Williams v. Illinois Appellants Brief

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1969

Mo. 1089

WILLIE E. WILLIAMS,
Appellant,

v.

ILLINOIS

APPEAL FROM THE SUPREME COURT O F  ILLINOIS 

f
APPELLANT’S BRIEF

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jI

J ack Greenberg  
Michael Meltsner  
CharlIes Becton 

10 Columbus Circle 
New York, New York

St a nLey A. Bass
Community Legal Counsel 
1 p  South Michigan Avenue 
Chicago, Illinois

HaTwood Burns
i l l2 West 120th Street 
New York, New York

Anthony  G. Amsterdam
Stanford University Law School 
Stanford, California

A ttorneys fo r  Appellant



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TABLE OF CONTENTS
Page

OPINION BELOW..................................................................................... 1

JURISDICTION.......................................................................................  1

QUESTION PRESENTED.......................................................................  2
CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED..........................................................................................  2
STATEMENT .................................................................................    6
ARGUMENT ...........................................................   11

Illinois Statutes Which Authorize a Pauper’s Imprison­
ment in Excess of the Maximum Period Otherwise Set by 
Law at the Rate of Five Dollars Per Day, Despite the Fact 
That He is Willing and Able to Pay a Fine and Court Costs 
if Given the Opportunity, Violate the Equal Protection 
Clause of the Fourteenth Amendment............................................  U

CONCLUSION.......................................................' .................................  29

AUTHORITIES CITED
Cases: i 1 ;-----  f
Alegata v. Commonwealth1, 353 Mass. 287, 231 N.E.2d 201

(1 9 6 7 )...................... -  . L ------------------ --------------. ™  - 1 9

Anders v. California, 386 U.S. 738 ( 1 9 6 7 ) ......................................  25
Anderson v. Ellington, 300 F.Supp. 789 (M.D- Tenn. 1969) . . .  23

Ariel v. Massachusetts,___ Mass.___ , 248 N.E.2d 496 (1969)
appeal dismissed, 24 L.Ed.2d 468 (1^70)-.................................... 17

Baker v. Binder, 37fhF.Supp. 658 (W.D.Ky. 1967) ...................... 19

Berkenfield v. Peopfe, 191 111. 272 (19Q1) ......................................  12

Buck v. Alex, 350 111. 167, 182 N.E. 7^4 (1 9 3 2 ) ........................  . 22

Burns v. Ohio, 360'U.S. 252 (1959) ./............................................... 24

City of Chicago v. Morell, 247 111. 383, 93 N.E. 295
(1911) . . . .  j ................................. f .....................• ........................  23

Cox v. Rice, 375/111. 357, 31 N.E.2d V86 (1 9 4 7 ) ...........................  22

Douglas v. Calih. nia, 372 U.S. 353 (11962)......................... 24, 25, 26

Draper v. Washington, 372 U.S. 487 (1963)......................................  24



Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 ) ..............1 ................../

Edwards v. California, 314 U.S. 160 ( 1 9 4 1 ) ................

Eskridge v. Washington State Board, 357 U.S. 214 (1958)...........
Ex Parte Jackson, 96 U.S. 727 (1 8 7 7 ) ..............................................

Fenster v. Learcy, 30 N.Y.2d 309 (1967)

Frank v. United States, 395 U.S. 147 (1969)

Gardner v. California, 393 U.S. 367 (1969)

Griffin v. Illinois, 351 U.S. 12 (1956)...........................  24, 25, 26,

Harper v. Virginia Board of Elections, 383 U.S. 663 (1965) , 25,
Hill v. Wampler, 298 U.S. 460 ( 1 9 3 6 ) ..............................................

Kennedy v. People, 122 111.649, 13 N.E. 213 (1 8 8 7 ) ...................

Kettles v. People, 221 111. 221, 77 N.E. 472 ( 1 9 0 6 ) ......................
Lane v. Brown, 372 U.S. 477 (1 9 6 3 ) ................ .....................

Lawyer Title of Phoenix v. Gerber, 44 111.2d 145, 254 N.E.
2d 461 (1969) ...............................................................

| ........ •* * ' *
Long v. District Court of Iowa, 385 U.S. 192 (1 9 6 6 ) ...................

Loving v. Virginia. 388 U.S. 1 (1967) ......................................  25,

McDonald v. Board\of Election Commissioners, 394 U.S.
802 (1 9 6 9 )...........\ .............................................................................

McLaughlin v. Florida, 379 U.S. 184 (1 9 6 4 ) ......................  23-24,
Maggio v. Zeitz, 333 U.S. 56 ( 1 9 4 8 ) .................................................

„ Martin v. Erwin (USDC WD La., January 25, 1968; Supple­
mental Order, February 27, 1968, Civil No. 13084) . . . . . . .

Morris v. Schoonfeld, 301 F.Supp. 158 (D.Md. 1969), juris­
dictional statement filed No. 782, October 28, 1969, 38 
U.S.L. Week 3 1 6 2 .........................................................................  28

North Carolina v. Pearce, 395 U.S. 711 ( 1 9 6 9 ) ................. 18, 28,
People v. Collins, 47 Misc.2d 210, 261 N.Y.S.2d 970 

(Orange County Ct. 1 9 6 5 ) ...............................................................

People ex. rel. Herring v. Woods, 37 111.2d 435, 226 N!E.2d 
594 (1 9 6 7 )........................... .................................................................

People v. Hedenberg, 21 111. App.2d ,504 (1959) ...................... 13,
People v. Herman, 245 111.App. 94 (1927)

14

19

24

24

19

14

25

31

26

24

23

23

24

22
25

26

25

26

18

20

-29

29

31

27

16

13

i



People v. Jaraslowski, 254 111. 299 (1 9 1 2 )................... | j2
People v. McMillan, 53 Misc. 2d 685, 279 N.Y.S.2d 941

(Orange County Court 1 9 6 7 ) ...................... ...................................  31
People v. Saffore, 18 N.Y.2d 271 N.Y.S.2d 972 218 NE

686 (1 9 6 6 )............................................................................................. 26

People v. Walker, 286 111. 541, 122 N.E. 92 (1 9 1 9 )...........................  23
People v. Zito, 237 III. 434 (1909)..............................................  13, 23

Petition of Blacklidge, 359 111. 482, 195 N.E. 3 (1 9 3 5 )................  22
Re Gault, 387 U.S. 1 (1967) .........................• .................................... 14
Ricks v. District of Columbia, 414 F.2d 1097 (D C Cir

1 9 6 8 ) ..................................................................................19

Rinaldi v. Yeager, 384 U.S. 305 ( 1 9 6 6 ) ...................... . 21, 23, 25

Roberts v. Lavalle, 389 U.S. 40 (1967) ............................................  25

Robinson v. California, 370 U.S. 660 (1962) ...................... ' 19
Sawyer v. District of Columbia, 238 A .2d 314 (DC App

1 9 6 8 ) ..............■.................................................................. ‘ . . . . .  27
Smith v. Bennett, 365 U.S. 708 ( 1 9 6 1 ) .................................... 25

Smith v. Hill, 385 F.Supp. 556 (E.D.N.Y. 1 9 6 8 ) ..............................  19
Strattman v. Studt,. 2d Ohio st. 2d ___  N E 2d

(1969) ................ \ .................................................. .’ . . . 7 7 ; . . .  23
Swenson v. Bosler, 386 U.S. 258 (1 9 6 7 )............................................ 25

United States ex rel. Privatera v. Kross, 239 F.Supp. 118 
(S.D.N.Y. 1965) a ff’d  345 F.2d 533 (2nd Cir. 1965), 
cert, denied, 382 U.S. 911 (1965) ...................................... ' 27, 28

Williams v. City of Oklahoma City, 395 l?.S. 458 (1 9 6 9 )................  25

Wright v. Matthews, 209 Va. 246, 163 S.E.2d 158 (1968) ...........  23

Statutes:

28 U.S.C. § 1257(2)....................................................... j
29U.S.C . § 2 0 6 .............................. .. ......................................................  19
Cal. Pen. Code Section 1205 .............................................. ' 20

Md. Ann. Code Art. 52 Sec. 18 . . , | ....................................... 20

Mass. Ann. Laws ch. 279, Section 1 A ( 1 9 5 6 ) .................................  20



1

3

r/v>

Mich. Stats. Ann. Sec. 28.1075 (1 9 5 9 ) ...................................  20

Pa. Stat. Ann. Title 19, Section 953-56 ( 1 9 6 4 ) .............................. 20

S.C. Code Ann. Section 55-593 (1962) ......................  20

Utah Code Ann. Section 77-53-17 (1 9 5 3 ) ......................... 20

Wash. Rev. Code Ann. Sec. 9.92.070 (1 9 6 1 ) ...................................  20
Wis. Stat. Section 57-04 (Supp. 1 9 6 5 ) ......................................... 20

Section 72 of the Illinois Civil Practice A c t .............. 8
Section 180-4 of the Code of Criminal Procedure (111 Rev

