Opposition — Patrick Simpson v. State of Georgia

a

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2 NO. 80-5589

IN THE . RECEIVED

SUPREME COURT OF THE UNITED STATES

JAN 21 1981

‘ OCTOBER TERM, 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

PATRICK SIMPSON, %: <4

Petitioner, ee ke oS

v. en.

wen

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

DARYL A. ROBINSON

Assistant Attorney General

Counsel of Record

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

DON A. LANGHAM

First Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

132 State Judicial Building

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3349

QUESTIONS PRESENTED

l.

In cases arising in the criminal justice system, should

lack of wealth be a suspect classification for purposes of equal

protection analysis?

ae

May a trial judge,who has made a determination that

probation is the appropriate punishment for one convicted of

a crime, later revoke that probation for the nonpayment of the

fine which was to have been p»id in installments during the

period of probation when during that period no payments are made,

nor has the offender made any effort to comply with this term

of his probation?

TABLE OF CONTENTS

QUESTIONS PRESENTED .... 2 «© «© «© © e © @ «

STATEMENT OF THE CASE. . 1» +e ee © © © @ «

REASONS FOR NOT GRANTING THE WRIT

I. ECONOMIC DISADVANTAGE HAS NOT BEEN

ACCEPTED AS A SUSPECT CLASS FOR

THE PURPOSES OF EQUAL PROTECTION

ANALYSIS IN AREAS OF THE LAW ARISING

OUTSIDE THE ADMINISTRATION OF

CRIMINAL JUSTICE «2 2 © w © © wo oe

II. THE FINANCIAL RESOURCES AVAILABLE

TO A DEFENDANT IS ONE RELEVANT

FACTOR IN DETERMINING WHETHER HE

IS A GOOD RISK FOR PROBATION.

PERMITTING A TRIAL JUDGE TO WEIGH

THIS FACTOR IN DETERMINING WHETHER

PROBATION IS APPROPRIATE, AND ON

WHAT CONDITIONS, FURTHERS THE

BROAD SENTENCING DISCRETION

NECESSARY FOR AN EFFECTIVE CRIMINAL

JUSTICE SYSTEM AND CONTRIBUTES TO

THE EFFICACY OF A PROBATION SYSTEM

WHICH, TO BE EFFECTIVE, MUST HAVE

A BROAD BASE OF PUBLIC SUPPORT...

Cone © 6 8b et ee 8 elt tke te lk

CERTIFICATE OF SERVICER .. sc cece ececevee

TABLE OF AUTHORITIES

Cases cited:

Arlington Heights v. Metro Housing, 429 U.S.

ee Sees be ek kee 8 oe Oe we oe

Berman v. United States, 302 U.S. 211 (1937).

Calhoun v. Couch, 232 Ga. 467, 207 S.E.2d 455

(1974). . . . - . ° . . . . . 7 . . . . . .

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

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

It

14

15

Cases cited cont.

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

GpaneG) ¢ » 6 # eee wee © 4 me 8 tt lt

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

Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791

(1977), cert. dismissed as improvidentl ranted,

Oe eG OES

Loving v. Virginia, 388 U.S. 1 (1967). ......-s.

Maher v. Roe, 432 U.S. 461 (1977)... .« «6 «© «© «© « «

Massachusetts Board of Retirement v. Murgia, 427

U.S. 207 (1976) * . * . . ° * . ° . . . . a . . . .

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

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

Meachum v. Fano, 427 U.S. 215 (1976) .....+.+s.s-s

Ortwein v. Schwab, 419 U.S. 656 (1973) ......-.

Roberts v. Louisiana, 428 U.S. 325 (1976) (White,

J. GROOGREINS) © os we ew ew ew ee ew eC eB ee ew tw te

San Antonio School District v. Rodriguez, 411 U.S.

1 (1973) * . - . * . . . . ° . - . . . . . . . . .

Simpson v. State, 144 Ga. App. 657, 242 S.E.2d

265, appeal dismissed for want of a substantial

federal question, 439 U.S. 887 (1978). .....-.

Simpson v. State, Ga. App. S.E.2da

(Case Nos. 59871 and 59872, de cided Oct. 31, 1981)

Tate v. Short, 401 U.S. 395 (1971) (Blackmun, J.

GORCEEESRG) « «+ = #6 @ 6 ee & 6 6 6 8 ee tw

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

Williams v. Illinois, 398 U.S. 235 Ss = © © « «

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

Williams v. Lee Opitcal Co., 348 U.S. 483 (1955) ..

