Respondents Brief — Wood v. Georgia

— eis ae

——— :

ENN 2 re

Supreme Court, U. S.

FILED

SEP 11 1980

No. 79-6027

AK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

RAYMOND WOOD, EDNA ALLEN AND

JAMES TANTE,

Petitioners,

We

THE STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

BRIEF FOR RESPONDENT

Joun W. Dunsmorg, Jr.

Assistant Attorney General

Counsel of Record for

Respondent

ARTHUR K. Bouron

Attorney General

Roserr §. Srusss, II

Executive Assistant

Attorney General

Don A. LANGHAM

First Assistant

132 State Judicial Bldg. Attorney General

40 Capitol Square, S.W. Joun C. WALDEN

Atlanta, Georgia 30334 Senior Assistant

(404) 656-3358 Attorney General

QUESTIONS PRESENTED

1. In cases arising in the criminal

justice system, should lack of wealth be a

suspect classification for purposes of

equal protection analysis?

2. May a trial judge who has made a

determination that probation is the per-

tinent punishment for one convicted of a

crime, later revoke that probation for

the nonpayment of a fine whicl was to

have been paid in installments during the

period of probation when during that period

no payments are made, nor has the offender

made any effort to comply with this term

7

of his probation?

TABLE OF CONTENTS

QUESTIONS PRESENTED . .

OPINION BELOW .... .- ar 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED... .

STATEMENT OF THE CASE... .

SUMMARY OF THE ARGUMENT .. .

ARGUMENT

1. ECONOMIC DISADVANTAGE HAS

NOT BEEN ACCEPTED AS A

SUSPECT CLASS FOR PURPOSES

OF EQUAL PROTECTION

ANALYSIS IN AREAS OF THE

LAW ARISING OUTSIDE THE

ADMINISTRATION OF

CRIMINAL JUSTICE ... =. -

THE FINANCIAL RESOURCES

AVAILABLE TO DEFENDANTS

IS ONE RELEVANT FACTOR

IN DETERMINING WHETHER THEY

ARE GOOD RISK FOR PROBA-

TION. PERMITTING A TRIAL

JUDGE TO WEIGH THIS FACTOR

IN DETERMINING WHETHER

PROBATION WOULD BE APPRO-

PRIATE, AND ON WHAT

Rn

(Contents cont.)

CONDITIONS, FURTHERS THE

BROAD SENTENCING DISCRETION

NECESSARY FOR AN EFFEC-

TIVE CRIMINAL JUSTICE

SYSTEM AND FURTHER AIDS

THE EFFICACY OF A PROBATION

SYSTEM WHICH, TO BE FULLY

EFFECTIVE, MUST HAVE A

BROAD BASE OF PUBLIC

Siweues «6 ¢ 8 se es 8 © 8 8

ee tk ee oe ee oe ee i ee

CERTIFICATE OF SERVICE ..... -»

Lae

TABLE OF AUTHORITIES

Cases: Page

Allen, et al. v. State, 144 Ga.

App. 233, 240 S.E.2d 754 (1977). 4

Arlington Heights v. Metro

Housing, 429 U.S. 252, 266

ot, eer a ee eee

Berman v. United States, 302 U.S.

211 (1937) * . o . 7 7 . > . - oe 23

Burns v. Ohio, 360 U.S. 252

bl. RE Se ee ee ae ee eee

Calhoun v. Couch, 232 Ga. 467

yi ye MS ee we LOL! ) eee |

Dandridge v. Williams, 397 U.S.

471, 155 tig. Poe re ee eee

Douglas v. California, 372 U.S.

See Cee og oe oe ek ee ee

Fleming v. State, 240 Ga. 142,

S.E. 4 Pa one

Graham v. Richardson, 403 U.S.

Sk. SA Se Be a ee ee Se eee

Green v. Georgia,442 U.S. 95

(1979) 7 ~ . ° * a . . . - . = = 3 2

IV

**%

Gre v. Georgia, 428 U.S. 153,

T78=180 er

Griffin v. Illinois, 351 U.S. 12

ee is 6 5 6 «és & e Sb AT, 20,213,264

Hawes v. State, 240 Ga. 327, 238

DO CPPSh. ¢ + © « « « « 32

Hunter v. Dean, 240 Ga. 214,

239 S.E.20 791 (1977), certiorari

improvidently granted, 439 U.S.

EES ee ee ee

Lockett v. Ohio, 438 U.S. 586

(1978) 7 . . . « + . . . * © . ° 32

Loving v. Virginia, 388 U.S. l,

ee. 6 sg ¢ » « « « AF

McGowan v. Maryland, 366 U.S. 420

hs - = 6 6 © « « « « « « 10,15

McLaughlin v. Florida, 397 U.S.

MEE w sc « ¢ « « «» « «6 « « 10,17

Maher v. Roe, 432 U.S. 461, 471

(tine ook & « « ¢ « « « blya®

Massachusetts Board of Retirement

v. Murgia, 427 U.S. 207 (1976) . 15,16

Meachum v. Fanno, 427 U.S. 215,

gee (19 76) . o . . o . . 7 * . o 30

Morris v. Schoonfield, 399 U.S.

