Beck v. Winters Brief for Appellee
Public Court Documents
January 1, 1969
Cite this item
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Brief Collection, LDF Court Filings. Beck v. Winters Brief for Appellee, 1969. defea218-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6daac670-ef60-40a9-8f58-68461976cbe8/beck-v-winters-brief-for-appellee. Accessed May 23, 2025.
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I n t h e
States Glmtrt of Appeals
F ob t h e E ig h t h C ir c u it
No. 19278
C a pt a in H e n r y B e c k , Superintendent o f the Pulaski
County Penal Farm; and Cl in t Ca y in , Surety,
v.
Appellants,
R obert W in t e r s ,
Appellee.
ON APPEAL PROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OE ARKANSAS,
WESTERN DIVISION
BRIEF FOR APPELLEE
J ack Green berg
M ic h a e l M e l t sn e r
10 Columbus Circle
New York, New York
J o h n W . W a lk er
N orman C h a c h k in
1304-B Wright Avenue
Little Rock, Arkansas
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania
Attorneys for Appellee
I N D E X
PAGE
Statement ...................................................... ............... 1
Constitutional and Statutory Provisions Involved .... 5
Statement of Points to be Argued .............. ................ 5
A r g u m e n t
I. The District Court Had Jurisdiction To Issue the
Writ of Habeas Corpus ......................................... 12
II. The Arkansas Restriction of Appointment of
Counsel at Trial to Those Indigent Defendants
Charged With Felonies Under Arkansas Law Vio
lates the Sixth and Fourteenth Amendments to
the Constitution ............... .............. ....................... 21
III. In the Circumstances of This Case, Petitioner
Was Denied Fundamental Fairness at His Trial
by the Failure of the State to Appoint Counsel
in a Criminal Proceeding Where Protection of
Petitioner’s Rights Under State and Federal
Law Imperatively Required Counsel ................ . 35
IV. Arkansas’ Dollar-a-Day Statute Violates the
Eighth and Fourteenth Amendments ........... ...... 37
C o n c lu sio n .................................... .......................................... 44
Appendix of Statutes and Ordinances Involved ...... la
11
T able, of Cases
PAGE
Algeta v. Commonwealth, 352 Mass. ----- , 231 N.E.
3d 201 (1967) ....... ......................... ........................10,42
Aptheker v. Secretary of State, 378 U.S. 500 (1964)_6,31
Arbo v. Hegstrom, 261 F. Supp. 317 (D. Conn. 1966)
5, 6,15, 26, 29
Avan v. Municipal Court, Los Angeles Judicial Dis
trict, 43 Cal. Rptr. 835, 401 P.2d 227 (1965) ..........6, 26
Baker v. Binder, 274 F. Supp. 658 (W.D. Ky. 1967)
10, 42
Baxstrom v. Herald, 383 U.S. 107 (1966) .....................7, 23
Betts v. Brady, 316 U.S. 455 (1942) ........................ 10,36
Bloom v. Illinois, 36 U.S.L. Week 4429 (1968) ....7,32,34
Bolkovac v. State, 229 Ind. 294, 97 N.E. 2d 250 (1951)
7, 27
Brinson v. Florida, 273 F. Supp. 840 (1967) ..... 7,26
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ..............7,30
Burns v. Ohio, 360 U.S. 252 (1959) ............... ..7,10, 24, 40
Carafas v. LaVallee, 46 U.S.L. Week 4409 (1968) .... 5,15
Cameron v. Mullen, 387 F.2d 193 (D.C. Cir. 1967) .....5,15
Carnley v. Cochran, 369 U.S. 506 (1962) ............ 7,24
Cheff v. Schnackenberg, 384 U.S. 373 (1963) ............. .7,33
Commonwealth v. O’Leary, 198 N.E. 2d 403 (1964) ....7,27
Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455, 456
(1964) .................................. ....................... ...............7, 29
Craig v. State, 235 Ark. 566, 361 S.W. 2d 16 (1962) ....10, 37
District of Columbia v. Clawans, 300 U.S. 617 (1937)
7, 33
Douglas v. California, 372 U.S. 353 (1963) ...... 7,10, 24, 40
Douglas v. Green, 363 U.S. 192 (1960) ...................... 7, 24
Ill
PAGE
Driver v. Hinnant, 356 F,2d 761 (4th Cir. 1966) ...... 10,42
Duncan v. Louisiana, 36 U.S.L. Week 4414 (1968) ....7, 32,
33, 34
Duncombe v. New York, 267 F. Supp. 103 (S.D.N.Y.
1967) ................................. ..................... ................... 5,15
Dyke v. Taylor Instrument Co., 36 U.S.L. Week 4436
(May 20, 1968) .......................................................... 33
Edwards v. South Carolina, 372 U.S. 229 (1938) ...... 7, 31
Escobedo v. Illinois, 378 U.S. 478 (1964) ..................... 34
Eskridge v. Washington Prison Board, 357 U.S. 214
(1958) ......................................................................... 7,24
Evans v. Eives, 126 F.2d 633 (D.C. Cir. 1942) ......7, 20, 26
Ex parte Masching, 41 Cal. 2d 530, 261 P.2d 251 (1953)
7, 27
Fay v. Noia, 372 U.S. 391 (1963) ................................ 7, 24
Fenster v. Leary, 20 N.Y. 2d 309, 229 N.E. 2d 426
(1967) .......................................................................10,42
Fish v. State, 159 So.2d 866 (Fla. 1964) ........... ..........7, 29
Fitzpatrick v. Williams, 46 F.2d 40 (5th Cir. 1931) ....6,19
Foster v. Gilbert, 264 F. Supp. 209 (S.D. Fla. 1967) ....6,16
Gibbs v. Burke, 372 U.S. 773 (1949) ...... .............. .......7, 24
Gideon v. Wainwright, 372 U.S. 335 (1963) .......7,10, 21, 23,
24, 33, 34, 35, 40
Griffin v. California, 380 U.S. 609 (1965) .....................7, 34
Griffin v. Illinois, 351 U.S. 1 (1956) ..................7,10,24,39
Griswold v. Connecticut, 381 U.S. 479 (1965) .............. ..7,31
Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) .................................... 11,41
Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir.
1965) .............. ......... ..................................7, 21, 24, 26, 29
IV
PAGE
Hunter v. State, 288 P.2d 425 (Okla. Grim. App. 1955)
8, 29
In re Guido Garofone, 80 N.J. Super, 259, 193 A.2d
398 (1963) aff’d 42 N.J. 244, 200 A.2d 101 (1964) ....8, 28
In re Jingles, 27 Cal. 2d 496, 165 P.2d 12 (1946) ...... 8, 27
In re Johnson, 42 Cal. Rptr. 228, 398 P.2d 420 (1965)
8, 27
In re Newbern, 53 Cal. 2d 786, 3 Cal. Rptr. 364, 350
P.2.1 116 (1960) .........................................................8,27
In re Newbern, 168 Cal. App. 2d 472, 335 P. 2d 948
(1959) .............. .......................................................... 8
Johnson v. Zerbst, 305 U.S. 458 (1938) ...................... 8, 24
Jones v. Cunningham, 371 U.S. 236 (1963) ....4, 6,13,14,16
Ker v. California, 374 U.S. 23 (1963) ............... .........8,34
Keyishian v. Board of Regents, 385 U.S. 589 (1967) —.8, 31
Lambert v. California, 355 U.S. 225 (1957) .... ......... 11,42
Lane v. Brown, 372 U.S. 477 (1963) .......................... 11,40
McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965) ....8, 21,
26, 29
McLaughlin v. Florida, 379 U.S. 184 (1964) .................8, 23
McNally v. Hill, 293 U.S. 191 (1934) ........... ......6,12,13,14
Malloy v. Hogan, 378 U.S. 1 ............... ..... ......... ............ 8, 34
Martin v. Virginia, 349 F.2d 781 (4th Cir. 1965) ...... 6,14
Massiah v. United States, 377 U.S. 201 (1964) ..........8, 34
Matter of Cannon, 351 P.2d 756 (Okla. Crim. App.
1960) ..... ................... ............ ........................ ............ 29
Miranda v. Arizona, 384 U.S. 436 (1966) .....................8, 31
NAACP v. Alabama, 377 U.S. 288 (1964) ................. 8, 31
NAACP v. Button, 371 U.S. 415 (1963) .....................8, 31
V
PAGE
Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966) ...... 10,36
Parker v. Ellis, 362 U.S. 574 (1960) .............. .............. 6,15
Patterson v. Warden, Maryland Penitentiary, 372 U.S.
776 (1963), vacating 227 Md. 194, 175 A.2d 746
(1961), on remand, 231 Md. 509, 191 A.2d 237 (1963)
8,26.
