Beck v. Winters Brief in Opposition to Petition for a Writ of Certiorari

    1st t h e

Olmtrt nf t!t̂  MnlUh JitatTH
No. 1368

October Term, 1968

Ca pta in  H en r y  B e c k , Superintendent o f  the 
Pulaski County Penal Farm; and Cl in t  Ca v in , Surety,

Petitioners,
v.

B obert W in t e r s ,
Respondent.

BRIEF IN OPPOSITION 
TO PETITION FOR A WRIT OF CERTIORARI

J ack  G reenberg

M ic h a e l  M e l t sn e r

N orm an  C h a c h k in

10 Columbus Circle 
New York, New York 10019

J o h n  W alk er

1820 West 13th Street 
Little Bock, Arkansas

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

Attorneys for Respondent



I N D E X

PAGE

Brief in Opposition to Petition for a Writ of- Certiorari 1 

Statement ............................................................-........  2

R easons fo e  D e n y in g  t h e  W bit—

I. The Court of Appeals Correctly Held That the 
Arkansas Restriction of Appointment of Coun­
sel at Trial to Those Indigent Defendants 
Charged With Felonies Under Arkansas Law 
Violates the Sixth and Fourteenth Amendments
to the Constitution........................ .....................  6

II. The Unconstitutionality of Arkansas’ Dollar-a- 
Day Statute Establishes the Correctness of the 
Judge Below ........... ............ ............................... 13

C o n c lu sio n  ...................... ........... — ....-......-................ 17

T able of C ases

Arbo v. Hegstrom, 261 F. Supp. 317 (D. Conn. 1966) .... 11

Baker v. Binder, 274 F. Supp. 658 (W.D. Ky. 1967) .... 16
Baxstrom v. Herold, 383 U.S. 107 (1966) --------- ------ 8
Bohr v. Purdy, -----  F.2d ——  (5th Cir. 1969, No.

26,637) ................. -..........................-.........................- 10
Brinson v. Florida, 273 F. Supp. 840 (S.D. Fla. 1967) 10
Burns v. Ohio, 360 U.S. 252 (1959)  ....... .......................9,14

Callan v. Wilson, 127 U.S. 540 (1888) _______ _ 8,12
Cheff v. Schnackenberg, 384 U.S. 373 (1966) ......... . 12

Destefano v. Woods, 392 U.S. 631 (1968) ...................  12



District of Columbia v. Clawans, 300 U.S. 617 (1937)
Douglas v. California, 372 U.S. 353 (1963) ...... .......... 9,
Douglas v. Green, 363 U.S. 192 (1960) ................... .....
Duncan v. Louisiana, 391 U.S. 145 (1968) ............. .....11,

Eskridge v. Washington Prison Board, 357 U.S. 214
(1958) ........... ............... ............................. ................

Evans v. Eives, 126 F.2d 633 (D.C. Cir. 1942) .... .......

Fenster v. Leary, 20 N.Y.2d 309, 229 N.E.2d 426 (1967)
Fish v. State, 159 So.2d 866 (Fla. 1964) .....................
Frank v. United States, 37 U.S.L. Week 4437 (May 

19, 1969) ............................................ ............. ...........

Gideon v. Wainwright, 372 U.S. 335 (1963) .......5, 6,12,
Griffin v. Illinois, 351 U.S. 1 (1956) ............................9,

Harper v. Virginia Board of Elections, 383 U.S. 663
(1966) ...................................................... ..................

Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965) ....

James v. Headley, -----  F.2d -----  (5th Cir. 1969,
No. 25,892) ......... ..... ................................ ................

Jones v. Cunningham, 371 U.S. 236 ............................

McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965) ......
McLaughlin v. Florida, 379 U.S. 184 (1964) ..... ........

People v. Saffore, 18 N.Y.2d 101, 218 N.E.2d 686
(1966) ............... ........................ ...............................15,

Petition of Thomas, 261 F. Supp. 263 (W.D. La. 1966) 
Powell v. Alabama, 287 U.S. 45 (1932) ....... .................

Eicks v. United States,-----F.2d------  (D.C. Cir. 1969,
No. 20,919) ................................ ...............................

12
14
9

12

9
6

16
10

12

14
14

15
10

10
4

10
8

16
10

8

16



Ill

PAGE

Rinaldi v. Yeager, 384 U.S. 305 (1966) ......... ...............  8
Robinson v. California, 370 U.S. 660 (1962) ..............16,17
Rutledge v. City of Miami, 267 F. Supp. 885 (S.D. Fla. 