Dns « 6 6 + © «0 « « « 49926

Ortwein v. Schwab, 410 U.S. 656

en a os es). «© «@ « e « LO

Rinaldi v. Yeager, 384 U.S. 305

[eae «6. eb eee) el eiaoe

Roberts v. Louisiana, 428 U.S. 325,

Ross v. Moffitt, 417 U.S. 600, 616

TRE = «ae he ok ee

Rummell v. Estelle, U.S.

100 S.ct. 1133, 63 L.Ed.2d 382

Cel da. 60S ee nae 6 ee es

San Antonio Independent School

District v. Rodriguez, 41l U.S. l,

oS (ental 6.2 66s 2 Re TD 4 Ss

Smith v. Bennett, 365 U.S. 708

Thea ie hee 6 6 Re ee ee we

Tate v. Short, 401 U.S. 395

(1971) ° ° . . . = . © . - . ° 7

United States v. Kras, 409 U.S.

Sea (hee) 6 «as Se eee Oe

Washington v. Davis, 426 U.S. 229

CAeeOn 6 s Swe eee ea Se ee

Williams v. Illinois, 399 U.S. 235

(i970) . - . . * + . - . + . . .

Williams v. New York, 337 U.S. 241

[Leeel «<< #16 2 ale So 6 6 eS DD

Williamson v. Lee Optical Co., 348

Uelse SUS, SUR. (ieee 4. * © ae. 4

Wood v. State, 144 Ga. App. 236,

“Fee B.Be ae 143 CASTS 6 oe eS

vI

11,24

42

20

43

17,19,20

21,22

24,25,26,

29,40

18

16

11,25,26,

30,40,41

31,39

15

Statutes: Page

United States Constitution,

Fourteenth Amendment ....... tl

Ga. Code Ann. § 26-1601 (1977 Rev.). 43

Ga. Code Ann. § 26-1902 (a) (b)

coef ae ae ae ee a ee |

Ga. Code Ann. epmsaee 6 «+ we ew &

Ga. Code Ann. 27-2511.1 (1978 Rev.) .39

Ga. Code Ann. areasee 4 ee ew ein &

Ga. Code Ann. 27-2709 (1978 Rev.). 1,4,37,4

Ga. Code Ann. 27-2901 (1978 Rev.). 2,45

A HA HA AM

Ga. Code Ann. 79A-811 (1978 Rev.). 43

Cal. Pen. Code Sec. 1205 (1968)... 41

VII

BRIEF OF RESPONDENT, THE STATE OF

GEORGIA ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF GEORGIA

OPINION BELOW

The opinion of the Court of Appeals

of Georgia is reported at 150 Ga. App. 582,

258 S.E.2d 171 (1979).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Equal Protection

Clause of the Fourteenth Amendment of the

United States Constitution:

No State shall .. . deny

any person within its juris-

diction the equal protection

of the laws.

It also involves the following pro-

visions of state law (unofficially codified

as):

Ga. Code Ann. § 27-2709

(1978 Rev.): [Statewide

Probation Act]; jurisdiction

of courts; procedure; hearings;

reference to circuit probation

supervisor; period of probation;

disposition of prisoner pending

hearing; payment of fines or

costs as condition precedent to

probation.

a? & 8

If it appears to [the] court upon

a hearing of the matter that the

defendant is not likely to engage

in a criminal course of conduct

and that the ends of justice and

the welfare of society do not

require that the defendant shall

presently suffer the penalty

imposed by law, the court in

its discretion shall impose sen-

tence upon such defendant but

may stay and suspend the execution

of such sentence or any portion

thereof, and may place him upon

probation under the supervision

and control of the circuit pro-

bation supervisor for the duration

of such probation.

2 2 ®

The court may, in its discretion,

require the payment of a fine or

costs or both as a condition

precedent to probation.

Ga. Code Ann. § 27-2991 (1978

Rev.): Time of payment of

fines.

Every fine imposed by the

court under the authority

of this Code shall be paid

immediately or within such

reasonable time as the court

may grant.

STATEMENT OF THE CASE

Petitioners were placed on probation

under Georgia's Statewide Probation Act, Ga.

Code Ann. § 27-2709 following their con-

victions under the State's obscenity statute.

Ga. Code Ann. § 26-2101. The convictions

of Petitioners Edna Allen and James Tante

arose in connection with their employment

at a movie theater in Atlanta, Georgia,

which showed films which were found to

be obscene in violation of the State's

obscenity laws. The convictions of Peti-

tioners Allen and Tante were affixmed by

the Court of Appeals of Georgia. Allen,

et al. v. State, 144 Ga. App. 233, 240

S.E.2d 754 (1977). Petitioner Wood was

convicted for distributing obscene materials

under the same Georgia statute, and his

conviction was likewise affirmed by the

Court of Appeals of Georgia. Wood v. State,

144 Ga. App. 236, 240 S.E.2d 743 (1977).

Petitioner Wood was sentenced to a $5,000.00

fine on each of two counts charging him with

distributing obscene material, and placed

on twelve months probation on each count,

with both counts to run consecutively.