People v. Agnew, 114 Cal. App. 2d Supp. 841, 250 P.2d
369 (Super. Ct., App. Dept. 1952) .......... ................8,27
People v. Collins, 47 Misc. 2d 210, 261 N.Y.S. 2d 970
(Orange County Ct. 1965) ..... ............. -.... ..............11,39
People v. Kohler, 45 Misc. 2d 692, 258 N.Y. Supp. 2d
279 (Sup. Ct., App. Term 1965) .................. ......... ..8,29
People v. Mallony, 147 N.W. 2d 66 (1967) ................. 8, 27
People v. Saffore, 18 N.Y. 2d 101, 218 N.E. 2d 686
(1966) 11,41
People v. Witenski, 15 N.Y.2d 392, 259 N.Y. Supp. 2d
413, 207 N.E. 2d 358 (1965) .............................. .......8,28
Petition of Thomas, 261 F. Supp. 263 (D. La. 1966)
9, 26, 29
Peyton v. Rowe, 36 U.S.L. Week 4463 (1968) .......6,14,15
Pointer v. Texas, 380 U.S. 400 (1965) ........................ 9,34
Powell v. Alabama, 287 U.S. 45 (1932) ............9,10, 23, 36
Re Oliver, 338 U.S. 251 (1948) ..... 10,36
Reese v. United States, 9 Wall. 13 (1869) ................. 6,19
Rinaldi v. Yeager, 384 U.S. 305 (1966) .............. ........9,23
Robinson v. California, 370 U.S. 660 (1962) .......11,42,43
Rutledge v. City of Miami, 267 F. Supp. 885 (S.D. Fla.
1967) ................ ............. -.........................-................. 9,26
Sawyer v. District of Columbia, 2 Cr. L. 2405 (D.C.
Ct. App. 1968) ..........................................................11,42
Schick v. United States, 195 U.S. 65 (1906) ............33
VI
PAGE
Schneider v. State, 308 U.S. 147 (1939) .....................9, 31
Shelton v. Tucker, 364 U.S. 479 (1960) ......................9,31
Sheppard v. Maxwell, 384 U.S. 33 (1966) .............. ...10, 36
Sherbert v. Verner, 374 U.S. 398 (1963) ....... ........... 9,31
Smith v. Bennett, 365 U.S. 708 (1961) ............9,11,24,40
Stack v. Boyle, 342 U.S. 1 (1951) ................................6,16
State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964).. 9
State v. Borst, 154 N.W.2d 888 (1967) .......... 9,27
State v. Be Joseph, 222 A.2d 752 (1966) cert. den. 385
U.S. 982 (1966) .........................................................9,29
State v. Donaldson, 36 N.J. 45, 174 A.2d 896 (1961)....9, 28
State v. Plutshack, —— N.W.2d----- (1968) ............9,29
State v. Thomas, 190 So.2d 909 (La. 1965) ...... ..... .....9,29
Stevenson v. Shields, Cir. Ct., 21 Cr. L. 2173 (1968) ....9, 29
Taylor v. City of Griffin, 113 Ga. App. 589, 149 S.E.2d
177 (1966) .................. 9,27
Taylor v. Taintor, 116 Wall. 366 (1872) ..........6,17,18,19
Thomas v. Collins, 323 U.S. 516 (1945) ....................... 31
United States v. Barnett, 376 U.S. 681 (1964) ____ 33
United States v. DeGregory, 220 F. Supp. 249 (E.D.
Pa. 1963) ................................................... 6,15
United States v. Glass, 317 F.2d 200 (4th Cir. 1963)....6,14
United States v. Trunko, 189 F. Supp. 559 (D. Ark.
I960) ........ 6,19
United States ex rel Priester v. Fay, 233 F. Supp. 249
(S.D. N.Y. 1963) ......... ...6,11,14
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) 11
Uveges v. Pennsylvania, 355 TJ.S. 437 (1948) ............9, 24
vii
PAGE
Weems v. United States, 217 U.S. 349 (1910) ..........11,43
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943) ..... ............................................9,31
Williams v. State of Alabama, 341 F.2d 777 (5th Cir.
1965) ........... ............. -.... 9,26
Wilson y. United States, 149 U.S. 60 (1893) ..... ........9, 34
T able oe S ta tu tes
Ark. Sint. Ann. §19-2409 (1947) .......................... 5,10,36
Ark. Stat. Ann. §19-2416 (1947) .................2,5,11,30,37
Ark. Stat. Ann. §41-103 (1947) ...............................5,9,22
Ark. Stat. Ann. §41-104 (1947) ...............................5,9,22
Ark. Stat. Ann. §41-216 (1947) ......................-.......... 9,22
Ark. Stat. Ann. §41-605 (1947) .......... -...................... 9,22
Ark. Stat. Ann. §41-805 (1947) ................................. 9,22
Ark. Stat. Ann. §41-806 (1947) .................. -.............. 22
Ark. Stat. Ann. §41-1501 (1947) .......................-.....10, 22
Ark. Stat. Ann. §41-3215 (1947) .......................-.....10,22
Ark. Stat. Ann. §43-716 (1947) ......... --5,6,19
Ark. Stat. Ann. §43-730 (1947) .................................. 6,19
Ark. Stat. Ann. §44-115 (1947) ..... ..2,5,10,39
Ark. Stat. Ann. §44-504 (1947) ................ 5,10,37
Ark. Stat. Ann. §44-509 (1947) ........ .......... - 2,5,10,37
18 U.S.C. §1 ..................-.............................. -........ 5,10, 26
18 U.S.C. §3006A ................................................... 5,10, 26
28 U.S.C. §2254 ............................... -........ 5, 6,12,13,14, 20
29 U.S.C. §206 ...........................—- .............................. 43
vm
Ot h e r A u t h o r it ie s
PAGE
A Study of the Administration of Bail in New York
City, 106 U. Pa, L. Rev. 693 (1958) ........................ 20
Am. Jur., Bail and Recognizance, §§112-117 (Rev. ed
1950) ........... ....................................... ..................... . is
Am. Jr. Ed., Criminal Law, §603 ................................ 41
American Law Institute, Code of Criminal Procedure,
Commentary to Section 94 (Official Draft 1930) ..... 18
Annot., Surrender of Principal by Sureties on Bail
Bond, 73 A.L.R. 1369 (1931) ................. .................. 18
Blackstone, Commentaries (6th ed., Dublin 1775) ...... 17
Commissioner’s Model Defense of Needy Persons Act
(1966) ......................................................................... 25
Goldberg, Equality and Government, 39 N.Y.U.L. Rev.
205 (April 1964) ....................................................... 38
H a le , P leas of t h e Crow n (1st American ed., Phila
delphia 1847) ...... ...... ............................. ................i 7 ig
Holdsworth, A History of English Law (3d ed. 1945) 17
Holmes, The Common L aw ......... ..................... 17
McRuer, Sentences, 27 Can. Bar. Rev. 1001 (1949) .... 40
Model Penal Code (Official draft, 1962) .......... .......... 41
NCCD Advisory Council of Judges, Guides for Sen
tencing (1957) ....................................................... 41
Orfield, Criminal Procedure From Arrest to Appeal
(1947) 17
IX
PAGE
Pilot Institute on Sentencing ....................................... 41
P ollock & Maitland, H istoby op E nglish L aw (2d
ed. 1952) ........................................................ .............. ....... 17
Providing Defense Services (American Bar Associa
tion, 1967) ................ ...............-............................... - 25
Report of the Supreme Court Committee on the De
fense of the Indigent Accused, and Appendix C-l
(Mo. 1964, unpublished) ........ .............. ............. ..... . 28
Rubin, The Law of Criminal Correction (West. Publ.
Co. 1963) ..................................................... .............. 41
Sutherland and Cressey, Principles of Criminology
(5th ed. 1955) ........................... ........................................ 40
Symposium on the Griswold Case and the Right of
Privacy, 64 Mich. L. Rev. 197 (1965) ......... ........... 31
I n t h e
ISiniUh Spates (Emtrt nf Appals
F or t h e E ig h t h C ir c u it
No. 19278
C a pta in H e n r y B e c k , Superintendent o f the Pulaski
County Penal Farm; and Cl in t C a v in , Surety,
Appellants,
v.
R obert W in t e r s ,
Appellee.
ON APPEAL PROM THE UNITED STATES DISTRICT COURT
EOR THE EASTERN DISTRICT OE ARKANSAS,
WESTERN DIVISION
BRIEF FOR APPELLEE
Statement
In 1965, appellee, 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
Following the exhaustion of available state remedies, Win
ters (hereafter called petitioner, as he was in the court
below) applied to the district court for a writ of habeas
corpus on federal constitutional grounds. This is an ap
peal by the respondents in that proceeding from an order
of the district court (reported at 281 F. Supp. 793) issuing
1 The ordinance is reprinted in the appendix infra pp. 5a-6a.
2
the writ on the ground that Winters was denied his con
stitutionally protected right to the assistance of counsel.
Petitioner 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. Petitioner received a jail sentence
of 30 days and a fine of $254.00, including count costs..
Persons, like petitioner, 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
sentence, and he was incarcerated. Petitioner was accord
ingly sentenced to prison for a total of 284 days.
At his trial in the municipal court, petitioner 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 witnesses
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 peti
tioner and his co-defendant if they wished to make a state
ment. Both declined.