1967)  ............. ..........................................................  10

Sawyer v. District of Columbia, 238 A.2d 314 (D.C.
Ct. App. 1968) ........................................................... 16

Stack v. United States, 195 U.S. 65 (1906) .................  12
Smith v. Bennett, 365 U.S. 708 (1961)  .....................9,14
State v. DeJosepb, 222 A.2d 752 (1966), cert. den. 385

U.S. 982 (1966) ....... ........... ............. .......................... 11
State v. Thomas, 190 So.2d 909 (La. 1965) ...... ............  10

United States v. Barnett, 376 U.S. 681 (1964) ............ 12
United States ex rel. Privitera v. Kross, 239 F. Supp.

118 (S.D.N.Y. 1965) aff’d 345 F.2d 533 (2nd Cir. 
1965) ..................................................................  16

Walling v. General Industries Co., 330 U.S. 545 (1947) 13
Weems v. United States, 217 U.S. 349 (1910) ............  17

T able op S tatutes

Ark. Stat. Ann. §19-2416 (1947) ......... .....................2,11,13
Ark. Stat. Ann. §41-103 (1947) ............ .........................  7
Ark. Stat. Ann. §41-104 (1947) .................................... 7
Ark. Stat. Ann. §41-216 (1947) .....       8
Ark. Stat. Ann. §41-605 (1947) __    7
Ark. Stat. Ann. §41-805 (1947) ...       7
Ark. Stat. Ann. §41-806 (1947) ............        8
Ark. Stat. Ann. §41-1501 (1947) _     7
Ark. Stat. Ann. §41-3215 (1947) ..............     8
Ark. Stat. Ann. §44-115 (1947) ...... ..       2
Ark. Stat. Ann. §44-509 (1947) .........     2
29 U.S.C. §206 ............................................................... 17



IV

Ot h e r  A u t h o r it ie s

page

21 Am. Jur. Ed., Criminal Law §603 ........... ........... .....  16
Goldberg, Equality and Government, 39 N.Y.U.L. Rev.

205 (1964) ........... .................... .................................. 14
McRuer, Sentences, 27 Can. Bar Rev. 1001 (1949) ..... 14
Model Defense of Needy Persons Act (1966) ..............  10
Model Penal Code (Official Draft 1962) ............... ....... 15
NCCD Advisory Council of Judges, Guides for Sen­

tencing 22 (1957) .....................................................  15
Pilot Institute on Sentencing Under the Auspices of 

the Judicial Conference of the United States, 26 
F.R.D. 231 (1959) ................... .................................. 15

Providing Defense Services (A.B.A. 1967) ...............  10
Rubin, The Law of Criminal Correction 238 (West 

Publ. Co. 1963) ....................................... ..................  15
1, Silverstein, Defense of the Poor in Criminal Cases 

in American State Courts (American Bar Founda­
tion, Chicago, 111., 1965) ....................................... 10

Sutherland and Cressey, Principles of Criminology 
(5th ed. 1955) ........ ...................................................  14



I n  t h e

(to rt ni %  ImtriJ iitatpjs
No. 1368

October Term, 1968

Ca pta in  H en r y  B e c k , Superintendent o f  the 
Pulaski County Penal Farm; and Cu n t  Ca v in , Surety,

v .
Petitioners,

R obert W in t e r s ,
Respondent.

BRIEF IN OPPOSITION 
TO PETITION FOR A WRIT OF CERTIORARI

The petition for a writ of certiorari seeks review of a 
judgment entered in this case on February 25, 1969 by the 
Court of Appeals for the Eighth Circuit which affirmed an 
order of the United States District Court for the Eastern 
District of Arkansas granting a petition for a writ of 
habeas corpus. Both courts below held that respondent, an 
indigent sentenced to nine and one half months in prison, 
was denied rights guaranteed by the Sixth and Fourteenth 
Amendments when denied the assistance of counsel pur­
suant to the Arkansas practice of appointing counsel only 
in felony cases.



2

Statement

In 1965, Robert Winters, a 24 year old indigent Negro 
was convicted of “immorality” in violation of Ordinance 
No. 25-121 of the City of Little Rock, Arkansas.1 Respon­
dent and a white female co-defendant (who was charged 
with petit larceny as well as “immorality”) were arrested 
at approximately 4:15 a.m., on May 13, 1965. They were 
brought before a judge of the municipal court of the City 
of Little Rock the same day for trial. Both were convicted. 
Respondent received a jail sentence of 30 days and a fine of 
$254.00, including court costs. Persons, like respondent, 
unable to pay such fines work them off at the Pulaski 
County Penal Farm at the rate of $1.00 per day, pursuant 
to Ark. Stat. Ann. §19-2416 (1947). He made no attempt to 
appeal from this conviction and was accordingly sentenced 
to prison for a total of 284 days.

