorney’s fees but remanded her back to custody under the
other provisions of the original sentence (App. 6).'

She then filed both a notice of appeal in the State courts
and a petition for a writ of habeas corpus in the local District
Court. The District Court ordered her released pendente lite
on her personal recognizance so that she could exhaust her
State appellate remedy without fear of mootness.

While her appeal was pending, the Fifth Circuit Court of
Appeals ruled in Barnett v. Hopper, 548 F.2d 550 (1977)
(application for writ of certiorari pending, No. 77-477), that
to confine an indigent and to exclude him from probation
only for his involuntary inability to prepay a fine violated the
Equal Protection Clause. The Supreme Court of Georgia,
however, adhered to its prior decisions, rejected the
reasoning of the Court of Appeals, and affirmed the denial of
relief, Hunter v. Dean, 240 Ga. 214, 239 §.E.2d 791 (1977)
(App. 8-13).

This Court granted a writ of certiorari (App. 14).

'Sub silentio, the Superior Court relied upon Calhoun v. Couch, 232
Ga. 467, 207 S.E.2d 455 (1974), and Barnett v. Hopper, 234 Ga. 694,
217 S.E.2d 280 (1975), cases in which the Supreme Court of Georgia
had rejected the equal protection claim under circumstances nearly
identical to those in the Petitioner’s case.

5
ARGUMENT

I.

THE APPROPRIATE TEST FOR EXAM-
INING AN EXCLUSION FROM PROBA-
TIONARY PENAL TREATMENT PURELY
ON ACCOUNT OF INDIGENCY IS
WHETHER THE EXCLUSION IS NECES-
SARY TO SECURE A COMPELLING
STATE INTEREST.

If, purely on account of her poverty, the Petitioner had
been deprived of a grant of probation as the result of a statute
which required prepayment of a mandatory fine and costs,
there would be little question that her right to the equal
protection of the laws had been violated by her harsher
treatment. See Skinner v. Oklahoma, 316 U.S. 535, 62 S.
Ct. 1110, 86 L.Ed. 1655 (1942), Williams v. Illinois, 399
U.S. 235, 90 S. Ct. 2018, 26 L.Ed.2d 586 (1970), Tate v.
Short, 401 U.S. 395, 91 S. Ct. 668, 28 L.Ed.2d 130(1971).
The real issue in this case is whether the State has violated it
any differently or any less when it has disqualified her for her
poverty at the election of a judge acting in her individual case
under his inherent sentencing powers. The fundamental
question boils down to whether the sort of sentence an
offender must serve may ever explicitly turn solely upon the
amount of money he has, cf. Griffin v. Illinois, 351 U.S. 12,
19, 76 S. Ct. 585, 100 L.Ed. 891 (1956).

This Court has articulated several standards for analyzing
challenges under the Equal Protection Clause, challenges
which most familiarly run directly to the terms of legislation
which facially or practically establish certain classes or

6

exclusions. Traditionally, the Equal Protection Clause is
offended only if the classification is ‘without any reasonable
basis,” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,
78, 31 S. Ct. 337, 55 L.Ed. 369 (1911). This “‘traditional
standard of review. . . requires only that the State’s system be
shown to bear some rational relationship to legitimate state
purposes,” San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 36 L.Ed.2d 16
(1973), or that it create no arbitrary or invidious discrimina-
tions in view of its objectives, Skinner v. Oklahoma, 316
U.S. 535, supra, Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct.
1497, 16 L.Ed.2d 577 (1966), James v. Strange, 407 U.S.
128, 92 S. Ct. 2027, 32 L.Ed.2d 600 (1972).

However, an exclusion or classification which affects a
fundamental right secured by the Constitution evokes a
stricter standard of review. It must promote a “compelling
state interest,’ Shapiro v. Thompson, 394 U.S. 618, 638,
89 S. Ct. 1322, 22 L.Ed.2d 600 (1969), and it must also be
“reasonably necessary” to that end, Bullock v. Carter, 405
U.S. 134, 144, 92 S. Ct. 849, 31 L.Ed.2d 92 (1972)
(emphasis added).