Wood, et al. v. Georgia, Case No. 79-6027 .....

Statutes cited:

Ga. Code Anum. @ 2reavew eels woe 6 6 6 te elt ltl

Ga. Code Anm. § 26“a280n o@ © © © #8 © 6 4 ee ew ew ct

IIt

NO. 80-5589

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

PATRICK SIMPSON,

Petitioner,

v.

STALE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEURGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

PART ONE

STATEMENT OF THE CASE

Petitioner, Patrick Simpson, was placed on probation under

Georgia's Statewide Probation Act, Ga. Code Ann. § 27-2709,

following his convictions under the state's obscenity statute,

Ga. Code Ann. § 26-2101.

On March 24, 1977, after having been tried and found guilty

on three counts of distributing obscene material, Simpson was

sentenced to an aggregate of twenty-four months imprisonment

and a fine of $10,000.00. The sentences were probated on condition

that Simpson abide by the terms of his probation order. The

convictions and sentences were affirmed in Simpson v. State, 144

Ga. App. 657, 242 S.E.2d 265 , appeal dismissed for want of a

substantial federal question, 439 U.S. 887 (1978).

On June 14, 1978, Simpson again was convicted in State Court

of Fulton County pursuant to his plea of guilty to an indictment

containing three counts of distributing material. His aggregate

sentence was twenty-four months and $10,000.00; the sentences

were probated conditioned on payment of the $10,000.00 fine

at the rate of $500.00 a month and other conditions set out in

the probation order. Apparently no appeal was taken.

On the same day that he entered a plea of guilty to the

secoiud indictment, Simpson moved for reduction of fine on the

first conviction. The motion was denied.

Thereafter, there was filed a petition to revoke probation

on the first conviction and sentence as a result of his conviction

on the second obscenity distribution charge, a violation of the

conditions of probation. As a result of this action, the original

sentence was probated on condition Petitioner abide by the terms

of the order and that he pay $500.00 a month on the $10,000.00 fine.

Petitioner failed to abide by the conditions of his probated

sentence and, after separate hearings on November 1, 1979, both

sentences of probation were revoked and Petitioner required *o

serve his sentence in confinement. These actions were appealed

and affirmed. Simpson v. State, Ga. App. ° S.E.2d

(Case Nos. 59871 and 59872, decided October 31, 1981).

Evidence adduced at the probation revocation hearings

demonstrated that Petitioner had made less than a good faith

effort to comply with the conditions of probation. First, while

under a probated sentence requiring him not to violate the laws

of Georgia, Petitioner was arrested on similar charges to those

for which he was probated. He was, again, convicted. Second,

from June 1978 until his probation was revoked in November 1979,

Petitioner had paid a grand total of $290.00. Months passed

with no effort whatsoever at making payment. (T. 13).

PART TWO

REASONS FOR NOT GRANTING THE WRIT

INTRODUCTION

This Court has granted certiorari in Wood, et al. v. Georgia,

Case No. 79-6027. This Court's decision in Wood will be dispositive

of the issues presented in the instant case. Two issues arise:

the first, whether economic disadvantage should be a suspect

classification for purposes of equal protection analysis in these

circumstances, is implicit in the petition; the second is whether

the financial resources available to a criminal defendant is

a relevant factor in determining whether one is a good risk for

a probation. The remaining portions of this brief will address

those two issues.

I. ECONOMIC DISADVANTAGE HAS NOT

BEEN ACCEPTED AS A SUSPECT CLASS

FOR THE PURPOSES OF EQUAL PROTECTION

ANALYSIS IN AREAS OF THE LAW ARISING

OUTSIDE THE ADMINISTRATION OF

CRIMINAL JUSTICE.

The Equal Protection Clause has always been thought to allow

differences in treatment, even with some resulting inequality,

as long as the state's purpose can be rationally justified.

McGowan v. Maryland, 366 U.S. 420, 425 (1961). Absent invidious

discrimination, a rationally based classification does not run

afoul of the Equal Protection Clause. See, e.g., Massachusetts

Board of Retirement v. Murgia, 427 U.S. 207 (1976); Dandridge v.