On October 20, 1965, petitioner filed, as a poor person, a
petition for a writ of habeas corpus or in the alternative
for a writ of error coram nobis in the trial court, the munici
pal court of the City of Little Rock, alleging, inter alia, that
3
lie 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.” Petitioner
requested relief against his unconstitutional restraint, con
viction, 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 Octo
ber 27,1965 and the same day petitioner filed a like petition
for habeas corpus, or alternatively for writ of error coram
nobis, in the circuit court of Pulaski County. That court
denied the petition on October 28, 1965.
The following day, petitioner 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 petitioner’s sentence pending considera
tion of the petition and releasing petitioner on $100 bond.
On December 20, 1965, the court denied the petition on the
ground that petitioner, charged in a misdemeanor, not “a
felony case” was not entitled to counsel, 239 Ark. 1151, 397
S.W.2d 364 (1965). A petition for writ of certiorari was
denied, Justices Stewart and Black dissenting, 385 U.S. 907
(1966).
After denial of certiorari, petitioner filed the present
petition for a writ of habeas corpus 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. Petitioner was unconstitutionally tried and con
victed without benefit of counsel and without being
advised of his right to counsel;
2. The penalties assessed against him by the munici
pal court of Little Eock deprive him of Fourteenth
4
Amendment Rights, in that the imposition of 254
days in jail in default of payment of his fine and
court costs of $254.00 constitutes imprisonment for
no other reason than poverty;
3. The ordinance pursuant to which he was convicted
violates the Due Process Clause of the Fourteenth
Amendment in that it is vague, ambiguous, and
uncertain.
On February 14, 1967 the district court dismissed the
petition on the ground that because he had been released
on bond, petitioner was not “in custody” so as to permit
him to file a petition for a writ of habeas corpus. On ap
plication for a certificate of probable cause, this Court, on
March 31, 1967, remanded the cause to the district court
“for a rehearing on the merits in conformity with the teach
ing of the Supreme Court of the United States in Jones v.
Cunningham, 371 U.S. 236.” On remand, the district court
held that petitioner’s conviction and sentence of imprison
ment for nine and one-half months constituted the adjudi
cation 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 constitution
ally invalid (281 F. Supp. at 801-02).
From this decision, respondents appeal.
5
Constitutional and Statutory Provisions Involved
This case involves the Sixth, Eighth, and Fourteenth
Amendments to the Constitution of the United States.
This case involves the following statutes, and an ordi
nance of the City of Little Bock, the texts of which are
reprinted in the appendix, infra, pp. la-6a:
18 U.S.C. §1(3);
18 U.S.C. §3006A(b);
Ark. Stat. Ann. §19-2409 (1947);
Ark. Stat. Ann. §19-2410 (1947);
Ark. Stat. Ann. §19-2416 (1947);
Ark. Stat. Ann. §41-103 (1947);
Ark. Stat. Ann. §41-104 (1947);
Ark. Stat. Ann. §41-106 (1947);
Ark. Stat. Ann. §43-716 (1947);
Ark. Stat. Ann. §44-115 (1947);
Ark. Stat. Ann. §44-504 (1947);
Ark. Stat. Ann. §44-509 (1947);
Ordinance of City of Little Eock No. 25-121.
Statement of Points to be Argued
I. Petitioner is in Custody for the Purposes of Filing a Peti
tion for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§2254.
Arbo v. Hegstrom, 261 F. Supp. 397 (D. Conn.
1966);
Carafas v. LaVallee, 46 U.S.L. Week 4409
(1968);
Cameron v. Mullen, 387 F.2d 193 (D.C. Cir. 1967);
Duncombe v. New York, 267 F. Supp. 103 (S.D.
N.Y. 1967);
6
Fitzpatrick v. Williams, 46 F.2d 40 (5th Cir.
1931);
Foster v. Gilbert, 264 F. Supp. 209 (8.D. Fla.
(1967);
Jones v. Cunningham, 371 U.8. 236 (1963);
Martin v. Virginia, 349 F.2d 781 (4th Cir. 1965);
McNally v. Hill, 293 U.S. 191 (1934);
Parker v. Ellis, 362 U.S. 574 (1960);
Peyton v. Rowe, 36 U.S.L. Week 4463 (1968);
Reese v. United States, 9 Wall. 13 (1869);
Stack v. Boyle, 342 U.S. 1 (1951);
Taylor v. Taintor, 16 Wall. 366 (1872);
United States v. DeGregory, 220 F. Supp. 249
(E.D. Pa. 1963);
United States v. Glass, 317 F.2d 200 (4th Cir.
1963);
United States v. Trunko, 189 F. Supp. 559 (D.
Ark. 1960);
United States ex rel. Priester v. Fay, 233 F.
Supp. 249 (S.D. N.Y. 1963);
Ark. Stat. Ann. §43-716 (1947);
Ark. Stat. Ann. §43-730 (1947);
28 U.S.C. §2254;
II. The Arkansas Restriction of Appointment of Counsel at
Trial to Those Indigent Defendants Charged With Felonies
Under Arkansas Law Violates the Sixth and Fourteenth
Amendments to the Constitution.
Aptheker v. Secretary of State, 378 U.S. 500
(1964) ;
Arbo v. Ilegstrom, 261 F. Supp. 317 (D. Conn.
1966);
Avan v. Municipal Court, Los Angeles Judicial
District, 43 Cal. Rptr. 835, 401 P.2d 227
(1965) ;
7
Baxstrom v. Ilerold, 383 U.S. 107 (1966);
Bloom v. Illinois, 36 U.S.L. Week 4429 (1968);
Bolkovac v. State, 229 Ind. 294, 98 KE.2d 250
(1951) ;
Brinson v. Florida, 273 F. Supp. 840 (1967);
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966);
Burns v. Ohio, 360 U.S. 252 (1959);
Cheff v. Schnackenherg, 384 U.S. 373 (1966);
Commonwealth v. O’Leary, 198 N.E.2d 403
(1964);
Commonwealth v. Sliva, 415 Pa. 537, 204 A,2d
455 (1964);
Carnley v. Cochran, 369 U.S. 506 (1962);
District of Columbia v. Clawans, 300 U.S. 617
(1937);
Douglas v. California, 372 U.S. 353 (1963);
Douglas v. Green, 363 U.S. 192 (1960);
Duncan v. Louisiana, 36 U.S.L. Week 4414
(1968);
Edwards v. South Carolina, 372 U.S. 229 (1938);
Eskridge v. Washington Prison Board, 357 U.S.
214 (1958);
Evans v. Rives, 126 F.2d 633 (D.C. Cir. 1942);
Ex parte Masching, 41 Cal. 2d 530, 261 P.2d
251 (1953);
Fay v. Noia, 372 U.S. 391 (1963);
Fish v. State, 159 So.2d 866 (Fla. 1964);
Gibbs v. Burke, 372 U.S. 773 (1949);
Gideon v. Wainwright, 372 U.S. 335 (1963);
Griffin v. Illinois, 351 U.S. 1 (1956);
Griffin v. California, 380 U.S. 609 (1965);
Griswold v. Connecticut, 381 U.S. 479 (1965);
Harvey v. State of Mississippi, 340 F.2d 263 (5th
Cir. 1965);
8
Hunter v. State, 288 P.2d 425 (Okla. Crim, App.
1955);
In re Guido Garofone, 80 N.J. Super. 259, 193
A.2d 398 (1963) aff’d 42 N.J. 244, 200 A.2d
101 (1964);
In re Jingles, 27 Cal. 2d 496, 165 P.2d 12 (1946);
In re Johnson, 42 Cal. Eptr. 228, 398 P.2d 420
(1965);
In re Newbern, 53 Cal. 2d 786, 3 Cal. Rptr. 364,
350 P.2d 116 (1960);
In re Newbern, 168 Cal. App. 2d 472, 335 P.2d
948 (1959);
Johnson v. Zerbst, 305 U.S. 458 (1938);
Ker v. California, 374 U.S. 23 (1963);
Keyishian v. Board of Regents, 385 U.S. 589
(1967);
Malloy v. Hogan, 378 U.S. 1 (1964);
Massiah v. United States, 377 U.S. 201 (1964);
McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965);
McLaughlin v. Florida, 379 U.S. 184 (1964);
Miranda v. Arizona, 384 U.S. 436 (1966);
NAACP v. Alabama, 377 U.S. 288 (1964);
NAACP v. Button, 371 U.S. 415 (1963);
Patterson v. Warden, Maryland Penitentiary,
372 U.S. 776 (1963), vacating 227 Md. 194,
175 A.2d 746 (1961) on remand, 231 Md. 509,
191 A.2d 237 (1963);
People v. Agnew, 114 Cal. App. 2d Supp. 841,
250 P. 2d 369 (Super. Ct.. App. Dept. 1952);
People v. Kohler, 45 Misc. 2d 692, 258 N.Y.
Supp. 2d 279 (Sup. Ct., App. Term 1965);
People v. Mallony, 147 N.W. 2d 66 (1967);
People v. Witenski, 15 N.Y. 2d 392, 259 N.Y.
Supp. 2d 413, 207 N.E. 2d 358 (1965);
9
Petition of Thomas, 261 F. Supp. 263 (D. La.
