Petitioners Brief — Bearden v. Georgia

Office - Supreme Cour, U.

FILED

AUC 18 1962

No. 81-6633 ALEXANDER C STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Danny R. BEARDEN,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

On Writ Of Certiorari To The

Court Of Appeals Of Georgia

BRIEF FOR PETITIONER

James H. Long

428 McCallie Avenue

Chattanooga, TN 37402

(615) 756-5880

Counsel for Petitioner

PRESS OF BYRON s. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTION PRESENTED FOR REVIEW

Does the Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United States

prohibit the revocation of an indigent defendant’s proba-

tion for his failure to pay a fine and restitution when that

probation is being served under the Georgia First Offen-

der’s Act?

TABLE OF CONTENTS

Page

SE BUTI —üä—ö—]?¹XwC iv

CITATION TO OPINION OF COURTS BELOW .............. 1

GROUNDS FOR JuxisoIcCTrIioh 1

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED . 1

C — 3

SUMMARY OF AGοu nnr 6

eres sss 7

I. The Purpose Of The —— First Offender’s Act Is

To Provide Rehabilitation For A Defendant Without

Imposing A Criminal Record And Without In-

Cc T Se eee 9

II. Criminal Defendants Who Are Indigent Are Not To

Be Denied Rights And Benefits a To

Increased Incarceration Solely Because Of Their In-

III. Analysis Under The Equal Protection Clause. 13

A. Petitioner is a member of a suspect class ... 16

B. Petitioner’s inability to pay his fine and restitu-

tion deprived him of a tal right ...

C. There is no sufficient, legitimate State interest

which will support the discriminatory classifica-

tion created by the State of Georgia ........ 20

IV. There is no revelant distinction between the Peti-

tioner’s failure to pay his fine and his failure to pay

. 12„57çé4,’HůHũ 2⁵

. 25

iv

TABLE OF AUTHORITIES

CASEs: Page

Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 280 (1975) 12

Barnett v. Hopper, 548 F.2d 550 (5th Cir.

K 6, 12, 17. 22, 24

Bullock v. Carter, 405 U.S. 134 (197 ᷣ 20

Calhoun v. Couch, 232 Ga. 467, 207 S. E. 2d 455 (1974) 12

ee eee 14

Craig v. Boren, 429 U.S. 190 (19760))⸗: 15

Douglas v. California, 372 U.S. 353 (1963) .......... 11

Dunn v. Blumstein, 405 U.S. 330 (1972) ........... 15, 19

Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) ...... 12

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

Griffin v. Illinois, 351 U.S. 12 (1956) ....... 10, 11, 13, 16

Harper v. Virginia Board of Elections, 383 U.S. 663

11777ͤ— x 16, 19

Harris v. McRae, 448 U.S. 297 (1980) ............... 17

Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977) .12, 23

Hutchinson v. Jones, 477 F.Supp. 51 (N.D. Ga. 1979) . 25

Maher v. Roe, 432 U.S. 464 (1977 14, 17

Massachusetts Board of Retirement v. Murgia, 427 U.S.

eee esse Sees 14, 15

Memorial Hospital v. Maricopa County, 415 U.S. 250

K AA 14

Morris v. Schoonfield, 399 U. S. 508 (1970) 12

Plyler v. Doe, 50 U. S. L. W. 4650 (1982) ............. 6, 15

Radcliff v. State, 134 Ga. App. 244, 214 S. E. 2d 179 (1975) 5

San Antonio Independent School District v. Rodriguez,

. r 14, 17

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 14

State v. Wiley, 233 Ga. 316, 210 S.E.2d 790 (1974) ... 10

Stevens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980) ..9, 23

Tate v. Short, 401 U.S. 395 (1971) ........... 6, 11, 12, 21

*

Table of Authorities Continued

Page

Williams v. Illinois, 399 U.S. 235 (1970) .... 6, 11, 21, 25

Wood v. Georgia, 450 U.S. 261 (1981) ............. 12, 23

CONSTITUTIONS AND STATUTES:

U.S. Const. amend. XIV, 1 13

JJ E 19

Ga. Cope ANN. § 26-1601 (Supp. 1981) .............. 9

Ga. Cope ANN. §§ 26-1806, 181222 90

Ga. Cope ANN. § 27-270 fe) (Supp. 1981) 24

Ga. Cope ANN. § 27-2727 (Supp. 1981) ..... 8 4

Ga. Cope ANN. § 27-2728 (Supp. 1981) .............. 90

Ga. Cope ANN. § 27-2728. 1 (Supp. 1981 Pig

OTHER AUTHORITIES:

Gunter, Forward: In Search of Evolving Doctrine On A

hanging Court: A Model For A Newer Equa

Protection, 86 Harv. L. Rev. 1 (1972) ..... a

Note, Imprison ment for Nonpayment of Fine and Costs:

a New Look the — 2 ——— 22

Vand. L. Rev. 611 (19GB) ůůůʒhnnJn n 21

CITATION TO OPINIONS OF COURTS BELOW

There is no written opinion from the trial court or from

the Supreme Court of Georgia. The citation for the opin-

ion from the Court of Appeals of Georgia is: Bearden v.

State, — Ga. App., 288 S.E.2d 662 (1982).

GROUNDS FOR JURISDICTION

The judgment of the Court of Appeals of Georgia

sought to be reviewed was dated and entered February

24, 1982. The petitioner filed a timely motion for rehear-

ing which was denied on March 15, 1982. The petitioner

subsequently filed a timely petition for writ of certiorari

in the Supreme Court of Georgia which was denied on

April 8, 1982.