Similarly, an exclusion or classification based on certain
“suspect” criteria imposes upon the State a “heavy burden
of justification,” McLaughlin v. Florida, 379 U.S. 184,
196, 85 S. Ct. 283, 13 L.Ed.2d 222 (1964), and it is subject
to the same sort of close scrutiny, Graham v, Richardson,
403 U.S. 365, 91 S. Ct. 1848, 29 L.Ed.2d 534 (1971). “In
order to justify the use of a suspect classification,”’ this Court
summarized in Jn re Griffiths, 413 U.S. 717, 721-23, 93 S.
Ct. 2851, 37 L.Ed.2d910(1973), “astate must show that its
purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is ‘neces-

7

sary . . . to the accomplishment’ of its purpose or safe-
guarding of its interest” (footnotes omitted).

Although this Court has characterized exclusions based
upon wealth as “traditionally disfavored,’ Harper v. Vir-
ginia State Board of Elections, 383 U.S. 663, 668, 86 S. Ct.
1079, 16 L.Ed.2d 169 (1966), it has stopped short of
branding wealth distinctions across the board as “‘suspect”
per se. See San Antonio Independent School District v.
Rodriguez, 411 U.S. at 29 (majority opinion) and at 102
(Marshall, J., dissenting), supra, Maher v. Roe, 432 U.S.
464, 471,97 S. Ct. 2376, 2381, 53 L.Ed.2d 484 (1977). As
it has occasionally pointed out, however, see Maher v. Roe,
supra at 471 (n. 6), its restraint on the point has not been
exhibited in cases involving the administration of criminal
justice but in such areas as “economics and social welfare,”
Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153,
25 L.Ed.2d 491 (1970) (family ceilings on AFDC pay-
ments), a “State’s fiscal policies,” San Antonio Inde-
pendent School District v. Rodriguez, 411 U.S. at 40, supra
(public school financing), and “the allocation of public
funds,” Maher v. Roe, supra at 474 (medicaid expendi-
tures). These are matters which are heavily laden with public
policy considerations, which are susceptible to a variety of
legitimate approaches, and which require a balancing of
diverse interests and priorities. In short, these are areas
which are especially within the legislative domain, areas in
which it would be impossible to decree “absolute equality or
precisely equal advantages,” San Antonio Independent
School District v. Rodriguez, 411 U.S. at 24, supra.

However, long ago in Griffin v. Illinois, 351 U.S. 12,
supra, this Court effectively made wealth a “suspect”
criterion in the administration of criminal justice. There a

8

plurality identified as “the central aim of our entire judicial
system [that] all people charged with crime must, so far as the
law is concerned, ‘stand on an equality before the bar of
justice in every American court’ [citation omitted],” id. at
17. Clearly joined in basic sentiment by Justice Frank-
furter’s concurring opinion (in which he labelled a financial
barrier to an indigent’s direct appeal a “squalid discrimina-
tion,” id. at 24), the plurality held that “In criminal trials a
State can no more discriminate on account of poverty than on
account of religion, race, or color,” id. at 17. ““There can be
no equal justice,”’ it concluded, “where the kind of trial a man
gets depends on the amount of money he has,”’ id. at 19.

‘Subsequent decisions of this Court have pointedly
demonstrated that the passage of time has heightened rather
than weakened the attempts to mitigate the disparate treat-
ment of indigents in the criminal process,” Williams v.
Illinois, 399 U.S. at 241, supra. See, e.g., Smith v. Bennett,
365 U.S. 708, 81 S, Ct. 895, 6 L.Ed.2d 39 (1961), Douglas
v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811
(1963), Tate v. Short, 401 U.S. 395, supra, Mayer v. City of
Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L.Ed.2d 372
(1971), Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct
2006, 32 L.Ed.2d 530 (1971).