Stat. 1967 ch. 38) ...................................  ' 5 -,0
Section 180-6 of the Code of Criminal Procedure (111 Rev

Stat. 1967. ch. 3 8 ) .................................................................... ' Passim

Section 1-7(k), Criminal Code of 1961 (111. Rev. Stat. 1967,
ch- 38‘) ....................................................................10, 11 , 12, 21, 22

111. Rev. Stat. 1967, ch. 38, par. 16-1........................................... 1 4 6

Model Penal Code, Proposed Official Draft, § 302.2 (1962) . . .!. 21
Other Authorities: ,

American Law Institute's Mo(3el Penal Code (Proposed Official
Draft, 1962) ................ j ...................................... j I 15

CCH Poverty Law Reporter1' 750 . . , _____ 20

Chicago Daily News, January 21, 1970 ......................................... 14

Chicago Daily News, January 20, 1969 ........................... 14

Chicago Sun Times, January 22, 1970 ...................................  14

Fines and Fining-An Evaluation, 101 li  Pa ’ L Rev 1013
(1953) ................ n . .. ....................................................... ...............  20

Foote, The Coming Constitutional Crisis /in Bail, 113 U of 
Penn. L.R. 1125 (1 9 6 5 )............... . . . ______ ’ ............. ’

Packer, The Limits of/the Criminal Sanction ...................................  15

Report of the President’s Commission on Crime in the District
of Columbia, ( 1 9 6 6 ) ...........................  ......................  30

The President s Commission on Law Enfo cement and Admin­
istration of Justice-Task Force Report: The Courts 18 . . 16, 30

Report of the President’s Commission on Law Enforcement 
and Administration of Ju stice .........................................

\



Report on Penal Institutions, Probation and Parole (1931) ........... 30
The Law of Criminal Correction, (1963) Rubin, Weihofen

and Rosenzweig ...............................................................................  j5

Subin, Criminal Justice in a Metropolitan Court. ( 1 9 6 6 ) .............  30
Sutherland and Cressey, Principles of Criminology, (5th Ed

1 9 5 5 ) .....................................................................................................  15
12 Welfare Law Bulletin 14, April 1968 ........................................... 20

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I “T  s r



IN TH E SUPREM E CO U R T OF TH E U N ITED  ST A T E S

OCTOBER TERM, 1969

No. 1089

WILLIE E. WILLIAMS,
Appellant,-

v.

ILLINOIS

APPEAL FROM THE SUPREME COURT O F  ILLINOIS

APPELLANT’S BRIEF

OPINION BELOW I
The opinion of the Supreme Court of Illinois affirming 

denial of appellant’s motion to vacate that portion of his 
sentence which directed that he stand committed to the 
Cook County Jail in default of payment of S505 fine and 
costs is reported at 41 111.2d 51 1, 244 N.E. 2d 197 (1969) 
and is set forth in the Appendix at pp. 36-41. There was no 
opinion in the court of first instance, the Fourth Municipal 
District of the Circuit Court of Cook County, Illinois.

JURISDICTION

Jurisdiction of this Court is conferred pursuant to 28 
UJLC. § 1257(2), this being an appeal which draws into 
question the validity of statutes of the State of Illinois as 
being repugnant to the Constitution of the United States, 
their validity having been upheld in the cou 'ts of the state. 
This Court noted probable jurisdiction on Jaiuary 19, 1970.



QUESTION PRESENTED

. Whelhc' Jllinoi statutes which authorize a pauper’s 
imprisonment in excess of the maximum period otherwise 
set by law, at the rate of five dollars per day for payment of 
a fine and costs, despite the fact that he is willing and able 
to pay them if given the opportunity, violate the Equal 
ft-otrcXion Clause of the Fourteenth Amendment?

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Th«s case involves the Fourteenth Amendment to the 
Constitution of the United States.

This case invoke the following statutes of the State of 
fllinor

1. Illinois Rev. Stat. 1967, ch. 38, par. 1-7 
Judgment Sentence and Related Provisions

(a) Ojwmction and Sentence.

A person convicted of an offense shall be sentenced 
as provided in this Section.

(b) Determination of Penalty.

Upon conviction, the court shall determine and 
impose the penalty in the manner and subject to the 
limitations imposed in this Section.

* * *
(d) Authorized Penalties.

Except as otherwise provided by law, a person 
convicted of an oflense may be:

(1) Sentenced to death; or
(2) Sentenced to imprisonment as authorized by Sub­

sections (e) and (f) of this Section; or
(3) Ordered to pay a fine authorized by Subsection

(i) of this Section; or

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(4) Placed on probation; or
(5) Ordered to pay a fine and placed on probation; or
(6) Sentenced to imprisonment and ordered to pay 

a fine.
(e Penitentiary Sentences.

AJI sentences to the penitentiary shall be for an 
indeterminate term. The court in imposing a sentence of 
imprisonment in the penitentiary shall determine the mini­
mum and maximum limits of imprisonment. The minimum 
limit fixed by the court may be greater but shall not be 
less than the minimum term provided by law for the offense 
and the maximum limit fixed by the court may be less but 
shall not be greater than the maximum term provided by law 
for the offense.

(f) Sentences other than to Penitentiary.
All sentences of imprisonment other than to the 

penitentiary shall be for a definite term which shall not 
exceed one year.

(g) Mitigation and Aggravation.
For the Purpose of determining sentence to be 

imposed, the court shall, after conviction, consider the 
evidence, if any, received upon the trial and shall also hear 
and receive evidence, if any, as to the moral character, life, 
family, occupation and criminal record of the offender and 
may consider such evidence in aggravation or mitigation of 
the offense.

* * *

(j) Penalty Where Not Otherwise Provided.
The Court in imposing sentence upon an offender 

convicted of an offense for which no penalty is otherwise 
provided may sentence the offender to a term of imprison­
ment not to exceed one year or a fine not to exceed $1,000, 
or both.



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(k) Working out Fines.
A judgment of a fine imposed upon an of. 

be enforced in the same manner as a judgment 
a civil action; provided, however, that in such 
imposing the fine the court may further order 
nonpayment of such fine, the offender may be u 
until the fine is paid, or satisfied at the rate of S5.< 
of imprisonment; provided, further, however, that r 
shall be imprisoned under the first proviso here 
longer period than 6 months.

(1) Place of Confinement.
When a statute authorizes imprisonment 
violation but does not prescribe the 
imprisonment, a sentence of more than 
shall be to the penitentiary, and a senten 
exceed one year shall be to a penal in., 
other than the penitentiary.

2. III. Rev. Stat., 1967, ch. 38, par. 18(F6
Discharge o f Pauper j

Whenever it shall be made satisfactorily to appear 
court, after all legal means have been exhausted, t; 
person who is confined in jail for any fine -or c 
prosecution, for any criminal offense, hath no estate 
with to pay such fine and costs, or costs only, it shah 
duty of the said court to discharge sucfh person from, 
imprisonment for sn h  fine and costs, which discharg 
operate as a complete release of such fine and costs: 
vided, that nothing herein shall authorize any person 
discharged from imprisonment before the expiration 
time for which he may be sentenced to be imprison, 
part of his punishment.

3. III. Rev. Stat. II967, ch. 38, par
Theft l

16-1:

A pe-son commits theft when he knowingly:

\

r may 
ed in 
ment 
upon 
oned 
r day 
rson 
or a

' its 
of

ear 
t to 
:ion

:he
ny
of
re­
de
er
11
o-
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5

(a) Obtains or exerts unauthorized control over property
jotihe owner; or y

(b) Obtains by deception control over property of the
owner; or J

(c) Obtains by threat control over property of the
owner; or J

tT,r,,tr01 0V£r St° ,en Pr°P6rty k"°wing the propen ,o have been stolen by another or under such
orcumwooes as w mid reasonably induce him to believe 
tiie prop was Stolen, and

U ) intends to deprive the owner permanently of the 
use or benefit of the property; or

vingly uses, conceals or abandons the prop-
** '  1;: “uck a manner as to deprive the owner 
permanently of such use or benefit; or
lie s , conceals, or abandons the property knowing 
such use, concealment or abandonment probably 
will deprive the owner permanently of such use

(2 )

(3)

or benefit.
Penalty

A person first convicted of theft of property not from 
the person and not exceeding $150 in value shall be fined
other $ °°  ° r 'mprisoned in a P^al institutionother than the penitentiary not to exceed one year, or both

hmPeerornaft0nViCted ° f SUCh 3 S6COnd ° r ^ se q u e n t  time, or after a prior conviction of any type of theft shall
be imprisoned in the penitentiary from one to 5 years A 
person convicted of theft of property from the person or 
exceeding $150 m value shall be imprisoned in the peniten­
tiary from one to 10 years.
4. III. Rev. Stat. 1967, ch. 38, par. 180-4
Judgment Hen on property, real and personal-Execution

The property, real and personal, of every person who shall 
be convicted of any offense, shall be bonnd, and a lien is 
hereby created on the property, both rea and personal of



6

every such offender, not exempt from execution or attach- 
tnent, from the time of finding the indictment at least so 
-far as will be sufficient to pay the fine and costs of prosecu- 
fion. The clerk of the court in which the conviction is had 
shall upon the expiration of thirty (30) days after judgment 
is rendered issue an execution for any fine that remains 
unpaid, and all costs of conviction remaining unpaid; in 
which execution shall be stated the day on which the arrest 
was made, or indictment found, as the case may be. The 
execution may be directed to the proper officer of any 

-county in this State. The otficer to whom such execution 
is delivered shall levy the same upon all the estate, real 
and personal, of the defendant (not exempt from execution ) 
possessed by him on the day of the arrest or finding the 
indictment, as stated in the execution and any such property- 
subsequently acquired; and the property so levied upon shall 
be advertised and sold in the same manner as in civil leases 
with the like rights to all parties that may be interested' 
therein. It shall be no objection to the selling of any
property under such execution, that the body of the 
defendant is in custody f)br the fine or costs, or both.