Williams, 397 U.S. 471, 485 (1970); Williamson v. Lee Optical Co.,

348 U.S. 483, 489 (1955).

Petitioner implicitly argues that poverty is a suspect

classification and, therefore, imprisonment for failure to pay

a fine which is a condition of probation should be subjected to

strict judicial scrutiny. This Court has viewed certain classifi-

cations as inherently suspect and subjected such suspect classifi-

cations to strict judicial scrutiny. See, e.g., McLaughlin v.

Florida, 379 U.S. 184 (1964) [race]; Loving v. Virginia, 388 U.S.

1, 9 (1967) [nationality]; Graham v. Richardson, 403 U.S. 365 (1971)

{alienage]. However, economic disadvantage in itself has not been

identified as a suspect classification for purposes of equal

protection analysis. Maher v. Roe, 432 U.S. 461, 471 (1977);

San Antonio School District v. Rodriguez, 41l U.S. 1, 29 (1973);

Dandridge v. Williams, 397 U.S. 471, 484-85 (1970).

While those who are economically disadvantaged may be

confronted with an imposing wall of finances which keeps them

from the life-style which they may aspire to, and while the

fact that their financial resources are less than those of the

more affluent individuals in society, therefore causing them to

undergo greater economic hardship, this alone does not constitute

a violation of the Equal Protection Clause. In fact, government

regulations sometimes present a financial difficulty for the

economically disadvantaged who seek to take advantage of a benefit

or service which those who are financially independent can easily

pay; yet, prepayment of certain fees can be exacted from all

individuals regardless of their financial status. United States

v. Kras, 409 U.S. 434 (1973) [prepayment of fees for those who

seek to file petitions in bankruptcy]; Ortwein v. Schwab, 410

U.S. 656 (1973) [filing costs in civil appeals]. This Court

has found that states need not fund abortions for indigent women

simply because childbirth is funded, Maher v. Roe, supra, nor

must a state in its educational system require precisely equal

expenditures per pupil between the affluent and less affluent

school districts, San Antonio School District v. Rodriguez, supra,

nor must it provide additional money because a welfare recipient

has more children than the maximum number for which welfare

payments can be made, Dandridge v. Williams, supra. That there

is an adverse effect on those of slight financial means does not

render poverty a suspect classification for the purposes of equal

protection. See, e.g., Arlington Heights v. Metro Housing, 429

U.S. 252 (1977).

This Court has not been insensitive to those who are economically

disadvantaged; however, in none of the cases in which the equal

protection clause has been applied has the Court labeled indigency

a suspect class. What the Court has done is examine state

statutes and practices which place the indigent at a disadvantage

in the criminal justice process, invalidating those procedures

supported by no rational basis.

In Berman v. United States, 302 U.S. 211 (1937), poverty

in the context of probation was not found to require stricter

judicial scrutiny:

. . ». Probation is concerned with

rehabilitation, not with the determination

of guilt. It does not secure reconsid-

eration of issues that have been determined

or change the judgment that has been

rendered. Probation or suspension of

sentence "comes as an act of grace to

one convicted of a crime." [citation

omitted]. The considerations it involves

are entirely apart from any re-examination

of the merits of the litigation. Probation

was designed "to aid the rehabilitation

of a penitent offender"; "to take advantage

of an opportunity for reformation which

actual service of the suspended sentence

might make less probable." Thus probation

cannot be demanded as a right. "The

defendant stands convicted; he faces

punishment, and cannot insist on terms

or strike a bargain." [citation omitted].

Id. at 213. Consequently, while Griffin v. Illinois, 351 U.S. 12

(1956), requires a higher degree of scrutiny in matters relating

to a defendant's effective access to review a finding of guilt,

the review of a matter of probation, payment of a fine, and ultimate

atadinentnk because of a failure to meet a condition of probation

does not involve any fundamental interest requiring stricter

judicial scrutiny.

To date the Court has made it clear that economic disadvantage

is not accepted as a suspect class for purposes of equal protection

analysis in areas of the law arising outside the administration

of criminal justice; as such, economic status in itself is

insufficient to trigger strict judicial scrutiny in criminal cases.

II. THE FINANCIAL RESOURCES AVAILABLE

TO A DEFENDANT IS ONE RELEVANT

FACTOR IN DETERMINING WHETHER HE

IS A GOOD RISK FOR PROBATION.

