Respondents Brief — Bearden v. Georgia

DANNY R. BEARDEN,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

BR:xF FOR RESPONDENT

Gerorce M. 4

Assistant Att —— 3

Attorney of R

Respondent

MichaklL J. Bowers

Attorney General

Ropert S. Stvusss, II

Executive Assistant

Attorney General

Please serve: Marion O. Gorpon

GeorGeE M. WEAVER

132 State Judicial Bldg. Attorney General

40 Capitol i> ay

4000

>

Senior Assistant

14

Joux C. WALDEN

Semor Assistant

Attorney General

TABLE OF CONTENTS

Page

STATUTES INVOL VDP ii 1

SUMMARY OF THE ARGUMENT.............. 7

STATEMENT OF THE CASE................... 7

r ²⁵ U! 90

A. THE PROPER STANDARD OF EQUAL

PROTECTION REVIEW..................

B. APPLICATION OF THE RATIONALITY -

CONCLUSION.......... —— „c 30

CERTIFICATE OF SERVICE................... 31

TABLE OF CITATIONS

Cases:

Barnett v. Hopper, 548 F.2d 550 (5th Cir. 1977) 25

Bazstrom v. Herold, 383 U.S. 107 (1966)............ 15

Berman v. United States, 302 U.S. 211 (1937) 16, 17

Burns v. United States, 287 U.S. 216 (1932)...... passim

Caban v. Mohammed, 441 U.S. 380 (1979)........... 10

Craig v. Boren, 429 U.S. 190 (1964)................ 10

Douglas v. California, 372 U.S. 353 (1963) 14, 15, 16

Escoe v. Zerbst, 295 U.S. 490 (1935)................ 13

F. S. Royster Guano Co. v. Virginia,

253 U.S. 412 dee. 3 10

Fuller v. Oregon, 417 U.S. 40 (197). 15

Gagnon v. Scarpelli, 411 U.S. 778 (1973) 13, 16

Graham v. Richardson, 403 U.S. 365 (19717 4

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

1

TABLE OF CITATIONS (Continued)

Cases (Continued) : *

Hill v. Stone, 421 U.S. 289 (19759))):n 10

Hunter v. Dean, 240 Ga. 214 (1977) 24, 25, 28

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

„ bbb e eee 25

Inman v. State, 124 Ga.App. 190 (1977).......... 18, 26

James v. Strange, 407 U.S. 128 (1972)............ 15, 16

Levy v. Louisiana, 391 U.S. 68 (1967).............. 10

Loving v. Virginia, 388 U.S. 1 (1967). ............. 9

McGinnis v. Royster, 410 U.S. 263 (1973) 16, 19, 21

McGowan v. Maryland, 366 U.S. 420 (1961 )))) 11

Mather v. Roe, 432 U.S. 464 (19717777). 12

Morrissey v. Brewer, 408 U.S. 471 (1972)kꝓ 13

Owens v. Kelly,. — F.2d , No. 80-9010,

(ien Cir., August 5, 1062). »wmè.in 13, 18

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)... 20

Plyler v. Doe, U.S., 102 S. Ct. 2382

. 10

Reed v. Reed, 404 U.S. 71 (197i - 11

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

Ross v. Moffitt, 417 U.S. 600 (1974) _. passim

San Antonio I School District . Nod je.

ee. — passim

Shapiro v. Thompson, 394 U.S. 618 (1969)....... .10, 11

State v. Collett, 232 Ga. 668 (1974)................. 18

Tate v. Short, 401 U.S. 395 (1971)............. 8, 17, 28

TABLE OF CITATIONS (Continued)

Page

Cases (Contisued) :

Turner v. Dept. of Employment Security of Utah,

D eee 11

United States v. Tonry, 605 F.2d 144

DP . ee 13

Vance v. Bradley, 440 U.S. 93 (1979)........ . 26

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

Williams v. New York, 337 U.S. 241 (1949)......... 23

Wood v. Georgia. U.S. 101 8.Ct. 1097

DT hath bee ses 9

Vick Wo v. Hopkins, 118 U.S. 356 (1886)........... 11

Zobel v. Williams, — U.S. , 102 S. Ct. 2309

e een 10

Statutes:

Ga. Code Ann. § 26-2709%, .ʃꝗ—7ii111 . 18, 19

Ga. Code Amn. § 27-2530... 0... cc ccc ccc ccccees 1

Ga. Code Ann. § 27270999. 2, 23, 25

eh, GD I IES oon dc ccecvcccccccccceces 26

rr. eee 22

Ge Ge Bath, Be oo sc cece ee 3

Ga. Code Ann. § 27-300ᷣ ů1I1Il .. 3, 19, 27

Ga. Code Ann. § 27/00 e᷑– INtntii . 3

Ga. Code Ann. § 27/0033 ꝑ³ 5

.. oo cc cccncccccesccccces 5

Ga. Code Ann. § 27-3006. . 5

Ga. Code Ann. 7-300 % ͥͥꝙ%ũͤ·o cece cece eeneees 6

TABLE OF CITATIONS (Continued)

Page

Statutes (Continued) :

Ga. Code Ann. § 27-301ͤ000))) 6, 23, 27

Ga. Code Ann. § 27-301222 . 6, 15

Ga. Code Ann. § 27-3013). 6

Ga. Code Ann. § 27-3016... 7, 27

Other Authorities:

R. CARTER & L. WILKINS, PROBATION,

PAROLE, AND COMMUNITY CORREC-

D og Lakes cee chpncnes 22, 23

R. CLEGG, PROBATION AND PAROLE

ere 22, 23, 28

E. GREEN, Race, Social Status, and Criminal

Arrest, AMERICAN SOCIOLOGICAL

REVIEW 35:476-90 (197))) . 21

G. GUNTHER: Foreword: In Search of Evolving

Doctrine on a Changing Court: A Model for a

Newer Equal Protection, 86 HARV. L. REV. 1

RENNER et es 0 AAA 11

J. NOWAK, R. ROTUNDA and J. YOUNG,

CONSTITUTIONAL LAW (1978).............. 10

C. TITTLE & W. VILLEMEZ, The Myth of Social

Class and Criminality: An Empirical Assessment

of The Empirical Evidence, AMERICAN

SOCIOLOGICAL REVIEW 43:643-56 (1978)..... 21

L. TRIBE, AMERICAN CONSTITUTIONAL

e 10, 11, 12

U.S. DEPARTMENT OF COMMERCE, CRIME

AND EMPLOYMENT ISSUBS 86 (1978)....... 21

U.S. DEPARTMENT OF JUSTICE, THE

ATTORNEY GENERAL’S SURVEY OF

RELEASE PROCEDURES II (1974)........... 22

iv

TABLE OF CITATIONS (Continued)