(Appendix 23-25). Allen and Tante were

sentenced to a $5,000.00 fine and twelve

months on probation. (Appendix 17-22).

The sentences of all three Petitioners

were imposed on October 23, 1978. (Appendix

19, 22, 25). The above mentioned fines

were to be paid on an installment basis,

by making payment to the Fulton County Pro-

bation Office at the rate of $500.00 per

month for ten months by each Petitioner.

(Appendix 18, 21, 24). Some two and one-

half months after Petitioners were placed

on probation petitions for the revocation

of their probation were filed by their

probation officers with the court due to

the failure of each Petitioner to comply

with that aspect of their condition of

probation to pay monthly installments of

$500.00 as set forth in the trial court's

orders of October 23, 1978. (Appendix 26-

31). On January 26, 1979, a hearing was

held pursuant to the revocation petitions

which had been filed by the probation officers

against Petitioners. There does not seem to

be any dispute amongst the Petitioners

that their period of probation commenced

on Cictober 23, 1978.

At the probation revocation hearing,

it was established that each Petitioner

had not only failed to make the full $500.00

monthly payments as required by the court's

orders of probation, but had failed to pay

anything at all on the fines. (T. 3, 30,

32, 48, 49). The reason brought out by

each Petitioner as to their failure to pay

anything at all was not so much their alleged

indigency, but rather their reliance on the

promise of the "Adult Entertainment" estab-

lishments for which they had been employed

to pay the fines for them. (T. 4, 13, 14,

16, 31, 33, 35, 62). Each Petitioner gave

testimony which indicated that when they

were hired they were told by their employers

that any fines which might be adjudged

against them would be taken care of in

connection with any litigation growing out

of their employment. (T. 4, 13, 41, 43, 62).

Undoubtedly, during the sentencing Peti-

tioners did not protest their fines or

probation which was imposed upon them because

they thought that the organizations they

1/

were employed by would pay their fines.

1/ Before Petitioners were sentenced in this

case they were again convicted on obscenity

charges growing out of convictions from

their employment with the same employers

from whom the present set of circumstances

arises. In those cases the fines were

paid by the employers in accordance with

the expectancy and assurances that fines

and other costs of litigation would be

paid in those matters, and were in

fact paid by the attorney who represents

the Petitioners in this matter. (T. 12,

Ql, Bay 37)

At the probation revocation proceedings

the court heard testimony from the probation

officers of the respective Petitioners which

established that none of the Petitioners had

paid the required $500.00 per month, nor had

they paid any money to the probation office

at all. None of the Petitioners sought any

modification of the probation order to reduce

the fine, nor did they at the time the sen-

tence of fine and probation was pronounced

cause there to be entered any objection or

make any comments to the court that they

would not be able to pay the fine. Neither

have the Petitioners established that they

are indigent, but rather gave testimony

that their income was not sufficient to

meet the monthly payments. (T. 10, 37, 55).

On February 8, 1979, the State Court of

Fulton County entered orders as to each

Petitioner which provided that each Petitioner

had until February 13, 1979, to pay the

arrearage, and upon failure to do so because

of a change in condition probation would be

revoked, and was in fact revoked. (Appendix

32-34). Petitioners' lawyer on February 12,

1979, then sought to modify the conditions

of the probation orders, but this was denied

by the court. (Appendix 35-37). Petitioners

failed to pay the arrearages. Confinement

resulted.

10

‘\. SUMMARY OF THE ARGUMENT

\

The initial issue which must be ex-

plored in this equal protection case, arising

in the criminal justice system, is whether

being economically disadvantaged constitutes

a "suspect" class. Such an examination is

necessary, since if lack of wealth is

"suspect," a strict standard of judicial

scrutiny is employed; if lack of wealth

is not a "suspect" classification, then

the state action in question will pass

constitutional scrutiny if it is rationally

related to the achievement of a legitimate

state policy. Compare, McLaughlin v.

Florida, 397 U.S. 184 (1964) with McGowan

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

Financial need has never been labeled

"Suspect" in cases that do not originate in

the criminal justice system, and the reasons

why financial need should not identify a

"Suspect" class for equal protection purposes

11

in the non-criminal justice context are just

as persuasive as those cases arising in the

criminal justice system. Most importantly,

in examining those equal protection cases

which have their genesis in criminal law

we find that they are closely examined, with

the traditional test of rationality being

employed in cases that may be broadly grouped

in terms of adequacy of judicial review,

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

cost recoupment, e.g., Rinaldi v. Yeager,

384 U.S. 305 (1966) and fines, e.g., Williams

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

analysis is applicable in this case.