Furthermore, this Court has also made it clear that the
conditional liberty of an offender who has been awarded
probation (as the Petitioner was, App. 3, 4) is part of the
“liberty” directly secured by the 14th Amendment,? Mor-
risey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d
484 (1972), Gagnon vy. Scarpelli, 411 U.S. 778, 93 S. Ct.
1756, 36 L.Ed.2d 656 (1973).

It bears emphasis, in this connection, that the Petitioner’s liberty
interest at stake in this case is not a theoretical one but a vested interest
which she can claim at once on payment of the fine and costs.

9

Accordingly, both because the financial criterion is
“suspect” in the administration of criminal justice and
because it affects a fundamental liberty interest secured by
the Constitution, any probationary scheme which formally
barred otherwise entitled indigents from participation by
establishing preconditional fines would have to be judged by
the strict standard. The State would have to point to a
legitimate, substantial, and compelling interest and it would
have to demonstrate that the financial exclusion was neces-
sary to serve it.

‘IL

WHEN IT OPERATES TO EXCLUDE AN
OTHERWISE ENTITLED INDIGENT, ANY
REQUIREMENT THAT A FINE AND
COSTS BE PREPAID AS PRECONDI-
TIONS TO PARTICIPATION IN PROBA-
TION IS WHOLLY UNNECESSARY IN
VIEW OF THE READY FEASIBILITY OF
SUPERVISED INSTALLMENT PAY-
MENTS.

No detailed speculation or inquiry into the nature of the
State’s interests in any such exclusionary scheme of pro-
bation is necessary at this point’ nor is it necessary to linger

The interests and purposes behind any such scheme of probation
would be particularly obscure if, as was the situation when the Petitioner
was sentenced (App. 3), the scheme was indifferent about who paid the
fine and what the responsibilities of the offender might be to any third
party who paid it. If the State is willing to look beyond the offender’s own
pocket for satisfaction of whatever interest the fine serves or symbolizes,
it would have to justify not only the relevancy of the offender’s own
personal means but the more dubious relevancy of the wealth—or the
generosity—of his relatives and friends.

10

here over whether there is a rational or compelling con-
nection between them and the financial discrimination.* The
real crux of the State’s problem under the strict test in any
event would be to justify the necessity for the exclusion in
view of the readily feasible and less intrusive alternative of
collecting the fine and costs in installments during probation
as a condition of probation. See Lubin v. Panish, 415 U.S.
709, 94 S. Ct. 1315, 39 L.Ed.2d 702 (1974), McLaughlin
v. Florida, 379 U.S. 184, Griffin v. Illinois, 351 U.S. 12,
Bullock v. Carter, 405 U.S. 134, all supra, all of which
involve an assessment of necessity in terms of apparent
alternatives.

This Court specifically suggested installment payments as
a feasible alternative to the requirements of fines in Williams
v. Illinois, 399 U.S. at 244-45, and Tate v. Short, 401 U.S.
at 400, supra, cases in which the penalty schemes them-
selves, in contrast to a system of probation, did not even
provide for supervision or regular reports but contemplated

‘The State’s basic interest in probation is more reformative than
punitive. But to the extent that the fine represents a penal interest,
“[p]lainly the ability to pay costs in advance bears no rational relation-
ship to a defendant’s guilt or innocence,” Griffin v. Illinois, 351 U.S. at
17-18, supra. As a punitive device, it is irrational if it may be passed on,
with no questions asked, to innocent third parties, see n. 3, supra. As for
the reformative interest, a wealth distinction, particularly one which may
be freely blurred by third parties, bears no “fair and substantial relation
to the object of the legislation,” Reed v. Reed, 404 U.S. 71, 76,92 S. Ct.
251, 30 L.Ed.2d 225 (1971). Nor is there any intrinsic reason why the
poor as a class (a class which probably is a decent cross-section of our
citizenry by any other measure) would be less amenable to or worthy of
rehabilitation than the rich, cf. Bullock v. Carter, 405 U.S. 134, supra.
Finally, as a cost-recoupment measure, incarcerating an indigent simply
because he cannot pay at once “obviously does not serve that purpose
[but] saddles the State with the cost of feeding and housing him for the
period of his imprisonment,” Tate v. Short, 401 U.S. at 399, supra.