Page

Other Authorities (Continued) :

U.S. DEPARTMENT OF JUSTICE, SOURCE-

BOOK OF CRIMINAL JUSTICE STATISTICS

e . 20

M. WOLFGANG, R. FIGLIO, and T. SELLIN,

9 IN A BIRTH COHORT 1

ae eee ee ee

NO. 81-6633

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

DANNY R. BEARDEN,

Petitioner,

v.

STATE OF GEORGIA,

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

BRIEF FOR RESPONDENT

STATUTES INVOLVED

In addition to the constitutional and statutory provi-

sions set out by petitioner, this case involves the follow-

ing statutory provisions:

Ga. Code Ann. § 27-2529 (Supp. 1981): Payment of fine

as condition precedent to probation in felony cases

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 impose a fine

on such Sich f so convicted as a condition to such pro-

bation. Such fine shall not exceed $10,000 or the amount

of the maximum fine which may be imposed for con-

viction of such a felony, whichever is greater. In any

case where probation shall be revoked, the defendant

shall not be entitled to any rebate or refund of any part

of such fine so paid.

2

Ga. Code Ann. § 27-2709 (Supp. 1981): {Statewide Pro-

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

reference to circuit probation supervisor; period of pro-

bation; disposition of prisoner pending hearing; payment

of fines or costs as condition precedent to probation

(a) Any court of this State which has original juris-

diction of criminal actions, except juvenile courts, mu-

nicipal courts and probate courts where the defendant

in a criminal case has been found guilty upon verdict

or plea, or who has been sentenced upon a plea of nolo

contendere, except for an offense punishable by death.

or life imprisonment, may, at a time to be determined

by the court, hear and etermine the question of the

probation of such defendant.

(b) Prior to such hearing, the court may refer the

case to the circuit probation supervisor of the circuit

in which such court is located for investigation and

recommendation. The court, upon such reference, shall

direct the supervisor to make an investigation and

report to the court in writing at a specified time upon

the circumstances of the offense and the criminal ree-

ord, social history and present condition of the defen-

dant, together with such supervisor’s recommendation,

and it shall be the duty of the supervisor to carry out

the directive of the court.

(e) If it a N to 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 penalty imposed by law, the

court in its discretion shall impose sentence upon such

defendant but may stay and suspend the execution of

such sentence or any portion thereof, or may place him

upon probation under the supervision and control of

the circuit probation supervisor for the duration of

such probation. The period of probation or suspension

shall not exceed the maximum sentence of confinement

which could be imposed upon such defendant except as

provided in sub-section (d).

(e) The court may, in its discretion, require the pay-

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

to probation.

(g) The sentencing judge shall not lose jurisdiction

over any person piaced on probation during the term

of said probated sentence, and such ju reby em-

powered to revoke any or all of said p ted sentence,

rescind any or all said sentence, or in any manner

deemed advisable by said judge to modify or change

said probated sentence at any time during the period

of time originally described for the probated sentence

to run.

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

of fines

Every fine imposed by the court under the ———

of this Code shall be paid immediately or within sue

reasonable time as the court may grant.

Ga. Code Ann. § 27-3001 (Supp. 1981): Policy

It is hereby declared to be the policy of this State

that restitution by those found guilty of crimes to their

victims is a primary concern of the criminal justice

system.

Ga. Code Ann. § 27-3002 (Supp. 1981): Definitions

For the purposes of this Chapter, the following terms

shall have the meanings herein ascribed to them unless

the context clearly requires otherwise:

(a) The term “board” shall mean the State Board

of Pardons and Paroles.

(b) The term “ t“ shall mean the Depart-

ment of Offender ilitation.

4

(c) The term “damages” shall mean all damages

which a victim could recover against an offender in a

civil action, including a wrongful death action, based

on the same act or acts for which the offender is sen-

tenced, except punitive damages and damages for pain

and suffering, mental anguish, or loss of consortium.

(d) The term “offender” shall mean any natural

person placed on probation under the First Offender

Act, sentenced for any crime or any juvenile adjudged

delinquent or unruly.

(e) The term “ordering authority“ shall mean the

court of com t jurisdiction, the State Board of

Pardons and Paroles, or the Department of Offender

Rehabilitation, or any combination thereof, as is re-

quired by the context.

(f) The term relief“ shall mean any suspended or

probated sentence including probation imposed under

the First Offender Act, any parole or other conditional

release from incarceration, the awarding of earned time,

the reduction in security status or the placement in

prison rehabilitation programs, included, but not lim-

ited to, those in which the offender receives monetary

compensation.

(g) The term “restitution” shall mean any property

or lump sum of periodic payment ordered to — made

by any offender to any victim by any ordering au-

thority. Where the victim is a * corporation or

governmental entity, or where the offender is a juve-

nile, restitution may also be in the form of services

ordered to be performed by the offender.

(h) The term “restitution order“ shall mean any

order, decree, or ju t of an ordering authority

which requires an offender to make restitution as a

condition or term of any relief granted to an offender.

(i) The term victim“ shall mean any natural per-

son or his personal representative, or any firm, co-

5

partnership, association, public or private corporation,

or governmental entity suffering damages caused by

an offender’s unlawful act.

7 Code Ann. § 27-3003 (Supp. 1981): Adults

judge of any court of — jurisdietion may

2 t an adult offender restitution as a con-

dition of any relief ordered by the court. The State

Board of Pardons and Paroles may order that an adult

offender make restitution as a condition of any relief

ordered by the board. The Department of Offender Re-

habilitation may order that an adult offender make

restitution as a condition of any relief ordered by the

department.

