Respondents Brief — Hunter v. Dean

—_-

Sup ume ’ 1.

FILED

JUL 12 1978

mi

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

NO. 77-6248

JACQUELYN E. HUNTER,

Petitioner,

v.

GERALD WALLACE DEAN, SHERIFF,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR THE RESPONDENT

ArtHuR K, BOoLToNn

Attorney General

Rosert 8. Stusss, II

Executive Assistant

Attorney General

Don A, LANGHAM

First Assistant

Please serve: Attorney General

B. DEAN GRINDLE, JR. JOHN v. WALDEN

, or Senior Assistant

132 State Judicial Bldg. i iieiiney Cleon

40 Capitol Square, 8.W. . jaa

Atlanta, Georgia 30334 B. DEAN GRINDLE, JR.

(404) 656-3356 Assistant Attorney General

TABLE OF CONTENTS

Page

CRT ee os baa REN ies ok cid ee weil !

QUESTIONS PRESENTED...............0eee5: l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...............0005- 2

STATEMENT OF THE CASE................45: 3

SUMMARY OF ARGUMENT.............50555: 5

ARGUMENT

I. The Georgia Statutory Framework:

Be Te CE i hic ain. h Wee ene bas sever 6

Il. The Economically Disadvantaged Defendant

And The Criminal Justice System: Not Every

Difference In Treatment, Perceived Or Real,

Should Always Make The Eeonomically Dis-

advantaged A Suspect Class or Purposes Of

Equal Protection Analysis................5. i)

A. From “Rational Basis’’ to “Strict

chit ASE SAY ner ee af)

B. “Suspect Class’ and the Criminal

FN ONE 6 vias ic Vice cc acre ctedaccbes 11

1. Effective Access to Review............ 13

2. Indigency, Cost Recoupment, and

TN A ee SAAS iad A a aie tie irs ¢ a.a.e A 15

ia Ss oie ae onittinn's 6 x cael 17

TABLE OF CONTENTS—Continued

Page

III. The Financial Resources Available To A

Defendant Is One Relevant Factor In

Ascertaining Whether He Is A Good Risk For

Probation. Permitting A Trial Judge To

Weigh This Factor In Determining Whether

Probation Would Be Appropriate, And On

What Conditions, Furthers The Broad

eer: Discretion Necessary For An

Effective Criminal Justice System And

Further Aids The Efficacy Of A Probation

System Which, To Be Fully Effective, Must

Have A Broad Base Of Public Support....... 19

A. The Sentencing Function................ 19

B. Crime and Economic Disadvantage..... .. 20

C. Pebble Pareeptiee.'.:. sich hive sven ee 25

BD COR ooo sao aw Seas veer Os 27

OORCTAIIIIING 5 6s hca ney Ji adeens + iesaknen vee? 28

TABLE OF AUTHORITIES

Cases:

Burns v. Ohio, 360 U.S. 252 (1959). ................ 13

Dandridge v. Williams, 397 U.S. 471 (1970)......... 10

Douglas v. California, 372 U.S. 353 (1963).......... 6,14

Draper v. Washington, 372 U.S. 487 (1963).......... 14

England v. Newton, 238 Ga. 534, 233 S.E. 2d 787

bE O P eee re ee mr mre, yyas gee 8

Fuller v. Oregon, 417 U.S. 40 (1974)................ 16

ii

TABLE OF AUTHORITIES—Continued

Cases—Continued :

Page

Gagnon v. Scarpelli, 411 U.S. 778 (1973)............ 18

Graham v. Richardson, 403 U.S. 365 (1971).......... 10

Gregg v. Georgia, 428 U.S. 153 (1976)............... 26

Griffin v. Illinois, 351 U.S. 12 (1956)............. passim

Griffiths, In Re, 413 U.S. 717 (1973)...........22-5. 10

Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977).. 5

James v. Strange, 407 U.S. 128 (1972).............. 16

Korematsu v. United States, 323 U.S. 214 (1944)...... 10

Lane v. Brown, 372 U.S. 477 (1963)..............-. 14

Lear v. Adkins, 395 U.S. 653 (1969)................ 4

Lindsley v. National Carbonic Gas Co., 220 U.S. 61

RE Ss rae ck eee ee eee tase ee ices es 10

Loving v. Virginia, PP Se THT 6 osc cece cheese 10

Maher v. Roe, 432 U.S. 464 (1977) .............4.. 5, 10

Marshall v. United States, 414 U.S. 417 (1974)....... 27

Massachusetts v. Westcott, 431 U.S. 322 (1977)....... 4

Massachusetts Board of Retirement v. Murgia,

Pog} S 8+ AAC ore eee 10

McGowan v. Maryland, 366 U.S. 420 (1961)........ 5, 10

McLaughlin v. Florida, 379 U.S. 184 (1964)........ 5, 10

Meachum v. Fano, 427 U.S. 215 (1976). ............ 18

Mempa v. Rhay, 389 U.S. 128 (1967)............... 18

Morris v. Schoonfield, 399 U.S. 508 (1970)........... 16

iii

TABLE OF AUTHORITIES—Continued

Cases—Continued:

Page

Morrissey v. Brewer, 408 U.S. 471 (197B).. cecsesses 18

Ortwein v. Schwab, 410 U.S. 656 (1978)........-++-+ 11

Rinaldi v. Yeager, 384 U.S. 305 (1966)......--.+--- 6, 15

Rober's v. Louisiana, 428 U.S. 325 (1976)......-.-+- 26

Ross v. Moffitt, 417 U.S. 600 (1974).....----- 005s: 12, 14

San Antonio School District v. Rodrujuez, 411 U.S. 1

(TTD) ic cacdiscccconversmenncconsoereposss passim

Schlib v. Kuebel, 404 U.S. 357 (1971) .......----- + 10

Scott v. Kentucky Parole Board, 429 U.S. 60 (1976)... 18

Smith v. Bennett, 365 U.S. 708 (1961).......---+++-> 13

Tate v. Short, 401 U.S. 395 (1971)......-.------ passim

United States v. Kras, 409 U.S. 434 (1973)......---- ll

Williams v. Illinois, 399 U.S. 235 (1970).......-- passim

Williams v. New York, 337 U.S. 241 (1949)........ 19, 25

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) . .. 10

Statutory Authority:

Ark. Stat. Ann. §43-2331 (1977 Repl.)..........+++. 8

Ga. Code Ann. §24-2823 (1976 Rev.).........-++++5 23

Ga. Code Ann. §26-1601 (1977 Rev.)........ Co ey 27

Ga. Code Ann. §26-1902(a), (b) (1977 Rev.)........ 26

Ga. Code Ann. §27-2502 (1978 Rev.)..........++++: 7

Ga. Code Ann. §27-2511.1 (1978 Rev.).........-++-- 25

iv

TABLE OF AUTHORITIES—Continued

Statutory Authority—Continued:

Page

Ga. Code Ann. §27-2529 (1978 Rev.)...... 2, 7, 9, 23, 27

Ga. Code Ann. §§27-2702 et seg. (1978 Rev.)......-- 7

Ge Code. Ann. §27-2709 (1978 Rev.)..... 2, 7, 9, 24, 27

Ga. Code Ann. §27-2712 (1978 Rev.).........+++++: 8

Ga. Code Ann. §27-2713 (1978 Rev.)..........++:: 8, 22

Ga. Code Ann. §27-2727 (1978 Rev.).........++++5: 4

Ga. Code Ann. §27-2901 (1978 Rev.)........- 3, 8, 9, 27

Ill. Ann. Stat. c. 38 §1005-6-3.1 (Supp. 1978)........ 8

Mich. Stat. Ann. §28.1075 (Supp. 1978-1979)....... 8

N.Y. Penal Law Arts. 410, 420 (1971)..........+++- 8

Vernon’s Tex. Stat. Ann. Art. 42.12 (Supp. 1977).... 8

Other Authority:

ABA STANDARDS, Sentencing Alternatives and

Procedures, Introduction (1968) ............+++++ 19

IN THE ©

Supreme Court of the United States

OCTOBER TERM, 1978

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 RESPONDENT

OPINION BELOW

The opinion of the Supreme Court of Georgia is re-

ported at 240 Ga. 214, 239 S.E. 2d 791 (1977).

QUESTIONS PRESENTED

4

In cases arising in the criminal justice system, should

wealth be a suspect classification for purposes of equal

protection analysis?

2.

Consistent with the Equal Protection Clause of the

Fourteenth Amendment, may a trial judge ever consider

the financial resources of the defendant in ascertaining

whether the defendant is a good risk for probation?

1

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitu-

tion: “os

No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.

It also involves the following provisions of state law

(unofficially codified as):

Ga. Code Ann. §27-2529 (1978 Rev.): Payment of fine

as condition precedent to probation in felony cases;

effect of revocation of probation

In any case where the judge may, by any law so au-

thorizing, 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 con-

dition to such 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.

Ga. Code Ann. §27-2709 (1978 Rev.): [Statewide Pro-

bation Act]; jurisdiction of courts; procedure; hearings;

reference to circuit probation supervisor; period of

probation; disposition of prisoner pending hearing;

payment of fines or costs as condition precedent to

probation

** * *

If it appears to [the] court upon a hearing of the

matter that the defendant is 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

the defendant shall presently suffer the penalt

imposed by law, the court in its discretion

impose sentence upon such defendant but may stay

and suspend the execution of such sentence or any

portion thereof, and may place him a probation

under the supervision and control of the circuit pro-

bation supervisor for the duration of such probation.

** * *

The court may, in its discretion, require the payment

of a fine or costs or both as a condition precedent to

probation.

Ga. Code Ann. §27-2901 (1978 Rev.): Time of pay-

ment of fines

Every fine imposed by the court under the authorit

of this Code shall be og immediately or within suc

reasonable time as the court may grant.

STATEMENT OF THE CASE

The petitioner, Jacquelyn Hunter, and Eugene Thomas

were indicted by the grand jury of Terrell County, Geor-

gia, for burglary. (App. 2). Upon arraignment, both de-

fendants entered pleas of guilty to the charge; both were

represented by counsel appointed by the trial court.

Before imposing sentence, the trial court inquired about

the financial resources of each defendant. Specially, the

court inquired as to whether the defendants could pay a

fine and how the fine could be paid. The petitioner replied

that her cousin, Miss Fannie Richardson, and Mrs.

Richardson would pay a fine. (App. 3).

1 Neither Mr. Bonner, present counsel for the petitioner, nor the

Attorn General represented the respective parties when the peti-

tioner sought habeas corpus relief in the Superior Court of Terrell

transc

County. the ripts of the earlier arraignment pro-

a prong A ae of of

4

Earlier, the petitioner had informed the court that she

did not work. (Arraignment Tx. 3).

The petitioner and her codefendant were thereafter

sentenced to two years imprisonment;* the sentences of

imprisonment were probated, conditioned upon payment

of a fine of $165, payment of one-half of the court costs,

and payment of a modest attorney fee.* (App. 4). For

reasons that remain unexplained, the petitioner’s fine was

not paid and she was incarcerated.

After incarceration, the petitioner sought habeas

corpus relief in the Superior Court of Terrell County. She

averred that she had been unable to pay the fine and that

incarceration for an inability to pay was ‘‘violative of due

process and equal protection of the law.” (App. 5). The

habeas court, which was also the sentencing court, struck

that portion of the sentence requiring the payment of an

attorney fee but otherwise upheld the validity of the

sentence.‘ (App. 6).

The bce eat ag tewed now a part of the record even though

they were not before the ie oo mg Court of Georgia. The respondent

does not object to the inclusion of the transcripts in the present

record because: (1) the facts relied on by the petitioner in the Su-

preme Court of Georgia were not disputed and (2) the decision of

the Supreme Court of Georgia states the essential facts. Cf. Lear v.

Adkins, 395 U.S. 653, 657 n.1 (1969); see Massachusetts v. Westcott,

431 U.S. 322, 323 n.2 (1977).

? The petitioner states she is a first offender. Brief of Petitioner, 3.

While she was eligible for sentencing under Georgia’s so-called First

Offender Act, see Ga. Code Ann. ; 27-2727 (1978 Rev.), the petitioner

has a juvenile record stemming from a drug charge. (Plea Tx. 4-5).

“First offender” for purposes of § 27-2727 means only that the de-

fendant has not previously been convicted of a felony.

‘The petitioner was not incarcerated prior to arraignment. She

speared

without counsel although she explained to the trial court

t “in a way” she was “able to hire a lawyer.’ The court then

appointed counsel to represent her. (Arraignment Tx. 3, 5).