The provisions of 28 U.S.C. § 1257(3) confer upon this

Court jurisdiction to review the judgment of the Court of

Appeals of the State of Georgia by writ of certiorari.

CONSTITUTIONAL PROVISIONS AND STATEMENTS

INVOLVED

U.S. Constitution Amendment 14, § 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein the

reside. No State shall make or enforce any law whic

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due proc-

ess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Georgia Code Annotated § 27-2727

Upon a verdict or plea of guilty or a plea of nolo

contendere but before an adjudication of guilt, the

court may, in the case of a defendant who has not

been previously convicted of a felony, without enter-

2

ing a judgment of guilt and with the consent of the

defendant, defer further proceeding and place the

defendant on probation as provided by the Statewide

Probation Act [§§ 27-2702 through 27-2726.1]. Upon

violation of the terms of probation, or upon a convic-

tion for another crime, the court may enter an

* of guilt and proceed as otherwise pro-

vided. No person may avail himself of the provisions

of this law IS 27- through 27-2732] on more than

one occasion.

(Acts 1968, pp. 324, 325.)

Georgia Code Annotated § 27-2728

Upon fulfillment of the terms of probation, or upon

release by the court jw wd to the termination of the

period thereof, the defendant shall be discharged

without court adjudication of =. Such discharge

shall completely exonerate the defendant of any

criminal pu , Shall not effect any civil right or

liberties, he shall not be considered to have a

criminal conviction. Should a person be placed under

robation under this law [§§ 27-2727 through 27-

J, a record of the same shall be forwarded to the

Georgia Crime Information Center. Without request

of the offender, a record of discharge and exonera-

tion, as above provided, shall in every case be for-

warded to the ia Crime Information Center. In

every case in which the record of Probation shall

have been previously forwarded to the office of the

State Probation System, the Georgia Crime In-

formation Center and to the Identification Division

of the Federal Bureau of Investigation and a record

of a subsequent discharge and exoneration of such

offender has not been forwarded as above provided,

upon request of the offender or his attorney or

representative such record of the same shall be for-

warded by the clerk of the Court so as to reflect such

disc and exoneration.

— , pp. 324, 325; 1978, p. 1621, eff. July 1,

3

Georgia Code Annotated § 27-2728.1

Except as otherwise provided in this law [§§ 27-2727

through 27-2732], a discharge under the provisions of

this law is not a conviction of a crime under the laws

of this State and may not be used to disqualify a

person in any application for employment or appoint-

ment to office in either the public or private sector.

(Acts 1978, pp. 1621, 1622, eff. July 1, 1978.)

Georgia Code Annotated § 2-501

The General Assembly may pers. from time to

time, for the registration of all electors, but the

following classes of person shall not be permitted to

register, vote or hold any office, or appointment of

honor, or trust in this State, to-wit: Ist. Those who

shall have been convicted in any court of competent

jurisdiction of treason against the State, of embezzle-

ment of public funds, malfeasance in office, bribery

or larceny, or of any crime involving moral turpitude,

punishable by the laws of this State with imprison-

ment in the penitentiary, unless such persons shall

have been pardoned. 2nd. Idiots and insane persons.

STATEMENT OF THE CASE

In the 1980 September term of the Superior Court of

Catoosa County, Georgia, the Petitioner was indicted for

the felonies of burglary and theft by receiving stolen

property. (J.A. 1-3, 6-8). Petitioner entered pleas of guil-

ty in both cases, (J.A. 1,6), and was sentenced on October

8, 1980, under the provisions of the Georgia First Offen-

der’s Act (GA. CODE ANN. 58 27-2727 to 2732). J. A. 4,5,9,

10). The Petitioner was sentenced to serve three years on

probation in the burglary case, (J.A. 4), and in the theft

by receiving case was given a concurrent one year sent-

ence to be served on probation. (J.A. 9).

1

The trial court imposed several conditions upon the

Petitioner's probation. Among these conditions was the

requirement that the Petitioner pay two hundred

($200.00) dollars restitution in the theft by receiving case

within four (4) months of October 8, 1980. (J.A. 9). In the

burglary case the Petitioner was further ordered to pay a

fine of five hundred ($500.00) dollars and fifty ($50.00)

dollars restitution; one hundred ($100.00) dollars of which

was to be paid immediately, one hundred ($100.00) dollars

to be paid the next day (October 9, 1980), and the balance

of three hundred fifty ($350.00) dollars to be paid within

four (4) months of October 8, 1980. (J.A.4).

On May 29, 1981, the State of Georgia filed a petition in

the trial court to revoke the Petitioner’s probation. The

State’s petition alleged that the Petitioner had violated

the conditions of his probation by committing a burglary

on May 10, 1981,' and by failing to make a timely payment

of his fine and restitution as ordered under the sentences

imposed under the First Offender’s Act. (J.A. 11,12). On

June 3, 1982, a hearing was held on the State’s petition

before the Superior Court of Catoosa County. At that

hearing the State abandoned the alleged burglary as a

ground for revocation of the Petitioner’s probation and

relied solely on the ground that the Petitioner had failed

to pay his fine and restitution as ordered. J. A. 26).

Petitioner’s sole defense was that he was indigent and

totally unable to comply with the condition of probation

requiring him to make payment of a fine and restitution.

The Petitioner asserted that to revoke his probation for

Although it is not a part of the record in this case, Petitioner

would state to the Court that after being indicted for this burglary

and after a trial on that indictment, a jury found the Petitioner not

guilty.