Ga. Code Ann. § 3006 (Supp. 1981): Past restitution

considered

Where an offender has made total or partial restitu-

tion to a victim, the ordering authority shall consider

the fact of such restitution in considering any case with-

in its power.

Ga. Code Ann. § 27-3008 (Supp. 1981): Required findings

(a) In deciding any case subject to this Chapter, the

ordering authority shall, before granting any relief,

make a written finding either:

(1) That there are no victims to whom restitution

should be made under the policy of this State; or

(2) That the circumstances of the case are such

- no restitution order or plan is reasonably pos-

sible; or

(3) That the offender, in cooperation with the or-

dering authority, las developed and consented to a

plan of restitution which shall be made a part of a

restitution order; or

(4) That restitution will be ordered as a condition

of the relief.

(b) The failure to make a finding as required by this

6

section, however, shall not invalidate any order or other

action of the ordering authority.

Ga. Code Ann. § 27-8009 (Supp. 1981): Restitution not

to exceed damages

The amount of restitution ordered may be equal to

or less than, but not more than, the victim’s damages.

Ga. Code Ann. § 27-8010 (Supp. 1981): Factors con-

In determining the nature and amount of restitu-

tion, the ordering authority shall consider:

(a) The present financial condition of the offender

and his dependents;

(b) The probable future earning capacity of the of-

fender and his dependents;

(c) The amount of damages;

(d) The of restitution to the victim and the

goal of rehabilitation of the offender;

(o) Any restitution previously made;

(f) The period of time during which the restitution

order will be in effect;

(g) Other appropriate factors as the ordering au-

thority shall deem to be appropriate.

Ga. Code Ann. § 27-8012 (Supp. 1981): Modification

The ordering authority shall retain jurisdiction to

modify a restitution order at any time before the ex-

piration of the relief ordered.

Ga. Code Ann. § 27-3013 (Supp. 1981):

(e) Failure to comply with a restitution order ma

be, in the discretion of the ordering authority, groun

to revoke or cancel the relief at any time the restitu-

tion order is in effect. When the relief is earned time,

the Department of Offender Rehabilitation may sus-

7

the offender from earning earned time for a speci-

Soa.

Ga. Code Ann. § 27-3016 (Supp. 1981): Peonage; denial

of benefits because of poverty

(a) Nothing in this Chapter shall authorize peonage,

and this Chapter shall be construed and diligently ad-

ministered to prevent peonage.

(b) No offender shall be denied any benefit, relief,

ivi to which he might otherwise be entitled or

or pri

eligible y because he is financially unable and can-

—— e 1 to tacho —

STATEMENT OF THE CASE

With the following additions, respondent accepts peti-

tioner’s statement of the case. When petitioner was sen-

tenced to serve probation both he and his counsel con-

sented in writing to the order directing payment of the

fine and restitution. (J.A. 4-5, 9-10). At the hearing on

the State’s revocation petition, it was established that

with money borrowed from his parents petitioner paid

the $100.00 he was ordered to pay on October 8, 1980

and the $100.00 he was required to pay by October 9,

1980. (J.A. 27-29, 30-31, 34). He failed, however, to pay

the $550.00 balance during the period allowed by the trial

court. (J.A. 27-29, 30-31, 33). Petitioner and his wife tes-

tified that he had no job, income, or assets. (J.A. 32,

35-37). He had not worked since November 1980, when

he was laid off from his job at a Rockwell International

plant. (J.A. 32, 41).

SUMMARY OF ARGUMENT

This case presents the issue of whether the probation

of an indigent defendant may be revoked for failure to

comply with probation conditions requiring payment of

a fine and restitution. Petitioner asserts that the revoca-

tion violates the Equal Protection Clause of the Four-

teenth Amendinent. The usual method of resolving such

issues is first to decide what standard of equal protection

review to employ and then to apply that standard to the

case at hand.

The traditional rationality standard of equal protec-

tion review should be used in this case. The state action

in question is not based on a suspect or other question-

able criterion so as to provoke heightened scrutiny. More-

over, no fundamental constitutional right is burdened.

Thus, heightened scrutiny under a fundamental rights

analysis would also be inappropriate.

The revocation of petitioner’s probation satisfies the

rationality standard of equal protection review. This

standard requires that there be a rational relationship

between a legitimate state interest and the state action

in question. Probation serves two ligitimate state in-

terests in Georgia: (1) the protection of the public, and

(2) the rehabilitation of the offender. In addition, a third

state interest is involved in this case: The provision of

restitution to crime victims. The revocation of petition-

er’s probation serves the first interest because petitioner’s

inability to pay the fine and restitution amounts made

him a poorer probation risk and increased the likelihood

that he would commit additional crimes. Furthermore,

the revocation promotes petitioner’s rehabilitation by re-

moving him from circumstances in which the likelihood

of! is committing a crime had increased. And, the state

action in question is consistent with Georgia’s policy of

ests are rationally furthered.

The principles espoused in Williams v. Illinois, 399 U.S.

235 (1970), and Tate v. Short, 401 U.S. 395 (1971), do not

9

cast doubt upon the above-stated conclusion. In both of

these cases the incarceration periods in question did not

serve any penal or other legitimate state interest(s).

Therefore, the state action in question here meets the

requirements of the Equal Protection Clause. Hence, the

judgment of the Georgia Court of Appeals should be

affirmed.

ARGUMENT

Petitioner contends that the revocation of his probation

violates the Equal Protection Clause of the Fourteenth

Amendment. The Court noted in an earlier case involving

similar facts that the question presented here is a diffi-

cult equal protection issue. Wood v. Georgia, US.

— 101 8.Ct. 1097, 1099 (1981). Respondent will first

discuss the matter of the proper standard of equal protec-

tion review to be used and will then deal with the appli-

cation of that standard to this case.

A. THE PROPER STANDARD OF EQUAL PRO-

TECTION REVIEW

The Equal Protection Clause has been held to require

varying levels of scrutiny depending on the nature of the

classification created by the state action in question. The

highest level is called “strict scrutiny” and is invoked

when a suspect criterion is the basis of the state classifica-

tion. For example, the Court has held race, Loving v.