_ 4The petitioner states that she sought a modification of her sen-

tence so that she could pay the fine in installments. Brief of Peti-

5

The Supreme Court of Georgia affirmed the habeas

court, Hunter v. Dean, 240 Ga. 214, 239 8.E. 2d 791 (1977),

and this Court granted certiorari. __ U.S. —— (1978).

SUMMARY OF ARGUMENT

A threshold inquiry that must be made in this equal

protection case, arising in the criminal justice system, is

whether the economically disadvantaged are a “suspect”

class. The inquiry is necessary because if wealth is ‘‘sus-

pect,” a standard of strict judicial scrutiny is employed; if

wealth is not a suspect classification, the state action in

question will pass constitutional muster if it is rationally

related to the achievement of legitimate state policy.

Compare McLaughlin v. Florida, 379 U.S. 184 (1964) with

McGowan v. Maryland, 366 U.S. 420 (1961).

Although financial need has never been labeled “‘sus-

pect” in cases that do not originate in the criminal justice

system, it has been inferred that perhaps different con-

siderations apply in that area of the law. Maher v. Roe,

432 U.S. 464, 471 n.6 (1977). However, the reasons why

financial need should not identify a suspect class for equal

protection purposes are just as persuasive in cases arising

in the criminal justice system. More importantly, when

the equal protection cases having their origin in the crimi-

nal law are closely examined, it appears that the tradi-

tional test of rationality has been employed in cases that

may be broadly grouped as follows: effective access to

Sete dea eh te a wt cor al

aver that she was able to her fine on an installment basis. On

i installment payments as an accommodation

6

review, ¢.g., Griffin v. Illinois, 351 U.S. 12 (1956), Douglas

v. California, 372 U.S. 353 (1963); cost recoupment, ¢.g.,

Rinaldi v. Yeager, 384 U.S. 305 (1966), and fines, ¢.g.,

Williams v. Illinois, 399 U.S. 235 (1970).

The same analysis should be applied sub judice.

When the sentence in this case is subjected to the test

of whether the classification drawn—admittedly made

through the exercise of individualized sentencing discre-

tion—is rationally related to the achievement of permis-

sible state policy, it is not offensive to the Equal Protec-

tion Clause. The financial resources available to a defen-

dant is one relevant factor in ascertaining whether he is a

good risk for probation. While it may be a minor, or non-

existent, factor in many cases, in many others it is impor-

tant to the sentencing judge as he ponders sentencing

alternatives. Permitting a trial judge in an appropriate

case to weigh this factor in determining whether a sentence

should be probated, and on what conditions, furthers at

least two important state interests: (1) the broad sentenc-

ing discretion necessary for an effective criminal justice

system which in turn (2) aids the efficacy of a criminal

justice subsystem — probation — which to be fully effective,

must have a broad base of public support.

ARGUMENT

I. The Georgia Statutory Framework: A Brief Overview.

Before extensive discussion of the important constitu-

tional issues presented by this case, a review of the appli-

cable statutes will facilitate an understanding of the con-

text in which the issues arise.

Probation in Georgia is comprehensively governed by

7

the Statewide Probation Act. Ga. Laws 1956, pp. 27-36, as

amended [Ga. Code Ann. §§27-2702 et seq. (1978 Rev.)].

The basic provision of the act permits the sentencing court

to “hear and determine the question of . . . probation”

after the defendant has been found guilty pursuant to

verdict or plea. Ga. Code Ann. §27-2709 (1978 Rev.).

Prior to hearing the Court may refer the case to the pro-

bation supervisor of the circuit for a pre-sentence investi-

gation, report, and recommendation. Jd. The act further

provides: |

If it appears to the Court upon a hearing of the matter

that the defendant is not likely to engage in a crimi-

nal course of conduct and that the ends of justice and

the welfare of society do not require that the defen-

dant shall presently suffer the Pape imposed by

law, the court in its discretion im sentence

upon such defendant but may stay an suspend the

execution of such sentence or any portion thereof,

and may | yea him upon probation under the super-

vision and control of the circuit probation supervisor

for the duration of such probation.

The court may, in its discretion, require the payment

of a fine or costs or both as a condition precedent to

probation. Jd.

During the term of a probated sentence the sentencing

court retains jurisdiction over the defendant and may

rescind, revoke, or modify the sentence. Jd.

Some of the general statutory provisions pertaining to

sentencing are also implicated. Ga. Code Ann. §27-2529

(1978 Rev.), like Ga. Code Aun. §27-2709 (1978 Rev.),

‘The modification power is unique to a probated sentence. When

a non-probated sentence is involved the power to change or modify

ends with the expiration of the term of court at which the sentence

was imposed. Ga. Code Ann. § 27-2502 (1978 Rev.).

8

authorizes the sentencing court to impose a fine as a con-

dition of probation. Under §27-2529, a fine cannot exceed

$2000. Upon the revocation of probation, §27-2529 also

provides that the defendant shall not be entitled to a

rebate or refund of the fine that he has paid.

Finally, fines imposed by a court are to be paid immedi-

ately or the court may permit the fine to be paid “within

(a] reasonable time.” Ga. Code Ann. §27-2901 (1978 Rev.).

The petitioner concedes the validity of these statutes,

Brief of Petitioner, p. 17; her contention is that a trial

judge cannot evade the command of the Equal Protection

Clause in applying them. Jd. at 16-20. Recognizing that

‘her exclusion [from probation] was the result of an individ-

ual exercise of sentencing discretion,” the petitioner

nevertheless seeks to equate her conditionally probated

sentence with the legislatively mandated judgments

which framed the issues in Williams v. Illinois, 399 US.

235 (1970), and Tate v. Short, 401 U.S. 395 (1971). Brief

of Petitioner, p. 5, 16-17.