1966);
Pointer v. Texas, 380 U.S. 400 (1965);
Powell v. Alabama, 287 U.S. 45 (1932);
Rinaldi v. Yeager, 384 U.S. 305 (1966);
Rutledge v. City of Miami, 267 F. Supp. 885
(S.D. Fla. 1967);
Schneider v. State, 308 U.S. 147 (1939);
Shelton v. Tucker, 364 U.S. 479 (1960);
Sherbert v. Verner, 374 U.S. 398 (1963);
Smith v. Bennett, 365 U.S. 708 (1961);
State v. Anderson, 96 Ariz. 123, 392 P. 2d 784
(1964) ;
State v. Borst, 154 N.W.2d 888 (1967);
State v. DeJoseph, 222 A.2d 752 (1966) cert. den.
385 U.S. 982 (1966);
State v. Donaldson, 36 N.J. 45, 174 A.2d 896,
(1961);
State v. Pint shack,----- N.W.2d------ (1968);
State v. Thomas, 190 So.2d 909 (La. 1965);
Stevenson v. Shields, Cir. Ct., 21 Cr. L. 2173
(1968) ;
Taylor v. City of Griffin, 113 Ga. App. 589, 149
S.E.2d 177 (1966);
Uveges v. Pennsylvania, 355 U.S. 437 (1948);
West Virginia State Board of Education v. Bar
nette, 319 U.S. 624 (1943);
Williams v. State of Alabama, 341 F.2d 777
(5th Cir. 1965);
Wilson v. United States, 149 U.S. 60 (1893).
Ark. Stat. Ann. §41-103 (1947);
Ark. Stat. Ann. §41-104 (1947);
Ark. Stat. Ann. §41-216 (1947);
Ark. Stat. Ann. §41-605 (1947);
Ark. Stat. Ann. §41-805 (1947) ;
10
Ark. Stat. Ann. §41-1501 (1947);
Ark. Stat. Ann. §41-3215 (1947);
18 U.S.C. §1;
18 U.S.C. §3006A(b).
III. Special Circumstances Required the Appointment of
Counsel in Petitioner’s Case.
Betts v. Brady, 316 U.S. 455 (1942);
Craig v. State, 235 Ark. 566, 361 S.W. 2d 16
(1962);
Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966);
Powell v. Alabama, 287 U.S. 45 (1932);
Re Oliver, 338 U.S. 251 (1948);
Sheppard v. Maxwell, 384 U.S. 333 (1966);
Ark. Stat. Ann. §19-2409 (1947);
Ark. Stat. Ann. §44-115 (1947);
Ark. Stat. Ann. §44-504 (1947);
Ark. Stat. Ann. §44-509 (1947).
IV. By Imposing Imprisonment at the Rate of One Dollar
Per Day Upon an Indigent Who is Unable to Pay a Fine,
Ark. Stat. Anno. §19-2416 Violates the Eighth and Four
teenth Amendments.
Alegata v. Commonwealth, 352 Mass. ----- , 231
N.E. 2d 201 (1967);
Baker v. Binder, 274 F. Supp. 658 (W.D. Ky.
1967);
Burns v. Ohio, 360 U.S. 252 (1959);
Douglas v. California, 372 U.S. 353 (1963);
Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966);
Fenster v. Leary, 20 N.Y. 2d 309, 229 N.E. 2d
426 (1967);
Gideon v. Wainwright, 372 U.S. 335 (1963);
Griffin v. Illinois, 351 U.S. 12 (1956);
11
Harper v. Virginia State Board of Elections,
383 U.S. 663 (1966);
Lambert v. California, 355 U.S. 225 (1957);
Lane v. Brown, 372 U.S. 477 (1963);
People v. Collins, 47 Misc. 2d 210, 261 N.Y.S. 2d
970 (Orange Comity Ct. 1965);
People v. Saffore, 18 N.Y. 2d 101, 218 N.E. 2d
686 (1966);
Robinson v. California, 370 U.S. 660 (1962);
Sawyer v. District of Columbia, 2 Or. L. 2405
(D.C. Ct. App. 1968);
Smith y . Bennett, 365 U.S. 708 (1961);
United States ex rel. Privitera v. Kross, 239
F. Snpp. 118 (S.D. N.Y. 1965) aff’d 345 F.2d
533 (2nd Cir. 1965);
Weems v. United States, 217 U.S. 349 (1910);
Ark. Stat. Ann. §19-2416 (1947) ;
29 U.S.C. §206.
12
A R G U M E N T
I.
The District Court Had Jurisdiction To Issue the
Writ of Habeas Corpus.
Respondents continue to maintain that petitioner was
not “in custody” for the purposes of 28 U.S.C. §2254 be
cause he was not in jail at the time the petition was filed.
That question, however, was resolved adversely to respond
ents by this Court in the previous appeal.
After his petition for a writ of certiorari was denied by
the United States Supreme Court, two justices dissenting,
385 U.S. 907 (1966), petitioner filed the instant petition for
habeas corpus and for leave to proceed in forma pauperis
in the district court. The petition alleged inter alia that:
Petitioner is now in technical custody of respondent
Clint Cavin Surety upon petitioners bond to appear
in order to serve the remainder of his sentence here
tofore mentioned after disposition by the United States
Supreme Court of the petition for writ of certiorari.
Petitioner is presently threatened with and subject to
remission to respondent Captain Henry Beck.
Respondent Captain Henry Beck admitted the truth of
this allegation in his answer to it. Respondent Cavin Surety
failed to file a responsive pleading. Respondents are not
now, therefore, in a position to dispute the fact that peti
tioner was “threatened with and subject to remission.”
They urge, as they must, that actual custody is required to
maintain a habeas corpus action.
Relying on McNally v. Hill, 293 U.S. 191 (1934), the
district court on February 6, 1967 dismissed the petition
13
on the ground that “at the time the petition was filed he
[petitioner] was at liberty on bail, free of any actual re
straint, consequently not in custody.” On February 14,1967,
the district judge refused to issue a certificate of probable
cause for appeal and petitioner filed an application for is
suance of the certificate in this Court contending, in effect,
that Jones v. Cunningham, 371 U.S. 236 (1963) rather than
McNally, supra, correctly stated the guiding principles and
that when (a) one is released from a prison commitment
only subject to the obligations of an appearance bond, and
to restraint by the surety on the bond; and (b) when he
alleges that he is in present danger of being remitted and
detained in a prison facility; and (c) when the State ad
mits that he is in present danger of remission and deten
tion in a prison facility; and (d) when he has already been
forced to serve a portion of his prison sentence because of
inability to make satisfactory bond pending appeal due
to poverty; and (e) when his remission and detention in
a prison facility would jeopardize with mootness his at
tempt to secure an adjudication of the unconstitutionality
of his conviction and sentence, he is “in custody” for pur
poses of 28 U.S.C. §2254.
On March 29,1967, this Court reversed the district court’s
dismissal of the petition. After having “examined the origi
nal files of the district court” and “being fully advised in
the premises” the Court remanded to the district court for
proceedings “in conformity with the teaching of the Su
preme Court of the United States in Jones v. Cunningham,
371 U.S. 236.” A panel of the Court has, therefore, deter
mined that petitioner is sufficiently restrained of his liberty
to maintain a petition for a writ of habeas corpus. This
determination is the law of the case.
14
Petitioner does not understand it to be the practice for
one panel of this Court to reconsider the rulings of another
panel. We might therefore rely, without more, upon the
disposition of the earlier appeal. But, because that dis
position is eminently correct, as well as controlling, we
think it appropriate to demonstrate, in the nest few pages,
the substantive demerit of respondents’ assault upon what
the Court has held.
When the district court first denied jurisdiction under
28 U.S.C. §2254, it relied upon the old view of habeas juris
diction, as represented by McNally v. Hill, 293 U.S. 131
(1934), to the effect that the term “in custody” required
physical imprisonment. But the authority of McNally had
already been seriously weakened by Jones v. Cunningham,
371 U.S. 238 (1963). And, on May 10, 1968, McNally was
expressly overruled by the Supreme Court in Peyton v.
Rowe, 36 U.S.L. Week 4463, which held unanimously that
federal habeas proceedings were available to challenge a
conviction (on the grounds of deprivation of the right to
counsel, among others) even though the petitioner had not
begun to serve the challenged sentence.
Postponement of the adjudication of such issues for
years can harm both the prisoner and the State and
lessens the probability that final disposition of the
ease will do substantial justice (36 U.S.L. Week 4465).
This decision capped the progressive rejection of the
McNally view of custody which was evident in this Court’s
order on petitioner’s earlier appeal, in the 1963 decision
of the Supreme Court upon which this Court relied, Jones
v. Cunningham, 371 U.S. 238 (1963), and in an increasing
number of decisions in other Circuits, Martin v. Virginia,
349 F.2d 781 (4th Cir. 1965); United States v. Glass, 317
F.2d 200 (4th Cir. 1963); United States ex rel. Priester v.
15
Fay, 233 F. Supp. 629 (S.D. N.Y. 1963); United States v.