PERMITTING A TRIAL JUDGE TO WEIGH

THIS FACTOR IN DETERMINING WHETHER

‘PROBATION IS APPROPRIATE, AND ON

WHAT CONDITIONS, FURTHERS THE

BROAD SENTENCING DISCRETION

NECESSARY FOR AN EFFECTIVE CRIMINAL

JUSTICE SYSTEM AND CONTRIBUTES TO

THE EFFICACY OF A PROBATION SYSTEM

WHICH, TO BE EFFECTIVE, MUST HAVE

A BROAD BASE OF PUBLIC SUPPORT.

The present case, as Wood, does not involve imprisonment

for the immediate failure to pay a fine, Tate v. Short, 401 U.S.

395 (1971), or imprisonment beyond the statutory maximum as a

penalty for the failure to pay a fine. Williams v. Illinois,

399 U.S. 235 (1970). Petitioner is not being held beyond the

statutory maximum penalty; rather, his basic claim must be that

he has a right to probation. Having been duly convicted, in one

instance by a jury and in the second instance by plea, and having

completed appellate review, any liberty interest which Petitioner

may have had has been extinguished. Meachum v. Fano, 427 U.S.

215 (1976).

At issue here is an examination of the sentencing function

of a trial judge. The importance of the sentencing function cannot

be over emphasized, since this is the area by which the public

assesses the success or failure of the criminal justice system.

Whether the sentence is too short, too long, or otherwise

inappropriate for the offense, may later lead the criminal defendant

to repeat his criminal endeavors, beget new criminal offenses,

or result in others committing crimes because they see that the penalty

meted out in the past has not outweighed the gain they perceive

as a result of criminal endeavors. If the public perceives an

absence of sanctions for those who violate conditions of

probation, it seems obvious the public will view probation as

a useless sentencing alternative. Similarly, if courts are

unable to enforce conditions of probation then probation may

cease to exist as a useful rehabilitative alternative.

Sentencing should be appropriate to the individual and the

crime. Williams v. New York, 337 U.S. 241 (1949). In deciding

the appropriate sentence for one convicted of a crime, there

are many factors which the trial judge must weigh. By virtue

of his office and the necessary exercise of discretion in

performing his functions, a trial judge may often face dilemmas

in weighing those factors. Family history, educational achievement,

employment opportunities, community ties, the nature of the

crime, and the record of the offender are all matters which the

trial judge takes into consideration.

In considering probation, the trial judge must reach some

conclusion on whether a defendant is a good risk. In assessing

risks, prior criminal history should be examined to indicate

whether the offender has in the past given any indication that

probation would not be successful. The judge may also consider

family and family support. In every case the judge must ask

the question whether the offender can succeed on probation.

Ultimately, only the defendant can insure a successful probation;

the responsibility is his.

When a defendant and those persons who are interested in

his welfare directly participate in insuring the success of

probation in an effort to avoid imprisonment, that responsibility

increases. The employment potential of the probationer provides

the sentencing judge with some assurance that the offender has

an added stake in the success of probation. A fine sometimes

accomplishes the same purpose.

Regardless of whether the fine is paid in advance or in

installments, it provides an assurance to the sentencing judge

that the potential probationer will have a greater responsibility

in conforming his conduct to the law. Naturally, the fear of

revocation and possible imprisonment has an immediate impact on

the probationer and may serve as a curb to overcome any temptation

to violate the terms and conditions of probation. The payment

of a fine provides a probationer with a heightened interest in

the success of his probation.

The court may also legitimately consider the offender's

ability to pay the fine; the court may consider offers of payment

from family members or from the offender's employer. There is

some indication in the testimony at the revocation hearings that

Petitioner expected such assistance in this case. (T. 27).

Certainly the interests of a probationer's employer in the

probationer's welfare,evidenced by a willingness to pay or assist

in paying a fine, is a factor which a sentencing judge can and

should consider. Payment of a fine by an employer is similar

to payment of a fine by family members or friends. Such support

is clearly an important consideration in assessing the probability

of a given probationer's success.

When the assurances that prompt a trial judge to impose

a conditional probated sentence do not materialize, the factors

which determine the probation-worthiness of the offender are

no longer present. Consequently, the basis of the judge's

decision to grant probation has been materially altered and must

be reassessed. When the assuring factors which were present

when the judge imposed probation fail to materialize the defendant

thus becomes a poor risk for probation. When the conditions

surrounding the reassuring factors to insure success on probation

cannot be satisfied, the probation does not become effective and

the sentence must be served.