While we agree with the petitioner that a state may not

accomplish indirectly through its judiciary what it may

not accomplish directly, that observation is only the

beginning of the inquiry; judicial action is obviously not

above equal protection scrutiny. But with a concededly

valid statutory scheme‘ and the admitted presence of

® The Georgia statutes are not totally unlike the statutes found in

other jurisdictions. See, e.g., Ark. Stat. Ann. § 43-2331 (1977 a):

Ill. Ann. Stat. ¢.38 § 1005-6-3.1 Cupp. 1978); Mich. Stat. ’

§ 28.1075 (Supp. 1978-1979) ; N.Y. enal Law Arts. 410, 420 (1971);

ig U.S.C. § 3651; Vernon's Tex. Stat. Ann. Art. 42.12 (Supp. 1

at ye ia statutes also provide for early termination,

Ga. Ann. § 27-2712 (1978 Rev.), but unlike many systems no

apparent, provision is made for an extension of Wie Peed]

tion. Cf. Code Ann. § 27-2713 (1978 Rev.) ; see England v. Newton,

238 Ga. 534, 233 8.E. 2d 787 (1977). Furthermore, when probation

7.

9

individualized sentencing discretion, the equal protection

issue presented by the facts herein is not as simple as

analogizing to a statute that mandates the prepayment

of a fine as a condition precedent to probation and citing

a litany of cases holding that sentencing discretion has

recognized limits.

With the statutory framework thus established, we turn

to the equal protection issue. We will consider whether

the economic status of the defendant is a factor that a

trial judge may ever consider as he exercises his discre-

tionary powers in fashioning an appropriate sentence.

After demonstrating that consideration of economic sta-

tus reflects a healthy sense of realism and should not be

branded “‘suspect,”’ we will conclude with a discussion of

why the application of Ga. Code Ann. §§ 27-2529, 27-

2709, 27-2901 (1978 Rev.) in this case rationally furthers

legitimate state interests—maintaining the broad sen-

tencing discretion of trial judges necessary for an effec-

tive criminal justice system and assuring the efficacy of

a probation system that permits convicted felons to sat-

isfy their obligation to the state outside the confines of

the penitentiary.

Il. The Economically Disadvantaged Defendant And The

Criminal Justice System: Not Every Difference In

Treatment, Perceived Or Real, Should Always Make

The Economically Disadvantaged A Suspect Class For

Purposes Of Equal Protection Analysis.

A. From “Rational Basis” to “Strict Scrutiny”

The Equal Protection Clause has always been thought

is revoked the defendant receives sentence credit for the time he has

been on probation. Ga. Code Ann. § 27-2712, supra.

.

ay?

10

to permit differences in treatment, even with some result-

ing inequality, if the object of the state action can be

rationally justified. McGowan ». Maryland, 366 U.S. 420,

425 (1961); Lindsley »v. Natural Carbonic Gas Co., 220

U.S. 61, 78 (1911). Absent invidious discrimination, a

rationally based classification does not run afoul of the

Clause. Massachusetts Board of Retirement v. Murgia, 427

U.S. 207 (1976) ; Schlib v. Kuebel, 404 U.S. 357, 364 (1971);

Dandridge v. Williams, 397 U.S. 471, 485 (1970) ; William-

son v. Lee Optical Co., 348 U.S. 483, 489 (1955).

Certain classifications, however, have come to be viewed

as “inherently suspect.” “Suspect” classifications are sub-

ject to close judicial scrutiny; they must serve some “over-

riding [state] purpose” and be essential and necessary, as

opposed to only rationally related, to the achievement of

‘state policy. McLaughlin v. Florida, 379 U.S. 184, 192-

193, 196 (1964); of. Graham v. Richardson, 403 U.S. 365

(1971). Classifications premised on race,’ nationality,*

and alienage* have been deemed “suspect” and thus sub-

ject to strict judicial scrutiny. On the other hand, eco-

nomic disadvantage, without more, has never been deemed

sufficient to identify a suspect class. Maher v. Roe, 432

U.S. 464, 471 (1977); San Antonio School District v. Rod-

riquez, 411 U.S. 1, 29 (1973); Dandridge v. Williams, supra,

397 U.S. at 484-485.

The petitioner argues, however, that financial need has

effectively been branded a “suspect class” in the admin-

istration of criminal justice; she relies on Griffin v. Illinois,

351 U.S. 12 (1956). She draws support from Griffin and

wn. v. Florida, supra; Loving v. Virginia, 388 U.S. 1, 9

* See Korematsu v. United States, 323 U.S. 214, 216 (1944).

* In Re Griffiths, 413 U.S. 717 (1973); Graham v. Richardson, supra.

<< 4a

11

its progeny and the Court’s recognition that “the prin-

ciples underlying Griffin . . . do not extend to legislative

classification generally.” Maher v. Roe, supra, 432 U.S.

at 471 n.6.

B. “Suspect Class” and the Criminal Justice System

Should Griffin control the “suspect class” issue? The

petitioner assumes that it already does; we submit that

Griffin does not, and should not, control this issue.

The reality underlying cases such as Maher v. Roe,

supra, and San Antonio School District v. Rodriquez, supra,

must be that the poor suffer greater economic hardship

than the more affluent. This economic reality manifests

itself in many ways, private and public. Stated in another

fashion, the economically disadvantaged may face an im-

posing barrier between them and the lifestyle to which

they aspire. In the public sector, governmental regulation

may sometimes pose an obstacle to the economically dis-

advantaged who seek to avail themselves of a benefit or

service for which the more affluent can easily pay. Yet,

consistent with the Equal Protection Clause, prepayment

of fees can be exacted from all who seek to petition for

bankruptcy’* or appeal to a higher court in a civil case."

Just as consistently, a state need not fund abortions for

indigent women simply because childbirth is funded,

Maher v. Roe, supra; nor must a state, in financing its

educational system, require precisely equal per pupil ex-

penditures between affluent and less affluent school dis-

tricts. San Antonio School District v. Rodriquez, supra.

The petitioner correctly notes that the decisions dis-

cussed above arose in the milieu of “economics and social

© United States v. Kras, 409 U.S. 434 (1973).

1 Ortwein v. Schwab, 410 U.S. 656 (1973).

12

welfare,” United States v. Kras, 409 U.S. 434, 446 (1973),

and stresses that this case involves the administration of

criminal justice. Nevertheless, the reality discussed above

—that the poor necessarily suffer greater economic hard-

ship than the more affluent—is just as apparent in the

criminal justiee system. As observed by Mr. Justice

Frankfurter:

A man of means may be able to afford the retention

of an expensive, able counsel not within reach of a

poor man’s purse. Those are contingencies of life

which are hardly within the power, let alone the duty,

of a State to correct or cushion. Griffin v. Illinots,

supra, 351 U.S. at 23 (Frankfurter, J., concurring).