1]

only outright discharge. Considering that probation is de-
signed to place an offender “under supervision . . . until it is
deemed that he can become a constructive member of
society,” Hunter v. Dean at App. 10, and can stand on a self-
sufficient footing so that he need not resort again to crime,
and considering that the apparatus for installment collection
already exists,’ there is utterly no reason why installment
payments should not satisfy all of the State’s interests at least
as well as lump-sum prepayment. See S. RUBIN, THE
LAW OF CRIMINAL CORRECTIONS (2nd ed. 1973),
p. 218, ABA Sentencing Standards and Procedures (Ap-
proved Draft, 1968), § 2.7, Model Penal Code (Proposed
Official Draft, 1962), §§ 7.02, 302.

If the State’s interest in prepayment is to have the
probationer put up a “stake” which he stands to forfeit if he
violates the terms of his probation, see Hunter v. Dean at
App. 12, Ga. Code Ann. 27-2529, that interest could easily
be accommodated by requiring that the installment pay-
ments be completed early within the term, see Ga. Code
Ann. 27-2901. In fact, such an interest would be better
served if the supervision under which the installment
payments were made assured that the probationer was at
least using his own money or assuming the responsibilities of
repaying any amounts he borrowed.

If the State’s interest is to avoid the added administrative
expenses of installment collection, see Hunter v. Dean at
App. 13, it could quite properly pass those extra costs along

‘In Georgia, for example, standard conditions of probation (all of
which the Petitioner’s sentence included, App. 4) are that the pro-
bationer “report to the probation officer as directed,”’ “‘work faithfully at
suitable employment insofar as may be possible,” “‘support his legal
dependents to the best of his ability,” and “make reparation and
restitution” to the victims of his crime, Ga. Code Ann. 27-2711.

12

to the probationer, cf. Schlib v. Kuebel, 404 U.S. 357, 92 S.
Ct. 479, 30 L.Ed.2d 502 (1971).

If the State is concerned about “inverse discrimination”
against its affluent who would have to pay their fines in lump
sum, see Hunter v. Dean at App. 10, it could always allow
them too the choice of paying in installments. In any case,
any such discrimination is a de minimis one which evidently
escaped this Court’s attention when it suggested the install-
ment alternative in Williams v. Illinois and Tate v. Short.
The State certainly has the power to confine an indigent
probationer who has refused to pay his fine at all or who has
squandered a fair opportunity to make installment pay-
ments,® Williams v. Illinois, 399 U.S. at 243 (n. 19), In re
Antazo, 473 P.2d 999 (Calif. 1970).

Essentially, however, any objection of “inverse discrimi-
nation” has missed the point that an alternative of install-
ment payments is an accommodation necessary only to give
the indigent the same effective choice open to a man of means
whenever a money price has been placed on their liberty, see
Barnett v. Hopper, 548 F.2d 550, 553-54, In re Antazo, 473
P.2d 999, 1003-04, supra. If a man of means goes to prison
because he was not allowed to make installment payments,
he has at least exercised a real choice; the comparably
situated indigent who goes to prison because he cannot pay a
lump sum has only a wholly “illusory choice,” Williams v.
Illinois, 399 U.S. at 242.

*The Petitioner has made no claim that she should be exempt from a
fine altogether (see App. 7). Nor is there any challenge in this case to
propriety of including a fine as part of her punishment. See Durst v.
United States, __. U.S. ____ , 98 S. Ct. 849, 55 L.Ed.2d 14 (1978).

13

IIL.

EVEN UNDER THE TRADITIONAL “RA-
TIONAL CONNECTION” TEST, THE
STATE COULD NOT JUSTIFY BARRING
AN INDIGENT FROM PROBATION
SOLELY ON ACCOUNT OF HIS POV-
ERTY.