DeOregory, 220 F, Supp. 249 (E.D. Pa. 1963). In Peyton
v. Rowe the Court said:
“Common sense dictates that petitioners seeking habeas
relief after exhausting state remedies should be able
to do so at the earliest practicable time” (36 U.S.L.
Week at 4465).
In a similar “common sense” vein, Carafas v. LaVallee, 46
U.S.L. Week 4409, decided on the same day as Peyton v.
Rowe, overruled Parker v. Ellis, 362 U.S. 574 (1960) and
held “in custody” an unconditionally released prisoner
whose petition had been filed prior to termination of his
sentence.
Those courts which have considered the question of the
application of the Jones line of cases to a bailed defendant
have reached the same conclusion which this Court previ
ously reached. In Arbo v. Ilegstrom, 261 F. Supp. 397, 399
(D. Conn. 1966), the court held that a bailed petitioner is
not prohibited from maintaining a petition for the writ
because:
The order of commitment has not been set aside or
modified. He is still subject to bail limits and “he
might be drawn back in jail to finish serving the al
legedly invalid sentence. . . .” Jones v. Cunningham,
371 U.S. 236.
In Duncombe v. New York, 267 F. Supp. 103, 109 n. 9
(S.D. N.Y. 1967), the court held:
A person released in bail such as Duncombe, is
legally “in custody” for purposes of the habeas statute.
The Court of Appeals for the District of Columbia Cir
cuit reached a similar result in Cameron v. Mullen, 387 F.2d
16
193 (D.C. Cir. 1967). There the petitioner eloped from a
hospital and a motion was made to dismiss her habeas
petition on the ground that she was not “in custody”. Cit
ing Jones v. Cunningham, the court stated :2
As long as there is an order of restraint on her liberty
outstanding and as long as her custodians are within
the jurisdiction this case is not moot. The case cannot
be dismissed on the grounds that defendant is not “in
custody” for habeas corpus purposes. (Id. at 196, n. 4)
In Foster v. Gilbert, 264 F. Supp. 209, 211-12 (S.D. Fla.
1967) release in the custody of an attorney was held suf
ficient to maintain a petition for the writ.
There can be no doubt that an Arkansas defendant,
enlarged on a bail bond, whose conviction has been finalized
by affirmance in the State Supreme Court and by the denial
of certiorari, is “in custody” of his surety, the state officer
who may arrest him at any time, and indeed any state
judge having power to alter his bond. This is so for
several reasons relating to bail status generally and, more
particularly, to the restraints that are effective upon a
criminal defendant bailed during the pendency of review
proceedings once those proceedings are terminated.
(1) The entire purpose of any bail arrangement—that
is, of conditional rather than unconditional release—is to
impose some “restraints on a man’s liberty, restraints not
shared by the public generally . . .” Jones, supra, 371 U.S.
at 240. “. . . Like the ancient practice of securing the oaths
of responsible persons to stand as sureties for the accused,
the modern practice of requiring a bail bond or the deposit
2 Although the petitioner in Cameron was not bailed the language
of the court would clearly extend its holding to one in custody of a
surety and threatened, as petitioner, with commitment.
17
of a sum of money subject to forfeiture serves as additional
assurance of the presence of an accused. . . .” Stack v\.
Boyle, 342 U.S. 1, 5 (1951). The amount of bail which has
been set, presumably, has been set precisely because it is
believed to exert a sufficiently coercive influence upon the
defendant’s movements to compel his attendance when his
attendance is desired.
(2) Historically, the theory of bail has been that the
principal is delivered into the custody of his sureties. “He,
that is delivered per manucaptionem only, is out of custody;
but he that is bailed, is in supposition of law still in cus
tody, and the parties that take him to bail are in law his
keepers, and may reseize him to bring him in . . . ” 2 H ale,
P leas of t h e C row n 124 (1st American ed., Philadelphia
1847).3 “. . . English, Norman and French tradition all
point to an ancient and extremely rigorous form or surety
ship or hostageship which would have rendered the surety
liable to suffer the punishment that was hanging over the
head of the released prisoner. In Normandy these sureties
are compared to gaolers, and a striking phrase speaks of
them as ‘the Duke’s living prison.’ . . . ” 2 P ollock & M ait
land , H istory oe E n g l is h L aw 589 (2d ed. 1952).4
3 See also 3 Blackstone, Commentaries 290 (6th ed., Dublin 1775)
(principal “is supposed to continue in their friendly custody in
stead of going to gaol”) ; Orfield, Criminal Procedure From Arrest
to Appeal 123 (1947) (“ . . . Historically, a person released on
bail was regarded as being delivered into the personal custody of
Ms sureties, who normally were relatives or friends.”) The theory
of the Supreme Court’s decision in Taylor v. Taintor, 16 Wall. 366,
373 (1872), is exactly that of 2 Hale, supra, text, at 124, that the
bailed defendant is “in supposition of law still in custodia mares-
calli. . . .” And see 4 Holdsworth, A History of English Law
525-526 (3d ed. 1945).
4 The supposed liability of the bail to stand punishment for his
escaped principal “was the law in the analogous case of a jailer.”
Holmes, The Common Law 250 (1881).
18
(3) This “custody” is not merely theoretical. In virtually
every jurisdiction sureties have the power to surrender their
principal at any time, for reasons sufficient only to them
selves, and for this purpose to arrest the principal either
without process or on some form of summary process is
suable at their mere will.5
The practice is ancient.6 Its classic statement is in
Taylor v. Taintor, 16 Wall. 366, 371-372 (1872) :7
“When bail is given, the principal is regarded as de
livered to the custody of his sureties. Their dominion
is a continuance of the original imprisonment. When
ever they choose to do so, they may seize him and
deliver him up in their discharge; and if that cannot
be done at once, they may imprison him until it can
5 See 6 Am. Jur., Bail and Recognizance, §§112-117, pp. 106-108
(Rev. ed. 1950); Annot., Surrender of principal by sureties on
bail bond, 73 A.L.R. 1369 (1931). State statutes authorities author
izing arrest of the principal by the surety are collected in American
Law Institute, Code of Criminal Procedure, Commentary to Sec
tion 94, at 6-387 (Official Draft 1930).
6 2 Hale, Pleas of the Crown 126 (1st American ed., Philadelphia
1847) : [The bails] “. . . are his keepers . . . and may re-seize the
prisoner, if they doubt his escape, and bring him before the justice
or court, and he shall be committed, and so the bail be discharged
of his recognizance.”
7 The case holds that sureties are not discharged by operation of
law when, their principal having gone into another state, been
arrested there on the Governor’s warrant and extradited to a
third State, he is imprisoned on conviction in the third State at
the time of the appearance for which the sureties are bound. One
ground of decision is that the sureties ran the risk when they
allowed him to leave the State, which they had the power to
prevent; another is that the sureties were negligent in failing to
interpose before the Governor of the asylum State and demand the
custody to which they were entitled, for “though beyond the juris
diction of [the State where he was bailed] . . ., he was still through
his bail in the hands of the law of that State, and held to answer
there for the offence with which he was charged. . . .” 16 Wall,
at 373.
19
be done. They may exercise their right in person or
by agent. They may pursue him into another State:
they may arrest him on the Sabbath; and, if neces
sary, may break and enter his house for that purpose.
The seizure is not made by virtue of new process.
None is needed. It is likened to the rearrest by the
sheriff of an escaping prisoner. In 6 Modern it is said:
‘The bail have their principal on a string, and may
pull the string whenever they please, and render him
in their discharge.’ . . .”
Arkansas statutes vest broad, if not absolute, power in
the surety to arrest and apprehend a defendant and to
recommit him. see Ark. Stat. Ann. §43-716 (1947). Cer
tainly, the bail surety’s power to retake his principal is
more arbitrary and summary than that of the parole
office before the Supreme Court in Jones.
(4) Moreover, the comitting court is given broad dis
cretion to have a bailed defendant rearrested for the
purpose of increasing bail.8 See Ark. Stat. Ann. §43-730
(1947). That court, as well as the surety, has the defendant
“on a string.” Taylor v. Taintor, 16 Wall. 366, 373 (1872).
(5) The susceptibility of the bailed defendant to re
arrest imposes restrictions on his daily activities similar
to the parole regulation of the parolee, but more onerous
because more indefinite. Of course, to one such as peti
tioner, whose conviction had been affirmed and review
denied by the Supreme Court, the possibility of rearrest
was not a matter of conjecture. Petitioner’s federal habeas
corpus petition alleged, and the respondents have formally
admitted, that Winters is presently subject to and threat-
8 E.g. United States v. Trunko, 189 F. Supp. 559 (E.D. Ark.
(1960); Reese v. United States, 9 Wall. 13, 21 (1869) (alternative)
ground); Fitzpatrick v. Williams, 46 F.2d 40 (5th Cir. 1931).
20
ened with remission into custody. It is simply inaccurate
in such circumstances to contend that he is under no
restraint or that, as respondents contend; “He may do as
he pleases.”