Just as in the cases arising in the social welfare-economic

area where “the Equal Protection Clause does not require

absolute equality or precisely equal advantages,” San

Antonio Independent School District v. Rodriquez, supra,

411 U.S. at 24, so too in the criminal justice context, a

state need not “duplicate the legal arsenal that may be

privately retained by a criminal defendant... .” Ross v.

Moffitt, 417 U.S. 600, 616 (1974).

The Court, however, is far from insensitive to the plight

of the economically disadvantaged; numerous decisions

subsequent to Griffin attest to the Court’s allegiance to

the precept of equal justice and effort to ameliorate the

impact of poverty on the criminal justice system. In many

of the decisions the focus of the Court is unclear; some

decisions are based solely on equal protection concepts

and some are based on a combination of equal protection

and due process concepts. But in none of the cases im-

plicating the Equal Protection Clause have the indigent

been identified as a “suspect class.” Rather, a ci. .cal

examination of the cases reveals that state statutes and

13

practices placing the indigent at a disadvantage in the

criminal justice process have been invalidated, at least

implicitly, on the basis of irrationality. In other words,

if the state action (usually statutory in origin) cannot be

rationally justified, the resulting discrimination effected

by the state action has been deemed “invidious” and

therefore offensive under the Equal Protection Clause.

We now turn to those cases.

1. Effective Access to Review

In Griffin v. Illinois, 351 U.S. 12 (1956), the denial of

appellate review to indigent defendants because of their

inability to purchase a transcript, necessary to secure an

adequate review of criminal convictions, was held to be

in violation of the Due Process and Equal Protection

Clauses. In terms of the equal protection issue, the Griffin

plurality did not employ the test of strict judicial scrutiny

because indigents are a suspect class; rather, they simply

utilized the rational basis test. Drawing a parallel be-

tween the right of a poor person to defend himself at a

trial and the right to secure adequate appellate review of

a conviction, the plurality succinctly observed ‘that ‘the

ability to pay costs in advance bears no rational relation-

ship to a defendant’s guilt or innocence and evuld not be

used as an excuse to deprive a defendant of a fair trial.”

Id. at 17-18 (emphasis added).

Griffin was soon relied upon to strike down a statute

that required the payment of a filing fee before an indi-

gent could seek appellate review of his conviction, Burns

v. Ohio, 360 U.S. 252 (1959), and a similar statute re-

quiring the payment of a filing fee before petitioning for

habeas corpus relief. Smith v. Bennett, 365 U.S. 708 (1961).

In Smith, the Court noted that the “gist” of Griffin and

ee ee

14

Burns was the absence of a rational basis in the statutes

implicitly assuming that an indigent’s effort to have his

case reviewed was less meritorious than the efforts of

other defendants. Smith v. Bennett, supra, 365 U.S. at

710.

Lane v. Brown, 372 U.S. 477 (1963), and Draper »v.

Washington, 372 U.S. 487 (1963), struck down a financial

barrier between an indigent and his ability to secure a

transcript for an appeal of a post-conviction proceeding

(Lane) and a procedure, from which review was effec-

tively precluded, whereby the indigent had to make a

showing that his appeal was not frivolous (Draper).

Finally, to effectuate the adequacy of appellate review,

the right to counsel was extended to indigent defendants

on direct appeal. Douglas v. California, 372 U.S. 353

(1963).

Succinctly stated, the above cases may be read to hold

that state practices and procedures which place an in-

superable barrier between an indigent defendant and his

ability to secure a meaningful review of his conviction—a

review that is otherwise available to the affluent—are

irrational and thus offensive under the Equal Protection

Clause.'* Such barriers are deemed irrational because the

merit vel non of a defendant’s appeal, motion, etc. is

simply not dependent on his financial status; a wealthy

defendant is just as capable of filing a frivolous appeal

as an indigent defendant. More importantly, for purposes

of the instant case, is the fact that indigency in and of

itself has never been viewed as “suspect”; the test has

2 Of course, the Equal Protection Clause does not decree “absolute

equality,”’ San Antonio Independent School District v. Rodriquez, 411

U.S. 1, 24 (1973), and a state’s refusal to appoint counsel to pursue

avenues of discretionary review does not run afoul of the Clause. Ross

v. Moffitt, 417 U.S. 600, 611-617 (1974).

15

been, and should continue to be “rational basis” and not

“strict judicial scrutiny.”

2. Indigency, Cost Recoupment, and Fines

In other equal protection cases arising in the criminal

justice system, the Court has also traditionally utilized

the rational basis test and not the test of strict judicial

scrutiny. Again, indigency has never been viewed as

suspect so as to invoke the latter doctrine.

No doubt prompted somewhat by the additional costs

incurred in providing transcripts and counsel to indigents

after cases such as Griffin v. Illinois, supra, and Douglas

v. California, supra, many states enacted statutes de-

signed to recoup from the indigent the costs expended

in their behalf. For instance, New Jersey enacted legisla-

tion authorizing the recoupment of transcript costs (fur-

nished ‘in conjunction with an unsuccessful appeal) from

indigent defendants confined in the penitentiary. See

Rinaldi v. Yeager, 384 U.S. 305 (1966). The state, how-

ever, sought recoupment only from those indigent de-

fendants who were imprisoned; the repayment obligation

was not imposed on those indigent defendants who pur-

sued unsuccessful appeals but were sentenced to pay a

fine or were given a suspended or probated sentence. Jd.

at 308. The objective of the statute was to recover from

those directly benefitting from county expenditures the

amount thereof; yet, as the nature of the penalty im-

posed—a, sentence of imprisonment—“‘[bore] no relation-

ship whatever to the purpose of the repayment provision,”

the distinction between imprisoned defendants and those

who were only fined or given probated sentences was thus

deemed “invidious.” Jd. at 309. Viewed as a measure to

deter frivolous appeals, the statute was similarly found

16

lacking in rationality; the nature of the penalty is hardly

a measure of frivolousness. Jd. at 310. In short, the stat-

ute failed to pass constitutional muster because it could

not be justified on a rational basis.