Even under the traditional test which has no regard for
necessity, there is certainly a no more rational connection
between an offender’s wealth (or that of his relatives and
friends), or any greater relevancy between wealth and the
beneficient purposes of probation, than there is between
affluence and qualifications to vote or to run for public
office, cf. Lubin v. Panish, 415 U.S. 709, Bullock v.
Carter, 405 U.S. 134, Harper v. Virginia State Board of
Elections, 383 U.S. 663, supra. Compare Marshall v.
United States, 414 U.S. 417, 94 S. Ct. 700, 38 L.Ed.2d
618 (1974).

As the Attorney General’s Survey of Release Procedures
(vol. II, p. 237) observed in 1939:

.... In many ways the emphasis on the pecuniary
aspects of probation may be undue. Certainly in no
case should the foremost consideration in the court’s
decision to grant or deny probation be the defendant’s
ability to furnish funds for prerequisite costs, bonds, or
fines. Success on Probation cannot be measured in
terms of the defendant’s financial resources at the time
the question of probation is being determined. Often
poverty alone may have caused the defendant’s lapse
from grace....

It is only where terms as to costs, bonds, and fines
operate as conditions affecting eligibility and not as

14

conditions to be complied with during the period that
their merit is doubtful... .

Elsewhere the Survey related (pp. 222-23):

[T]he purpose of probation will be defeated from the
very outset if those who would otherwise be good
probation material fail to meet the initial requirement
of costs because of their poverty. The existence of such
a requirement lends weight to the oft-repeated charge
that American administration of criminal justice favors
the rich over the poor because many persons who
might otherwise succeed on probation are denied its
benefits for lack of funds. ... Neither the effect such a
lawwill produce on the minds of those denied their
liberty, nor the less immediate outcome of the failure to
attempt rehabilitation are salutary for society.

If there is a “rational connection” between poverty and
probation in the sense that an indigent probationer might be
tempted by his poverty into committing further crimes, to
rea~ré a fine at all which might deplete resources already
straisied to desperation hardly reflects that concern. Nor
does it serve that concern to drive him into the unsupervised
debt of others whose motives and interests might not be the
same as the State’s. Rather it makes far more sense to exact
any fine in a flexible manner and in controlled installments
from earned income so that no offender need be driven to
further crimes because the very fine which was designed to
demonstrate that he would not need to steal has in fact
exhausted his means of an honest living. See ABA
Sentencing Standards and Procedures, §2.7, Model Penal
Code, §7.02.

No inquiry into any conceivable rational connection
between poverty and probation could be valid without also
considering the countervailing effect on the overriding goals

15

of our whole criminal justice system when an offender is
y barred from probation and relegated to prison because he
| cannot pay a fine.
Regardless of any nice theoretical justifications, when the
very same sentence means comparative liberty for one man
and prison for his indigent confederate, it does not foster &
public perception of justice as a mora! force which
transcends the values of the marketplace. It does not
encourage public respect for the neutrality of the law or its
blindness to privilege and influence. It does not look fair,
and that is a very precious sacrifice.

To the very great extent that the State’s ultimate goals
depend upon the offender’s own belief that the State has
treated him fairly, confining an indigent under such
circumstances is less apt to make him a better citizen than
simply locking him up outright without constantly taunting
him for his poverty. It undermines all of the accepted
purposes of punishment, retribution, rehabilitation, and
deterrence (see United States v. Brown, 381 U.S. 437,
458, 85 S. Ct. 1707, 14 L.Ed.2d 484 [1965]), with no
apparent purpose which he could be expected to appreciate.
By deflecting the cause of his confinement frorn his crime to
his poverty, it destroys the attitude basic for any real
rehabilitation. By encouraging him to think that he has been
punished more severely only because he is poor and that it
is society which owes him a debt for the discrimination
done him, his confinement defeats the deterrent interest.
With leisure to compare the probation he could have served
but for his poverty, the retribution will invariably seem as
excessive as it appears senseless. Confined purely for his
inability to pay a fine, a far worse man is bound to leave
prison than the man who entered it once when “‘the ends of

f a ne rae en

16

justice and the welfare of society did not require [him to]
presently suffer the penalty imposed by law”’ for his crime,
Ga. Code Ann. 27-2709. That too would be a precious
sacrifice.