5

his failure to pay the fine and restitution was in violation

of the Equal Protection Clause of the United States Con-

stitution.

After hearing the testimony of the Petitioner, his wife,

and a probation officer, and after brief oral argument, the

trial court found that the Petitioner violated the condi-

tions of probation by “failing to pay the amount ordered to

be paid by Judge Coker, and in further failing to report to

the probation officer periodically.” (J.A. 45). On these

two grounds the court ordered the Petitioner’s probation

revoked, (J.A. 14,15), and sentenced him to serve a term

in the penitentiary.*

Since the trial court was unauthorized to revoke Peti-

tioner’s probation on a ground not stated in the petition,

Radcliff v. State, 134 Ga. App. 244, 214 S.E.2d 179

(1975), the Georgia Court of Appeals upheld the trial

court’s revocation solely on the ground that the Petitioner

had failed to pay his fine and restitution as ordered. (J.A.

19-21). The Court of Appeals denied a Motion for Rehear-

ing, (Attachment to the Record), and the Georgia Su-

preme Court denied a Petition for a Writ of Certiorari.

(Attachment to the Record). This Court then granted

Petitioner’s Writ for Certiorari to review this case. (J.A.

50).

The Trial Court initially sentenced the Petition to serve five years

for the offense of burglary, (J.A. 16), and three years to run con-

currently for the offense of Theft by Receiving Stolen Property.

(J.A. 17). Upon the Petitioner’s motion to modify the sentence, the

trial court reduced the Petitioner’s sentence to the remaining time he

originally had to serve on probation. (J.A. 18).

6

SUMMARY OF ARGUMENT

This Court has previously given consideration to crimi-

nal defendants who have been deprived of important

rights and benefits solely because of their indigency.

With respect to the sentencing phase of the criminal

process, it has been held that an indigent defendant can-

not receive additional incarceration solely because he is

unable to pay a fine. Tate v. Short, 401 U.S. 395 (1971);

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

have been held to prevent the jailing of an individual who

is financially unable to pay a fine which is a condition of

probation. Barnett v. Hopper, 548 F.2d 550 (5th Cir.

1977). The application of the principles found in the opin-

ions of this Court and in cases decided by the United

States Court of Appeals for the Fifth Circuit require a

finding that the revocation of the Petitioner’s probation

violated the Equal Protection Clause of the Fourteenth

Amendment to the United States Consititution. The

above cases have not applied a traditional analysis under

the Fourteenth Amendment. However, such an analysis

leads to the same result.

The Equal Protection Clause requires a state to show

that a classification is necessary to achieve a compelling

state interest if a classification infringes upon a fun-

damental right or is to the disadvantage of a member of a

suspect class. In such a case the classification must be

narrowly drawn. In certain limited circumstances which

do not involve a suspect class or fundamental right, this

Court will require the state to show a substantial rela-

tionship between an important state objective and the

classification created by the state. Plyler v. Doe, 50

U.S.L.W. 4650 (1982). Otherwise, the Equal Protection

Clause only requires that the classification be rationally

related to some legitimate, articulated objective.

7

The Petitioner is indigent and totally unable to pay the

sum required to receive the benefits of serving his proba-

tion under the First Offender’s Act. His indigency along

with a total deprivation of significant benefits places him

in a suspect class. In addition, the revocation of the Peti-

tioner’s probation resulted in an adjudication of guilt in

two felony cases. This adjudication of guilt deprived the

Petitioner of several important and fundamental rights,

including the right to vote. Since the Petitioner is a mem-

ber of a suspect class and because there has been an

infringement upon his fundamental rights, strict scrutiny

should be applied.

Even if this Court should find that strict scrutiny is not

appropriate, the classification still cannot withstand an

intermediate or lower level of judicial review. There are

no articulated state objectives which are furthered by the

revocation of the Petitioner’s probation. The State of

Georgia exceeded the limits imposed by the Equal

Protection Clause and therefore the lower courts should

be reversed.

ARGUMENT

At the outset it should be stated that this case does not

involve nonpayment by an individual who is capable of

paying but simply refuses to abide by a court order. This

case, likewise, does not raise the issue as to whether

there were any grounds other than the Petitioner’s fail-

ure to pay his fine and restitution upon which the revoca-

tion might have been based.

At the time the order under the First Offender’s Act

was entered requiring the Petitioner to pay his fine and

restitution, the Petitioner knowingly consented to and

intended to abide by that order. (J.A. 40). In order to pay

the first two hundred ($200.00) dollars which was due

8

immediately, the Petitioner borrowed that money from

his parents. (J.A. 34,35). The Petitioner was employed at

a Rockwell International Plant at the time his plea was

entered, (J.A. 32), and in November of 1980 the Petition-

er was laid off from his job. (J.A. 33,41). The Petitioner,

having only a ninth grade education, (J.A. 41), and a

limited ability to read, (J.A. 37), was unsuccessful in his

continued and extensive efforts to gain employment after

he was laid off. (J. A. 32,34,36,39). The Petitioner had

absolutely no income or property from which he could

obtain sufficient funds to comply with the trial court’s

order. (J.A. 32,36,37). When the time for payment ar-

rived, the Petitioner, in good faith, notified his probation

officer that he was without funds to pay the amounts

required. (J.A. 37).