In a somewhat different context, a Kansas recoupment

statute was found lacking in rationality. James v. Strange,

407 U.S. 128, 140 (1972). The primary evil of the Kansas

statute was that indigent defendants, required to reim-

burse the state for the costs of the safeguards to which

they were entitled under the Constitution, did not enjoy

the protection afforded other civil debtors. The lack of

customary debtor protection for only the indigent defen-

dant smacked of “punitiveness and discrimination.” Jd.

at 142. The Oregon recoupment statute was upheld for

essentially the same reasons the Kansas statute was struck

down; the Oregon scheme lacked the elements of punitive-

ness found in James v. Strange and the only arguable dis-

crimination embodied in the statute—a distinction be-

tween those who are convicted and those who are not—

was found to be objectively rational. Fuller v. Oregon,

417 U.S. 40, 47-50 (1974).

The fine cases on which the petitioner so heavily relies—

Tate v. Short, 401 U.S. 395 (1971), Morris v. Schoonfield,

399 U.S. 508 (1970), and Williams v. Illinois, 399 US.

235 (1970)—also did not view indigency as necessarily

suspect for purposes of equal protection analysis. The

Court simply assessed the rationality of the pertinent

statutory schemes in light of the objectives of the schemes.

In Williams v. Illinois, supra, the Court reviewed a

statutory scheme that permitted the imprisonment of

defendants for nonpayment of fines. The scheme pro-

vided a “‘work-off” schedule of five dollars per day. Jd.

at 236. The practical effect of the statute was to extend

17

the “maximum period [of confinement]’’ for those unable

to pay their fines; the scheme was viewed as having the

potential of creating one maximum penalty for the afflu-

ent and a greater maximum penalty for the poor. Jd. at

240-241, 243. In view of the state’s reliance on the collec-

tion of revenue and the obvious impairment of that in-

terest when an indigent is incarcerated for nonpayment,

Tate v. Short, 395 U.S. 395, 399 (1971), imprisonment of

the indigent frustrates, rather than rationally furthers,

the asserted interest. Mr. Justice Harlan, preferring a due

process approach to the issue, also found rationality

wanting. Williams v. Illinois, supra, 399 U.S. at 265

(Harlan, J. concurring).

More will be said of Williams, Tate, and Morris later,

but for present purposes the point to be made is that, as

in the other cases raising an equal protection issue in the

context of the criminal justice system, indigency has not

been viewed as suspect. The analysis employed by the

Court has been, at least implicitly, the traditional test of

rationality.

C. Conclusion

It is clear that economic disadvaniage has not been ac-

cepted as a “suspect class” for purposes of equal protection

analysis in areas of the law arising outside the administra-

tion of criminal justice. Perhaps it is because classifications

drawn on the basis of economic status are easily analyzed

in terms of rationality when the issue arises in the criminal

justice system, but for whatever reason, economic status

in itself has never been sufficient to trigger ‘‘close judicial

scrutiny” in criminal cases.

The petitioner has offered no reason why economic

status should be deemed “suspect” in criminal law and

18

related matters; she merely assumes that economic status

is already suspect. The reality underlying the refusal of the

Court to confer “suspect’’ status on economic disadvan-

tage in other areas of the law is just as prevalent in the

criminal justice system. Thus, in deciding whether the

sentence imposed on the petitioner in this case is permissi-

ble under the Equal Protection Clause, the test should be

the traditional one of rationality and not that of strict

judicial scrutiny."

We turn, therefore, to the issue of whether a trial judge

may make assessments of a defendant’s economic status

in ascertaining whether the defendant is a good risk for

conditional release, and whether permitting a trial judge

to make that assessment rationally furthers a legitimate

state interest.

18 The petitioner also contends that the test of strict scrutiny should

be utilized because her exclusion from probation affects a fundamental

right—liberty—she enjoys under the Constitution. Brief of Peti-

tioner, p. 6, 8.

The respondent submits that there is a distinction between the

loss of conditional liberty presently enjoyed and the expectation of

future conditional liberty. ry v. Scarpelli, 411 U.S. 778 (1973),

and Morrissey v. Brewer, 408 U.S. 471 (1972), establish that the con-

ditional liberty enjoyed by a probationer or parolee is protected by

the Fourteenth Amendment. ether the expectation of parole in

the context of an application for parole is similarly protected has not

yet been definitively resolved. E.g., Scott v. Kentucky Parole Board

429 U.S. 60 (1976) (remand for consideration of mootness). But if

the Due Process Clause is applicable to applications for parole and

whatever procedures are due, see id. at 62 n.4 (Stevens, J., dissent-

ing), the convicted defendant who awaits sentencing with an expec-

tation of conditional release already enjoys significant rights in terms

of a meaningful hearing. Cf. Mempa v. Rhay, 389 U.S. 128 (1967).

Contrary to the petitioner’s assertion that she was “awarded pro-

bation,” it is clear that she was sentenced to a conditionally pro-

bated term of imprisonment and that she did not satisfy one of the

conditions. Apart from the equal protection issue she is now pressing

in this Court, she has never complained of her conviction (which is

unrelated to the equal protection issue in any event) or sentence.

Having been duly convicted on her plea of guilty, her liberty interest

was extinguished. Meachum v. Fano, 427 U.S. 215, 224 (1976).

19

Ill. The Financial Resources Available Té A Defendant

Is One Relevant Factor In Ascertaining Whether He

Is A Good Risk For Probation. Permitting A Trial

Judge To Weigh This Factor In Determining Whether

Probation Would Be Appropriate, And On What Con-

ditions, Furthers The Broad Sentencing Discretion

Necessary For An Effective Criminal Justice System

And Further Aids The Efficacy Of A Probation System

Which, To Be Fully Effective, Must Have A Broad

Base Of Public Support.

A. The Sentencing Function

The consequences of a sentence are of the highest

order. If too short or of the wrong type, it can deprive

the law of its effectiveness and result in the premature

release of a dangerous criminal. If too severe or im-

properly conceived, it can reinforce the criminal

tendencies of the defendant and lead to a new offense

by one who otherwise might not have offended so

seriously again. ABA Standards, Sentencing Alter-

natives and Procedures, Introduction (1968).

The importance of the sentencing function cannot be

overstated. It is probably accurate to say that a large

segment of the public perceives the success or failure of

the criminal justice system as a direct result of the exer-

cise of the sentencing function.