In the last analysis, no “rational connection” in the
abstract between a preconditional fine and probation could
offset the irrational connection between it and the purposes
of punishment and the appearance of fairness which both
the public and the offender perceive.

IV.

WHAT THE STATE MAY NOT ACCOM-
PLISH DIRECTLY, IT MAY NOT AC-
COMPLISH INDIRECTLY THROUGH ITS
JUDICIARY.

The Petitioner’s exclusion from probation was not the
product of any State statutory policy. It did not arise from
the inexorable operation of a statute which, by requiring her
to pay a mandatory fine and costs, placed her in a
disadvantaged class. Rather her exclusion was the result of
an individual exercise of sentencing discretion. Although, in
the name of the State of Georgia, the sentencing judge
unimpeachably determined that the State’s penal interests
did not require her incarceration, she must nevertheless
suffer imprisonment because she cannot prepay the fine
which he also chose to impose. Functionally, the trial
court’s judgment that she was “not likely to engage in a
criminal course of conduct and that the ends of justice and
the welfare of society do not require that [she] . . . suffer the
penalty imposed by law,’’ Ga. Code Ann. 27-2709, was the

ee em a eee ae

17

equivalent of the legisiated judgments which framed
Williams v. Illinois, 399 U.S. 235, and Tate v. Short, 401
U.S. 395, supra. For equal protection purposes, consider-
ing that she could begin her probation today but for her
indigency, the fact that the problem in this case was
judicially created is constitutionally insignificant.

The Equal Protection Clause does not restrain only
legislated judgments and actions. It reaches the judgments
and actions of the State through any of its organs, including
the judiciary, Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct.
836, 92 L.Ed.2d 1161 (1948). Furthermore, it protects
individuals as well as classes and its guaranty fully extends
to discretionary action under concededly valid statutes,’
Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.
Ct. 752, 1 L.Ed.2d 796 (1957), Barnett v. Hopper, 548
F.2d 550, In re Antazo, 473. P.2d 999, supra.

This Court eloquently stated the controlling principle in
Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064,
30 L.Ed. 220 (1886):

Though the law itself be fair on its face, and impartial

in appliance, yet, if it is applied and administered by

the public authority with an evil eye and an unequal
/ hand, so as practically to make unjust and illegal
discriminations between persons in similar circum-
stances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution.
It is in the wide sentencing discretion traditionally
accorded the States and trial judges in general that Georgia
has sought to refuge for the “squalid discrimination”

"There is nothing inherently invalid about the statutory framework in
which this case has arisen. Fines are not mandatory conditions, Ga.
Code Ann. 27-2709, 27-2529, and the courts may allow a “reasonable

time” for payment, Ga. Code Ann. 27-2901. See Fuller v. Oregon, 417
| U.S. 40, 94 S. Ct. 2116, 40 L.Ed.2d 642 (1974).

cs

18

practiced on the Petitioner in this case. See, e.g., Williams
v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L.Ed. 1337
(1949), Williams v. Oklahoma, 358 U.S. 576, 79 S. Ct.
421, 3 L.Ed.2d 516 (1959), Pennsylvania v. Ashe, 302
U.S. 51, 58 S. Ct. 59, 82 L.Ed. 43 (1937), Williams v.
Illinois, 399 U.S. at 241-42. Within this wide discretion,
the State’s argument runs, the sentencing judge could have
quite properly considered the Petitioner’s ability to prepay
a fine, together with a myriad of other matters, as a
legitimate qualification for probation. He could do so
without regard to normal equal protection principles which
would operate if the very same thing had been accom-
plished directly under the terms of a statute. As the
Supreme Court of Georgia put it (at App. 10):
[T]he ability of a defendant to pay a fine is often a
factor for the sentencing judge to consider in assessing
the likelihood that the defendant will serve a term of
probation without violation. Stated in another fashion,
a conditionally probated sentence is not necessarily
[an] invidious discrimination based on wealth if the
sentencing judge has determined that a defendant
would not be a good candidate for probation unless a
fine is paid first.