The trial court did not make a specific finding of fact

that the Petitioner was indigent and unable to pay his fine

and restitution as ordered, but such a conclusion is im-

plied by statements made by the court. For example, the

court stated, “I know, and I hate to see $550 or the lack of

$550, put this boy in prison”. (J.A. 45). The court further

stated, “I’m well aware of the indigency provision, and I

know that there are times when a person doesn’t have

funds that he’s supposed to have, but in any event, the

Court finds that this defendant has failed to abide by the

previous order of this Court. (J. A. 45). The only

conclusion that can be drawn from the evidence in-

troduced at the hearing and the findings of the court is

that the Petitioner was willing but totally unable to pay

the fine and restitution as ordered.

9

I. The Purpose Of The Georgia First Offender’s Act Is To

Provide Rehabilitation For A Defendant Without Impos-

ing A Criminal Record And Without Incarceration.

The Legislature for the State of Georgia has enacted

particular provisions providing specific benefits to cer-

tain individuals who for the first time are found guilty ofa

criminal offense. This legislation is generally referred to

as the First Offender’s Act and is available to a defendant

only one time. GA. CobE ANN. § 27-2727 (Supp. 1981).

After an individual enters a plea of guilty, or is convicted

of a criminal offense, the trial court may, if it deems the

circumstances appropriate, defer further proceedings

and place the defendant on probation. Ga. CoDE ANN.

§ 27-2727 (Supp. 1981). If a defendant successfully serves

his probation, he is discharged without an adjudication of

guilt on the underlying crime. “Such discharge shall

completely exonerate the defendant of any criminal pur-

pose, shall not affect any civil rights or liberties, and he

shall not be considered to have a criminal conviction.” GA.

Cob ANN. § 27-2728 (Supp. 1981). Once an individual is

discharged his prior plea of guilty “may not be used to

disqualify . . . [him] in any application for employment or

appointment to office in either the public or private sec-

tor.” GA. CODE ANN. § 27-2728.1 (Supp. 1981).

If a defendant’s probation is revoked he must be cred-

ited with the time he successfully spent on probation,

however, the Judge may then sentence the defendant to

any sentence which could have originally been imposed.’

Stevens v. State, 245 Ga. 835, 268 S. E. 2d 330 (1980). The

The crime of burglary carries a maximum sentence of 20 years.

Ga. Cope ANN. § 26-1601 (Supp. 1981). A felony conviction for Theft

by Receiving Stolen Property carries a maximum penalty of 10 years.

Ga. Cope Ann. §§ 26-1806, 1812.

10

Judge at the time of placing the defendant on probation

under the First Offender’s Act and the Order entered by

the Court must have made it clear that at the time of

resentencing after revocation any sentence which could

have been originally imposed may then be given. If that is

not made clear to the defendant then the trial court at the

time of revocation can only enter an adjudication of guilt

and require the defendant to serve the remainder of his

original probated time. Id. The primary purpose of this

scheme is to provide rehabilitation for convicted defend-

ants without incarceration or the stigma of a felony. State

v. Wiley, 233 Ga. 316, 210 S.E.2d 790 (1974).

In the present case the Petitioner has lost significant

benefits solely because of his inability to pay the fine and

restitution. Specifically, he has lost the conditional liber-

ty he enjoyed while on probation and has further been

deprived of certain of his civil rights by the entry of an

adjudication of guilt.

II. Criminal Defendants Who Are Indigent Are Not To Be

Denied Rights And Benefits Or Subjected To Increased

Incarceration Solely Because Of Their Indigency.

“Providing equal justice for poor and rich, weak and

powerful alike is an age-old problem”. Griffin v. Illinois,

351 U.S. 12,16 (1956) (footnote omitted). For over two

and a half decades this Court has been presented with a

variety of issues arising out of classifications of in-

dividuals based on wealth. This Court recognizes that the

Equal Protection Clause to the United States Constitu-

tion provides special protection to an individual who is a

member of a “discrete and insular” minority and is re-

stricted in his ability to protect his own interests. See,

Graham v. Richardson, 403 U.S. 365,372 (1971).

11

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

efforts of this Court to remove discrimination against

indigent defendants in criminal cases. In that case it was

held that the State of Illinois violated the Equal Protec-

tion Clause of the Constitution when it refused to provide

an indigent with a transcript of the trial proceedings

which was necessary for the prosecution of an appeal. Not

only must a state make available a method for an indigent

to exercise his right to prosecute an appeal, but the state

must also provide counsel to assure that the exercise of

that right will be meaningful. Douglas v. California, 372

U.S. 353 (1963).

Based upon the principles enumerated in Griffin,

Douglas and other similar cases, this Court has “pointed-

ly demonstrated that the passage of time has heightened

rather than weakened the attempts to mitigate the dis-

parate treatment of indigents in the criminal process.”

Williams v. Illinois, 399 U.S. 235,241 (1970) (footnote

omitted). In Williams, this Court held that an indigent

could not be imprisoned beyond the statutory maximum

term for a specific crime to work off a fine which was also

imposed as part of his sentence. This Court held that

“once the State has defined the outer limits of incarcera-

tion necessary to satisfy its penological interests and

policies, it may not then subject a certain class of con-

victed defendants to a period of imprisonment beyond the

statutory maximum solely by reason of their indigency.”

Id. at 241,242. To do so is a violation of the Equal Protec-

tion Clause of the United States Constitution.

Where a state has a fine only policy for traffic offenses

an indigent cannot be imprisoned to work off the fines

imposed for his violation of those traffic ordinances. Tate

v. Short, 401 U.S. 395 (1971). Quoting from a concurring

12

opinion by Mr. Justice White in the case of Morris v.