Subjecting the sentences in this case

to the test of whether the classification

drawn - admittedly made in the exercise of

individualized sentencing discretion - is

12

rationally related to the achievement of

permissible state policy, these Cases do not

offend the Equal Protection Clause. Fin-

ancial resources which might be available

to a defendant to and including looking to

individuals in a community from whom those

financial resources might be available

is one relevant factor which a trial court

may use in determining whether the individual

is an acceptable risk for probation. The

question of financial resources of a defen-

dant may or may not be a factor in certain

cases, as in other cases it may be important

to the sentencing judge as he considers

his sentencing alternatives. Permitting a

trial judge in an appropriate case to weigh

the factor of whether a sentence should be

probated, and on what conditions, furthers

two important state interests, namely the

broad sentencing discretion necessary for

an effective criminal justice system which

in turn, aids the efficacy of a criminal

justice subsystem - probation - which to be

fully effective, must have a broad base of

public support.

14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79-6027

RAYMOND WOOD, EDNA ALLEN AND

JAMES TANTE,

Petitioners,

Ve

THE STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

ARGUMENT

)

ECONOMIC DISADVANTAGE HAS

NOT BEEN ACCEPTED AS A SUS-

PECT CLASS FOR PURPOSES OF

EQUAL PROTECTION ANALYSIS

IN AREAS OF THE LAW ARISING

OUTSIDE THE ADMINISTRATION

OF CRIMINAL JUSTICE.

The Equal Protection Clause has always

been thought to allow differences in treatment,

15

even with some resulting in inequality, so

long as the state's purpose can be rationally

justified. McGowan v. Maryland, 366 U.S.

420, 425 (1961). Petitioners recognize

that equal protection does not require

"absolute equality." See brief of Petitioners

at page 8. Consequently, absent invidious

discrimination, a rationally based classifi-

cation does not run afoul of the Equal

Protection Clause. Massachusetts Board of

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

Dandridge v. Williams, 397 U.S. 471, 485

(1970); Williamson v. Lee Optical Co., 348

U.S. 483, 489 (1955). This Court has

recognized that absent invidious discri-

mination, and where the state has a

rationally based purpose the fact that

its action impacts more heavily on individuals

who are not members of a suspect class does

not prove a discriminatory purpose or intent

in the application of a state statute or

16

procedure. See Arlington Heights v. Metro

Housing, 429 U.S. 252, 266 (1977); Washington

v. Davis, 426 U.S. 229 (1976).

Petitioners' argument to this Court

is that poverty is a suspect classification,

and therefore the imprisonment of them for

failure to pay the fines which were a condition

of their probation should be subjected to

strict judicial scrutiny. See brief of

Petitioners, pp. 9-10. A suspect class, for

the purposes of equal protection analysis,

is one saddled with such disabilities as

to be subjected to a history of purposeful

unequal treatment or relegated to such

a position of political powerlessness as

to command extraordinary protection from

the majoritarian political process. Massa-

chusetts Board of Retirement v. Murgin,

427 U.S. 307, 313 (1976). While this Court

has viewed certain classifications as "in-

herently suspect," examining such "suspect"

17

classifications with close judicial scrutiny

such as race, McLaughlin v. Florida, 379 U.S.

184 (1964), nationality, Loving v. Virginia,

388 U.S. 1, 9 (1967), and alienage, Graham

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

disadvantage by itself has not been identified

as a suspect classification for the purposes

of equal protection examination. Maher v.

Roe, 432 U.S. 461, 471 (1977); San Antonio

School District v. Rodriguez, 411 U.S. l, 29

(1973); Dandridge v. Williams, supra, 397

U.S. at 484-485.

Petitioners make the assumption that

financial need or ability have already been

labeled by this Court as a "Suspect" class

when it comes to the administration of

criminal justice, relying upon Griffin v.

Tllinois, 351 U.S. 12 (1956). See brief

for Petitioners at p. 8.

While those who are economically dis-

advantaged may be confronted with an imposing

18

wall of finances which keeps them from the

life style which they might aspire to, and

while the fact that their financial resources

are less than those of the more affluent

individuals in society and therefore causes

them to undergo greater economic hardship,

these alone do not constitute a violation

of the Equal Protection Clause. In fact,

government regulations sometime present

a financial difficulty for the economically

disadvantaged who seek to take advantage

of a benefit or service by which those

who are financially welloff can easily pay,

and yet prepayment of certain fees can be

exacted from all individuals regardless of

/2

their financial status. This Court has

2/ Prepayment of fees for those who seek

to file a bankruptcy petition, United

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

and filing of appeals through a higher

court in a civil proceeding. Ortwein

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

19

found that states need not fund abortions

for indigent women simply because child

birth is funded, Maher v. Roe, supra, nor

must a state in its educational system

require precisely equal per pupil expendi-

tures between the affluent and less affluent

school districts, San Antonio School District

v. Rodriguez, supra, nor must it provide

additional money because a welfare recipient

has more children than the maximum number

for which welfare payments can be made.

Dandridge v. Williams, supra. Thus, it can

be seen that the fact that there is an impact

on those of less financial affluency does

not render financial ability, i.e., poverty,

a suspect classification for the purposes

of equal protection. See Arlington Heights

v. Metro Housing, supra.

Petitioners have correctly pointed out

that the decisions above have arisen in the

area of “economics and social welfare."

20

See brief of Petitioner at page 7.