Stated in yet another fashion, this argument is that
because the sentencing judge has the discretion not to award
probation at all, no one else can question any invidious
precondition he might attach to it. But in any case the
State’s problem remains the same: the judge did award the
Petitioner probation, evidently because he thought that she
was a good probation risk, and whether she or her relatives
or friends can pay one fine or a dozen has no apparent
bearing on her essential character. She goes to prison as the
same person who, but for a small amount of money, could

19

walk out of the probation office. If she was a poor risk for
probation, she should not have been awarded probation in
the first place.

As a general proposition, there are also several
fundamental problems with the view of sentencing discre-
tion as some sort of talismanic license in itself rather than as
a means of doing justice by accommodating the relevant
facts and circumstances of each case and the needs and
characteristics of each individual offender. See Woodson v.
North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49
L.Ed.2d 944 (1976). As a license to override public and
constitutional policy by singling out and excluding indigents
from ameliorated treatment and rehabilitation, it would, if

_ unchecked, permit the States “‘to accomplish indirectly”

through the judiciary “that which cannot be done directly”
under the Equal Protection Clause, Williams v. Illinois,
399 U.S. at 243; cf. Yick Wo v. Hopkins, 118 U.S. 356,
supra, for a judge could just as logically and with complete
impunity impose explicitly discriminatory sentences on the
basis of race, religion, alienage, or any other criteria clearly
condemned by the Constitution.

Sentencing discretion has recognized limits, e.g., United
States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L.Ed.2d
592 (1972), North Carolina v. Pearce, 395 U.S. 711, 89
S. Ct. 2072, 23 L.Ed.2d 656 (1969); cf. Robinson v.
California, 370 U.S. 660, 82 S. Ct. 1417, 8 L.Ed.2d 758
(1962). The Equal Protection Clause is certainly among
them, Williams v. Illinois, 399 U.S. 235, Tate v. Short,
401 U.S. 395. Neither the width of that discretion nor the
complexities of exercising it is any reason to lay aside the
pledge of equal justice, which is the foundation of our
system of criminal justice, or to tolerate an exercise of it

20

when, “‘with an evil eye and an unequal hand,” Yick Wo v.
Hopkins, 118 U.S. at 173, it has isolated an invidious and
forbidden factor and turned the very question of liberty
upon it.

The State has also suggested that in the Petitioner’s case,
since the judge was aware that she was looking to relatives
to pay the fine for her (App. 3), he could have considered
the preconditional fine as a valid indicator of the family’s
confidence in her and of their “added control” in a
probationary program, Hunter v. Dean at App. 12. The
serious problem is that the family’s payment of a fine could
just as validly indicate an excessive, detrimental indulgence
or a pattern of buying the offender out of trouble.
Conversely, the family’s failure to pay need not necessarily
indicate any lack of confidence, disinterest, or unwilling-
ness to assume “added control.” It may only indicate that
the family is poor or that they believe that the offender
should begin to shoulder his own responsibilities. In this
connection, the preconditional fine is no adequate substi-
tute for a pre-sentence investigation.

The fact that the financial discrimination in this case was
filtered through a court of law does not change its essential
character. “[T]he denial of equal justice is still within the
prohibition of the constitution,” Yick Wo v. Hopkins, 118
U.S. at 374, supra.

21
V.

THE PETITIONER HAS DONE NOTHING
TO FORFEIT HER CLAIM TO THE
EQUAL PROTECTION OF THE LAWS IN
THIS CASE.

The State has suggested finally that the Petitioner
“‘misle[d] the court as to her ability to pay a fine, [and] thus
induc[ed] an alternative sentence,” Hunter v. Dean at App.
13. For that reason the Court below indicated that she
should therefore be estopped from “later seek[ing] to rely
upon constitutional safeguards to avoid punishment,” id.