(6) The criteria for fixing bail are so imprecise9 that a
court having power to increase the bond required of a
bailed defendant can ordinarily find a colorable pretext
for doing so. Where a professional bondsman is involved,
as here, the power of state officers to use the surety’s un
limited rights of arrest is immeasurable, because the
bondsman’s livelihood immediately depends upon the con
tinuing good will of those officers.
(7) Finally, it must be noted that had petitioner been
required to await his actual detention in a prison insti
tution in order to test the legality of his conviction that
(1) he would have had to submit to incarceration in order
to vindicate his constitutional rights, and (2) his constitu
tional claim as to the underlying conviction would have
been threatened with mootness by reason of his completing
his sentence. A construction of 28 U.S.C. §2254 which
ignored these circumstances would raise constitutional
questions of its own. There is, however, no reason to
reach these, for both reason and authority support the
finding of the previous panel of this Court that petitioner
was in “custody” for purposes of filing a petition for a
federal writ of habeas corpus.
9 See, e.g., Note, A Study of the Administration of Bail in New
York City, 106 U. Pa. L. Rev. 693, 704-705 (1958).
21
II.
The Arkansas Restriction of Appointment of Counsel
at Trial to Those Indigent Defendants Charged With
Felonies Under Arkansas Law Violates the Sixth and
Fourteenth Amendments to the Constitution.
Petitioner’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 the Supreme 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 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 fundamental right essential to a fair
trial” wffien a crime was denoted a felony and not when
it was denoted a misdemeanor.10 As the Supreme Court
stated:
10 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
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). See also
Harvey v. State of Mississippi, 340 F,2d 263 (5th Cir. 1965);
McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965).
22
“ . . . in our adversary system of criminal justice any
person haled into court who is too poor to hire a
lawyer cannot te assured a fair trial unless counsel
is provided for him. This seems to us to be an obvious
truth.” {Ibid.).
The 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
misdemeanors adopted by the Supreme Court of Arkansas
in petitioner’s case cannot serve to deny his right to
counsel. In Arkansas, the distinction between felony and
misdemeanor is arbitrary and cannot be rationally justi
fied in terms of considerations which legitimately affect
either the State’s or the defendant’s interest in provision
of counsel. Generally: “A felony is an offense of which
the punishment is death or confinement in the peniten
tiary.” 11 “All other public offenses are misdemeanors.” 12
Certain misdemeanors, however, may result in imprison
ment up to three years at the penitentiary which is in
excess of the penitentiary sentences for certain felonies.13
Indeed, many serious crimes are punishable as misde
meanors14 and there are felonies that are punished no
more heavily than misdemeanors.16 In this case, petitioner
11 Ark. Stat. Ann. §41-103 (1947).
12 Ark. Stat. Ann. §41-104 (1947).
13See 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).
14 See e.g. Ark. Stat. Ann. §41-605 (1947) (assault with a deadly
weapon).
16 See e.g. Ark. Stat. Ann. §§41-216, 806, 3215 (1947).
23
has been convicted of charges of immoral conduct and
sentenced to nine and one half months in jail for a mis
demeanor. As the line of demarcation between felony
and misdemeanor in Arkansas law is totally unrelated
to the reasons that the right to counsel is constitutionally
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
standard which alone requires reversal of the judgment.
If as Gideon, supra, held, counsel is required for a funda
mentally fair trial, to insure 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. Petitioner’s liberty is infringed if he is incar
cerated for nine and one half months or for one year and
one day; whether in the county penal farm or state peni
tentiary. 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 adequately 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 counsel is restricted only to those charged with felonies.
The due process and equal protection clauses are not
24
satisfied by a state rule which permits the kind of trial
a man enjoys to depend on the amount of money he has
except in felony cases. Numerous decisions of the Supreme
Court establish beyond question the inadmissibility of dis
tinction between rich and poor in granting rights funda
mental to the integrity of the fact finding process.16
In short, Gideon found the assistance of counsel to be
a fundamental right which could not be denied on the
basis of poverty. The character of the charge against
Gideon was never articulated as a factor in the decision.
Neither the language of that decision nor the reasons
given to support it permit denial of a fundamental right
to an indigent merely because he may not have been
charged with a crime labelled a felony under state law.17
16 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. Ben
nett, 365 U.S. 708 (1961); Douglas v. California, 372 U.S. 353
(1963).
17 Nor can petitioner’s right to counsel be denied on the ground
that he failed to request counsel at trial. Decisions are unmistak
ably clear on this question: “ [I]t is settled that where the assist
ance of counsel is a constitutional requisite, the right to be furnished
counsel does not depend on a request.” Carnley v. Cochran, 369
U.S. 506, 513 (1962). Counsel must be offered whether or not the
accused requests appointment. TJveges v. Pennsylvania, 335 U.S.
437 (1948). Nor can failure to request counsel be construed as a
waiver when an accused has not been informed of his right to
counsel. Gibbs v. Burke, 372 U.S. 773 (1949). Such a waiver is
not presumed, Johnson v. Zerbst, 305 U.S. 458 (1938), and before
an accused can be said to have waived his right to counsel it must
be made perfectly clear from the record that he was offered assist
ance of counsel and that his was an intentional and considered
refusal. Fay v. Noia, 372 U.S. 391, 439 (1963). These decisions
reflect the knowledge that to condition assistance of counsel upon
request would be to deny it to those ignorant, frightened, and mis
informed persons who need it most. The rule they state has been
applied in misdemeanor cases. Harvey v. Mississippi, 340 F.2d 263
(5th Cir. 1965).
25
It is, therefore, no accident that the increasing trend of
American jurisdiction is to reject any limitation on the
right to counsel where the accused is charged with a mis
demeanor and—at the least—to find that the right of
counsel attaches (as the court below found) in any case
where the penalty is greater than six months imprisonment.
As early as 1965, 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
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.).
A year later the National Conference of Commissioners
on Uniform State Laws took the view that counsel should
be provided whenever the penalty “includes the possibility
of confinement”. However, the Commissioner’s Model De
fense of Needy Persons Act §§1, 2 (1966) contains 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
Association’s Project on Minimum Standards, moreover,
has decided that “Counsel should be provided in all crim
inal proceedings . . . regardless of their denomination as
felonies, misdemeanors or otherwise” Providing Defense
Services §4.1.
26
The overwhelming majority of jurisdictions which have
considered the question (including the only two federal
circuit courts) have determined that counsel must be
appointed in misdemeanor cases, although some have
limited the requirement to cases where the punishment is
greater than six months:
(a) Federal offenses. Evans v. Rives, 126 F.2d 633
(D.C. Cir. 1942). (The recently enacted Criminal
Justice Act of 1964 provides that “in every criminal
case in which the defendant is charged with a felony
or a misdemeanor, other than a petty offense, and
appears without counsel, the United States commis
sioner or the court shall advise the defendant that
he has the right to be represented by counsel and
that counsel will be appointed to represent him if he
is financially unable to obtain counsel”. 18 U.S.C. §§1,
3006A(b), (c).
(b) Federal cases involving attacks on state court
convictions have rejected any limitation on the right
to appointed counsel where the defendant was charged
with a misdemeanor. See Patterson v. Warden, Mary
land Penitentiary, 372 U.S. 776 (1963), vacating 227
Md. 194, 175 A.2d 746 (1961). For subsequent pro
ceedings on remand see: 231 Md. 509, 191 A.2d 237
(1963); Williams v. Alabama, 341 F.2d 777 (5th Cir.
1965); Harvey v. Mississippi, 340 F.2d 263 (5th Cir.
1965); McDonald v. Moore, 353 F.2d 106 (5th Cir.
1965); Rutledge v. City of Miami, 267 F. Supp. 885
(S.D. Fla. 1967); Rrinson v. Florida, 273 F. Supp.
840 (S.D. Fla. 1967); Petition of Thomas, 261 F. Supp.
263 (D. La. 1966); Arbo v. Hegstrom, 261 F. Supp. 317
(D. Conn. 1966).
(c) California. Avan v. Municipal Court, Los An
geles Judicial District, 43 Cal. Rptr. 835, 401 P.2d
27
227 (1965); In re Johnson, 42 Cal. Rptr. 228, 398
P.2d 420 (1965); In re Newbern, 53 Cal. 2d 786,
3 Cal. Rptr. 364, 350 P.2d 116 (1960); Ex parte
Masching, 41 Cal. 2d 530, 261 P.2d 251 (1953); In re
Jingles, 27 Cal. 2d 496, 165 P.2d 12 (1946); In re
Newbern, 168 Cal. App. 2d 472, 335 P.2d 948 (1959);
People v. Agnew, 114 Cal. App. 2d Sapp. 841, 250
P.2d 369 (Super. Ct., App. Dept. 1952); 36 Ops. Atty.
Gen. Cal. 85 (1960).
(d) Georgia. Taylor v. City of Griffin, 113 Ga. App.
589, 149 S.E.2d 177 (1966).
(e) Indiana. Bolkovac v. State, 229 Ind. 294, 98
N.E.2d 250 (1951).
(f) Massachusetts. Rule 10 of the Supreme Judicial
Court of Massachusetts (as amended on June 29,
1964); Commonwealth v. O’Leary, 198 N.E.2d 403
(1964).