At his trial in the municipal court, respondent was un­
represented by counsel. He did not ask for assistance of 
counsel and was not informed by the presiding judge, or 
anyone else, of a right to counsel, appointed or retained. 
Nor did the court advise him of the nature of the charge 
against him, the possible penalty, or that he had a right 
to make objections, cross-examine witnesses, present wit­
nesses in his own behalf, or “appeal” to the circuit court of 
Pulaski County where he would have been entitled to a 
trial de novo before a jury, Ark. Stat. Ann. §§44-115, 509 
(1947). After receiving testimony, the trial court asked 
both respondent and his co-defendant if they wished to 
make a statement. Both declined.

On October 20, 1965, respondent filed, as a poor person, 
a petition for a writ of habeas corpus, or in the alternative

1 The ordinance is reprinted in Appendix C of the petition for 
writ of certiorari.



3

for a writ of error coram nobis, in the trial court, the 
municipal court of the City of Little Rock, alleging, inter 
alia, that he had been tried and convicted in violation of 
state and federal constitutions “without the benefit of 
counsel and without being advised of his right to counsel.” 
Respondent requested relief against his unconstitutional 
restraint, conviction, sentence, and fine and sought release 
on his own recognizance pending consideration of the 
issues raised by the petition. The municipal court denied 
the petition October 27, 1965 and the same day a petition 
for habeas corpus, or alternatively for writ of error coram 
nobis was filed in the circuit court of Pulaski County. That 
court denied the petition on October 28, 1965.

The following day, respondent sought relief by petition 
for habeas corpus in the Supreme Court of Arkansas. On 
November 3, 1965, the supreme court entered an order 
staying execution of respondent’s sentence pending con­
sideration of the petition and releasing him on $100 bond. 
On December 20, 1965, the court denied the petition on the 
ground that Winters was charged in a misdemeanor, not 
“a felony case” and was not entitled to counsel, 239 Ark. 
1151, 397 S.W.2d 364 (1965). A petition for writ of certio­
rari was denied, Justices Stewart and Black dissenting, 
385 U.S. 907 (1966).

After denial of certiorari, Winters filed a petition for a 
writ of habeas corpus in the district court alleging (1) that 
he was “presently threatened with and subject to remission” 
to serve out his sentence and (2) that his conviction and 
sentence were unconstitutional in that:

1. He was unconstitutionally tried and convicted with­
out benefit of counsel and without being advised of 
his right to counsel;



4

2. The penalties assessed against him by the municipal 
court of Little Bock deprived him of Fourteenth 
Amendment Bights in that the imposition of 254 days 
in jail in default of payment of his fine and court 
costs of $254.00 constituted imprisonment for no other 
reason than poverty;

3. The ordinance pursuant to which he was convicted 
violated the Due Process Clause of the Fourteenth 
Amendment in that it is vague, ambiguous, and un­
certain.

On February 14, 1967, the district court dismissed the 
petition on the ground that, because he had been released 
on bond, respondent was not “in custody” so as to permit 
him to file a petition for a writ of habeas corpus. On appli­
cation for a certificate of probable cause, the court of 
appeals, on March 31, 1967, remanded the cause to the 
district court “for a rehearing on the merits in conformity 
with the teaching of the Supreme Court of the United 
States in Jones v. Cunningham, 371 U.S. 236.” On remand, 
the district court held that respondent’s conviction and 
sentence of imprisonment for nine and one-half months 
constituted the adjudication of a “serious offense,” at which 
the assistance of counsel was constitutionally required:

We do say here, . . . that the interaction of the “dollar- 
a-day” statute of Arkansas with a $254 fine plus a 
30-day jail sentence constituted a “serious offense,” 
and the failure of the trial court to notify petitioner of 
his right to the assistance of counsel and offer him 
counsel if he was unable financially to retain counsel, 
rendered the judgment of conviction and sentence 
constitutionally invalid (281 F. Supp. 793, 801-02)



5

On appeal to tlie court of appeals, the judgment of the 
district court was affirmed:

Appellants are correct in suggesting that the Su­
preme Court of the United States has not expressly 
extended the Sixth Amendment right to assistance of 
counsel to misdemeanor cases. We are firm ly  con­
vinced, however, from, the rationale of the decisions of 
the Supreme Court that the fundamental right to coun­
sel extends to a situation where, as here, the accused 
has been found guilty of an offense, which has resulted 
in imprisonment for approximately nine and one-half 
months.