The record does not reflect that the Petitioner misled the
trial judge in any fashion or that she induced him to do
anything. He was satisfied enough with her indigency to
name.counsel for her (Arraignment Transcript, pp. 3-5) and
to enforce his fee under the auspices of the State (App. 3,
4). The Petitioner made it quite plain that she was relying
on others to pay her fines for her. Furthermore, the judge
asked her only if she could pay a fine, not whether she could
pay one in lump sum immediately (App. 3).

There is no basis in the record, no detriment to the State’s
interests, which would justify barring the Petitioner’s
recourse to the equal protection of the laws when her
cousins failed to help her. Compare, e.g., Wainwright v.
Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L.Ed.2d 594
(1977).

Finally, the Petitioner was not invoking her “constitu-
tional safeguards to avoid punishment.” She invoked them
to secure the very punishment, probation, which the
Superior Court awarded her when it thought that her
cousins would pay her fine.

22
VI.

THE PRINCIPLE OF THE WILLIAMS
TRILOGY SHOULD CONTROL. THE
JUDGMENT BELOW.

Although the Supreme Court of Georgia correctly
observed that their facts were distinguishable and their
stated holdings narrow, the essential principles which this
Court announced in Williams v. Illinois, 399 U.S. 235,
Morris v. Schoonfield, 399 U.S. 508, 90 S. Ct. 2232, 26

_ L.Ed.2d 773 (1970), and Tate v. Short, 401 U.S. 395,

unmistakably control this case.

Williams, Morris, and Tate all dealt with legislated
penalty schemes, the familiar grist of the mills of equal
protection, which established on their faces “the outer
limits of incarceration necessary to satisfy [the States’]
penological interests and policies,” 399 U.S. at 242, but
which went further to provide that unpaid fines be worked
off through additional confinement. This Court held that
equal protection prohibited the States “from jailing an
indigent for failing to make immediate payment of any
fine .. .whether or not the jail term of the indigent extends
beyond the maximum term that may be imposed on a
person willing and able to pay a fine,” 399 U.S. at 509, 401
U.S. at 398. In view of the alternatives, particularly the
alternative of installment payments, the States could not
convert unpaid fines into imprisonment and thereby inflict
harsher penalties purely for poverty.

When the sentencing judge, in his discretion, awarded the
Petitioner probation, he established for the State the “outer
limits of incarceration necessary to satisfy [Georgia’s]
penological interests and needs” in her individual case

23

every bit as conclusively as the legislatures had done for the
classes of cases involved in the Williams trilogy. When he
set the financial barrier before her and refused to modify it
to accommodate the indigency which barely distinguished
her from her co-defendant, he in effect required her
incarceration not because she was more culpable or less
worthy than she was before but only because of her
indigency. His action was no less invidious for being
judicial.

- Georgia was no more required to establish a system of
probation than to establish a system of direct criminal
appeals, Griffin v. Illinois, 351 U.S. 12, but it did. The
sentencing judge was no more required to sentence the |
Petitioner to probation than he was to sentence her to any
other authorized punishment, but he did. Having done these
things, the Equal Protection Clause restrains the State of
Georgia from excluding the Petitioner, or any indigent,
solely because she cannot pay a discretionary toll.

24

CONCLUSION

This Court should reverse the judgment below and
require Georgia to accommodate the effect of the
Petitioner’s indigency upon the privileges accorded her by
her sentence by permitting her to pay her fine and the costs
in reasonable installment payments.

/s/ James C. Bonner, Jr. /s/ C. Michael Abbott
JAMES C. BONNER, JR. C. MICHAEL ABBOTT

/s/ Robert D. Peckham Counsel for the Petitioner

ROBERT D. PECKHAM Criminal Justice Council
15 Peachtree Street

/s/ Christopher J. Hamilton § Atlanta, Georgia 30303

CHRISTOPHER J. HAMILTON

/s/ Thomas J. Killeen
THOMAS J. KILLEEN

Counsel for the Petitioner

Prisoner Legal Counselling Project
475 North Lumpkin Street
Athens, Georgia 30601
(404/542-4241)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1261%3A4. Public record. Not legal advice.