Williams v. Illinois Appellants Brief
Public Court Documents
October 6, 1969

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Brief Collection, LDF Court Filings. Williams v. Illinois Appellants Brief, 1969. ae11404e-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1e8b3455-e305-43b6-a55f-c34560bdf9b8/williams-v-illinois-appellants-brief. Accessed April 27, 2025.
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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 f 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 (i) 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 (v) ' i f 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 V . t (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. 4 (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- •>e e us 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. I ! I 8 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’’" i i 1 j 1 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 i 10 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