The Supreme Court in Gideon v. Wainwright, 372 
U.S. 335 (1963), in holding that the Sixth Amendment 
guarantee of the right to assistance of counsel is ap­
plicable to the states through the Fourteenth Amend­
ment, proclaimed: “[I]n our adversary system of 
criminal justice, any person haled into court, who is 
too poor to hire a lawyer, cannot be assured a fair trial 
unless counsel is provided for him.” Id. at 344.

Appellants seem to regard the Gideon opinion as 
limiting the application of the Sixth Amendment to 
offenses which are characterized as felonies. We are 
not persuaded that the Gideon Court intended to cir­
cumscribe the application of its decision to such narrow 
confines. The Court did not draw a line between 
felonies and any and all misdemeanors. Indeed, con­
sideration of the opinion in context leads us to con­
clude that the right to counsel must be recognized re­
gardless of the label of the offense if, as here, the 
accused may be or is subjected to deprivation of his 
liberty for a substantial period of time. (407 F.2d 125, 
127,128)



6

REASONS FOR DENYING THE WRIT
I.

The Court of Appeals Correctly Held That the Ar­
kansas Restriction of Appointment of Counsel at Trial 
to Those Indigent Defendants Charged With Felonies 
Under Arkansas Law Violates the Sixth and Fourteenth 
Amendents to the Constitution.

Respondent’s Sixth and Fourteenth Amendment rights 
to the assistance of counsel are established by Gideon v. 
Wainwright, 372 U.S. 335 (1963). While it is true that 
Gideon was charged with a felony under Florida law, the 
decision of this Court in his case adumbrated an indigent’s 
right to the assistance of counsel in terms and for reasons 
which do not admit of restriction on the basis of whether a 
state classifies the particular offense charged as a felony 
or a misdemeanor. The Sixth Amendment’s right to the 
assistance of counsel applies “In all criminal prosecutions” 
and in Gideon the Court spoke broadly of “any person haled 
into court” and the right of “one charged with crime” (Id. 
at 344). It is difficult, moreover, to conceive the basis of a 
distinction which would find the right to counsel “a funda­
mental right essential to a fair trial” when a crime is 
denoted a felony and not when it is denoted a misde­
meanor.2 As the Court stated:

2 In Evans v. Rives, 126 F.2d 633 (D.C. Cir. 1942), a case in­
volving a federal misdemeanor, it was suggested that the right to 
counsel applied only to serious offenses. The court replied, “No 
such differentiation is made in the wording of the guaranty itself, 
and we are cited to no authority and know of none making such a 
distinction. The purpose of the guaranty is to give assurance 
against deprivation of life or liberty except strictly according to 
law. The petitioner would be as effectively denied his liberty by a 
sentence to a year in jail for the crime of nonsupport of a minor



7

. . .  in our adversary system of criminal justice any 
person haled into court who is too poor to hire a lawyer 
cannot he assured a fair trial unless counsel is pro­
vided for him. This seems to us to be an obvious truth. 
(Ibid.).

This truth is as “obvious” for misdemeanor as for felony 
trials.

Whatever the limits, if any, of the constitutional require­
ment with respect to provision of counsel in traffic and other 
petty offenses, the distinction between felonies and mis­
demeanors adopted by the Supreme Court of Arkansas in 
respondent’s case cannot serve to deny his right to counsel. 
In Arkansas, the distinction between felony and misde­
meanor is arbitrary and cannot be rationally justified in 
terms of considerations which legitimately affect either the 
state’s or a defendant’s interest in provision of counsel. 
Generally: “A felony is an offense in which the punishment 
is death or confinement in the penitentiary.” 3 “All other 
public offenses are misdemeanors.” 4 Certain misdemeanors, 
however, may result in imprisonment up to three years at 
the penitentiary, which is in excess of the penitentiary sen­
tences for certain felonies.5 Indeed, many serious crimes 
are punishable as misdemeanors6 and there are felonies

child as by a sentence to a year in jail for any other crime, however 
serious. And so far as the right to counsel is concerned, the Con­
stitution draws no distinction between loss of liberty for a short 
period and such a loss for a long one” (126 F.2d at 638).

3 Ark. Stat. Ann. §41-103 (1947).
4 Ark. Stat. Ann. §41-104 (1947).
5 See e.g. Ark. Stat. Ann. §41-805 (1947) making a third con­

viction of illegal cohabitation a misdemeanor punishable by im­
prisonment in the penitentiary for not less than one, nor more than 
three, years; Ark. Stat. Ann. §41-1501 (1947).