STATEMENT

On June 24, 1967, appellant, Willie E. Williams, was 
arrested for the crime of theft of property not from the 
person and not exceeding S1 50 in valtie, 111. Rev. Stat. 1967 
ch. 38, par. 16-1, (A.A() and charged with having “knowingly 
obtained unauthorized control over credit cards, checks and 
papers ol the value of less than cine hundred and fifty 
dollars, the property of Edna Whit net, intending to deprive 
the said Edna Whitney permanently bf the use and benefits 
of said property.” (Ibid).

august . ., ,, „w was utuu„ _ _  W1C
Court of Cook County at suburban!May wood, Illinois fc 
arraignment; bail Aas set at S2,000 (A. 5,6). Unable to po 
bail, appellant remained in custody. (A. 12). The cou



7

continued the case to August 16, 1967, and committed 
Williams to the custody of-the sheriff. (A. 6). August 16, 
1967, on motion of the State Attorney, the case was con­
tinued to September 6, 1967 (A. 7).

September 6, 1967, appellant entered a plea of not guilty 
and “waived” his right to trial by jury. (A.8) Williams was 
at no time represented by counsel during the proceedings 
in the trial court (A. 8, 13).1 After trial, the Honorable 
Joseph R. Gill found appellant guilty as charged (A. 9) and 
sentenced him to the maximum term of imprisonment for 
a first offense authorized by Illinois law: one year in the 
Cook County Jail (A.9). Judge Gill further sentenced 
appellant:

. . .  to pay the Clerk of this Court, to be by said 
Clerk disposed of according to law, a fine in the 
sum of FIVE HUNDRED DOLLARS ($500) and 
also the costs of this suit taxed at FIVE DOLLARS 
($5.00) and in default of payment of said fine, it is 
ordered that said defendant, after the expiration of 
said term of imprisonment, stand committed in said 
County Jail until said fine and costs shall have been 
paid or until said defendant shall have been dis­
charged according to law. (Ibid.)2

Williams was tried in a suburban court where there is no regu­
larly assigned public defender or official court reporter. Without a 
transcript, it is impossible to determine aujthoritatively whether the 
magistrate in this case advised Williams p f his right to appointed 
counsel. Counsel for Appellant are informed, however, that the prac­
tice in the Maywood court is that if a/ defendant requests an ap­
pointed counsel, the case is transferred to the central court of the 
District where there is a Public Defenderi regularly assigned one day 
per week, but that a^criminal defendant is not otherwise apprised of 
his right to counsel./ \

2Judge Gill thus -mposed the maximum term of imprisonment and 
fine peimitted upon a first conviction o f the crime of theft of prop­
erty no from the person and not exceeding $150 in value, 111. Rev. 
Stat.1967 ch. 38, par. 16-1.

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of
t it  filed a

1967 cli 3™ Mrl'itSn ? UlLC Act a,ld under 111 Rev. Slat, 
court's order' of ^

*  of ,,is one - -  
S500 flue and S5 in costs (A. 12) Payment ot

In the petition, Williams affirmed under oath that he was

no estate*,n<fifnds 'or" valuabl''’*' ^  C° U" ,y J*“ a "d ,lad - Linas, oi valuable property whatsoever (A. 12);
that he was financially unable to obtain counsel at the

hiTrid,, ,o h'**1 and ” , ',eVer adViSed by I1,e trial court of ms right to have counsel assigned;

unable topay !hc T s l s Z T Z  l,e was
apparent to ih, , , and costs <as should have been
the in"/ n “ C° llrt aS i,e had "O' been able to furnishthe 10/. deposit on his S2.000 bond which would l av.
attorney; mi”° is la“ > or to retain an

that he had been incarcerated since August 13 1 967 and 
therefore incapable of earning a livelihood': '

that he remained on the date nf ti,Q .... 
funds to pay the S 505 fine and costs; ?

lished in 1966 by^h^CenteTfor Studfe C° ° r  C° Unty Jail was estab‘ 
sity o f Chicago Law School l h  ' , 1? Cnminal Univer-
In recognition that the need of Drk 8rant fr0™ the Ford foundation, 
matters extends far beyond^he LnvemTni01! I' 831 aSSfistance on civd 
Civil Legal Aid Service has filpH .■ • a tyPes ° f  civil cases, the 
sough, other f° '  "abeaS “ H *

T h e r e * c r ir n ^ n a !" d e f e n ^ s e 0na,r*yPe^ a^ ^ ldÎ e<praaaa™ doc 

lent a, being propedy wilhin lhe ™  W * -



"T’’"

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and finally that “defendant will be able to get a job and 

earn funds to pay the fine and costs if he is released from 
jail upon expiration ot his one year sentence ” (A. 13)

At the November 29, 1 967, hearing on the petition, held 
before Judge Gill, the judge who had sentenced appellant, 
no court reporter was present.4 At no time subsequent to 
the filing of the petition, however, did the state traverse 
its factual allegations or offer evidence challenging the 
allegations of the petition. (A. 25, 26). Appellant’s counsel 
summarized the allegations of the petition and the. State’s 
Attorney moved that it be denied. (Ibid). Judge Gill denied 
the petition on its face:

. . .for the reason that petitioner was not legally 
entitled at that time to the relief requested in the 
petition, because he still has time to serve on his 
jail sentence and when that sentence has been served 
financial ability to pay a fine might not be the same 
as it is of the date o f September 6, 1967” (Italicized 
portion written into the bill of exceptions by Judge 
Gill.) (A.26)

Notice of appeal to the Supreme Court of Illinois from 
Judge Gill’s order denying appellant’s petition was filed on 
November 30, 1967 (A. 16), and the appeal was argued 
orally on May 16, 1968 (A.31) May..23, 1968, appellant 
completed service ot his one year sentence, less time off for 
good conduct and for time spent in custody prior to trial 
and began to serve the period of incarceration required to 
satisfy the $505 fine and costs, at the statutory rate of $5 
per ay. (A.31). On May 28, 1968, the Supreme Court of 
Illinois, on motion of appellant’s counsel, set bail for 
appellant pending his appeal at $500. (A.35) The 10%
deposit ($50), $45 of which is refundable, was posted by 
the Civil Legal Aid Service.

In accord with an order dated January 30, 1968, of a Justice of 
e Supreme Court of Illinois, appellant constructed a bystander’s bill 

of exceptions covering the proceedings o f November 29, 1967 with­
out waiving his objections to the validity ano propriety o’f  non 
reported proceedings: (A.22-26). - F y non

"srrr-'r

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Appellant argued before the Supreme Court of Illinois 
that his imprisonment for default in payment of a fine and 
costs, pursuant to 111. Rev. Stat. 1967, eh. 38, § 1-7 (k), and 
his exclusion from coverage of 111. Rev. Stat. 1967, ch. 38, 
§180-6 (which provides for discharge from imprisonment 
under specified circumstances) rendered both statutes uncon­
stitutional under the Fourteenth Amendment.

On January 29, 1969, the Illinois Supreme Court affirmed 
the judgment of the lower court denying appellant’s peti­
tion,5 and held that there is no denial of equal protection of 
the laws when an indigent defendant is imprisoned to 
satisfy payment of a fine and costs (A.37, 40).

Appellant filed timely notice of appeal to this Court on 
February 11, 1969 (A.48). By an order of February 13, 
1969, the Supreme Court of Illinois stayed its mandate 
pending final disposition of the appeal (A.47). On January 
19, 1970, the Court noted probable jurisdiction (A.49).

sThe Supreme Court of Illinois characterized the denial of relief 
by the trial court as “because of its legal insufficiency.” (A.36). By 
this holding, and by releasing appellant on bail subsequent to the 
completion of one year in prison, the court appears to have rejected 
any suggestion of an alternate holding by the trial court that the pe­
tition was premature (A.26). The Supreme Court, of course, went 
on to decide appellant’s constitutional claim on the merits.