Virginia, 388 U.S. 1 (1967), and alienage, Graham v.

Richardson, 403 U.S. 365 (1971), to be suspect criteria.

A similar level of scrutiny has sometimes been em-

ployed when a state classification burdens a fundamental

constitutional right. The Court has, for instance, de-

clared statutes unconstitutional which fail to promote

compelling governmental interests and which burden the

20

right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969),

or right to vote. Hill v. Stone, 421 U.S. 289 (1975). This

fundamental rights analysis has been called a branch of

strict scrutiny review. Plyler v. Doe, U.S. 102

S. Ct. 2382, 2394-95 (1982); San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 16 (1973); L.

TRIBE, AMERICAN CONSTITUTIONAL LAW 1003-

05 (1978); J. NOWAK, R. ROTUNDA and J. YOUNG,

CONSTITUTIONAL LAW 524-25 (1978).

The Court has also on occasion employed an inter-

mediate standard of review. This standard has been used

to evaluate state classifications which “give rise to re-

curring constitutional difficulties. In order to survive

review’ under this standard, classifications must further

{[. . .] . . . substantial interest|s} of the State.” Plyler,

supra, at 2395; see also Caban v. Mohammed, 441 U.S.

380, 388 (1979). State classifications based on gender,

Craig v. Boren, 429 U.S. 190 (1964), and illegitimacy,

Levy v. Louisiana, 391 U.S. 68 (1967) (purporting to

employ a rationality standard), have been examined

under this intermediate standard.

The basic standard of equal protection review employs

only the yardstick of rationality. This standard is used

to evaluate “most forms of state action.”’ Plyler, supra,

at 2394; see also Zobel v. Williams, U. 8. 102

S. Ct. 2309, 2313 (1982). An early statement of the

rationality test can be found in F.S. Royster Guano Co.

v. Virginia, 253 U.S. 412 (1920):

[T}he classification must be reasonable, not arbitrary,

and must rest upon some of difference having

SS a to the object of the

legislation, so chee: a wah a ede

shall be treated alike.

11

Id., at 415, quoted in Reed v. Reed, 404 U.S. 71, 75 (1971);

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

least demanding standard, which has been used to review

an increased number of state actions in recent years, is

not satisfied by cursory scrutiny. G. GUNTER, Forward:

In Search of Evolving Doctrine on a Changing Court: A

Model for a Newer Equal Protection, 86 HARV. L. REV. 1

(1972). It is not the case, as some have asserted, that this

level of review is “largely toothless.” L. TRIBE, supra,

at 1082.

Before taking up the issue of what standard of review

should be used to evaluate the state action in question

here, several distinctive features of the action should be

mentioned. First, the fe.cial consitutionally of Georgia’s

Statewide Probation Act is not, in respondent’s view, in

doubt. The language of the statute does not classify on

the basis of wealth. Respondent assumes that petitioner’s

attack is, rather, on the application of the statute to him.

Presumably, his contention is that the statute has been

applied to him in such a way so as to violate the Equal

Protection Clause. See Williams v. Illinois, 399 U.S. 235,

242 (1970); Yick Wo v. Hopkins, 118 U.S. 356 (1886). A

second and related point is that the revocation of peti-

tioner’s probation resulted from an individualized state

determination and was not brought about by the opera-

tion of an inflexible general rule. See Turner v. Dept. of

Employment Security of Utah, 423 U.S. 44, 46 (1975)

(“[{w]hen basic human liberties are at stake“ legitimate

state ends must be achieved through more individualized

means.) In other words, no irrebuttable presumption”

is involved in the state action involved here: Petitioner

was permitted to argue and offer evidence against revoca-

tion. See Shapiro, supra, at 631. In fact, probation is, by

nature, an individualized procedure. Burns v. United

12

States, 287 U.S. 216, 220 (1932). Third, the state action in

question cannot sensibly be called a classification or an

instance of differential treatment. Petitioner has not sug-

gested that he has been treated any differently from other

Georgia probationers who fail to obey financial conditions

of their probation. Rather, petitioner’s complaint is that

he was not, because of his indigency, treated differently.

Thus, the State’s failure to classify —not a State classifi-

cation is involved here. It has been noted that state

failures to classify are generally more restitant to consti-

tutional challenge. L. TRIBE, supra, at 993-94.

The state action in question here should not be reviewed

under the strict or intermediate standards. Generally,

those standards are used when suspect or dubious criteria

are employed or when fundamental constitutional rights

are directly affected. The criteria that provoke heightened

scrutiny are, for the most part, immutable characteris-

ties as race, gender, and illegitimacy. Moreover, the

Court has never considered wealth or financial ability,

which petitioner asserts was the basis for his probation

revocation, to be a suspect criterion or even of such nature

as to require intermediate equal protection review. The

Court has said, “{T}his Court has never held that finan-

cial need alone identifies a suspect class for purposes of

equal protection analysis. Maher v. Roe, 432 U.S. 464,

471 (1971). See also San Antonio Independent School Dis-

trict, supra, at 29. Neither does the state action in ques-

tion here provoke strict scrutiny by burdening a funda-

mental constitutional right. Indeed, “Probation is

conferred as a privilege, and cannot be demanded as a

right. It is a matter of favor, not of contract. There is no

requirement that it be granted on a specified showing.

Burns, supra, at 220, (1932); see also id., at 223 (‘‘proba-

13

tion is a matter of grace); Escoe v. Zerbst, 295 U.S. 490,

492-93 (1935). Moreover, it must be considered that pro-

bationers, because of their status as law-breakers, do not

have the same due process and liberty rights as others.

Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973); Morrissey

v. Brewer, 408 U.S. 471, 480 (1972). Consequently, the

conditions of their probation may affect their ability to

exercise constitutionally protected rights. '/nited States

v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979). In fact,

Sſtatels have] a compelling interest in limiting |proba-

tioners'] liberty in order to effectuate their rehabilitation

and to protect society. Owens v Kelly, — F.2d

No. 80-9010, slip. op. at 2267 (11th Cir., August 5, 1982).