Schoonfield, 399 U.S. 508 (1970), this Court held:

“the same constitutional defect condemned in Wil-

liams also inheres in jailing an indigent for failing to

make immediate payment of any fine, whether or not

the fine is accompanied by a jail term and whether or

not the jail term of the 1 extends beyond the

maximum term that may be imposed on a person

illing and able to pay a fine. In each case, the

Constitution prohibits the State from imposing a fine

as a sentence and then automatically converting it

into a jail term solely because the defendant is in-

digent and cannot forthwith pay the fine in full.” Tate

v. Short, 401 U.S. 395,398 (1971).

Imprisonment for the failure of an indigent to pay his fine

under those circumstances did not further any legitimate

state purpose.

The principles expressed by this Court in the above

cases apply with equal force to situations where indigents

are unable to pay a fine which is imposed as a condition of

probation. Wood v. Georgia, 450 U.S. 261 (1981) (White,

J., dissenting). (Where it was stated that the State of

Georgia exceeded the limits of the Constitution when it

revoked a defendant’s probation for his failure to make

installment payments on a fine.); Barnett v. Hopper, 548

F. 2d 550 (5th Cir. 1977). (Where it was held a violation of

the Equal Protection Clause to condition a probated sent-

ence upon the immediate payment of a fine and court costs

when the defendant was financially unable to pay.); Fru-

zier v. Jordan, 457 F. 2d 726 (5th Cir. 1972). (Where it was

held that the imprisonment of an indigent defendant for a

failure to pay a fine under an alternate sentence of a $17

fine or 13 days in jail was unconstitutional). Contra, Hun-

ter v. Dean, 240 Ga. 214, 239 8 E.2d 791 (1977); Barnett v.

Hopper, 234 Ga. 694, 217 S.E.2d 280 (1975); Calhoun v.

Couch, 232 Ga. 467, 207 S.E.2d 455 (1974).

13

In the present case the sentencing judge, by placing the

Petitioner on probation, found that no imprisonment was

necessary to satisfy the penological interest of the State.

Once this determination was made, the Equal Protection

Clause prevents the State from subjecting this Petitioner

to incarceration for his failure to pay a fine. To do so is to

invidiously discriminate against the Petitioner solely be-

cause he is indigent.

III. Analysis Under The Equal Protection Clause.

The Equal Protection Clause provides that no state

shall “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § I. A

correct analysis under the Equal Protection Clause must

first begin with an appropriate description of the

classification which is alleged to be constitutionally defec-

tive. A state law whether statutorily or judicially created

need not specifically designate the classification which is

challenged. “{A] law nondiscriminatory on its face may be

grossly discriminatory in its operation.” Griffin v. Illi-

nois, 351 U.S. 12,17 n.11 (1956).

In the present case the law of Georgia categorizes

individuals who are serving a probated sentence con-

ditioned upon the payment of a fine (or restitution or cost)

into two classes; i.e. those who pay and those who don't.

The law treats those two classes differently. Specifically,

those who pay and otherwise abide by the other condi-

tions of their probation retain their liberty. Those who do

not pay go to jail.

It is conceivable that the class which is subject to

imprisonment may itself be composed of two types of

individuals—those who are able to pay but simply refuse

to abide by the order of the court and those who are

unable to pay because of their indigency. For the purpose

14

of this argument, the Petitioner assumes that there is no

constitutional infirmity when a court revokes a defend-

ant’s probation for a willful failure to pay his fine. The

constitutional infirmity of the ciassification by the State

of Georgia is that the class of individuals subject to having

their probation revoked is overbroad and overinclusive.

Specifically, it includes those individuals who are totally

unable to aide by a court’s order because of their in-

digency. In situations where a state must show a compell-

ing state interest the classification must be narrowly

drawn and an overinclusive classification will be found to

violate the Equal Protection Clause. E.., Carey v.

Population Services International, 431 U.S. 678 (1977);

Memorial Hospital v. Maricopa County, 415 U.S. 250

(1974).

After defining the classification it must then be de-

cided:

[F]Jirst, whether . the classification] operates to

the disadvantage of some suspect class or impinges

upon a 8 right — * or implicityly

protected by the Constitution, thereby iri

strict judicial scrutiny. .. If not 4 —

must still be examined to determine whether it

rationally furthers some legitimate, articulated state

purpose and therefore does not constitute an in-

vidious discrimination violation of the Equal Protec-

yer l — Kode —

ntonio t Se istrict v. riguez,

411 U.S. 1,17(1973). Accord, Maher v. Roe, 432 U.S.

464 (1977); Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 (1976).

Strict judicial scrutiny places upon the state the burden

of showing that the classification is necessary to achieve a

compelling state interest. Shapiro v. Thompson, 394

U.S. 618 (1969). This state interest must also be legiti-

mate and the classification must be the least intrusive

15

method of achieving that legitimate compelling interest.

Dunn v. Blumstein, 405 U.S. 330 (1972).

This two-tier analytical model used by this Court has

been subject to criticism because of its rigidity and its

failure to require more than a mere rational relationship

for significant personal rights and interests which do not

pass the test required for strict judicial scrutiny. E. g.,

Massachusetts Board of Retirement v. Murgia, 427 U.S.

307 (1976) (Marshall, J., dissenting). It has been sug-

gested that this Court has in fact used intermediate

standards of review to strike down classifications which

do not involve a traditional suspect class or fundamental

interest. Gunther, Forward: In Search of Evolving Doc-

trine On A Changing Court: A Model For A Newer Equal

Protection, 86 Harv. L. Rev. 1 (1972). In subsequent

majority opinions of this Court there appears further

support for the argument that intermediate standards of

review have been used. E. g., Craig v. Boren, 429 U.S.