/



ARGUMENT

Illinois Statutes Which Authorize a Pauper’s Im­
prisonment in Excess of the Maximum Period 
Otherwise Set by Law, at the Rate of Five Dollars 
Per Day, Despite the Fact That He Is Willing and 
Able To Pay a Fine and Costs if Given the 
Opportunity, Violate the Equal Protection Clause 
of the Fourteenth Amendment.

.Arter conviction for a petty theft, appellant Willie 
Williams wsls sentenced to confinement in the Cook County 
jail for the term of one year and to pay a fine of $500 and 
costs taxed at $5 (A. 9). Should Williams default in pay­
ment the trial court ordered that he “stand committed in 
said County Jail until said fine and costs shall have been 
paid or until said defendant shall have been discharged 
according to law” (A. 9).6 Pursuant to § 1 -7 (k) of the 
Criminal Code of 1961 (111. Rev. Stat. 1967, ch. 38),7 if

° the judgment further command that the Sheriff “take the body 
of said defendant and the keeper of said jail is hereby commanded to 
receive the body ot said defendant into Iris custody and confine said 
body in said County Jail in sate and secure custody for and during 
said term as aforesaid, and after the end of said term of imprison­
ment, the keeper of said jail is hereby commanded to continue to 
confine the body of said defendant in said County Jail in safe and 
secure custody until said fine shall have been paid or until said de­
fendant shall have been discharged according to law, and after the ex­
piration of said fixed term of imprisonment as aforesaid, said defend­
ant shall be thereafter discharged.”

“It is further ordered that execution issue herein against said de­
fendant for the amount of said fine” (A.9, 10).

7This section provides, “Working out Fines. A judgment of a fine 
imposed upon an offender may be enforced in the same manner as a 
judgment entered in a civil action; Provided, however, that in such 
judgment imposing the fine the court may further order that upon 
non-payment of such fine, the offender may be imprisoned until the 
fine is paid, or satisfied at the rate of $5.00 per day of imprison­
ment, Provided, further, however, that no person shall be imprisoned 
under the first proviso hereof for a longer period than 6 months.”



4

appellant did noi pay the fine of S 500  and costs of $5 
they would be -satisfied at the rate of S5 per day of 
imprisonment provided however, that no person “shall be 
imprisoned. . .tor a longer period than 6 months.”

Williams alleged “under oath that he was indigent at all 
stages of the proceedings, that he was without counsel or 
lunds lure counsel at the trial and that he will be able to
get a .and earn funds to pay the fine and costs if he is
released from jail upon expiration of his one-year sentence”

b° th the tnal court and Supreme Court of 
mens rei used to alter his commitment to jail in default of 

the payment of the fine and costs.
It is plain from the opinion of the Supreme Court in 

appellant s case, uind prior Illinois decisions, that the 
Supreme- court of Illinois regards the incarceration of a 
defendant who cannot pay a fine or costs as a punitive 
exaction by the slate which is considered the equivalent of 
the fine or costs and thus not an invidious classification 
which violates the Equal Protection Clause.

12

In Berkenfield v. People, 191 111 ~>ii n o rm  ->

f  fa,»0'L a H e .

costs) under the predecessor % lf ° °  ^
out his fine at the rate of Si sn T  -l, d required t0 work

- /o) and that otherwise the sentence nr  ̂ 11 ’ at
would he catkfipH ■ • ce or imprisonment and finewuuiu ne satistied by imprisonment only.

In People v. Jaraslowski, 254 111 ?99 |H ) n i  A„r .
found euilty of obtain,„g money „y fa|je <reten̂ t „ nHcedWlo
thafy miprisonmem and fined S500. The judgment order directed

z r x z s z i ?  <z ~ d

455 of the Criminal Code, from working out his fine in the 
house of correction, yet the mere fact that he , a pauner
“ ch r d e a s l - 0ney pay the »»• entitle L T tl,

Tf,-



13

c a t r ^ r T  ■ ,haI lhe premise of lhe Illinois
M l L Z " ’"8 f  appellan,'s c^ e - th a t giving a wealthy 
man the choice of paying the $505 or serving 101 days is
k  T T f  ' r ° f requ,rm8 ,l,e P°°r man to serve 101 days-
penalty" T  T° te SUre’ 3 fine may be a b"rdensomepe y specific cases. Depending on the rate at which
itjnay  i e  worked off”, there may even be times when it
LS d more onerous penalty than imprisonment. It would be
^  d a' r rea ,ty' h° WeVer’ to ^nore that the state has 

« S L n  t w m  t,eavler burden on the poor in general, and 
appellant Wiliams m particular, by attempting to equate a 
choice of serving i0 l days in jail or paying a S505 fine with 
the necessny Qf serving the prison sentence. The fact is 
that the man without $505-although alleging that he can

J v l k d t r  IZTZZtl" d k PP: 94(l927) ,he d' f'" d™ «■
prisonment and fined $ 1,000 plus c m T " '  Sen'Cn“ d “  0"e S 'ar im'

Where a proper order is entered under Ŝ qi ■
ment of a fine in labor at ci cn j > requinng pay-

, .PHUIIM P
against ™  »b.ain=d

s

hided for violations of the penaU aL o n h V s f s k ^ l l 'n  

e o i ^ ^ o f a ,2,1 APP 24 504' 510 <l959> “>= de-

him! T ta rS 'w "af no,



14

"  " c c  ' of1 m anda- 
employment, loss of education-. ’ ^  °* P"y' '° SS of 
normally dismal, if not mhum n • ° P P ° r t U n i t y  a n d  the 
detention facilities-poor food a n d T ^ ’0"5 Sh° rt term 
inadequate recreationai° an <j° otlicr^fadlitief' e V6fCr° ^ ’nŜ 
mentary comfort and decency * C e  ? eSSent,al rudi' 
27 (1967), In short he i ln  ^  ReGaulr- 3«7 U.S. 1 
life worth living while the m T ^ h  K O ^ ' t 6? ' ' 3' 
a necessary inconvenience. As th,\ r  ° V  bl‘rdened vvith 
United States, 395  US 14 7  is .  ,n °Ur Sa,d 111 Frank >’■ 
course, a s ig n in g ,^ n f r .^ e L n t  ' * •  of 
it IS certainly less onerous ■> r personal freedom, but 
Cf D w iean » onerous a restraint than jail itself” '"

^  “7 V V- LoUlSutna'3 9 \  U.S. 145, 161-62 (1968)

punishments by V s ta ™ 'h a s ^ T " * ^ 6 labe,led crim'nal
criminal process to regard rh ° bserH  of theto regard them as fungible. Thus, it is

condition, ancTf u lly T u p ^ r f t h e ^  T  Iilinois f re a deplorable
that such facilities are “ ‘tHe lowestTorm0^ ——a-leading- Penologist-’ 
American scene.” ’ Foote The r a  . °™  of social institution on the 
113 U. o f Pa.-Rev. , & * ]  Crisis in Bail*
Chicago Daily News reported critical findm ° ”,Janua^  20- 1969 the 
county jails financed by the For I F ^  t  8 ° f  3 survey o f  ci ty  and 
Enforcement Com m ,Jon a n d I Z S ' T  a"d ,ht '" » » »  
Chicagoe Center for atujiesm  Crimm , C  >  ,he U"Wersi,y o f  
of criminologist Hans 'V. Mattick a”d 1 , 7 Ihe direction of 
reported by the ,Ve».s7 , he survey f”n„d7 h" T . .R1° nald P' Sweet, As 
Jonty of all Illinois jail inmates L  * t  the overwhelming ma- 
weehs later inspectors T r Z ^ id,e "" Three 
found gang rule, racill segregation and u f  f  reaU ° f Prisons 
Chicago House of Correction Chicago D t OF COndltIons” in the 
Chicago Sun Times, Jan. 22, 1970. 8 °  *  N eW ’ Jan‘ 21 ’ 1970;

T I r ,e p m L T „ qt ^ b^ ; X ' l f hiS * * ■ * »  -  o'ake
abiding persons, mat-«tain reasonable h 7 assoaate on,y with law 
job changes to his probation officer and n n tT *  T ' lady’ report a" 
net without permission, 395 U.S. at 15] n 6 ^  probation dis-



generally considered that imposition of the fine by a trial 
court is tantamount to a declaration that neither the safety 
of the community nor the welfare of the (petitioner) 
required) (his) imprisonment. . (Sutherland and Cressey 
Principles of Criminology, p.277 (5th Ed. 1955)." Sim­
ilarly, the American Bar Association’s Committee on 
Sentencing Standards regards imposition of a fine “an initial 
determination that jail—or at least the time which is due to 
non-payment—is unnecessary in terms of the protection of 
the public, the gravity of the offense, and other factors 
which normally determine the need for incarceration ” 
(Tentative Draft, 1967, p. 121.) See also Rubin, Weihofen 
and Rosenzweig, T he L aw o f  C riminal Co r r ec t io n , 254 
(1963). Indeed, one of our most thoughtful observers of 
sentencing has argued that the criminal process should be 
invoked only by means of “the crude benchmark of depri­
vation of liberty that ■ inheres in an actual or potential 
sentence ot imprisonment” Packer, The Limits o f  the 
Criminal Sanction 273?2

15

Tins conclusion is also supported by the American Law Insti- 
^rr S ^ de' Penal Code Provisions on Sentencing, § 7.02 (Proposed 
Official Draft, 1962), which provides that a fine should be imposed 
when the court is “of the opinion that die fine alone suffices for 
protection of the public.”