6 See e.g. Ark. Stat. Ann. §41-605 (1947) (assault with a deadly 
weapon).



8

that are punished no more heavily than misdemeanors.7 In 
this case, respondent has been convicted of charges of im­
moral conduct, cf. Callan v. Wilson, 127 IT.S. 540, 549 
(1888), and sentenced to nine and one half months in jail 
for a misdemeanor. As the line of demarcation between 
felony and misdemeanor in Arkansas law is totally un­
related to the reasons that the right to counsel is constitu­
tionally protected, a rule which makes provision of counsel 
turn on that distinction, itself violates the Equal Protection 
Clause. Baxstrom v. Herold, 383 U.S. 107 (1966); Rinaldi 
v. Yeager, 384 U.S. 305 (1966); see McLaughlin v. Florida, 
379 U.S. 184, 190 (1964).

It is not, however, the artificiality of the Arkansas stan­
dard which alone supports denial of certiorari. If as 
Gideon, supra, held, counsel is required for a fundamentally 
fair trial, to ensure the integrity of the fact finding process, 
and that justice is done, assistance of a lawyer cannot be 
rationally withheld simply because one class of offenses 
may be punished more severely than another. Respondent’s 
liberty is infringed if he is incarcerated for nine and one 
half months or for one year and one day; whether in the 
county penal farm or state penitentiary. The adversary 
system will operate no better because a charge carries with 
it a lesser penalty. In both classes of cases a defendant 
without counsel “lacks both the skill and knowledge ade­
quately to prepare his defense even though he has a perfect 
one” Powell v. Alabama, 287 U.S. 45, 68, 69 (1932).

It was also recognized in Gideon, supra, that the funda­
mental right of one charged with crime to counsel cannot 
be realized “if the poor man charged with crime has to face 
his accuser without a lawyer to assist him” (372 U.S. at 
344). The unfairness of permitting counsel for the rich 
while the poor go unrepresented continues if the right to

7 See e.g. Ark. Stat. Ann. §§41-216, 806, 3215 (1947).



9

counsel is restricted only to those charged with felonies. 
The Due Process and Equal Protection Clauses are not 
satisfied by a state rule which permits the kind of trial a 
man enjoys to depend on the amount of money he has ex­
cept in felony cases. Numerous decisions of the Court 
establish beyond question the inadmissibility of distinction 
between rich and poor in granting rights fundamental to 
the integrity of the fact finding process.8

In short, the court of appeals correctly held that the 
assistance of counsel is a fundamental right which cannot 
be denied on the basis of poverty and that neither the 
language of Gideon, supra, nor the reasons given to sup­
port it, permit denial of a fundamental right to an in­
digent merely because he may not have been charged with 
a crime labelled a felony under state law.

It is, therefore, no accident that the increasing trend 
of American jurisdictions is to reject any limitation on 
the right to counsel where the accused is charged with 
a misdemeanor and—at the very least—to find that the 
right of counsel attaches in any case where, as here, the 
penalty is greater than six months imprisonment. As early 
as 1963, the American Bar Foundation’s study of this 
problem found:

Two impressions emerge from the material gathered 
in the survey, which in most states was conducted 
during the summer and early fall of 1963. . . . The 
other impression is that the number of jurisdictions 
providing counsel in misdemeanors was on the in­
crease at the time of the survey, partly in response

8 Griffin v. Illinois, 351 U.S. 1, 17-19 (1956); Eskridge v. Wash­
ington Prison Board, 357 U.S. 214 (1958); Burns v. Ohio, 360 
U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960); Smith v. 
Bennett, 365 U.S. 708 (1961); Douglas v. California, 372 U.S. 353 
(1963).



10

to growing recognition that a good system of justice 
requires counsel for the misdemeanor as well as for 
the felony. 1, Silverstein, Defense of the Poor in 
Criminal Cases in American State Courts, pp. 126- 
127 (1965: American Bar Foundation, Chicago, 111.).

Three years later the National Conference of Commis­
sioners on Uniform State Laws took the view that counsel 
should be provided whenever the penalty “includes the pos­
sibility of confinement.” However, the Commissioner’s 
Model Defense of Needy Persons Act §§1, 2 (1966) con­
tains a bracketed limitation to offenses punishable for more 
than six months in deference to “differences” as to whether 
the right extends to all cases or only to cases where the 
penalty is more than six months. The American Bar As­
sociation’s Project on Minimum Standards, moreover, has 
decided that “Counsel should be provided in all criminal 
proceedings . . . regardless of their denomination as 
felonies, misdemeanors or otherwise” Providing Defense 
Services §4.1 (1967).