Similar to the cases which arise in

a social welfare-economic context where

"the equal protection clause does not

require absolute equality or precisely

equal advantages," San Antonio Independent

School District v. Rodriguez, 411 U.S. at

24, likewise in the criminal justice area

a state need not "duplicate the legal arsenal

that may be privately retained by a criminal

defendant. ..." Ross v. Moffitt, 417 U.S.

600, 616 (1974). Likewise, while an indivi-

dual of less means is entitled to court

appointed counsel, the court is under no

duty to retain a high priced attorney.

Griffin v. Illinois, supra, 351 U.S. at 23

(Frankfurter, J., concurring).

While this Court has not been insen-

sitive to those who are economically dis-

advantaged, in none of the cases in which

21

the equal protection clause has been applied

has the Court identified indigency as a

"Suspect class." What this Court has done

is examine state statutes and practices which

place the indigent at a disadvantage in the

criminal justice process, invalidating those

procedures where there has been no rational

basis for the state's action. This Court

in the criminal justice area following

conviction, has provided indigent defendants

with the right of a free transcript to

review their criminal conviction?’ and

4/

assistance of counsel on direct appeal.

As noted by this Court in Smith v

Bennett, 365 U.S. 708 (1961), a case con-

cerning the requirement of the payment of a

filing fee before a habeas corpus petition

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

4/ Douglas v. California, 372 U.S. 353

(1963).

could be filed, the thrust of Griffin,

was the lack of a rational basis in statutes

implicitly assuming that an indigent's

efforts to have his case reviewed were less

meritorious than the efforts of other

defendants. Id. at 710. Consequently,

Gecisions by this Court striking down

statutes that required the payment of a

filing fee before an indigent can seek

appellate review, Burns v. Ohio, 360 U.S.

252 (1959), and the paying of a fee before

the filing of a habeas corpus petition,

Smith v. Bennett, supra, are decisions

which hold that state practices and procedures

which place an insurmountable obstacle

between the indigent defendant and his

ability to secure a review of his conviction,

a matter which would be otherwise available

to a person with money, are irrational, and

thus, offensive under the Equal Protection

Clause. However, more importantly, for the

23

purposes of this matter is the fact that

indigency in and of itself has never been

viewed as "suspect;" the test has been

and shouldcontinue to be "a rational basis"

and not "strict judicial scrutiny."

In Berman v. United States, 302 U.S.

211 (1937), poverty in the probation context

was not held to be deserving of heightened

judicial scrutiny.

Probation 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.

Probation or suspension of

sentence 'comes as an act of

grace to one convicted of a

crime.' Escoe v. Zerbst, 295

u.S. 490, 492, 493. The con-

siderations it involves are

entirely apart from any re-

examination of the merits of

the litigation. Probation

was designed 'to aid the re-

habilitation of a pertinent

offender; to take advantage of

an opportunity for refor-

mation which actual service

of the suspended sentence

might make less probable.'

Thus probation cannot be

demanded as a right. The

defendant stands convicted;

he faces punishment and

cannot insist on terms or

strike a bargain. Id. at

220. i

Consequently, while Griffin v. Illinois,

Supra, stands for the application of a heigh-

tened degree of scrutiny in matters relating

to a defendant's effective access to review

the findings of criminal guilt, the review

of a matter of probation and the payment of

a fine and the later incarceration because

of failing to meet a condition of probation

does not involve any "fundamental interest"

which deserves heightened judicial scrutiny.

In those cases involving equal protection

in terms of state statutes seeking to recover

costs>/ and fines®/ the Court has applied

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

6/ Tate v. Short, 401 U.S. 395 (1971).

25

the rational basis test and not a test of

strict judicial scrutiny. Again, indigency

has never been viewed as suspect so as to

invoke the latter doctrine.

The cases in which the Petitioners

place heavy reliance - Tate v. Short, 401

U.S. 395 (1971, Morris v. Schoonfield, 399

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

399 U.S. 235 (1970) - also do not view

indigency as necessarily suspect for pur-

poses of equal protection analysis. Rather

the Court has examined the rationality

of the statutory schemes in accordance with

the objectives of the statutory plans.

In Williams v. Illinois, supra, the

court examined a statutory scheme which

allowed the imprisonment of defendants

beyond the state statutory maximums for

?%

26

their respective offenses because the fines

were converted into days of incarceration

at the rate of $5.00 per day. Id. at 236.

The Court struck down the practice holding

that it created one maximum punishment for

those who could afford the fine but a greater

maximum penalty for the poor. Id. at 240-241,

243. The Court in Tate v. Short, 401 U.S.

395 (1971), struck down a procedure which

substituted jail time for an unpaid fine,

even though jail time could not have been

imposed for the charge of which the defendant

had been found guilty. Again rationality

was found wanting. In Morris v. Schoonfield,

supra, imprisonment of an indigent defendant

who could not immediately pay a fine could

not be converted into a period of imprisonment

because of indigency. Both Williams, supra

and Tate, supra, addressed factual situations

in which criminal defendants were punished

27

beyond the state statutory maximums for

their respective offenses solely because

of their inability to pay fines. The present

case does not involve or even remotely involve

similar facts. Sub judice, the revocation

of Petitioners' probated sentences does

not punish them beyond the statutory maximum.