(g) Michigan. People v. Mallony, 147 N.W.2d 66
(1967).
(h) Minnesota. State v. Borst, 154 N.W.2d 888
(1967).
(i) Missouri. Although Missouri Supreme Court
Rule 29.01 (Vernon ed. 1961) provides only for the
appointment of counsel in felony cases, the Attorney
General of Missouri has ruled that:
“1. The magistrate courts of this state have the
power to appoint counsel to represent indigent de
fendants accused of misdemeanors.
“2. In every criminal case coming before a magis
trate judge the accused should be advised of his
right to appear by counsel. If the accused is in-
28
digent, counsel should be appointed to represent
him where the case is of more than minor signif
icance and when prejudice might otherwise result.
If the indigent accused desires to plead guilty or
otherwise proceed without counsel, it should first
be shown that he has been advised of his right to
have counsel appointed to represent him, how and
why counsel could be of benefit to him and that
he has the capacity to waive his rights intelligently.”
Ops. Atty. Gen. Mo., No. 207 (1963).
In late 1964, a committee appointed by the Mis
souri Supreme Court recommended “that counsel
should be required in all misdemeanor cases unless
intelligently waived.” In making its recommendation,
the committee stated that “there does not appear to
be any good reason to distinguish between serious
and petty misdemeanors.” The proposed revision of
Rule 29.01, which it submitted to the Missouri Su
preme Court, “provides for the appointment of counsel
by magistrates for misdemeanor cases.” It also pro-
provides that such counsel once appointed, unless
relieved, is to represent the indigent defendant through
the appellate stages of the proceedings. Report of the
Supreme Court Committee on the Defense of the In
digent Accused, pp. 9-10 and Appendix C-l (Mo. 1964,
unpublished).
(j) New Jersey. New Jersey Supreme Court Rule
1:12-9 (Soney & Sage ed. 1965); State v. Donaldson,
36 N.J. 45, 174 A.2d 896, 897n (1961); In re Guido
Garofone, 80 N.J. Super. 259, 193 A.2d 398 (1963),
aff’d 42 N.J. 244, 200 A.2d 101 (1964).
(k) New York. People v. Witenski, 15 N.Y.2d 392,
259 N.Y. Supp. 2d 413, 207 N.E.2d 358 (1965); see
29
also People v. Kohler, 45 Misc. 2d 692, 258 N.Y. Supp.
2d 279 (Sup. Ct., App. Term 1965).
(l) Oklahoma. Hunter v. State, 288 P.2d 425 (Okla.
Crim. App. 1955); see also Matter of Cannon, 351
P.2d 756 (Okla, Crim. App. 1960).
(m) Pennsylvania. Commonwealth v. Sliva, 415 Pa.
537, 204 A.2d 455, 456 (1964).
(n) Oregon. Stevenson v. Shields, Cir. Ct,, 21 Cr. L.
2173 (November 11, 1967).
(o) Wisconsin. State v. Plutshack,----- N.W.2d -——
(February 2, 1968).
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 federal habeas relief is available to void convic
tions obtained without assistance of counsel. Compare
Harvey, supra, McDonald, supra and Petition of Thomas,
supra with State v. Thomas, 190 So.2d 909 (La, 1965)
and Fish v. State, 159 So.2d 866 (Fla. 1964); Arbo v<
Hegstrom, supra, with State v. DeJoseph, 222 A.2d 752
(1966), cert. den. 385 U.S. 982 (1966).
Respondents urge 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 are
presented. First, it is contended that because of the
“impossibility of furnishing counsel to each and every
person accused of crime” (Appellants’ Br. p. 9) counsel
need not be appointed until the legislature has acted to
solve the problem. The premise of this argument is surely
faulty, given the widespread acceptance of public respon
sibility to provide representation for misdemeanor de-
30
fendants. Respondents failed to present any evidence in
the trial court supporting a contention that the State
of Arkansas 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 district court’s decision that offenses
punishable by greater than six months confinement require
appointment of counsel, for such a resolution excludes
appoinment in petty offenses.
But respondents contend that a six month limitation
will not relieve 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. Petitioner contends that
that statute is unconstitutional, see infra pp. 37-43, but
even were it valid it could not be employed to justify
denial of counsel to petitioner. Its repeal or modification
provides a convenient method to alleviate any burden
caused by the obligation to provide representation in
petty offense cases. The state cannot—on the one hand—
contend that provision of counsel is burdensome and—on
the other—define offenses and punishments in a way which
needlessly maximizes the burden.
We venture to suggest that the burdens involved in
devising a system of appointed counsel are not alone
sufficient to justify practices that would otherwise be
recognized as clear violations of a constitutional right.
It would be far more convenient for jury commissioners
to select jurors without going to the trouble to “become
acquainted with [the] . . . community’s human resources,”
Brooks v. Beto, supra, 366 F.2d 1, 14 (5th Cir. 1966) and
cases cited; just as it would be more convenient for the
authorities to coerce confessions from arrestees without
counsel than to prove them guilty by independent investi-
31
gation, but see Miranda v. Arizona, 384 U.S. 436 (1966).
If expediency were the criterion, criminal justice could
dispense with trials altogether. Rather, the constitutional
question is, when practices overshadow fundamental rights
of a criminal accused, whether there is sufficient justifica
tion for those practices to condone the abridgment of
rights which they occasion.
When the state attempts to restrict a fundamental right
it can do so only on the showing of a “compelling interest.”
Sherbert v. Verner, 374 U.S. 398, 406 (1963); N.A.A.C.P.
v. Button, 371 U.S. 415, 438 (1963); West Virginia State
Board of Education v. Barnette, 319 U.S. 624, 644 (1943).
In order to satisfy the requirement of “compelling interest”
the state has the burden of persuasion in demonstrating
all of the following: (1) That the restriction imposed
rationally relates to legitimate governmental objectives
sought; (2) that the benefit to the public of those objec
tives outweighs the impairment of the constitutional right
and that (3) no alternative means less subversive of the
constitutional right are available. See Keyishian v. Board
of Regents, 385 U.S. 589 (1967); Griswold v. Connecticut,
381 U.S. 479 (1965); N.A.A.C.P. v. Alabama, 377 U.S.
288 (1964); Aptheker v. Secretary of State, 378 U.S. 500
(1964); Sherbert v. Verner, supra; Edwards v. South
Carolina, 372 U.S. 229, 238 (1938); N.A.A.C.P. v. Button,
supra, at 433; Shelton v. Tucker, 364 U.S. 479, 488 (1960);
Thomas v. Collins, 323 U.S. 516, 530 (1945); Schneider
v. State, 308 U.S. 147, 161 (1939); Symposium on the
Griswold Case and the Bight of Privacy, 64 Mich. L. Rev.
197 (1965). No such showing has been made here.
Respondents also contend that the “Federal Courts
should not undertake to decide in each particular case
whether or not free counsel should have been afforded
an accused” (App. Br. p. 9). The standards involved,
32
however, are federal constitutional standards, the char
acter and extent of which this Court is bound to define
and apply. The Supreme Court addressed itself to this
question only recently in Duncan v. Louisiana, 36 U.S.L.
Week 4414 (May 20, 1968) and Bloom v. Illinois, 36
U.S.L. Week 4429 (May 20, 1968), where it made plain
beyond debate that the boundaries of the specific protec
tions of the Bill of Rights (specifically the line between
petty and other offenses), even though they may be diffi
cult of definition, are to be hammered out in the federal
courts:
“In the absence of an explicit constitutional pro
vision, the definitional task necessarily falls upon the
courts, which must either pass upon the validity of
legislative attempts to identify those petty offenses
which are exempt from jury trial or, where the legis
lature has not addressed itself to the problem, them
selves face the question in the first instance. In either
case it is necessary to draw a line in the spectrum of
crime separating petty from serious infractions. This
process, although essential, cannot be wholly satis
factory, for it requires attaching different conse
quences to events which, when they be near the line,
actually differ very little (46 U.S.L. Week at 4419).”
(Emphasis supplied.)
Duncan was placed in jeopardy of a two year sentence;
Bloom received a two year sentence. The Supreme Court
observed, therefore, that it was not called upon to deter
mine the “exact location” of the line of demarcation be
tween petty offenses and serious crimes for jury trial
purposes in those cases. It made clear, however, as Judge
Young found below, that “it is necessary to draw a line”,
Duncan, supra, 46 U.S.L. Week 4419; see also Dyke v.
33
Taylor Instrument Co., 36 TJ.S.L. Week 4436 (May 20,
1968).18
Once it is accepted—as we believe it must be, in light
of Duncan, supra—that the federal courts are required
to address themselves to the question of which petty of
fenses, if any, are exempt from the constitutional pro
tection of right to counsel, then there is impressive author
ity for the proposition that—regardless of the outer
boundary of the right—offenses punishable by more than
six months, especially when they involve moral delin
quency, require appointment of counsel. See the cases
and statutes cited supra, pp. 26-29; Cf. District of Colum
bia v. Clawans, 300 U.S. 617 (1937); Shiclc v. Unitedi
States, 195 U.S. 65 (1906); Duncan at 36 U.S.L. Week
4419.