“Th'2Pr0feSSOr, PaCkeT'S V‘eW 'S Premised in Pa" on the notion that 
lnd‘Scrimlnate we are treat ng conduct as criminal, the 

ktss stigma resides in the mere fact that J man has been convicted of 
something called a d im e” and he concludes that:

If the most that we are prepared to exact in the great ma- 
J' y occurrences of a particular form of reprehended 
conduct is the payment of mortey into the public treasury
i^vokine f i i0t imP° f  ° n ° UrSe VeS the manifold burdens of 
T k f  ™ nal san^ o n . Whether the subject happens

of ho,Kin  ̂ °HfenSeS’ ° r huntinS out of season, or breaches of housmg. codes, or any one of the thousands of minor
sancHo°ry °J sumptuary offenses with which the criminal
oueh I" 3nd f pr0c ŝses are Presently encumbered we 
ought to purge from the criminal calendar all offenses that
sanctions.” S6n0Usly enou8h to Pu dsh by real criminal

*



16

It is beyond doubt that those concerned with administra-

dW erem 'o rT 3' l"*’—  ̂  ^  as a sanc(io" of adifferent order of cnmtnal penalty, responding often to a 
If this™ 0bjeC,1Ve of the cn" lin;i1 taw. than imprisonment
men is m . O iai'S WOl"d be “ -P*. for imprison-'

“  f“f more cost|y '°  soci« y , not to mention burden­
some to the average criminal defendant, than a fine. See

lump<hoth/fY,<" />',7 ' ^ ’ l a  APP' 2d 504 <l959)- Thu> to 
of “„,mkh "opttsonment together under the label
of punishment does not imply that each results the

r ;  o n T w T f  A'  * ReP° rt ° f the President's Commis- sion on Law Enforcement and Administration of Justice
observed in 1967: “Two unfortunate characteristics of

mg practices in many lower courts are the routine

~  °n the/ reat maj°nty ° f ™ ^eL anan ts and petty offenders and the ‘routine imprisonment of
defenders who default in paying fines. These practices
result in unequal punishment o f offenders and in the needless

Z ~ ntrl r y PerSOnS because o f tb“  “
supplied)^' t  f  b , KeP°r,: The Couns 18■ (emphasis supplied) The Report recommends that society employ
sui able a lte rna te  punishments so that those unable to pay 

means° PUniSh6d m°re SCVerely than those of greater

t^ US jhin°is ^as sanctioned a penological regime which
f u n d s '  his o '  ■ 0“ impnSOnment for a"y Person with 
Ws ca e h' JfPOSSeSS1° n’ re^ardless ^  the circumstances of 
his case, but permits a greater punishm ent-because 101
days in jail is far more onerous a punishment than the choice 
of paying the fine of S505 or serving the sentence-over the 
defined maximum state interest in incarceration, in the case
o the poor. What slim justification Illinois offers for 
«ngl ng out the po° r for extended incarceration
to a contention that because [indigency] precludes the state 
rom collecting the fine forthwith it must be entitled to 

imprisonment forthwith. Even assuming arguendo that 
some necessity” of providing punishment for those who

i



17

cannot pay a fine would excu 
penalty, the Illinois practice do-. 
Amendment because the state L 
devices tar less subversive of eqm. 
ment. In this case appellant aft: 
state did not dispute, that if pern, 
and would obtain work and pay the 
could have avoided the extended 
S505 before his one year prison s 
sibility, as William’s alleged in this 
man who does not have S505 is im 
incarcerated.

Thus, even the state’s interest i:; 
advanced by extended incarcera; 
defendant willing and able to p 
opportunity, as to whom no sue 
conduct is raised, cf. Ariel r. Masse 
248 N.E. 2d 496 (1969) appeal dis:
(1970),11 the state is simply choosu.

13In Ariel the appellant was found guii 
violations. A municipal court judge fined 

• p aint in amounts ranging from S 10 to S 
Upon finding the appellant too poor to p,: 

judge sentenced the appellant to jail The 
order of commitment for refusing to sue 
sentence was that “the Court finds the J  
On appeal, the Supreme Judicial Court of 
the municipal court judge submit “a comp 
of the court in addition to inability to' 
based its refusal to suspend execution of the 
pal court s additional findings, contained a , 
prior defauh5 jn appearances on certain mot 
a finding that this “contumacious conduct" 
to time for payment. Although the Supre 
that Massachusetts Law contemplates that a 
to jail a defendant unable to pay a fine ini me 
der the desirability of extracting the fine ove. 
than automatically increasing the severity of 
nevertheless, to rest its decision affirming the" 
cipal Court on these additional findings o f pro

^position of a greater 
satisfy the Fourteenth 
ailable to it collection 
Section than imprison- 
ively alleged, and the 
J his liberty he could 

Although appellant 
ence if he raised the 

-nee expired, the pos- 
is an illusion. A 

\’e of earning it while

acting the fine is not 
In the case of a 

e fine if given the 
n of contumacious
its, __Mass.____ ,
J. 24 L. Ed. 2d 468 

extend incarcera-

seven motor vehicle 
ypellant on each com- 
or a total of $510. 
fine forthwith, the 
“ason recited on the 
■be execution of the 
nt unable to pay.” 
nusetts ordered that 
-ital of any findings 
.■n which the court 
ence. The munici- 
■ion of appellant’s 
ricle violations and 
ot entitle appellant 
dicial Court noted 
before committing 

-iy, at least consi- 
-riod of time rather 
1 ment, it elected, 
lent of the Muni- 

mty of default.



18

tion without allowing a poor defendant the opportunity to 
satisfy the state’s exaction. As Mr. Justice Jackson said in 
Maggio v. Zeitz, 333 U.S. 56, 64 (1948) . .no such acts,
however reprehensible, warrant issuance of an order which 
creates a duty impossible of performance, so that punish­
ment can follow.” Illinois is free to set the penalty for 
petty theft at one year and 101 days but once the maximum 
imprisonment which satisfies the interests of the state is 
defined at one year, making extended imprisonment appli­
cable to those who could satisfy the fine if given the 
opportunity, but who do not have the requisite savings, the 
state has invidiously distinguished between defendants. As 
in North Carolina v. Pearce, 395 U.S. 71 1, 718 (1969), 
Williams will have been subjected to “multiple punishments 
for the same offense”, but in his case solely because of his 
poverty.

A further example of the manner in which Illinois has 
singled out indigents for excessive punishment is the state’s 
construction of the Illinois statute which provides for dis­
charge of certain classes incarcerated for nonpayment of 
fines and costs. Sectibn 180-6 111. Rev. Stat. 1967 ch. 38 
declares:

Whenever it shall be made satisfactorily to appear to 
the Court after all legal means have been exhausted, 
that any person who is confined in jail for any fine 
or costs of prosecution, fipr any criminal offense, 
hath no estate wherewith to pay such tine and costs, 
or costs c'uiy, it shall be the duty of the said court to 
discharge^such person from further imprisonment 
for such fine and costs, wljich discharge shall operate 
as a complete release of sluch fine and costs: Pro­
vided, that nothing herein/shall authorize any person 
to be discharged from imprisonment before the 
expiration of the time forlwhich he may be sentenced 
to be imprisoned, as partlof his punishment.”

The Illinois ijprem e Court linlited discharge under this 
stat ate to only that class of persons who are physically 
unable to work at the place of incarceration or when no



19

woi,i. was provided for them at such institutions (A.40). 
Certainly, if Illinois is prepared to discharge such persons it 
can hardly claim that incarceration of indigents is necessary 
to its administration of the criminal law.