190 (1976) (Where this Court held that “classifications

based on gender must serve important governmental

objectives and must be substantially related to the

achievement of those objectives.” Id. at 197).

A recent majority opinion of this Court appears to have

explicitly accepted a new intermediate level of review. In

the case of Plyler v. Doe. 50 U.S.L.W. 4650 (1982), this

Court stated:

In addition [to strict judicial scrutiny], we have rec-

ized that certain forms of legislative classifica-

tions, while not facially invidious, nonetheless give

rise to recurring constitutional difficulties; in these

limited circumstances we have sought the assurance

that the classification reflects a reasoned judgment

consistent with the ideal of equal protection by in-

quiring whether it may fairly be viewed as furthering

16

a substantial interest of the State. Id. at 4654 (foot-

note omitted).

This Court struck down the Texas law denying un-

documented school-age children free public education be-

cause that State failed to show a furtherance of some

substantial State interest.

In the present case the Petitioner asserts that strict

judicial scrutiny is appropriate. However, even if the

Court should apply a lower standard of review the revoca-

tion of his probation violates the Equal Protection Clause.

A. Petitioner is a member of a suspect class.

In cases involving indigent criminal defendants this

Court has previously failed to analyze the Equal Protec-

tion Clause by the two-tier analysis outlined above. How-

ever, those cases have made it clear that when an indigent

criminal defendant is deprived of some important right or

his liberty, considerably more scrutiny will be given to a

state’s justification than in cases where a state’s

classifications are subjected to the mere rationality test.

In Griffin it was stated: “In criminal trials a State can no

more discriminate on account of poverty than on account

of religion, race or color.” Griffin v. Illinois, 351 U.S.

12,17 (1956). This statement, along with the language of

this Court in the cases following Griffin, clearly indicates

that important rights of indigent criminal defendants will

be given a high degree of scrutiny when they are in-

fringed upon because of that defendant’s poverty. Not

only has this Court disapproved of state actions adversely

affecting indigent criminal defendants but in certain sett-

ings wealth classifications which deprive individuals of

certain fundamental or important rights have been dis-

favored. E. g., Harper v. Virginia Board of Elections, 383

U.S. 663 (1966). Because of the petitioner’s poverty he

has been denied his liberty and fundamental rights, and

17

has been treated differently from a nonindigent criminal

defendant.

The petitioner recognizes that It jhis Court has held

repeatedly that poverty, standing alone, is not a suspect

classification.” Harris v. McRae, 448 U.S. 297,323 (1980);

Accord, San Antonio Independent School District v.

Rodriguez, 411 U.S. 1(1973); Maher v. Roe, 432 U.S. 464

(1977). Ciearly, classifications based only on wealth are

not sufficient to raise the examination of a state’s interest

to the level of strict judicial scrutiny. As a result the

United States Court of Appeals for the Fifth Circuit has

been hesitant to designate an individual who was unable

to pay his fine which was imposed as a condition of proba-

tion as a member of a suspect class, although the result

reached by the Court of Appeals was the same as if that

individual was a member of such a class. Barnett v. Hop-

per, 548 F.2d 550 (5th Cir. 1977).

Close consideration should be given to the principles

found in the case of San Antonio Independent School

District v. Rodriguez, 411 U.S. 1 (1973), in determining

whether Petitioner is a member of a suspect class. In

Rodriguez the Texas Public School Systems provided

more money per pupil in districts where more affluent

citizens resided han in districts where poor people lived.

It was alleged that this discrimination was based on

wealth and operated to the disadvantage of those in-

dividuals living in the poorer districts. It was alleged that

this classification was suspect thus requiring strict judi-

cial scrutiny. However, this Court refused to give such

treatment to “a large, diverse, and amorphous class,

unified only by the common factor of residence in districts

that happened to have less taxable wealth than other

districts.” Jd. at 28 (footnotes omitted). In the majority

holding of the Court, Justice Powell first addressed the

18

issue of what type of classifications based on wealth have

been treated as suspect by this Court. In analyzing the

prior decisions of this Court Justice Powell found that

impermissible discrimination has been found when two

essential factors exist. The first factor requires that the

classification contain individuals who “because of their

impecunity . . . were completely unable to pay for some

desired benefit.” Id. at 20. The second factor requires

that this class of individuals show that as a result of their

inability to pay for the benefit they have “sustained an

absolute deprivation of a meaningful opportunity to enjoy

that benefit.” Id. at 20. The opinion of Justice Powell

clearly implies that individuals who are unable to pay the

prescribed sum required to obtain a desired benefit, and

as a result are absolutely precluded from receiving that

benefit, would comprise a suspect classification and judi-

cial relief would be proper.