Several state courts have declined to find a right to 
counsel in misdemeanor cases but it is noteworthy that with 
few exceptions those cases arose in jurisdictions where the 
federal courts have held that habeas relief is available to 
void misdemeanor convictions obtained without assistance 
of counsel. Compare Harvey v. Mississippi, 340 F.2d 263 
(5th Cir. 1965); McDonald v. Moore, 353 F.2d 106 (5th Cir. 
1965); James v. Headley, —— F.2d —— (5th Cir. 1969,
No. 25,892); Bohr v. Purdy, —— F.2d-----  (5th Cir. 1969,
No. 26,637); Petition of Thomas, 261 F. Supp. 263 (W.D. 
La. 1966); Rutledge v. City of Miami, 267 F. Supp. 885 
(S.D. Fla. 1967); BrinsonY. Florida, 273 F. Supp. 840 (S.D. 
Fla. 1967) with State v. Thomas, 190 So.2d 909 (La. 1965) 
and Fish v. State, 159 So.2d 866 (Fla. 1964); Arbo v. Heg-



11

strom, 261 F. Supp. 317 (D. Conn. 1966), with State v. 
Dejoseph, 222 A.2d 752 (1966), cert. den. 385 U.S. 982 
(1966). And in Duncan v. Louisiana, 391 U.S. 145, 149 
(1968) this Court rejected the misdemeanor-felony line as 
a constitutional basis for state denial of the right to jury 
trial, a right which Duncan acknowledges is not funda­
mental to a fair trial to the extent of the right to counsel.

Arkansas urges that the state’s obligation to provide 
counsel for petitioner does not extend to one sentenced to 
nine and one half months in jail. Several reasons have been 
presented. First, it is contended that because of a claimed 
impossibility of furnishing counsel to each and every per­
son accused of crime, counsel need not be appointed until 
the state legislature has acted to solve the problem. The 
premise of this argument is surely faulty, given the wide­
spread acceptance of public responsibility to provide repre­
sentation for misdemeanor defendants. The State failed to 
present any evidence in the trial court supporting a conten­
tion that it is incapable of meeting the burden so many 
other jurisdictions have met. But even granting the premise 
arguendo, the result would be to support, not detract from, 
the decision below that offenses punishable by nine and 
one half months confinement require appointment of coun­
sel, for the court below’s resolution made no attempt to 
include appointment in petty offense cases.

The state contended that a six month limitation will not 
relieve the state’s burden because Ark. Stat. Ann. §19-2416 
(1947) requires that fines, if not paid, be worked out at the 
rate of $1.00 per day. Respondent contends that the statute 
is unconstitutional, infra pp. 13-17, but even were it valid 
it could not be employed to justify denial of counsel to re­
spondent. Its repeal or modification provides a convenient 
method to alleviate any burden caused by the obligation to 
provide representation in misdemeanor cases. The state 
cannot—on the one hand—contend that provision of counsel



12

is burdensome and—on the other—define offenses and pun- 
ismments in a way which needlessly maximizes the burden.

Once it is accepted—as we believe it must be, in light of
Duncan, supra and Frank v. United States, 37 U.S. L. Week 
4437 (May 19, 1969)—that the federal courts are required 
to address themselves to the question of which petty of­
fenses, if any, are exempt from the constitutional protec­
tion of right to counsel, then there is impressive authority 
for the proposition that—regardless of the outer boundary 
of the right—offenses punishable by more than six months, 
especially when they involve moral delinquency, require 
appointment of counsel. Cf. Callan v. Wilson supra; Dis­
trict of Columbia v. Clawans, 300 U.S. 617 (1937) ; Shick 
v. United States, 195 U.S. 65 (1906); Duncan at 391 U.S. 
145 (1968). Cases adopting the six months rule as the 
boundary of the federal right to jury trial (at least in 
criminal contempt cases, where the rule is likely most 
tolerant of non-jury trials), such as Cheff v. Schnacken- 
berg, 384 U.S. 373 (1966),9 are especially persuasive, for 
the Court made perfectly plain in Duncan, 391 U.S. at 
158, despite incorporating the jury trial requirement of 
the Sixth Amendment in the Fourteenth, that “We would 
not assert, however, that every criminal trial—or any par­
ticular trial—held before a judge alone is unfair or that a 
particular defendant may never be as fairly treated by a 
judge as he would be a jury.” Cf. Destefano v. Woods, 
392 U.S. 631 (1968). Gideon v. Wainwright, however, 
stands for the proposition that a fair trial without counsel 
is hardly possible.