As Illinois Law stands appellant is punished simply 
because he is an able-bodied poor person without savings. 
Hie fact that a defendant may be able to work but is without 
savings or employment,14 can no longer valid be made the 
basis for sentencing him to the workhouse. This “theory 
of the Elizabethan poor laws no longer fits the facts” 
(,Edwards v. California, 314 U.S. 160 (1941)) of modern 
life. Cf. Robinson v. California, 370 U.S. 660 (1962). We 
are a society that has come to recognize that a man’s 
poverty and unemployment often are something over which 
he has no control. Persons caught in the backwater of a 
rapidly advancing tide of economic growth, should not |be 
penalized because of that fact. Appellant’s failure to have 
S505 in his possession in the instant case is most accurately 
viewed as an involuntary: symptom of his involuntary 
poverty.15 /

This does not mean that’a non-indigent can.be fined and. 
an indigent cannot, thus perhaps raising some questions of 
discrimination against non-indigents. It is clear that alter-

14The irrationality of the S5-A-Day statute is further highlighted 
when that»amount is compared to what a person cOuld earn outside 
jail on a modern wage sc°le. Compare 29 U.S.C. §206 (minimum 
wage SI.60 per hour). Ipt addition, a person in jail working off a 
fine remains in jail not ju/>t for the work day,/but around the clock, 
and during such period is.subject to all the strictures and deprivations 
of liberty which make up/ the regimen of others in the prison popu­
lation. / /

l s This view has been taken by many courts of late in declaring in­
valid many of our archaic vagrancy statutes. See, e.g., Fenster v. 
Leary, 30 N.Y. 2d 309, (1967); Alegata i Commonwealth, -353 
Mass. 287, 231 N.E. 2'^201 (1967); Baker v. Binder, 274 F. Supp. 
658 (W.D. Ky. \9G1)\-Smith v. Hill, 285 F\ Supp. 556 (E.D. N.Y. 
1968); Ricks v. District o f  Columbia, 414 F.2d 1097 (D.C. Cir. 
1968).

\

|

/



20

nativt- means for the state to achieve its ends exist, and 
where this is true the Constitution will not countenance 
such invidious discrimination against the poor. Illinois law 
creates a lien in favor of the state which permits execution 
against an offender s real and personal property, a fine 
enforcement system similar to the civil remedy of docketing 
a judgment with a view towards executing on a debtor’s 
acquired property § 180-4, 111. Rev. Stat. 1967, ch. 38.

Some states have written provisions for installment pay­
ments into state law,16 though trial courts often have 
inherent power to order installment payments without 
specific statutory authorization of installment payments.17 
The experience ot states and foreign countries with such a 
system has been successful. In West Virignia, even during 
the depression, only 5% of persons allowed to pay by 
installments needed to be committed. Commitments fell 
by 98%. in Sweden and by 96% in Great Britain when 
insi-allme'ht payment systems were introduced. Note, Fines 
and Fining-An Evaluation, 101 U. Pa. L. Rev. 10131023 
(1953). Finally, a trial judge might impose on an indigent a 
parole requirement that he do specified work during the day 
to satisfy the fine. Cf. 50 App. U.S.C. §456.

Cal. Pen. Code  Section 1205; Mn. Ann. Code Art. 52 Sec. 
18; Mass. Ann. Laws ch. 279, Section 1A (1956); Mich Sta ts . 
Ann.. Sec. 28.1075 (1959); Pa. St a t . Ann . title 19, Section 953- 
56 (1964); S.C.Code  Ann . Section 55-593 (1962); Utah Code 
Ann. Section 77-53-17 (1953); Wash . Rev . Code Ann . Sec 
9.92.070 (1961); Wis. Sta t . Section 57-04 (Supp. 1965).

See Martin v. Erwin (USDC WD-La., January 25, 1968; Supple­
mental Order, February 27, 1968, Civil No. 13084), 12 Welfare 
Law Bulletin 14, April 1968, CCH Property Law Reporter para. 
750, p. 1752 where the district court on an application for a writ of 
habeac. corpus reportedly held that the state court should have per- 
mitted the convicted indigent to pay his fine in installments and that 
providing the defendant with no alternative but to serve a sentence 
was a denial of equal protection of the laws. The court reportedly 
granted the writ of habeas corpus and ordered oayment of the fines 
at the rate of $25 per month.



21

It might be argued that a system of execution or install­
ment collection would be more burdensome on the state 
than an assumed (dubious though it may be) ability of the 
state to enjoy the labor of a defendant while in prison. But 
the imposition of an extended prison term on indigent 
defendants cannot be justified on the ground of administra­
tive convenience. As the Court said in Rinaldi v. Yeager, 
384 U.S. 305. 310 (1966);

Any supposed administrative inconvenience would be 
minimal since repayment could easily be made a 
condition of probation or parole, and those punished 
only by fines could be reached through the ordinary 
processes of garnishment in the event of default.

Thus, § 1 -7(k) is not saved by Illinois attempting to justify 
it as a means of “working off” the fine during incarceration 
Defendants with funds are given the choice of merely paying 
the fine or serving a jail sentence, while indigents must 
remain incarcerated. Secondly, the state has available alter­
natives less infringing of liberty to collect the fine by means 
of installment arrangejnents or execution. Third, the S5 
a day rate of conversion of fine into labor is totally unrealis­
tic in light of prevailing wage-rates—and thus creates a 
penalty far more severe for the poor. Finally, to the 
extent a defendant is unable to find work himself, the state 
through public employment services or public works pro­
grams is certainly bound to attempt to find it for him 
before remitting him to incarceration.

Nor does the ?use of § 1 -7 (k) in the cases of recalcitrant 
defendants who' refuse to pay (fines raise constitutional 
difficulties. When a court has determined that a defendant’s 
failure to pay is due to his conyumacy, there is no reason 
why statutes of this type, or indeed the contempt power, 
may not be used—consistent with the Fourteenth Amend-

bborn c efendant to pay his fine.18

forth in the provisions of the Model Penal Code, Proposed Official 
Draft, § 302.2 (1962):

determination might be made is set

Continued

t



22

But the Sup- 
limited con 
absolutely n 
appellant, 
affirmation 
if given the c

The state's 
Williams’ cor 
tory. Costs 
criminal case' 
court system, 
serving one o

e Court of Illinois has not adopted such a 
vtion of §1-7(k). There is, moreover, 
dication of contumacy on the part of this 

trial court found none, and appellant’s 
s indigency and willingness to pay the $505, 
rtunity, was accepted by the Illinois courts.'
empt to justify incarceration to “work off” 
jst of $5 is also unnecessarily discrimina- 
taxed against litigants in both civil and 
a means of financing the operation of the 
thus cannot be satisfactorily explained as 

■e legitimate aims of the criminal law.19

“Conse. 
cious i

“ (1 
in the | 
the m< 
local s: 
to sho\ 
tumacic 
for his . 
fault w:; 
order o; 
good fa: 
ment, th 
may ord 
thereof i

: u, wonrayment; Imprisonment for Contuma- 
ment, **

a a defendant sentenced to pay a fine defaults 
t thereof or of any installment, the Court, upon 

(insert appropriate agency of the State or 
>nj or upon its own’motion, may require him 
why his default should not be treated as con- 
,may issue a summons or a warrant of arrest 

ince Unless the defendant shows that his de- 
• attributable to a willful refusal to obey the 
ourt, or to a failure on his part to make a 
it to obtain the funds required for the pay- 
. shall find his default was contumacious and 
^.ommitted until the fine or a specified part

19 Under the r 
145, 254 N.E.2d 
against appellant .. 
obtain body exectr 
lice exists, Illinois

Article II, §2 of 
shall be imprisoned 
tate for the benefit 
scribed by law, or 
fraud.” This sectlor 
of contracts, exdresv 
2d 786 (1947)’ /Vr. 
(19..5) Buck v. Alex,

-awyers Title o f  Phoenix v. Gerber, 44 111. 2d 
69) if Illinois sought to enforce it’s judgment 
tme manner as in a civil action, it could not 
Je to mere inability to pay. Even where ma- 
juires a showing of refusal to pay.
mois Constitution provides that “No person 
bt, unless upon refusal to deliver up his es- 
creditors, in such manner as should be pre- 

ses where Mere is strong presumption of 
es, howevei, only to judgments arising out 
implied, Cdx v. Rice, 375 111. 357 31 N E 
o f  Blacklidge, 359 III. 482, 195 N.E. 3- 
111. 167 182 N.E. 794 (1932) and not to



23

As Illinois does not imprison the indigent taxed with costs 
in a civil action, it is difficult to conceive of some justifica­
tion for doing so in a criminal case. Indeed, the requirement 
that time in prison be served in default of the payment of 
costs seems controlled by Rinaldi r. Yeager 384 U S 105 
(1966) which held a New Jersey statute requiring an 
unsuccessful defendant repay the cost of a transcript used on 
appeal violated the Equal Protection Clause. Compare
Strattman v. Studt, 20 Ohio St. 2d. ___N.E. 2 d ___ f 1969)*
see also Anderson v. Ellington, 300 F.Supp. 789, (M.D. 
Tenn. 1969); Wright v. Matthews, 209 Va. 246, 163'S.E.2d 
158, (1968). (Imprisonment for non-payment of costs vio­
lates Thirteenth Amendment).