Justice Stewart in an concurring opinion explicitly rec-

ognized that in some settings classifications based upon

wealth are suspect. Apparently, such would be the situa-

tion in a setting of a criminal proceeding where there is

“actual or functional indigency”. Id. at 61 n.6. The dis-

senting opinion of Justice Marshall, with Justice Douglas

concurring, finds that classifications based on wealth do

not require the same exacting degree of scrutiny as is

required in “classifications based on . . . race or alien-

age.” Id. at 121. However, Justice Marshall would have

applied an intermediate test requiring “careful judicial

scrutiny” of Texas’ justifications for this classification

based on the wealth of the individuals living in the differ-

ent school districts. Id. at 124.

in the present case the Petitioner meets all the require-

ments which are stated in Rodriguez as necessary to

exact strict judicial scrutiny. The petitioner was

19

functionally indigent. He was totally unable to pay his

fine and restitution on which his probation was con-

ditioned. The benefits of probation, which were signifi-

cant, were completely and absolutely denied to him be-

cause of his indigency. The peitioner lost his liberty and

freedom, the right to be discharged without a criminal

record, the opportunity to retain all of his civil rights and

liberties, and the opportunity to be free from disqualifica-

tion for employment or appointment to office in both the

public and private sector. Because of Petitioner's in-

digency he has been completely deprived of all the bene-

fits available to him while he was serving his probation

under the First Offender’s Act.

B. Petitioner's inability to pay his fine and restitution

deprived him of a fundamental right.

The Petitioner’s failure to pay the fine and restitution

resulted in the entry of an adjudication of guilt to the

felonies of burglary and theft by receiving stolen goods.

For the purpose of showing an infringement upon the

Petitioner’s fundamental rights, it is sufficient to note

that the entry of the adjudication of guilt for the above

crimes resulted in the Petitioner’s loss of his right to vote.

Ga. Cob ANN. § 2-501. This Court has explicitly held

that the right to vote is one of the most fundamental

rights and that any infringement upon that right because

of an individuai’s economic status is subject to the highest

degree of judicial scrutiny. Harper v. Virginia Board of

Elections, 383 U.S. 663 (1966). See, Dunn v. Blumstein,

405 U.S. 330 (1972). Petitioner is aware that his failure to

pay the fine and restitution directly related to the entry of

the adjudication of guilt, and that it might be suggested

that the failure to pay the fine and restitution only in-

directly related to the consequential loss of his fun-

damental right to vote. However, it makes no difference

20

if the loss of his right to vote was only incidental to the

failure to pay the fine and restitution.

In the case of Bullock v. Carter, 405 U.S. 134 (1972), a

candidate for public office was completely unable to pay

the required filing fee before his name would be placed

upon the ballot. This Court held that the right to become a

candidate for public office was not a fundamental right,

but that this “exclusionary mechanism” substantially lim-

ited the Texas voters “in their choice of candidates.” Id.

at 144. Because of the impact on the voters’ fundamental

right to vote for a candidate of their own choosing—and

this impact is obviously indirect—the Court held that the

requirement of the filing fee was subject to strict scru-

tiny. In the present case the petitioner’s fundamental

right to vote is more severely and directly affected than

were the rights of the Texas voters.

C. There is no sufficient, legitimate state interest which

will support the discriminatory classification created

by the State of Georgia.

If this Court finds merit in the Petitioner’s position that

strict judicial scrutiny is to be applied in this case, then

the State has the burden of showing that the revocation of

the Petitioner’s probation was necessary to achieve a

legitimate compelling State interest and that the

class‘fication drawn by the State was drawn in the lease

intrusive method possible. However, even if this Court

should apply the lower standard of judicial scrutiny or any

intermediate standard, the discrimination against Peti-

tioner cannot be justified. The scheme does not rationally

further any “legitimate, articulated State purpose”.

“The ultimate objective of all criminal laws is the

protection of society, and this is as true of the sentencing

of offenders as it is of the definition of the specific

offenses. . . . The theory of retribution has long been

21

repudiated, however, and reformation and rehabilitation

are today the important goals of criminal correction.”

Note, Imprisonment for Nonpayment of Fines and

Costs: A New Look at the Law And The Constitution, 22

Vand. L. Rev. 611,612 (1969) (footnotes omitted). This

Court has consistently recognized that imprisonment for

the failure to pay a fine must further some legitimate

penological interest before it can be justified. This Court

has held that there is no rational relationship between a

state’s penological interest and policies and the imprison-

ment of an indigent bevond the statutory limits of in-

carceration for the purpose of working off his fine. Once a

State has defined the outer limit of incarceration necessa-

ry to satisfy its penological interests, this cannot then be

exceeded for the failure of an indigent to pay a fine.

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

is required whether or not the jail term imposed to satisfy

the penalogical interest of the State extends beyond the

maximum term authorized by statute. A fine cannot be

automatically converted into a jail term for an indig i

who is unable to pay that fine. Tate v. Short, 401 U.S. 395

(1971).

The Georgia Legislature has empowered the trial court

judges to determine whether or not an individual is a

suitable candidate for probation under the First Offen-

der’s Act. The placing of an individual on first offender

probation reflects a determination by the State that an

individual may successfully be rehabilitated and that the

penalogical interesi of the State will be satisfied without

incarceration. A defendant’s probation will be revoked

only if that individual shows, by the violation of a condi-

tion of his probation, that rehabilitation will be unsuccess-

ful while he is on probation.

22

In the present case Petitioner was faced with the im-

possible obligation to pay a fine and restitution. By revok-

ing the Petitioner’s probation the State has implicitly

stated that the Petitioner was unable to be rehabilitated

to a useful member of our society because of his impecun-

ity. Consequently, the State found it necessary to enter

an adjudication of guilt, remove his civil liberties, includ-

ing his right to vote, and imprison the Petitioner. When

the State, by its actions, enunciates that the poor cannot

be rehabilitated, it is relying on an irrational assumption

that the poor are a greater criminal threat to society than

are the rich. This irrational assumption is the underlying

assertion of which Griffin and its progeny have dis-

approved. Petitioner fails to see how his indigency causes

him to be a greater danger to society than if he were not

indigent. Likewise, the Petitioner fails to see how the

State’s action in revoking his probation in any way aided

in his rehabilitation by making him a better citizen or

person. Clearly, the revocation of the Petitioner’s proba-

tion does not further the primary penologica! interest of

the State.