Because, therefore, there is no right, constitutional or

otherwise, to probation,' and because probation condi-

tions may limit constitutional rights, it is difficult to see

how a state probation decision could for purposes of equai

protection review burden the exercise of a fundamental

constitutional right. Petitioner suggests nevertheless, that

the revocation of his probation should be strictly seruti-

nized because his fundamental right to vote may be

affected. This argument is quite feeble. Petitioner seems

to forget that the sentence was not imposed . . because

of his indigency but because he had conimitted a crime.”’

Williams v. Illinois, supra, at 242. Any effect on peti-

tioner’s right to vote will result from his having com-

mitted burglary not from his inability to pay a fine and

restitution. We are thus led to conclude that neither strict

nor intermediate scrutiny should be applied.

.

FI Lr ee

14

The state action involved here should, therefore, be

reviewed under the rationality standard. This conclusion

is consistent with the Court's decisions. In Griffin v. Illi-

nois, 351 U.S. 12 (1956) (plurality opinion), the Court

held that Illinois could not refuse to provide a free trial

transcript to an indigent criminal defendant when the

transcript is necessary for adequate appellate review.“

Id., at 19. This decision was based both on the Due Pro-

cess and Equal Protection Clauses of the Fourteenth

Amendment. See Ross v. Moffitt, 417 U.S. 600, 608-09

(1974). In Ross, supra, the Court said that the right of

indigents to meaningful appellate review is best consid-

ered under an equal protection analysis. Id., at 611. The

Court also in Ross, supra, discussed numerous decisions

spawned by Griffin, supra, and summarized them in this

fashion, Each of these state-imposed financial barriers

to the adjudication of a criminal defendant’s appeal was

held to violate the Fourteenth Amendment.“ Ross, supra,

at 607. One of the decisions was Douglas v. California,

372 U.S. 353 (1963), in which the Court invalidated on

equal protection grounds California’s practice of not pro-

viding appointed counsel to assist all indigent criminal

defendants in their rightful appeals.

Although the structure of the equal protection analysis

used in Griffin, supra, and its progeny is not entirely clear,

it appears that a rationality standard was used. In Griffin,

supra, the Court said, “Plainly the ability to pay costs

in advance bears no rational relationship to a defendant’s

guilt or innocence and could not be used as an excuse to

deprive a defendant of a fair trial.” Id., at 17-18 (plurality

opinion) (emphasis added); id., at 21-22 (state cannot

make differentiations“ in criminal appellate systems

which “have no relation to a rational policy of criminal

15

appeal”) (Frankfurter, J., concurring). In a later case,

the Court summarized Griffin, supra, and Douglas, supra,

as follows:

This Court has never held that the States are re-

quired to establish avenues of appellate review, but

it is now fundamental that, once established, these

avenues must be kept free of unreasoned distinctions

that can only im open and equal access to the

courts. (emphasis added)

Rinaldi v. Y eager, 384 U.S. 305, 310-11 (1966).

The conclusion that Griffin, supra, and its progeny

employ a rationality standard is reinforced by other

decisions regarding procedures ancillary to the criminal

justice system. In Ross, supra, the Court decided an

issue left open in Douglas, supra, at 356 —whether a state

must provide counsel to an indigent criminal defendant

seeking a discretionary appeal. Noting that in disere-

tionary appeals to the North Carolina Supreme Court

from that State’s intermediate appellate court the “criti-

cal issue is not whether there has been ‘a correct adjudi-

cation of guilt,’ the Court held that North Carolina is

not required by the Equal Protection Clause to provide

counsel for such appeals. Ross, supra, at 615. The ratio-

nality standard was employed. Id., at 612. In several cases

concerning state schemes for recoupment of costs for

providing legal services to indigent criminal defendants,

the Court employed the rationality standard of equal

protection analysis. Fuller v. Oregon, 417 U.S. 40, 49

(1974); James v. Strange, 407 U.S. 128, 140-41 (1972);

Rinaldi, supra, at 308-09. In Baztrom v. Herold, 383 U.S.

107 (1966), the Court was faced with a New York pro-

cedure which treated mentally ill persons who were civilly

committed at the end of a prison term more harshly than

other mentally ill persons who were civilly committed.

16

Because there was no “semblance of rationality of the

classification” the Court found that the procedure vio-

lated the Equal Protection Clause. Id., at 115. Finally, in

McGinnis v. Royster, 410 U.S. 263 (1973), the Court em-

ployed the rationality standard in upholding a New York

procedure which denied “good time“ credit to state

prisoners for their presentence incarceration in county

jails. Id., at 270.

If the rationality standard was employed in Griffin,

supra, and its progeny, a fortiori it should be used in the

instant case. As the Court pointed cut in Griffin, supra,

although states are not required by the federal constitution

to provide appellate courts, ‘‘All of the States now provide

some method of appeal from criminal convictions, recog-

nizing the importance of appellate review to a correct

adjudication of guilt or innocence.“ Id., at 18. Focusing

on the law of the state involved in that case, the Court

added that ‘‘appellate review has now become an integra!

part of the Illinois trial system for finally adjudicating

the guilt or innocence of a defendant.’ Jd. In a later

decision the Court explained Griffin, supra, and Douglas,

supra, as follows, This Court often has voided state

statutes and practices which denied to accused indigents

the means to present effective defenses in courts of law.”’

James, supra, at 134. By contrast, probation decisions do

not involve guilt or innocence: They are not part of the

fact-finding apparatus. In Gagnon, supra, the Court ack-

nowledged, Probation revocation, like parole revocation

is not a stage of a criminal prosecution. .. .” Id., at 782.

The Court also observed that, [There are critical differ-

ences between criminal trials and probation or parole

revocation hearings. .. . Id., at 788-89. And, in Berma.iv.

United States, 302 U.S. 211 (1937), the Court said, Pro-

17

bation is concerned with rehabilitation, not with the

determination of guilt. It does not secure reconsideration

of issues that have been determined or change the judg-

ment that has been rendered.” Id., at 220. Thus, if

heightened scrutiny has not been applied to state actions

which affect the reliability of determinations of guilt, it

certainly should not be applied to state probation de-

cisions. Should the Court conclude, however, that state

actions of the former sort require closer scrutiny, state

probation decisions, nevertheless, should, because of their

less critical status, be reviewed only under the rationality

standard. See Ross, supra, at 612, 615 (rationality stand-

ard used to review state practice of not providing ap-

pointed counsel for discretionary appeals not critically

concerned with correctness of adjudication of guilt).