^ 'S C° nCeded’ as aPPe{iant believes it must, that 
101 days required imprisonment is a significantly harsher pen­
alty than the choice of paying fine or serving the prison term 
which is the punishment for a man with sufficient financial 
resources to pay immediately, the state’s authorization of 
such a course of punishment in the circumstances of this 
case conflicts with the Fourteenth Amendment. A primary 
purpose of the Equal Protection Clause is to secure “the 
full and equal benefit of all laws and proceedings for the 
security of persons and property” and to subject all persons 
to like punishment, pains, penalties, taxes, licenses and 

exactions of every kind and to no other.” McLaughlin v.

£ 3 =  i s p & g s x s i i  s,
Kennedy,. People. 122 Ui 649 ‘ l 3 N  E 2‘ | 3 ',i 8g7f

pa. ordinances or
Monell. 24? III. 383.93 N.E. 295 ( ]9l ij



Fhridct 379 U.S. 184, 192 (1964).“  On the basis of the 
bqual Protection Clause this Court has acted to eliminate 
discrimination against the poor from state criminal pro­
cedure. 1 In Griffin v. Illinois, 351 U.S. 12 (1956) and 
Douglas v. California, 372 U.S. 353 (1963), it was held that

24

96 U S 3? ? !  t0 the contrury- ln Ex Parte Jackson,
. ‘ ' f  ) ’ Court was faced with a non-constitutional 

clam  that a federal court exceeded its jurisdiction in committing a de­
fendant until a fine of SI00 was paid. No claim of indigency la s  
made and the court ruled only that “the commitment of the peti-
!nne7 ?n C° Untyj ai1’ until his fine ^ paid, was within the discre­tion of the court under the statute.”

inter T I  V; * ampler’ 298 U'S' 460 0 9 3 6 )  the Court merely held, 
aha, that a provision in a commitment for imprisonment for

onpayment of fine and costs which was inserted by a clerk was 
voi . e court stated in dictum that “Imprisonment does not fol- 
Iow automahcaUy upon a showing of default in payment. It follows 
if at all, because the consequence has been prescribed in the impost- ’ 

on ° f  sentence The choice of pains and penalties, when choice is

S n  ” S  It f i f ' v  ° f the C° Urt’ is Part of the judicial func­tion. (id at 463, 64.) No constitutional claim, no claim of indi­
gency or that the commitment exceeding the maximum set by law 
seems to have been\raised.

\

- A l o n g  course o f decisions under the Equal Protection Clause 
have struck down numerous state practices which differentiate 
between rich and poor in the administration of the criminal process 
Gnffin v. Illinois, 351 U.S. 12 (1956) (denial of free criminal trial ' 
transcript necessary for adequate appellate review); Eskridge v Wash­
ington State Board, 357 U.S. 214 (1958) (denial, absent trial court 
inding that justice will thereby be promoted,” of free criminal trial 

transcript necessary for adequate appellate review); Draper v. Wash- 
tngton 372 U.S. 487 (1963) (denial on trial court finding that appeal 
s frivilous, o f free criminal trial transcript necessary for adequate

r hf L reVr M T  y Drown’312 U.S. 477 (1963) (denial, absent 
public defender s willingness to prosecute appeal from denial of state
coram nobis petition, o f free transcript of coram nobis proceeding 
necessary to perfect state appellate jurisdiction); Douglas v. California.
H I  U.S. 353 (1962) (denial, absent appellate finding that appoint­
ment of counsel on appeal would be of value to defendant or the 
appellate court, of free appointment of counsel on appeal as of right 
from ciiminal conviction); Burns v. Ohio, 360 U.S. 252 (1959) (denial



25

appelLk- reivcw could not be granted in such a way as to

'anas
, choed in Douglas v. California, supra at 355 

"P '“  suPP'ied)- The corollary of this proposition is 
the one or whtch appellant argues: there can beT o  eoua 
ustice where the kind of punishment a man gets depends 

upon the amount of money he has. In fart in ■! .11.
situation the relationship between poverty and prej’udjce'is 
far more direct. In Griffin and Douglas, one m a y  on,V

" V w t ,  de,endant W0UW 1»™  wo" his f re ° e d l 
pre en I  m° ney to W  a transcript; in the

n ' tC‘?S<\  lhere 1S no need for speculation. If the 
ppellant had had the money to pay the fine imposed he 

would no, have been imprisoned more than one year
n -  draw:l on the basis of wealth or property like 

of race are traditionally disfavored ” Harper v 
gnua Board o] Elections, 3 83  U .S  6 63  668 M 9 6 ^

s™jec "“ , " h:.Ch di^riminute on the basis of wealth are
Fourteenth' A 7 b"rden ° f Justification which the ourttenth Amendment has traditionally required o f  st-,m 
statutes drawn according to r a r e  ” / q  T  ° f State
U S  1 9 ( | QA7 t n  1 ^ i L o v '" g v. Virginia, 3 8 8
o f Firm  r  7 ° n V ast term in McDonald v. Board 
f  Election Commissioners, 3 9 4  U.S.  8 0 2 , 8 07  ( 1 9 6 9 )  the

Court made i, plain the E<1ual Protection C la u fre ^ u im s

X  a fel-

be forced pay “ 2 , 1 * " ' !  prison may
also Williams ,  a ,y  o f  Oklahoma C i!7. 3 9 5 U S  458 ( f f f ' f f "  
V. California, 393 U S 367 hqaov c ' ’ i y69)> Cardner( , Qr;7t  . ;  f , * -  ( 1969); Swenson v. Hosier 386 II 9 ->ss
(1967), Anders v. California, 386 U S  738 l p i  ' 258
389 U.S. 40 (1967)- L m u r„ n  /  f f  ( I967)’ Rob^ t s  v. Lavallee, 
(1966) ' 1 g l)lstnct Court o f  Iowa, 385 U.S 197 ■



26

the basis of wealth or race ,lneS are drawn
A Jaw which discriminates on the (f mphasis suPPh'ed). 
enacted pursuant to a valid state • frace’ “even though 
only ,f lt is necessary, and not m ' ' Wl11 be upheld
to the accomplishment of n Y ratlona,,y related
M cLaum n  ,, * *  a P o s s ib le  state policy/’
Vuginia, supra at J J. 96’ ech°ed in Loving v.

Clearly punishment of thieve ■ 
interest. However the L n n  v  1$ 8 permi^ b le  state 
such a way that the poormsuffer10mn0f 0?^  PUnishment in 
related (and certainly not nere than the rich is not
° [  the state’s objectives of de!^  ^  ^  accomPlishment 
rehabilitation of wrongdoers J i ,ntimidati0n or 
§,1; 7(k) ls constitutional because / / T  ^  argUed that 
J?,ke- But m Griffin v. Illinois, supra t h T  ^  ^  poor 
the requirement for payment o f  rZ t ° m  struck down 
despite the fact that costs f Costs as apphecl to indigents 
Poor alike. Justice B1 ° f  b° tb * *  and

grossly discHminaforv ^ilTilson^ ltS faCe may be 
this Court struck' down ti peratlon- p or example - --

/ ’°ndls" i™" a to r y . ( S a $

and f lo S to  ”
_________ J  P ’ the Court ruled that a

/ t e l '  'O'. 27jN.r.s.2d 972, 218 N E 2d

both a state statute and the violated

H ~ r : „ . . .

oerced into payment if he

I



state poll tax violated the Equal Protection Clause because 
the tax (which was non-discriminatory on its face) was an 
invidious discrimination against the poor.

That the state need not, indeed cannot, equalize every 
advantage possessed by rich defendants hardly compels the 
result reached in this case by the Supreme Court of Illinois. 
Permitting indigent defendants such as appellant to earn 
the amounts required by their tines does not in any realistic 
way sap what may be the state’s limited financial resources. 
Alternate means oi collection, such as installment payment 
or execution, are available. Thus, appellant’s submission 
merely amounts to an acknowledgment that when liberty is 
at stake the state has an obligation to cure a drastic impact 
of poverty on the administration of the criminal law when 
it can do so. Cf. People ex rel. Herring v. Woods, 37 111.2d 
435, 226 N.E. 2d 594 (1967) (pre-trial detention credited 
in order that total imprisonment not exceed maximum).