A state’s criminal laws may also assert a punitive and

deterrent penological interest. To the extent that the

State would assert these interests, this case is in-

distinguishable from Tate. A state’s punitive and deter-

rent interests are no more served by revoking an in-

digent’s probation than by imprisoning an indigent who is

unable to pay a traffic fine as in Tate. Likewise, the state’s

interests were no more served in this case than in the case

of Barnett v. Hopper, 548 F. 2d 550 (5th Cir. 1977), where

the defendant’s probation was revoked for the failure to

pay his fine. When the State sentenced the Petitioner

under the First Offender’s Act there was a recognition

that the State’s punitive and deterrert interests were

sufficiently satisfied wihtout incarceration.

23

It has been suggested that a state may impose a sub-

stitute jail term for the failure of an indigent on probation

to pay his fine. However, in such a case it must be made

clear that the jail term is “a proper substitute for the

fines.” Wood v. Georgia, 450 U.S. 261,287 (1981) (White,

J., dissenting). In the present case no such calculation

was attempted. At the revocaton hearing, the trial court

originally imposed a sentence of five y_ars—two years

longer than the original term of probation. Only after the

Petitioner’s motion and after it appeared to the trial court

that the requirements of Stevens v. State, 245 Ga. 835,

268 S.E.2d 330 (1980), had not been met, was the Peti-

tioner’s sentence reduced to the remaining time of his

original probation. Under the present case even a partial

revocation of the Petitioner’s sentence carmot be justi-

fied. The benefits which the Petitioner lost when his

probation was revoked under the First Offender’s Act

were very significant. There are many ways available toa

state to enforce a fine and restitution without such a

severe infringement on an individual’s rights and liber-

ties. Through these alternate methods available to the

State, the State can sufficiently meet any penal objec-

tives which may be required by the payment of the fine

and restitution.

The Georgia S preme Court has expressed “several

reasons justifying he imposition of a lump-sum fine [as a

condition of probation], without regard to the ability of

the defendant to pay it immediately.” Hunter v. Dean,

240 Ga. 214,216, 239 S. E. 2d 791,793 (1977). Ifa defendant

is unab e to comply with this type of condition of proba-

tion, the Georgia Supreme Court has held that the

revocation of probation is justified. That Court stated

that when a defendant is placed on probation:

[T]he judge must decide that the individual defend-

ant is not likely to engage in a continuing course of

24

criminal conduct and that the ends of justice and the

welfare of society do not require that the defendant

1 suffer the penalty imposed by law. Id. at

18, 239 S. E. 2d at 794. Accord, GA. Cob ANN.

§ 27-2709(c) (Supp. 1981).

The gist of the Georgia Supreme Court’s rationale is that

a poor person who does not pay his fine is not a good

candidate for probation because his lack of funds make

him more likely to continue in a course of criminal con-

duct. Again, this is the exact rationale disapproved of in

Griffin.

At trial a defendant’s past conduct is examined. In

contrast, when a defendant is considered for probation his

future conduct is the primary consideration. In Griffin

this Court held that wealth has no relationship to a de-

fendant’s guilt or innocence. In other words, wealth is

unrelated to a defendant’s past conduct. The logical ex-

tension of this rationale is that a defendant’s future con-

duct, likewise, has no relationship to his wealth or lack of

wealth. When an indigent is unable to pay his fine, there

is absolutely no reason to believe that this fact alone will

cause him to pursue a course of criminal conduct or that he

will otherwise be a danger to society.

The Georgia Supreme Court also expressed concern

that an individual would express to a court that he could

pay a fine and that later he would become unable to make

the payment. It has been expressly held that a mistaken

misrepresentation of the ability of a defendant to pay a

fine is not sufficient to authorize the imposition of an

unconstitutional sentence. Barnett v. Hopper, 548 F. 2d

550 (5th Cir. 1977).

25

IV. There Is No Relevant Distinction Between The Petition-

er’s Failure To Pay His Fine And His Failure To Pay

Restitution.

What has been said regarding the nonpayment of a fine

applies equally to the nonpayment of court costs. Wil-

liams v. Illinois, 399 U.S. 235,244 n. 20 (1970). The same

rationale shows that the nonpayment of restitution does

not raise any greater or more important state interests

than does the nonpayment of a fine or court costs. See,

Hutchinson v. Jones, 477 F.Supp. 51 (N.D. Ga. 1979).

Any State interest in enforcing restitution may be carried

out without infringement upon the Petitioner’s liberties

and fundamental rights.

CONCLUSION

Petitioner was adjudicated guilty of two felonies, strip-

ped of several of his most important rights and impris-

oned all because he lost his job and was unable to pay a

fine and restitution as previously ordered by the trial

court. He was treated differently by the State of Georgia

than a similar individual with financial means solely be-

cause he was indigent. This different treatment by the

State of Georgia is in violation of the Equal Protection

Clause of the United States Constitution. For this reason

Petitioner respectfully requests that this Court reverse

the decision of the Georgia Court of Appeals in this case.

Respectfully submitted,

JAMES H. LOHR

HATFIELD, McCoLpPIin,

VAN CLEAVE & STULCE

428 McCallie Avenue

Chattanooga, TN 37402

(615) 756-5880