To date the Court has made it clear

that economic disadvantage has not been

accepted as a "suspect class" for purposes

of equal protection analysis in areas of

law arising outside the administration of

criminal justice and as such economic status

in itself has not been found to be sufficient

to engage strict judicial scrutiny in crimi-

nal cases.

Petitioners have offered no reason

why economic status should be deemed "suspect"

in criminal law and related matters, but

28

merely asswue that economic status is al-

ready suspect. None of the indicia of

suspectness in cases previously decided by

the Court such as immutability of classification

or the existence of stereotyping are present.

Poverty, unlike race, is certainly not an

immutable characteristic. Neither is

poverty in the probation context based on

prejudicial stereotyping, but is a factor

which may be legitimately examined in

considering and assessing the risk involved

in granting probation to a given defendant,

but more will be said in that regard later.

In deciding whether the sentence imposed

on the Petitioners in this case is permissible

under the Equal Protection Clause, the

test should be the traditional one of ration-

ality and not that of strict judicial scrutiny.

29

II

THE FINANCIAL RESOURCES AVAILABLE

TO DEFENDANTS IS ONE RELEVANT

FACTOR IN DETERMINING WHETHER

THEY ARE A GOOD RISK FOR PROBA-

TION. PERMITTING A TRIAL

JUDGE TO WEIGH THIS FACTOR

IN DETERMINING WHETHER

PROBATION WOULD BE APPROPRIATE,

AND ON WHAT CONDITIONS,

FURTHERS THE BROAD SENTENCING

DISCRETION NECESSARY FOR AN

EFFECTIVE CRIMINAL JUSTICE

SYSTEM AND FURTHER AIDS THE

EFFICACY OF A PROBATION

SYSTEM WHICH, TO BE

FULLY EFFECTIVE, MUST HAVE A

BROAD BASE OF PUBLIC SUPPORT.

Turning now to the sentencing phase,

it is important to remember that the present

case does not involve imprisonment for the

immediate failure to pay a fine, Tate v.

Short, supra, or imprisonment beyond the

30

statutory maximum as a penalty for the

failure to pay a fine. Williams v. Illinois,

Supra. Petitioners are not being held beyond

the statutory maximum penalty, but rather,

their basic claim is that they have a right

to probation. Having been duly convicted

by a jury, and having had their convictions

reviewed, any liberty interest which the

Petitioners may have has been extinguished.

Meachum v. Fanno, 427 U.S. 215, 224 (1976).

At issue here is an examination of the sen-

tencing function of a trial judge. The

importance of the sentencing function cannot

be overemphasized, since this is the area by

which the public judges the success or failure

of the criminal justice system, for it is

here that they see the results of that

system. The matter of whether the sen-

tence is too short, too long, or the

wrong type may later cause the criminal

defendant to repeat his criminal endeavors,

lead to new criminal offenses, or result

in others committing criminal offenses

31

because they see that the punishments which

have been meted out in the past have not

outweighed the gain which they perceive they

have received from their criminal escapade.

If the public perceives that there are no

sanctions for individuals who violate the

terms and conditions of probation then

obviously the public will view probation as a

useless sentencing alternative. Similarly,

a court if it is unable to enforce any

violations of the conditions which it attaches

to probation may draw the conclusion that

probation is no longer a useful rehabilita-

tive alternative.

The concept that sentencing should fit

the individual and the crime is recognized

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

wherein the Court approved for seritencing

purposes the evaluation of data pertaining

to the defendant that would be inadmissible

32

on the question of guilt or innocence. Not

only should the sentencing judge be provided

with broad discretion in considering various

sentencing alternatives, in those areas where

the jurors do sentencing similar discretion

must be afforded to them. ’/

In deciding upon an appropriate sentence

for one convicted of a crime there are many

factors which the trial judge must weigh,

and sometimes he is placed in a dilemma

when weighing all those factors in attempting

to arrive at an intelligent exercise of the

discretion which has been placed in the judge

by virtue of his office. Social factors

such as family history, educational achievement,

7/ See Green v. Georgia, 442 U.S. 95 (1979);

Lockett v. Ohio, 438 U.S. 586 (1978);

Hawes v. State, 240 Ga. 327, 238 S.E.

2a 418 (1977); Fleming v. State, 240 Ga.

142, 240 S.E.2d 828 (ioTTY-

33

employment opportunities, ties with the

community, nature of the crime, and the record

of the offenderare all matters which the

trial judge takes into consideration. That

is not to say that the trial judge may not

consider other factors which he deems

appropriate to determining whether a

non-penal disposition is appropriate and

the chances of its success. The fact that

the Petitioners were all older citizens,

and the fact that they had previously in

regard to a guilty plea been placed on

probation and assessed a fine probably

prompted the trial judge to consider probation

in this instance.

In considering probation the trial

judge must reach some conclusion as to

whether the defendants are a good risk.