The movement toward individualized sentencing was

the backdrop of Williams v. New York, 337 U.S. 241

(1949), when the Court approved for sentencing purposes

the evaluation of data pertaining to the defendant that

would be inadmissible on the question of guilt or inno-

20

cence. That a sentencing judge should have a broad

sentencing discretion has been accepted as a part of

modern criminal jurisprudence.'* See Williams v. Illinois,

399 U.S. 235, 243 (1970).

The petitioner does not quarrel with discretionary

sentencing in general. She does feel that she was

victimized by an “invidious precondition,” Brief of

Petitioner, p. 18, that was part of her sentence. That

contention, with its attendant ramifications, must now

be considered.

B. Crime and Economic Disadvantage

The petitioner is unable to perceive any relevance be-

tween economic status and “qualifications to vote or to

run for public office. . . .” Brief of Petitioner, p. 13.

Neither can the respondent. But the respondent is unable

to agree that economic status is no more logical vis-a-vis

the factors a judge may rely on in fashioning an appropri-

ate sentence than race, religion, or alienage. See Brief of

Petitioner, p. 19.

There is simply no rational connection between crime

and race, religion, and alienage. The same cannot neces-

sarily be said about crime and economic disadvantage.

While crime and poverty are not intrinsically related—

the vast majority of the economically disadvantaged are

no doubt law abiding citizens—the fact that the nation’s

prisons and jails are teeming with those from less than

affluent backgrounds is testimony enough to at least some

connection between crime and poverty. The proximity to

crime, frequent exposure to those who violate the law, and

4 Perhaps because of a public perception that some of the failures

of the criminal justice system must be attributable to the breadth

of sentencing discretion, efforts are afoot to impose limits on that

discretion. See Part C, infra.

21

the temptation to quickly ameliorate the financial barrier

impeding attainment of a lifestyle to which some may

aspire are doubtless reasons why some economically dis-

advantaged persons turn to crime. The more affluent

resort to criminal ways also but their lessened exposure to

the first two factors just noted is an indication that there

is less of a connection between their financial status and

why they may commit criminal acts.

Given that there is a link between crime and economic

status in some cases, a sentencing judge may rightfully

consider that status. See San Antonio School District v.

Rodriquez, 411 U.S. 1, 22 (1973) (dicta). Economic status,

like other “social” factors such as family history and edu-

cational achievement, is particularly (and perhaps only**)

appropriate when the sentencing judge is considering a

disposition that does not include incarceration in the

penitentiary. Of course, in the vast majority of cases the

determinative factors guiding the judge’s discretion will

be the nature of the crime and the past record of the

defendant, and not lesser factors sich as economic status.

But if certain factors, thought by the trial judge to pro-

vide assurances of a successful non-penitentiary disposi-

tion, are present or absent in a particular case he would be

remiss if he did not consider them.

The present case is probably illustrative of the dilemma

faced by trial judges as they weigh the many factors they

must consider if they are to intelligently exercise the dis-

cretion with which they have been entrusted. In this case

the sentencing judge was faced with two young offenders

‘* If a sentence of imprisonment is clearly appropriate because of

the nature of the crime or the record of the defendant, the financial

status of the defendant should not increase or decrease the length of

the sentence. The respondent would agree that there is no rational

basis between the length of a sentence and financial status.

22

admitting that they were guilty of a serious felony,

burglary. Even though the offense was serious, the age of

the defendants probably prompted him to consider pro-

bation.

In considering probation, however, a trial judge should

at least reach some conclusion as to whether the defendant

is a good risk. A long criminal history should indicate that

the defendant is a poor risk. Other factors also enter the

picture. Is there any history of alcohol or drug abuse?

What is the family environment? Does the defendant

have a steady record of employment? The ultimate

question is almost always: Can this defendant succeed

on probation?

Only the defendant can assure success however. The

responsibility is his in the final analysis. If a defendant

and those interested in his welfare have a greater stake in

ensuring success than the avoidance of imprisonment, that

responsibility is heightened. Factors such as the employ-

ment of the potential probationer provides the sentencing

judge with some assurance that the defendant has that

added stake in success. A fine sometimes accomplishes

the same purpose.

Prepayment of the full fine, as opposed to a fine on the

installment plan, assures the sentencing judge that the

potential probationer will have a greater responsibility in

terms of conforming his conduct to the law. Consider two

hypothetical similarly situated probationers, one who has

prepaid his fine and the other who is paying his fine on the

installment basis. Further, assume that only a relatively

short period of probation is involved'* and a temptation

16 Tt could also be assumed that only a short period of service >

mains if, as in Georgia, Ga. Code Ann. § 27-2713 (1978 Rev.), the

probationer receives sentence credit for the time on probation i in the

event of revocation.

23

to violate the terms of probation occurs. The fear of

revocation and possible imprisonment in both instances

acts as a curb to the temptation. If that curb is not a

sufficient curb, however, the installment probationer may

well violate his terms; the probationer who has prepaid

his fine in full has an additional reason not to succumb to

the temptation if he has a comparatively significant

financial investment in his probation and will lose that

investment upon revocation. See Ga. Code Ann. §27-2529

(1978 Rev.).

Turning again to the case before the Court, we see the

presence of some of the factors discussed above. The trial

court specifically inquired of the defendants if and how

they could pay a fine before sentence was imposed.

(App. 3). From this it is reasonable to infer that the judge

was looking for some added assurance that the defendants

would have some stake in their probation beyond avoid-

ing revocation.

The petitioner’s codefendant provided that assurance

when he apprised the court that his father would pay his

fine. The presence of the codefendant’s father and mother

with their son, and the father’s confirmation that he would

pay the fine,'? no doubt convinced the trial judge of the

interest of the parents in the welfare of their son and thus

indicated that probation would likely be successful. The

petitioner’s representation that her cousin (and perhaps,

aunt) would pay her fine provided the trial judge with

that same assurance.'* (App. 3).

1 Costs were also made a condition of probation. (App. 4). The

legal considerations are the same, cf. Williams v. Illinois, 399 US.

235, 239 (1970), and in this case they are de minimis in comparison

even to the modest fine. See Ga. Code Ann. §§ 24-2727, 24-2823 (1976

Rev.).

The petitioner now casts aspersions on looking to others for the

payment of fines. But every trial judge knows that family concern

24

- When the assurances that prompt a judge to impose a

conditionally probated sentence do not materialize, the

factors which determined the probation-worthiness of the

defendant are no longer present. The judgment has al-

ready been made, however; the absence of the assuring

factors renders the defendant a poor risk for probation.