Neither Williams v. Illinois, supra, nor Tate v. Short,

401 U.S. 395 (1971), supports the use of heightened

scrutiny in the instant case. In both cases the criminal

defendants were punished beyond state statutory maxi-

mums solely because of their inability to pay fines. Al-

though neither decision speaks in traditional equal pro-

tection language, it appears that the analyses are con-

sistent with the rationality standard. The Court discusses

in both cases the rationality of the state actions in ques-

tion. Williams, supra, at 239; Tate, supra, at 399 (im-

prisonment serves no penal objective of the State“ and

“obviously does not serve“ the purpose of augmentling

the State’s revenues“). Therefore, for this and the above-

mentioned reasons, the rationality test of equal protection

should be used to review the state action in question

here.

18

B. APPLICATION OF THE RATIONALITY TEST

In order to apply the rationality test, we must first

identify the legitimate state interest(s) served by the

revocation of petitioner’s probation. The Eleventh Circuit

has noted:

The case law of 4— — indicates that two es-

sential p probation in Georgia, as elsewhere

are the N of the probationer, and the

protection of society.

Owens, supra, slip. op. at 2266, citing State v. Collett, 232

Ga. 668, 669 (1974), and Inman v. State, 124 Ga.App. 190,

192 (1971). The language of the Georgia Statewide Pro-

bation Act accommodates these purposes:

If it Fn to court [sic] upon a hearing of the

matter that the defendant is not likely to in

a criminal course of conduct and that the — of

justice and the welfare of society do not require that

the defendant shall presently suffer the penalty im-

posed by law, the court in its discretion shall impose

sentence upon such defendant but may stay and sus-

pend the execution of such sentence or any portion

thereof, or may place him upon probation under the

supervision and control of the circuit probation su-

pervisor for the duration of such probation.

Ga. Code Ann. § 27-2709(c) (Supp. 1981). This section

mandates that no one be admitted to probation unless it

appears that he is “not likely to engage in a criminal

course of conduct.“ Obviously, this requirement aids in

the protection of society. And the requirement that it

appear that the ends of justice do not require that the

defendant shall presently suffer the penalty imposed by

law accommodates both the rehabilitation of the proba-

tioner and the protection of society. A third state interest

involved in this case is Georgia’s strong interest in resti-

tution. According to a Georgia statute:

19

It is hereby declared to be the policy of this State

that restitution by those found guilty of crimes to

their victims is a primary concern of the criminal

justice system.

Ga. Code Ann. § 27-3001 (Supp. 1981).

These three purposes or interests of the State of Geor-

gia are, of course, legitimate. No serious argument to the

contrary could be made. Note that these interests are

particularly important because they are articulated and

not merely conceivable. McGinnis, supra, at 270.

The revocation of petitioner’s probation is rationally

related to Georgia’s legitimate interest in administering

probation in such a way so as to protect society. This is

respondent’s primary position. Secondarily, respondent

maintains that the revocation rationally furthers peti-

tioner’s rehabilitation. Note that the rationality standard

does not require that a state classification further all state

interests or even the primary state interest. McGinnis,

supra, at 274-77.

The revocation in question is rationally related to the

protection of society in two ways. First, petitioner's in-

ability to pay the balance of his fine and restitution altered

the trial court’s initial determination that he was a good

probation risk and not “likely to engage in a criminal

course of conduct.“ Ga. Code Ann. § 27-2709(c) (Supp.

1981). Second, the revocation of petitioner’s probation

helps to protect society by maintaining public confidence

in the Georgia criminal justice system. Petitioner will

now discuss these two propositions.

Petitioner’s inability to pay the balance of his fine and

restitution increased the likelihood that he would commit

another crime and made him a poorer probation risk than

it had first appeared. Although this is not a pleasant con-

20

clusion for one to draw, it is certainly rational. It should

be kept in mind that governmental decisions need not be

based on conclusive scientific evidence in order to be ra-

tional or constitutional. See McGinnis, supra, at 270.

With regard to the regulation of obscene materials, which

impinges upon preferred First Amendmer:t rights, the

Court has said:

Although there is no conclusive proof of a connec-

tion between antisocial behavior and obscene materi-

al, the legislature of Georgia could quite reasonably

[emphasis added] determine that ah a connection

does or might exist. In deciding Roth |v. United States

354 U.S. 476 (1957)}, this Court implicitly accepted

that a legislature could legitimately act on such a

conclusion to protect “the social interest in order and

morality.”’ (cit. omitted) (emphasis in original)

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60-61 (1973).

There is, nonetheless, considerable data which sup-

port the proposition that crime and probation success are

related to financial ability and the associated attribute of

employment. For example, one study has shown that in

the year prior to their arrests, 41.4 percent of inmates of

state correctional facilities in 1979 either had no income

or income less than $3,000. Similar findings have been

made about inmates of local jails. U.S. DEPARTMENT

OF JUSTICE, SOURCEBOOK OF CRIMINAL JUS-

TICE STATISTICS 463, 485 (1981); see also id., at 488

(1980). The same study established that the associated

characteristic of unemployment is also related to incar-

ceration. Fully 29.5 percent of inmates of state correc-

tional facilities in 1979 had been unemployed the year

prior to their arrests arid another 9.9 percent had worked

only part time. Again, similar figures apply to inmates of

local jails. Id., at 463, 485 (1981). One study has sug-

21

gested that the higher arrest rate among blacks than whites

is a function not of race or discrimination in law enforce-

ment but of the average lower socio-economic characteris-

ties of blacks, including high unemployment. E. GREEN,

Race, Social Status, And Criminal Arrest, AMERICAN

SOCIOLOGICAL REVIEW 35:476-90 (1970); see also

U.S. DEPARTMENT OF COMMERCE, CRIME AND

EMPLOYMENT ISSUES 86 (1978) (there is indeed a

relationship between unemployment and crime’’); M.