In assessing risk prior criminal history

should be examined to indicate whether the

offender has in the past given any indication

34

that probation would not be successful.

The judge may also consider family and

family support. In every case the judge

must ask the question of whether the offender

can succeed on probation. Ultimately, only

the defendant can ensure a successful

probation, for in the end that is the

offender's responsibility.

When a defendant and those individuals

who are interested in a defendant's welfare

directly participate in ensuring the success

of probation and thus avoiding imprisonment,

that responsibility is increased. The

employment potential of the probationer

provides the sentencing judge with some

assurance that the offender has an added

stake in the success of probation. A fine

sometimes accomplishes the same purpose.

a3

Regardless of whether the fine is

paid in advance or on the installment

plan, it provides an assurance to the sentencing

judge that the potential probationer will

have a greater responsibility in conforming

his conduct to the law. Naturally, the

fear of revocation and possible imprisonment

has an immediate impact on the probationer,

and may serve as a curb to overcome any

temptation to violate the terms and conditions

of probation. The payment of a fine provides

a probationer with a heightened interest

in the success of his probation.

The court may also legitimately consider

the offender's ability to pay the fine, and

may consider offers of payment from family

members, or from the offender's employer.

In this instance, there is testimony that

the Petitioners' employers had in the past

paid such fines, which can be viewed by

the trial court as an indication that the

36

employers of the Petitioners had an interest

in the Petitioners as continued employees

and that these businesses would seek to

confrom their activities to the law in

the future rather than risk the loss of

their investment in the success of the

Petitioners' probation. Such a willingness

by third parties to pay a fine indicates

that the Petitioners had the support of

others as they attempted to become law

abiding citizens. Payment of a fine by

an employer is similar to payment of a fine

by family members or friends. Such support

is clearly an important consideration in

assessing the probability of a given

probationer's success.

When the assurances that prompt a trial

judge to impose a conditionally probated

sentence do not materialize, the factors

which determine the probation-worthiness

of the offender are no longer present.

37

Consequently, the basis of the judge's

decision to grant probation has been materially

altered and must be reassessed. When the

assuring factors which were present when

the judge imposed probation fail to

materialize the defendant thus becomes a

poor risk for probation. When the conditions

surrounding the reassuring factors to insure

success on probation cannot be satisfied,

the probation does not become effective

and the sentence must be served. Petitioners

did not seek a modification of the terms

and conditions of probation until after

the court had held the hearing on the

probation officer's petition to revoke

probation. 8/ It was not until some two and

8/ Georgia permits the sentencing judge to

modify the terms and conditions at any

time during the term of the sentence

which has been probated. Ga. Code Ann.

§ 27-2709 (1978 Rev.).

38

one-half weeks after the revocation hearing

that Petitioners sought to modify the condi-

tions of probation. (Appendix 35-36).

Generally the availability of financial

resources to a criminal defendant is not

a controlling factor in terms of whether

the individual is a good risk for probation.

It is the nature of the crime and the

record of the offender that is crucial.

However, such as in this case, the availability

of financial resources is certainly an impor-

tant factor; it is a rational factor.

The sentencing discretion provided

to trial judges should not be limited. The

availability of financial resources to the

offender plays an appropriate role in the

exercise of that discretion. The presence

or existence of economic resources will

play a minor, if not nonexistent, role in

many cases but in some few cases it plays

an important role. Restrictions of the

39

sentencing discretion given to trial judges

should not as a general rule be app lauded.

In this case restrjctions on sentencing

serve only to frustrate the state's interest

in maintaining an effective criminal justice

system.

The mere possibility that some judges

will abuse the discretion with which they

are entrusted should not be a sufficient

9/

basis to limit the discretion of all judges.

Cf., Williams v. New York, 337 U.S. 241, 251-

252 (1949). The consequences of limiting

a judge's sentencing discretion are unthink-

able. If a judge cannot impose a period of

probation because he has no means of enforcing

violations of probation then many defendants

9/ To curb any abuses which may occur during

sentencing, the General Assembly of

Georgia has adopted a Sentence Review

Panel to review all sentences cf five

years or more for harshness. Ga. Code

Ann. § 27-2511.1 (1978 Rev.).

40

would find themselves incarcerated without

the opportunity to demonstrate their probation-

worthiness by putting up a financial stake.

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

(Blackmun, J. concurring).

The Supreme Court of Georgia in Hunter

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

certiorari improvidently granted, 439 U.S.

281 (1978), recognized that assurance of

third party help is a rational factor for

a trial judge to consider in determining

probation. Id. at p. 218. See also Calhoun

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

The use of installment plans for the

payment of a fine was recognized in Williams

v. Illinois, 399 U.S. 235, 245 n. 21 (1970).

In Williams, supra, the Court cited

with approval statutes in California, Michigan

and Pennsylvania. The California statute

permitted the payment of a fine in installments

41

with imprisonment in the event of default,

but for no longer than the maximum term

for which the defendant might have been

sentenced. Wye, at p. 247.

The Court further went on to say in

Williams, supra, that a state cannot fail

to enforce fines against indigents because

to do so would amount to "inverse discrimina-

tion." Id. at p. 244.