This case does not involve the question dealt with in 
several cases, e.g., United States ex rel. Privatera v. Kross, 
239 F.Supp. 118 (S.D.N.V. 1965) aff’d 345 F.2d 533. (2nd 
Cir. 1965), ceit. denied, 3$2 U.S. 91 1(1965), âs to whether 
an indigent is deprived of equal protection ot the laws when 
subsequent to failure to pay a fine he is imprisoned for a 
period which does not exceed the maximum prison term 
possible for the substantive offense. While such imprison­
ment ot any indigent for nonwilful failure to pay a fine 
raises a serious const utional question, it might be argued 
that the resulting imprisonment is jijstifiable on grounds

ay; therefore, the addi-“has no money or property” with which to ^  ulc auui
t.onal imprisonment in lieu of the fine can only have been’intended 
as extra punishment, extending the punitive imprisonment beyond the 
statutory maximum. A unanimous court (found that incarceration

he clause of the Eighth Amendment as well asviolated the excessive
the Equal Protection Clause because incarceration at SI.50 per day 
notably exceeds in amount that which is reasonable, usual, proper

and just. (218 N.E.2d at 688). Accord: Sawyer v. District of
Columbia, 238 A.2d 314 (D.C.App. 1968). *



J *

other than indigency. “The result may depend upon a 
parhcular combination of infinite variables peculiar to each

CaWlina V ^ -  395 U S . 7,1 722 (1969), see also § 1-7(g) 111. Rev. Stat. 1967 ch 38’
Ind'vjdua ^ed sentencing, it might be contended justifies^' 
judicial classification which results in greater imprisonment 
being imposed on one who might satisfy the interests of the 
criminal law with a fine if he could pay it forthwith

. J "  th ;; f resent case’ however, Williams, could only be 
ntenced to more than a year in prison by reason of his

tion^n ̂  nder hhnois law, no consideration of rehabilita-
reached'o f°mmUniIty C° Uld accomPhsh the result
“ ^ r ng s5o° f,ne and $s c° urt c° stsadditional days in prison. Indeed, Judge Weinfeld the 

th 'a Y S e ^  reC°e" 'Zed disti"ctio"

. . .the issues raised by petitioner would be more
he rbeenPsenetetedHn COnstit{ltional terms hadhe been sentenced, as some defendants have to the
maximum permissible jail term and fined’ $500
4001 ‘v‘r  reSUl‘ *  addi,i°"a lt a H t o n ^ o f  u p ^ -  
ctr ■ i / r  or„ sentenced under a statute calling for a straight fine.” (239 F.Supp. at 1 21)

Of course one can seriously question the assumption that

f  f  8 * sentence of imprisonment or Jot. And coercion nf 
a nend or relative tq pay, while a possible subrosa purpose 
seems opposed to oiir fundamental Understanding rhnt 
man should be penalized for ,he c rim l o f h t  friend or 
relative in which he himself did not (participate A defen

lo pay” and°tfie ^  " T " ?  ^
2 S , dT f "  SohfOU!dhemaf,neeehberatdy after such a hearing. . . ” Morris v. Schoonfeld,

28

TT^r



29

f i ^ M SU7« ,15n  ]6u (D Md' 5969), jurisdictional statement filed No. 782, October 28, 1969, 38 U.S.L. Week 3162.
But there is a fundamental difference between this case-
w lie i only an indigent defendant is imprisoned for a 

period greater than that allowable by the statute which 
fixes the maximum penalty for the offense-and the case 
where the penalty of imprisonment imposed, though 
enhanced by failure to pay a fine, is nevertheless less than 
the maximum set by the legislature. In the former case the 
additional imprisonment responds to no valid objective of 
the criminal law, but rather to the defendants financial 
situation. In the latter, it is at least possible that the particu- 
lar record may reveal circumstances which support the 
additional imprisonment. In short, a judge who sentences 
30 days or 30 dollars may justifiably find that punishment, 
deterrence and intimidation require some immediate impo­
sition of Penalty of some sort greater than a future obligation 
° Pdy- HlS dls^ etlon to sentence certainly contemplates 

such judgments «  but conversion of indigency into jail 
time greater than that allowed for any other reason does

rCSPOnd t0 any Particul*r judgment about a defendant or the needs of the criminal law. It is 
quite simply punishment for poverty.

CONCLUSION

The experience of appellant Williams is similar to that of 
countless other poor citizens who find themselves enmeshed 
m the criminal process. Arrested for a minor crime, he had 
already spent several weeks in jail when he came to trial 
because of his financial inability to make bail. Legal counsel 
being beyond his means, he was tried and convicted without

whe” 7 " L SComhefd Z m e " ’' UHnlike N°r'h Caru“»‘  -■
must be based upon: rLaSC , sentencing uP°n reconviction

«d  menial and moral propensities.'” (§95 U S a , 723)“

*r~— -



30

an attorney. Given the maximum sentence allowable for 
the offense with which he had been charged, he learned that 
he would have to spend several additional months in jail 
solely because he was too poor to pay the fine and the court 
costs imposed upon him.24

It is thus no accident that the National Advisory Com­
mission on Civil Disorders has concluded:

Some of our courts. . .have lost the confidence of 
tie  poor. The belief is pervasive among ghetto 
residents that. . .from arrest to sentencing, the poor 
and uneducated are denied equal justice with the 
ailment, that procedures such as bail and fines have 
been perverted to perpetuate class inequities. We 
have found that the apparatus of justice in some areas 
has itself become a focus'for distrust and hostility 
Too often the courts have operated to aggravate 
athtr than relieve the tensions that ignite and fire 

disorders (Report of the Commission, p.337 
[Bantam, 1968]) (Emphasis added)

2 4 The problem of jailing indigents in lieu of fine has long affected

S o n T r  " S PerSOm ,'n tWS C0Untry' ™ rty years ago the National Commission on Law Observance and Enforcement pointed
S u  e tomnavinr te nUI? e' °f °ffenderS Wh° were imprisoned for
Parole 14<M1 S . / T  Pef  Instit^ons, Probation and rarole 1404 (1931). More recently, a study of the Philadelphia
miS lYfJai Sh°wed that 60 Percent of the inmates had been com- 
nutted for nonpayment. In 1960, there were over 26,000 prisoners 
in New York City jails who. had been imprisoned for default in pay­
ment of fines. The President’s Commission on Law Enforcement and 
Admimstmron of Task Force Report, The Courts 18 (1967)
Cnl Sub,n ReP°rt on the administration of justice in the District of
n  fo 7 S J rnd th3i  ° p °f 3 S3mple 0f 105 c°nvicted defendants, (or 6/p) received a fine or imprisonment in default of payment

(19fi6fCe Th^rv Cnmma!  Justice in a Metropolitan Court, pp. 88-89 
(studv of rnf-j Dlstnct o f Columbia Crime Commission found in its 

/  83 Pr TSOn$ sentenced’ in the Court of General Sessions
m e n t is 3"!? ?  19%) WCrC sentenced t0 a fine and to imprison- 
fine VnH °f Payment. Of these 105 persons could not pay the
fine and were incarcerated. Report of the President’s Commission on 
Crime m the District of Columbia 394, (1966).



imprisonment predtoably E f f e c t s 'd S m '  t° f . fin“  byn r  z
identical offenses under essen,Mv° ^ T ”  C° " ViCted of
and upon comparable records, and s e n T e te d T o ™ ^ ? 5 same fines will walk n,,t nr entenced to pay the

s « t

fine has been the same.”«  ntentlon to Pay «ie

limit the range of permissible flic :  56 thlS Court began to
Poor in crindnal p”  ta,W* n ^  3"dpremise. mgS' The Court began with this

31

Counfy cn l'965) '̂s V L o / W  ^ V l ’ N'YS-2d 970 (Orange 
N.Y.S.2d 941 tOr-mop r °£ C V' McMlllan 53 Misc.2d 685 279 
that the sentencing of a defendant the C°Urt beld
where the court knew that the ^ d ' ;  °f “ fi"e
money to pay the fine violated the !  f  lnd'gent and had no 
under law. In so holding the court ncip*fs of equal treatment 
which all of the engines oftie criminal ' ,  these times in
serving and defendmg the lights o i  T  ^  ‘°Wards ^  
should avoid resort to an archaic cV '"dlgent, our local courts 
debt.” Id. at 943. system akln to imprisonment for



< \

/

‘-ce°nthJ q2 ' P7 teCti0n and due P™cess emphasize the 
charged with c r ^ L 'm i V s o '^ f ' t h 'Y 311 Pe° PlecernpH’ ” i ^  ^  as the law is con-

Z £ y  a S “  bar o f JUS,i“
It concluded that:

" S r .  ™ „ bi , r de ;T „ i j r S e ,vhere the wnd ° fhe has.” (Id at “ f  " *  ° n ,he an,olim of money

maI°ob; r „ f L 7 ; e Pa,b,eha; i^ m‘,S;t FM “A
expensive, able counsel not within [hfreach 0/ “ ''° "  ° f

E  lib e 'tV is2/ ,  “
available ,0 preserve legitimate' ” *

r r rtbew tfr a dcao”  t ss wor,hy ° r
punished for his c r im e b y T J ^ U c n ,  rf* af defendan‘ be

e f e T f  wa^w Lch t ne v ltT „ rr " T nt ^  ^
.Heir freedom while financially .b E ’d r i S J ^ j T ^

H

1



33

For the foregoing reasons the judgment below should be 
reversed.

Respectfully submitted,
Jack Greenberg 
Michael Meltsner 
Charles Becton

10 Columbus Circle 
New York, New York 10019

Stanley A. Bass
Community Legal Counsel 
1 1 6 South Michigan Avenue 
Chicago, Illinois 60603

Haywood Burns
1 1 2 West 1 20th Street 
New York, New York

Anthony G. Amsterdam 
Stanford University Law 

School
Stanford, California 94350 

Attorneys for Appellant

I