WOLFGANG, R. FIGLIO, and T. SELLIN, DELIN-

QUENCY IN A BIRTH COHORT (1972) (low socio-

economic status, including low family income, associated

with delinquency) ; but see C. TITTLE & W. VILEMEZ,

The Myth Of Social Class And Criminality: An Empirical

Assessment Of The Empirical Evidence, AMERICAN SO-

The results of the analysis of 14,385 cases in 19

probation ts show that probationers who

U.S. DEPARTMENT OF JUSTICE, THE ATTORNEY

GENERAL’S SURVEY OF RELEASE PROCEDURES

II: 406-07 (1974); see also THE PRESIDENT’S COM-

MISSION ON LAW ENFORCEMENT AND AD-

MINISTRATION OF JUSTICE, TASK FORS® RE-

PORT CORRECTIONS 27-37 (1967), reprinted in

R. CARTER & L. WILKINS, PROBATION, PAROLE,

AND COMMUNITY CORRECTIONS 104 (1976);

R. CLEGG, PROBATION AND PAROLE 27 (1964)

(employment also important to success of parole). Thus,

the revocation of petitioner’s probation is rational be-

cause his loss of his job and inability to pay his modest

fine and restitution amounts made him a poorer probation

risk and made it more likely that he would commit

another crime.

The revocation of petitioner's probation also rationally

furthers the State’s interest in protecting society by

maintaining public confidence in Georgia’s criminal

justice system. If revocation were not permitted peti-

tioner would escape punishment and, because he was

sentenced under Georgia's first offenders’ procedure, even

avoid a conviction. Under Ga. Code Ann. § 27-2728 (Supp.

1981), one who successfully completes first offender’s

probation is completely exonerate|d] . . . of any criminal

purpose and.. not... considered to have a criminal

conviction.” Imagine the result if petitioner could mis-

represent his financial ability to the sentencing court and

then use his indigency like a sword to prevent revocation

and obtain an acquittal under § 27-2728. It would not

take many such cases to completely destroy public

confidence in Georgia’s criminal justice system. See

Burns, supra, at 222.

Respondent’s position that financial ability may be

considered in making revocation decisions is symmetrical

with the unquestioned authority of states to consider

financial ability in the decision to admit to probation. It

is widely acknowledged that financial ability is and

should be taken into account by a sentencing court when

it makes a decision on admission to probation. Fed.R.

Crim.P. 32(c)(2); Ga. Code Ann. §§ 27-2709(b), 3010

(a,b) (regarding restitution conditions) (Supp. 1981);

R. CLEGG, supra, at 166-67; R. CARTER & L. WIL-

KINS, supra, at 137-38; DIVISION OF PROBATION,

ADMINISTRATIVE OFFICE OF THE UNITED

STATES COURTS, THE PRESENTENCE INVESTI-

GATION REPORT, reprinted in R. CARTER & L.

WILKINS, supra, at 176f. (recommended pre-sentence

report includes detailed information on financial con-

dition and employment), cited in Williams v. New York,

337 U.S. 241, 250 n. 15 (1949); R. CARTER & L. WIL-

KINS, supra, at 221-22 (average monthly income and

employment stability influence federal probation officers’

recommendations and the sentences imposed by federal

district courts). As the Court observed in San Antonio

Independent School District, supra, “Sentencing judges

may, and often do, consider the defendant's ability to

pay... . Id., at 22 (dictum). In Williams v. New York,

supra, the Court approved of the use in sentencing of out-

of-court information, including financial and employment

information. Id., at 250 n. 15. If financial ability may be

considered in making the decision to probate, it obviously

may rightfully be considered in revocation. The Court

has recognized that a sentencing court’s wide discretion in

e ee ee

There is no tion in the statute {federal pro-

bation act] that the scope of the discretion conferred

1

providing modification or revocation. The

authority for the latter purpose immediately follows

that given for the former and is in terms equally

. “The court may revoke or modify any con-

dition of tion, or may change the period of

probation.”. . No criteria for modification are

Stes ae aS, Se ae

those which pertain to the original grant ques-

tion in both cases is whether the court is satisfied

that its action will subserve the ends of justice and

— SE Sey ae a Gey ee

t.

burns, supra, at 156. This position is in keeping with

wide discretion’’ vested in sentencing judges. Williams v.

Illinois, supra, at 243.

F

a sentencing court’s decision on whether he is a good pro-

bation risk, according to the Georgia Supreme Court.

When it develops that a defendant who has expressed

[Bjefore a sentencing j makes a decision to

r

endant is a p-bation ri

cifically, the judge must tuat the individual

t is not li to engage in a continuing

couree of criminal conduct and tat the ends of Ju

by law. It was the judge’s determination in this case,

on the basis of the representation made to him, that

Ms. Hunter would be a good probation risk should

she first pay the fine that was imposed. The fine

aspect of the judgment simply does not place the

appellant in a position where she is suffering dis-

of probation te fan and ability te pow the

issue ion, ility to pay

fine provided assurances to the trial judge that the

probation would be successful

Id., at 218-19. This reasoning is not matched by any of

the federal court decisions which disagree. Barnett v. Hop-

per, 548 F.2d 550 (5th Cir. 1977); Hutchinson v. Jones,

477 F Supp. 51 (N.D. Ga. 1979). Note that all of these

cases involve the validity of a lump sum fine —an issue not

presented here. Nevertheless the discussions are helpful.