9 Cheff must be read as adopting and applying a six month stan­
dard to the Court’s famous dictum in United States v. Barnett, 
376 U.S. 681, 695, n. 12 (1964) :

Some members of the Court are of view that, without regard 
to the seriousness of the offense, punishment by summary trial 
without a jury would be constitutionally limited to that pen­
alty provided for petty offenses.



13

II.
The Unconstitutionality of Arkansas’ Dollar-a-Day 

Statute Establishes the Correctness of the Judge Below.

The municipal court sentenced petitioner to 254 additional 
days in jail because of his inability to pay a fine and court 
costs of $254.00, pursuant to Ark. Stat. Ann. §19-2416 
(1947). The dollar-a-day statute and its application in this 
case where challenged under the Eighth and Fourteenth 
Amendments by respondent in the district court and the 
court of appeals. Those courts did not reach the question, 
though squarely presented by the petition for habeas corpus, 
because they found that denial of respondent’s right to 
counsel violated the Fourteenth Amendment and required 
the vacation of his conviction on that distinct ground. But 
since the unconstitutionality of Ark. Stat. Ann. §19-2416 
supports the judgment below, it is properly urged here as 
a ground supporting denial of certiorari. Walling v. Gen­
eral Industries Co., 330 U.S. 545, 547 (1947).

We submit that the statute is palpably unconstitutional. 
A system which enforces the payment of fines by imprison­
ment clearly effects different treatment of convicts depend­
ing on whether they are with or without funds to pay the 
fine. Two persons convicted of identical offenses under 
essentially similar circumstances and upon comparable rec­
ords, and sentenced to pay the same fines, will walk out of 
court or be transported to the state jail depending entirely 
on how much money they have. As former Justice Goldberg 
has written:

The “choice” of paying a $100 fine or spending 30 days 
in jail is really no choice at all to the person who can­
not raise $100. The resulting imprisonment is no more 
or no less than imprisonment for being poor, a doctrine 
which I trust this Nation has long since outgrown.



14

Goldberg, Equality and Government, 89 N. Y. U. L. 
Rev. 205, 221 (1964).

Respondent submits that a system of imprisonment for 
failure to pay a fine, unmitigated by any effort to accommo­
date itself to the poverty of some defendants, makes the 
real sentence a man gets depend on the amount of money 
he has, and that Griffin v. Illinois, 351 U.S. 12 (1956) and 
its progeny, have made clear that such a system is forbid­
den. E.g. Burns v. Ohio, 360 U.S. 252 (1959) (filing fee for 
motion for leave to appeal); Smith v. Bennett, 365 U.S. 708 
(1961) (filing fee for state habeas corpus petition); Gideon 
v. Wainwright, 372 U.S. 335 (1963) (appointed counsel at 
tria l); Douglas v. California, 372 U.S. 353 (1963) (appointed 
counsel for first appeal as of right). It should be noted that 
under an Arkansas law the indigent defendant is deprived 
of his liberty not because it is thought that the protection 
of the community or his reformation require it, but simply 
because he is poor and unable to pay the fine imposed:

.. . when a fine is imposed it is tantamount to a declara­
tion that neither the safety of the community nor the 
welfare of the offender requires the imprisonment of 
the offender and that the assumed values of punishment 
can be accomplished without imprisonment. Sutherland 
and Cressey, Principles of Criminology at 277 (5th ed. 
1955).

Chief Justice McRuer of the High Court of Justice for 
Ontario, Canada has put it succinctly:

A modest fine, with an alternative prison term, imposed 
upon a man who has not the ability to pay is in fact a 
sentence to prison, while a very substantial fine im­
posed on one of ample financial resources is an incon­
sequential punishment. McRuer, Sentences, 27 Can. 
Bar Rev. 1001, 1006 (1949).



15

Due process and equal protection do not sanction a system 
which makes a man’s freedom dependent upon his ability to 
pay. Cf. iHarper v. Virginia State Board of Elections, 383 
U.S. 663, 668 (1966).10

In a case indistinguishable from this, People v. Saffore, 
18 N.Y. 2d 101, 218 JSF.E. 2d 686 (1966), the New York 
Court of Appeals held that to make “a defendant who has 
no money or property . . . serve out a fine at $1 per day, in 
addition to the maximum term of imprisonment,” violated 
both the state and federal constitutions:

Since imprisonment for nonpayment of a fine can 
validly be used only as a method of collection for 
refusal to pay a fine, we should now hold that it is 
illegal so to imprison a defendant who is financially 
unable to pay.11

The court found its holding compelled particularly by 
the circumstance that the dollar-a-day confinement in de-

10 Authorities who have considered the matter recognize the un­
fairness of the practice:

In general one of the over-riding principles repeatedly urged 
is that the financial capabilities of the offender should be taken 
into consideration, because unless fines are proportioned to the 
defendant’s ability to pay, they will be treated lightly by per­
sons of means and will be an unbearable burden to the poor. 
Rubin, T h e  L aw  of Crim ina l  C orrection 238 (West Publ. 
Co. 1963).