Generally, the availability of financial resources to a

criminal defendant is not a controlling factor in terms of

whether the individual is a good risk for probation. It is the

nature of the crime and the record of the offender that is

crucial. However, in cases such as this, the availability of

financial resources is certainly an important factor; it is a

rational factor.

The sentencing discretion provided to trial judges should

not be limited. The availability of financial resources to the

offender plays an appropriate role in the exercise of that

discretion. The presence or existence of economic resources will

play a minor, if not nonexistent, role in many cases, but in

some few cases it plays an important role. Restrictions of

the sentencing discretion given to trial judges should not as

a general rule be applauded. In this case restrictions on sentencing

serve only 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. In Georgia, to curb any

-ll-

abuses which may occur during sentencing, the General Assembly

has adopted a Sentence Review Panel to review all sentences

of five years or more for harshness. Ga. Code Ann. § 27-2511.1.

Cf. Williams v. New York, 337 U.S. 241, 251-52 (1949). The

consequences of limiting a judge's sentencing discretion are

unthinkable. If a judge cannot impose a period of probation

because he has no means of enforcing violations of probation

then many defendants would find themselves confined 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).

The Supreme Court of Georgia in Hunter v. Dean, 240 Ga. 214,

239 S.E.2d 791 (1977), cert. dismissed as improvidently granted,

439 U.S. 281 (1978), recognized that assurance of third party

help is rational factor for a trial judge to consider in determining

probation. Id. at 218. See also Calhoun v. Couch, 232 Ga. 467,

207 S.E.2d 455 (1974).

The use of installment plans for the payment of a fine was

recognized in Williams v. Illinois, 399 U.S. 235, 245, n. 21

(1970), which cited with approval statutes in California, Michigan

and Pennsylvania. The California statute permitted the payment

of a fine in installments with imprisonment in the event of

default, but for no longer than the maximum term for which the

defendant might have been sentenced. Id. at 247. The Court

went on to say that a state cannot fail to enforce fines against

indigents because to do so would amount to inverse discrimination.

Id. at 244.

Public perception of the success or failure to the criminal

justice system is a direct result of the exercising of the

sentencing function vested in the trial judge. Permitting the

=12-

judge to have wide sentencing discretion in terms of conditional

releases such as probation, restitution, and other postconviction

sentencing alternatives must have a broad base of public support.

Recognition that the public has a keen interest in and awareness

of the effectiveness of the criminal justice system was evidenced

in this Court's 1976 opinions concerning capital punishment.

Cf. Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (plurality opinion) ;

Roberts v. Louisiana, 428 U.S. 325, 352-53 (1976) (White, J.,

dissenting). Sentencing alternatives which do not provide for

confinement are particularly susceptible to public scrutiny, and

when those alternatives are viewed as ineffective the public

reacts in seeking a legislative termination to such programs.

As the rate of crime continues to spiral, many states have

found themselves confronted with the decision of whether mandatory

sentencing procedures should be envoked. In the last several

years the movement towards mandatory sentencing has increased.

Maintaining public confidence in Georgia's Statewide Probation

Act is one of utmost importance if Georgia is to achieve another

legitimate objective, the rehabilitation and punishment of

offenders outside the confines of a penal institution.

-]3-

CONCLUSION

In summary, indigency or poverty is not a suspect classification

for equal protection analysis.

It is evident that in some circumstances it is necessary for

a sentencing judge to assess the financial resources available

to an offender to ensure that he is a good probation risk. Such

an examination furthers the undeniable rational and legitimate

state interest in investing trial judges with a broad sentencing

discretion. Consideration that payment will be made in whole

or part by a third party strengthens the probability of an

offender's chances for a successful probation.

In assuring trial judges a broad sentencing discretion

another rational and legitimate state interest is promoted:

maintaining public confidence in a conditional release system.

The relationship between any classifications drawn and the

purpose for which they are drawn is clear and rational. Under

traditional equal protection analysis such classifications are

legitimate and acceptable and do not offend the Constitution.

Consequently, the judgment of the Court of Appeals of Georgia

should be affirmed.

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

ROBERT |S. STUBBS, II

Executive Assistant

Attorney General

ker Gr Kuh

Son A. LANGHAM /

First Assistant Attorney General

132 State Judicial Bldg.

40 Captiol Square, S.W. ne") Wa yt

Atlanta, Georgia 30334 Ay “yee

(404) 656-3349 “ DARYL A. ROBINSON \

Assistant comeeell General

Counsel of Record