As the conditions embracing the reassuring factors can-

not be satisfied, the probation does not become effective

and the sentence must be serv

In most cases the availability of financial resources to

a defendant will not be a controlling factor in terms of

whether he is a good risk for probation. The nature of

the crime and the record of the defendant will be crucial.

But in some cases, such as this one, the availability of

financial resources is certainly an important factor; it is

a rational factor.

The sentencing discretion vested in trial judges should

not be limited. The availability of financial resources to

the defendant plays an appropriate role in the exercise of

that discretion. The presence or absence of economic re-

sources will play a minor, if not nonexistent, role in many

cases but in some few cases it plays an important one.

Restrictions on the sentencing discretion vested in trial

judges should not as a general proposition be applauded;

in the context of this case, a restriction on sentencing

and willingness to help, financially and otherwise, is an invaluable

in the reformation of offenders. Conversely, the absence of

‘qee/y support can only be a negative factor in terms of whether an

o ler is a good risk for probation.

* The petitioner has not explained why her expectations were not

realized. It should be noted in this connection that the Georgia pro-

cedures permit the sentencing “judge to modify or eye [the] me

bated sentence at any time during the [term ie the . . . sentence. .

Ga. Code Ann. § 27-2709 (1978 Rev.).

25

discretion, can only serve to frustrate the state’s interest

in maintaining an effective criminal justice system.

The mere possibility that some judges will abuse the

discretion with which they are entrusted should not be a

sufficient basis to limit the discretion of all judges. Cf.

Williams v. New York, 337 U.S. 241, 251-252 (1949). The

consequences of limiting that discretion are even more

frightening,- however. In the unusual, but sufficiently

numerous, cases where the trial judge is pondering pro-

bation or imprisonment and the resources available to

the defendant becomes the critical factor, he likely opts

for the former alternative if he can condition probation

on the actual existence of resource availability. If he can-

not impose such a condition, many defendants may now

find themselves incarcerated without the opportunity to

demonstrate their probation-worthiness by putting up a

financial stake. Cf. Tate v. Short, 401 U.S. 395, 401 (1971)

(Blackmun, J., concurring).

C. Public Perception

As noted earlier, it is probably accurate to say that a

large segment of the public perceives the success or fail-

ure of the criminal justice system as a direct result of the

exercise of the sentencing function. Retaining a wide sen-

tencing discretion particularly aids a system of condi-

tional release, such as probation, which must have a broad

base of public support.

Eliminating inquiry into the financial resources avail-

able to a defendant in an effort to ascertain if he is a

good risk for probation will likely result in one of two

2 Measures have been enacted in Georgia to curb abuse in the

exercise of sentencing discretion; sentences of more than five years

are reviewed for excessive harshness. Ga. Code Ann. § 27-2511.1

(1978 Rev.).

26

things, or a combination of both, and neither is desirable

from the standpoint of public policy. One reaction was

mentioned earlier; defendants who can demonstrate their

probation-worthiness by putting up a financial stake that

provides assurance that probation will be successful may

now find themselves incarcerated. Cf. Tate v. Short, 401

U.S. 395, 401 (1971) (Blackmun, J., concurring). The

other reaction is that many judges will be hesitant about

incarceration and take an increased risk on the success

of probation. As the assurance of success has diminished,

however, failures are likely to increase. As failures become

more widespread the public perception of the system as

an effective one will wane.

That the public has an acute interest in and awareness

of the effectiveness of the criminal justice system cannot

be denied. Cf. Gregg v. Georgia, 428 U.S. 153, 179-180

(1976) (plurality opinion); Roberts v. Louisiana, 428 U.S.

325, 352-353 (1976) (White, J., dissenting). Especially is

a conditional release system such as probation susceptible

to the popular will when the system is viewed as ineffec-

tive.

There is no need to canvass the movements toward

mandatory sentencing that are astir throughout the na-

tion. In Georgia the movement has recently manifested

itself in terms of two particular crimes, armed robbery

and burglary. In 1976, the minimum penalty for armed

robbery was increased from one year to five years; more

importantly, in terms of this case, a proviso was added

to preclude the suspension or probation of the sentence.

Ga. Code Ann. § 26-1902(a), (b) (1977 Rev.). Only this

year, a two-year minimum sentence was established for

a second conviction of burglary and the sentence cannot

27

be suspended or probated. Ga. Laws 1978, p. 236.1

Maintaining public confidence in Georgia’s Statewide

Probation Act is one of the utmost importance if the state

is to achieve another legitimate purpose—the rehabilita-

tion and punishment of offenders outside the confines of

a penitentiary.

D. Conclusion

As noted earlier, the petitioner concedes the validity

of the statutes authorizing probated sentences condi-

tioned upon the payment of a fine. See Ga. Code Ann.

§§ 27-2529, 27-2709, 27-2901 (1978 Rev.). Her contention

is simply that, as applied, they deny her the equal pro-

tection of the law.

We have shown, however, why in some circumstances

it is necessary for a trial judge to assess the financial re-

sources available to a defendant to assure that the de-

fendant is a good risk for probation. Assessment of re-

source availability thus furthers the undeniably rational

and legitimate state interest in vesting trial judges with

a broad sentencing discretion. Assuring trial judges a

broad sentencing discretion in turn promotes another

rational and legitimate state interest—maintaining public

confidence in the efficacy of a conditional release system.

As the relationship between any classifications drawn

and the purpose for which they are drawn is clear and

rational, under the traditional equal protection analysis

applicable to this case (see Part II, supra), the Equal

Protection Clause has not been offended. Cf. Marshall v.

United States, 414 U.S. 417 (1974) (equal protection issue

arising under Due Process Clause of Fifth Amendment).

« The statute became effective on July 1, 1978. For the present

provisio: A ay ean, g to the permissible punishments for burglary,

sec Ga. Code Ann. § 26-1601 (1977 Rev.).

28

CONCLUSION

The judgment of the Supreme Court of Georgia should

be affirmed.

Please serve:

B. DEAN GRINDLE, JR.

132 State Judicial Bldg.

40 Capitol Square, 8.W.

Atlanta, Georgia 30334

(404) 656-3356

July, 1978

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

Rosert §. Stusss, II

Executive Assistant

Attorney General

Don A. LANGHAM

First Assistant

Attorney General

Joun C. WALDEN

Senior Assistant

Attorney General

B. DEAN GRINDLE, JR.

Assistant Attorney General