The federal judges’ pilot institute on sentencing recommended 
th a t:

No fine should be imposed unless it reasonably appears that 
the defendant is financially able to pay it either at once or 
in installments under probation. Pilot Institute on Sentencing 
under the Auspices of the Judicial Conference of the U.S., 
26 P.R.D. 231, 380 (1959).

See also NCCD Advisory Council of Judges, G uides for Se n ­
tencing  22 (1957); M odel P ena l  Code Sec. 7.02 (Official draft, 
1962).

11 A rational purpose of imprisoning an indigent under an alter­
native fine-imprisonment sentence is hard to find. Coercion of the



16

fault resulted in the defendant being sentenced to a period 
of imprisonment in excess of the statutory maximum—a 
circumstance also present here.12 Accord: Sawyer v. Dis­
trict of Columbia, 238 A2d 314 (D.C. Ct. App. 1968).

Moreover, in treating a convict without funds differently 
than one with money to pay a fine a sentencing court is, in 
effect, punishing the former because of his status as a poor 
person. In Robinson v. California, 370 IT.S. 660 (1962) 
the Court held that the Eighth Amendment’s prohibition of 
cruel and unusual punishment, applicable to the states 
through the Due Process Clause, proscribed California’s 
attempt to make criminal an individual’s status of narcotic 
addition. (Id. at 667). The failure of the defendant in this 
case to pay the fine was an “involuntary symptom” of his
involuntary poverty, cf. Ricks v. United States, -----F.2d
-----  (D.C. Cir. 1969, No. 20,919); Fenster v. Leary, 20
N.Y.2d 309, 229 N.E.2d 426 (1967); Baker v. Binder, 274 
F. Supp. 658 (W.D. Ky. 1967). To imprison the respon­
dent for this reason, no matter how small the fine, or how 
short the term of incarceration, is cruel and unusual pun­
ishment of him for being poor:

To be sure, imprisonment for ninety days is not, in the
abstract, a punishment which is either cruel or unusual.

indigent to pay is clearly a rationally impossible motive, as the 
New York Court of Appeals noted in People v. Saffore, supra, 
see also 21 Am. Jur. Ed., Crim in a l  L aw , §603, and the cases cited 
in note 4 there. The indigent simply lacks the ability to pay. 
Coercion of a friend or relative to pay is a possible sub rosa pur­
pose, but seems opposed to our fundamental understanding that no 
man should be penalized for the crimes of his friend or relative in 
which he himself did not participate.

12 Compare United States ex rel. Privitera v. Kross, 239 P. Supp. 
118 (S.D.N.Y. 1965) aff’d 345 F.2d 533 (2nd Cir. 1965) where the 
court relied on the fact that the state judge could have imposed a 
straight jail sentence up to a year in prison apart from the fine. 
In Winters case, however, the fine permitted the court to impose 
over eight fold more time in prison than the maximum.



17

But the question cannot be considered in the abstract. 
Even one day in prison would be a cruel and unusual 
punishment for the “crime” of having a common cold. 
Robinson v. California, supra, at 667.

As the district court observed, despite the fact that the 
dollar-a-day statute is over 75 years old and the statute’s 
standard of value is totally inconsistent with modern 
standards, compare 29 IT.S.C. §206 (minimum wage: $1.60 
per hour), the Arkansas legislature has not amended the 
rate at which an indigent “works off” his fine. Thus the 
state has not only chosen to punish the status of poverty 
but has done so at an unconscionable rate, unconstitu­
tionally disproportionate to the value of petitioner’s labor. 
Weems v. United States, 217 U.S. 349 (1910); compare U.S. 
Const. XIII.

CONCLUSION

For the foregoing reasons, Respondent prays that the 
petition for writ of certiorari be denied.

Respectfully submitted,

J ack  G reenberg

M ic h a e l  M e l t sn e r

N orm an  C h a c h k in

10 Columbus Circle 
New York, New York 10019

J o h n  W alk er

1820 West 13th Street 
Little Rock, Arkansas

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

Attorneys for Respondent



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