Public perception of the success or

failure of the criminal justice system is

a direct result of the exercising of the

sentencing function vested in the trial

judge. Permitting the judge to have wide

sentencing discretion in terms of conditional

releases such as probation, restitution and

other post-conviction sentencing alternatives

must have a broad base of public support.

Recognition that the public has a keen

10/ Cal. Pen. Code Sec. 1205 (1968).

42

interest in and awareness of the effectiveness

of the criminal justice system was evidenced

in this Court's 1976 opinions concerning

capital punishment. Cf., Gregg v. Georgia,

428 U.S. 153, 179-180 (1976) (plurality

Opinion); Roberts v. Louisiana, 428 U.S.

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

Sentencing alternatives which do not provide

for incarceration are particularly susceptable

to public scrutiny, and when those alternatives

are viewed as ineffective the public reacts

in seeking a legislative termination to such

vrograms.

As the rate of crime continues to spiral

many states have found themselves confronted

with the decision as to whether mandatory

sentencing procedures should be invoked.

In the last four years the movement towards

mandatory sentencing has increased, with

the General Assembly of Georgia this year

adding two mandatory enactments, in addition

to its earlier providing for mandatory

sentences for certain crimes in 1977 and

43

1976. Ga. Code Ann. § 79A-811 (1978 Rev.)

[controlled substances], Ga. Code Ann. §

26-1902(a) (b) (1977 Rev.) [minimum penalty

for armed robbery, with the Legislature

precluding any suspension or probation of

sentence] and Ga. Code Ann. § 26-1601 (1977

Rev.) [mandatory minimum sentence for second

conviction for burglary which precludes the

sentence being suspended or probated]. See

also Rummell v. Jstelle, = - P

100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

Maintaining public confidence in

Georgia's Statewide Probation Act is one

of utmost importance if the State is to

achieve another legitimate objective, the

rehabilitation and punishment of offenders

outside the confines of a penal institution.

44

The Constitution does not empower

the second-guessing of judicial officials

with the difficult task which trial judges

face in enforcing the State's criminal laws,

even where the impact may result in a period

of incarceration for one who was given an

earlier act of grace by being placed on

probation, but because of a change ina

factor which was used by the trial judge

in placing the individual on probation that

person later became incarcerated for a period

not exceeding the statutory maximum penalty

for that offense.

45

CONCLUSION

As noted earlier, indigency or poverty

is not a "suspect" ciassification for equal

protection analysis. Further, it appears

that Petitioners concede the validity of

the statutes authorizing probated sentences

conditioned upon the payment of a fine. See

Ga. Code Ann. §§ 27-2529, 27-2709, 27-2901

(1978 Rev.). Petitioners’ contention is

simply that as applied, they deny them equal

protection of the law.

Respondent has shown that in some

circumstances it is necessary for a sentencing

judge to assess the financial resources

available to an offender to ensure that

the offender is a good risk for probation.

Examining resource availability furthers

the undeniable rational and legitimate state in-

terestin investing trial judges with a broad

sentencing discretion. Consideration that

46

payment will be made by a third party

strengthens the probability of an offender's

chances for successfully completing probation,

Since it demonstrates third party support

to ensure that the probationer will have

a successful period of probation. Particularly

when an employer is the source of the fine

additional likelihood of success is heightened

because the individual has employment which

indicates that the probationer will be able

to support themselves, and in this case it

is also an indication that the employer has

a continued interest in the employee and

wishes to ensure that his future ccnduct

conforms to the law when earlier conduct led

to the employee's conviction, for to do

otherwise would mean that the employer would

be risking the loss of the investment and

the success of the petitioner's continued

probation.

47

In assuring trial judges a broad

sentencing discretion it promotes another

rational and legitimate state interest -

maintaining public confidences in the

viability of a conditional release system.

The relationship between any classifi-

cations drawn and the purpose for which

they are drawn is clear and rational, and

under the traditional equal protection

analysis applicable to this case, the

Equal Protection Clause has not been

offended. Consequently, the judgment of

the Court of Appeals of Georgia should be

affirmed.

Respectfully submitted,

ARTHUR K. BOLTON

ATTORNEY GENERAL

(Signatures Continued)

48

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

DON A. LANGHAM

First Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

JOHN W. DUNSMORE, JR.

Assistant Attorney General

Counsel of Record for

Respondent

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia

(404) 656-3358

30334

49

CERTIFICATE OF SERVICE

I, JOHN W. DUNSMORE, JR., Attorney of

Record for the Respondent herein, and a

member of the Bar of the Supreme Court of

the United States, hereby certify that in

accordance with the Rules of the Supreme

Court of the United States, I have served

the foregoing Brief for Respondent on the

Petitioner by depositing a copies of same

in the United States mail, with first class

postage, prepaid, addressed to Counsel

of Record at the following post office

address:

Mr. Glenn Zell

Suite 620

66 Luckie Street, N.W.

Atlanta, Georgia 30303

This Or day of September, 1980.

fa /

fe

JOHN W. DUNSMORE, JR.