Thus, it can be seen that the revocation of petitioner’s

probation rationally furthers the State’s interest in ad-

ministering probation in a fashion consistent with the

protection of society. This is so because petitioner’s loss

of his job and inability to pay his fine and restitution

balance reduced his chances of successful probation and

made it more likely that he would commit another crime.“

Ga. Code Ann. , 3012 (Supp. 1981). Although the

does det pee a motion to modify his sentences so as

In short, he was no longer a good probation risk. More-

over, the revocation helps maintain public confidence in

the Georgia criminal justice system. The question bere is

not whe.wer the revocation decision is wise or enlightened

but whether it is rational in view of the state interests

involved. Obviously, the decision falls well within the

bounds of rationality —it is certainly not irrational, Vance

v. Bradley, 440 U.S. 93, 111 (1979), or arbitrary, Ross,

supra, at 607. Any other conclusion would itself be irra-

Respondent also submits that the State’s interest in

rehabilitating petitioner is served by his probation revo

cation. Conditions of probation are usually tailored to

limit the temptation to the probationer to commit an-

other crime. See Inman, supra, at 193-94. Because, as the

above-stated argument makes clear, there is a relation-

ship between crime and probation failure on the one hand

and unemployment and financial inability on the other,

petitioner’s loss of his job and inability to pay his fine

and restitution placed him in the position of being easily

led to commit another crime. The revocation of peti-

tioner’s probation for the balance of his sentence removed

him from this temptation.*

Moreover, the state action in question should be con-

sidered in relation to the state’s legitimate interest in

seeing restitution made to crime victims. Petitioner was

sentenced, under a new Georgia statute, to make resti-

to receive credit for time spent on probation, it does not show that

— EI (J.A. 18).

* Under Ga. Code Ann. — 141. Rev.), in event of revoca-

tion, receive credit for spent on

tion. 8 sentence was modified on 17, 1981 so as

to ret this eet. A . Thus, petitioner did receive credit for

his probation time.

27

tution to his victims. Ga. Code Ann. §§ 27-3001, et seq.

(Supp. 1981). This statute requires that the financial

ability of an offender be considered. Ga. Code Ann. § 27-

3010(a, b) (Supp. 1981). It also provides that no offender

can be discriminated against under this section because

of his poverty:

(a) Nothing in this Chapter shall authorize

oan ent LTE

gently administered to prevent peonage.

(b) No offender shall be denied any benefit, relief

or privilege to which he might 2 atte

or eligible solely because he is financially unable and

cannot become financially able to aie | restitution.

Ga. Code Ann. § 27-3016 (Supp. 1981). Petitioner led the

sentencing court to believe that he could pay, and con-

sented to pay, restitution. In view of the strong Georgia

policy in favor of restitution this no doubt played a part

in the court’s decision to probate. It eventuated, how-

ever, that petitioner could not pay restitution. Thus, the

Georgia policy in favor of restitution which it first ap-

peared would be served by petitioner’s probation, is not

served. Thus, revocation is rational in view of this inter-

est. Of course, petitioner’s revocation, when looked at in

isolation, does not promote the collection of restitution

for his victims. However, the entire course of probation

decisions affecting petitioner, is, as explained above, in

keeping with the State’s interest in restitution.

In deciding this case, the Court should consider the

consequences of its decision for probation and other con-

ditional release procedures. If the “‘wide discretion” of

sentencing judges, Williams v. Illinois, supra, at 243, is

curtailed so as to limit their ability to consider employ-

ment or financial data in probation decisions, it is likely

28

that probation and other forms of conditional release will

be used less and more offenders will be sentenced to jail.

See, Burns, supra, at 222; Hunter, supra, at 219. As the

Georgia Supreme Court observed, This result . . does

not bode well for the state and defendants, as a class,

alike.” Id.

We are thus led to the conclusion that the revocation

of petitioner’s probation is rational. Petitioner an admit-

ted burglar with new burglary charges pending against

him, was simply no longer a good probation risk when he

lost his job and was unable to pay his modest fine and

restitution amounts. His failure to obey the financial con-

ditions of probation to which he had agreed‘ forced a

reassessment of his probation-worthiness. The sentencing

court concluded that in view of these developments peti-

tioner was no longer an acceptable probation risk. Peti-

tioner’s probation was not revoked because of his finan-

cial inability per se but because of the adverse implica-

tions of his financial inability for his success on probation

and likelihood of not committing additional crimes. Un-

like in Williams v. Illinois, supra, and Tate, supra, in

which the states promoted no legitimate penal or other

objectives in imprisoning the defendants, petitioner’s rev-

ocation rationally furthers leg.cimate state interests. In

Williams, supra, the states’ penal objectives had already

been satisfied yet the defendants were punished by addi-

tional jail sentences. No such irrational or arbitrary fea-

141 17 1

erately misrepresen i condition to ial court. How-

ever, as one scholar has observed, “Probationers and are

— 72.75, But whether petitioner — 2 tha exest

supra, at ‘ . i

or not, it is clear that the court sentenced him on the faulty

premise that he was financially able to pay a fine and restitution.

tures affect the state action in question here. As outlined

above, petitioner’s revocation rationally furthers three

state interests.

Finally, two other points about Williams v. Illinois,

supra, should be mentioned. First, the Court said that

states could not fail to enforce fines against indigents be-

cause to do would be inverse discrimination.” Id., at 244.

In the instant case, such inverse discrimination would be

generated if petitioner were allowed not to pay his fine

and restitution. Second, the Court cited with approval

statutes of California, Michigan, and Pennsylvania —all

of which permitted imprisonment in the event of a defen-

dant’s failure to pay a fine in installments as directed.

Id., at 245 n. 21, 247, 256. These points also weigh in

favor of respondent’s position.

CONCLUSION

For the above-stated reasons, the judgment of the

Georgia Court of Appeals should be affirmed.

Please serve:

GEOKGE M. WEAVER

132 State Judicial Bl

40 Capitol Square, 8.

Atlanta, Georgia 30334

(404) 656-2976

Respectfully submitted,

Michakl. J. Bowers

Attorney General

Rosert S. Strusss II

Executive Assistant

Attorney General

Marion O. Gordon

Senior Assistant

Attorney General

JohN C. WALDEN

Senior Assistant

Attorney General

GEORGE M. WEAVER /

Assistant Attorney

31

CERTIFICATE OF SERVICE

I, GEORGE M. WEAVER, Attorney of Record for the

Respondent and a member of the Bar of the Supreme

Court of the United States certify that in accordance with

the rules of the Supreme Court of the United States I

have this day served 2 true and correct copy of this Brief

for the Respondent upon the Petitioner’s attorney by

depositing a copy of this brief in the United States mail

with proper address and adequate postage to:

John H. Lohr, Esq.

428 McCallie Avenue

ttanooga, Tennessee 37402

oni day of September, 1982.

GEORGE M. WEAVER