Supreme Court eases adopting the sixth 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 Chef v.
Schnackenberg, 384 U.S. 373 (1966),19 are especially per
suasive, for the Court made perfectly plain in Duncan,
despite incorporating the jury trial requirement of the
Sixth Amendment in the Fourteenth,20 that “We would
not assert, however, that every criminal trial—or any
18 Dyke v. Taylor Implement Co., held that a jury trial was not
required in a criminal contempt prosecution where the maximum
sentence was 10 days in jail and a $50.00 fine.
19 Chef must be read as adopting and applying a six month
standard 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 penalty
provided for petty offenses.
30 When Gideon v. Wainright, 372 U.S. 335 (1963) was decided
it was not settled whether constitutional standards binding the
34
particular trial—held before a judge alone is unfair or
that a defendant may never be as fairly treated by a
judge as he would be by a jury.” See 46 U.S.L. Week
4418. Gideon v. WainwrigM, however, stands for the
proposition that a fair trial without counsel is impossible.
If a six month standard applies to define the outer limit
of the petty offense category for right to jury purposes,
it must, a fortiori, mark the limit for right to counsel
purposes.
United States were to be applied to the states when a constitutional
guarantee was “incorporated” by means of the Fourteenth Amend
ment. Post-Gideon cases, however, establish that standards gov
erning the application of the Bill of Rights are carried to the
states. In Ker v. California, 374 U.S. 23 (1963) the standards
governing reasonableness of state searches and seizures under the
Fourteenth Amendment were held to be the Fourth Amendment
standards formulated by decisions of this Court. In 1964, the Court
decided Malloy v. Hogan, 378 U.S. 1, holding that the Fourteenth
Amendment makes the Fifth applicable to the states and that fed
eral standards regarding the privilege against self-incrimination
are applicable: “The Fourteenth Amendment secures against state
invasion the same privilege that the Fifth Amendment guarantees
against federal infringement”, Id. at 8. Less than a year after
Malloy, the Sixth Amendment guaranty protecting an accused’s
right to confront witnesses against him was held to be made obliga
tory on the states by the Fourteenth Amendment, Pointer v. Texas,
380 U.S. 400 (1965). See also Escobedo v. Illinois, 378 U.S. 478
(1964) relying on Massiah v. United States, 377 U.S. 201 (1964);
Griffin v. California, 380 U.S. 609 (1965) relying on Wilson v.
United States, 149 U.S. 60 (1893); Duncan v. Louisiana, supra;
Bloom v. Illinois, supra.
35
III.
In the Circumstances of This Case, Petitioner Was
Denied Fundamental Fairness at His Trial by the Failure
of the State to Appoint Counsel in a Criminal Proceeding
Where Protection of Petitioner’s Rights Under State and
Federal Law Imperatively Required Counsel.
In any event, petitioner’s federal constitutional right
to appointed counsel, in the particular circumstances of
this case, is plain even under the law of the Fourteenth
Amendment as it stood prior to Gideon v. Wainwright.
Petitioner, until the events which led to his arrest, a
hotel bus boy, pleaded not guilty but presented no de
fense. He was never told by the court of his right to
retained or appointed counsel, of his rights to call wit
nesses, cross-examine witnesses called by the prosecution,
introduce evidence, object to prosecution evidence, or ap
peal. He exercised none of those rights. Throughout
his trial, the trial court took no steps, made no efforts,
to protect the state or federal legal rights of this un
counseled criminal accused. The only demonstration of
concern by the court for petitioner’s interests in the pro
ceeding was an inquiry, made at the close of the case
for the prosecution, whether petitioner cared to make
any statement. Petitioner, uninformed of the advantages
or dangers of such a statement, declined. He was there
upon convicted of an offense and sentenced, effectively,
to nine and half months imprisonment.
These circumstances speak eloquently of the incapacity
of petitioner to offer an intelligent defense to the charges
against him. The failure of the trial court to advise
him of his rights in the absence of counsel suggests that,
rather than foregoing making any defense after a con
sidered decision to do so, petitioner abdicated through
36
ignorance. This record shows nothing to indicate that
he received the benefit of the sort of adversary proceed
ing demanded by dne process. See Sheppard v. Maxwell,
359 U.S. 199 (1966); Re Oliver, 338 U.S. 251, 273 (1948);
Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966). Signif
icantly, even the petitioner in Betts v. Brady, 316 U.S.
455, 457 (1942), had attempted to defend himself by
raising legal objections, calling witnesses in his own
behalf, and cross-examining witnesses for the prosecution.
Here, petitioner’s failure to make any attempt to defend
himself, subsequent to a plea of not guilty, irresistibly
leads to the conclusion that he lacked either the under
standing or the ability to offer a defense although he
thought himself innocent.
A measure of petitioner’s inability to defend himself
without the “guiding hand of counsel” is his failure to
raise a number of available objections to the proceed
ings against him and to take advantage of rights to
which he was entitled under Arkansas law. Powell v.
Alabama, 287 U.S. 45, 68, 69 (1932). Those objections,
although legally strong, were not of the simple sort that
lie within the ken of laymen. Only an attorney, for ex
ample, would know to challenge the vagueness of the
ordinance under which petitioner was charged, would
know to challenge the dollar-a-day statute, or would appre
ciate that the ordinance appears to provide a penalty in
excess of that permitted by enabling legislation. See
Ark. Stat. Ann. §19-2409 (1947) (“Municipal corporations
shall not have power to inflict any fine or penalty . . . to
a greater sum than twenty-five dollars . . .”).
Again, it is significant that despite receiving the maxi
mum sentence in the magistrate’s court, petitioner failed
to take advantage of his right to appeal for a trial de
novo, by jury, in the circuit court. Ark. Stat. Ann. §§44-
37
115, 509 (1947), The Supreme Court of Arkansas noted
that petitioner did not take advantage of this right
although “the procedure is very simple”. In fact, peti
tioner was never informed that he could appeal for a
new trial, but even if he had been told of this right,
it is totally unrealistic to suggest that he could have
arranged for an appeal bond and for the filing of a trial
transcript as required by law without legal assistance.
In addition, the “simple” Arkansas procedure included
knowing that although an Arkansas statute plainly states
that a person convicted “in a municipal court has 60
days within which to appeal to the Circuit Court” Ark.
Stat. Ann. §44-504 (1947), the Supreme Court has con
strued “60 days” to mean “30 days.” Craig v. State, 235
Ark. 566, 361 S.W. 2d 16 (1962).
Since denial of counsel deprived him of the oppor
tunity to raise significant objections to his trial and
sentence, as well as to seek the trial de novo to which
he was entitled—and since the trial court took no steps
whatever to protect those vital interests in the absence
of counsel—petitioner’s trial, conviction, and sentence
plainly denied him due process of law.
IV.
Arkansas’ Dollar-a-Day Statute Violates the Eighth
and Fourteenth Amendments.
The municipal court sentenced petitioner to 254 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 raise serious questions under the Eighth and
Fourteenth Amendments, for the State is here imposing-
imprisonment for no reason other than indigency. The
38
district court did not reach these questions, squarely
presented by the petition for habeas corpus, because it
found that denial of petitioner’s right to counsel violated
the Fourteenth Amendment and required the vacation of
his conviction on that distinct ground. But since the
respondents implicitly urge the statute’s constitutionality
as a ground supporting reversal on this appeal, see supra,
p. 30, the Court may properly pass upon the statute.
We submit it is palpably unconstitutional. A system
which enforces the payment of fines by imprisonment
clearly effects different treatment of convicts depending
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
records, 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 cannot 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.
Goldberg, Equality and Government, 39 N.Y.U.L. Rev.
205, 221 (April 1964). A New York court put it this way:
[I]t would seem that an exception [to the practice
of imprisonment for non-payment of fine] must be
made in the case of an indigent defendant, because
such a defendant will not be able to pay the fine
although detained in jail for that purpose, nor does
he have within his control the power to limit the
period that he thus stands committed. To hold other-
39
wise would add one more disadvantage which the
law will place upon the indigent defendant, and one
more advantage which the law will give to the de
fendant with the money in his pocket to pay his fine,
although the quality of their conduct has been the
same and although their intention to pay the fine
has been the same.21
In Griffin v. Illinois, 351 U.S. 12 (1956), the Supreme
Court began to limit the range of permissible discrimina
tion between rich and poor in criminal proceedings. The
Court began with this premise:
Both equal protection and due process emphasize the
central aim of our entire judicial system—-all people
charged with crime must so far as the law is con
cerned “stand on equality before the bar of justice
in every American court.”
It concluded that:
There can be no equal justice where the kind of trial
a man gets depends on the amount of money he has.
Id. at 19.
Petitioner submits that a system of imprisonment for
failure to pay a fine, unmitigated by any effort to accom
modate itself to the poverty of some defendants, makes
21 People v. Collins, 47 Misc. 2d 210, 261 N.Y.S. 2d 970 (Orange
County Ct. 1965). The defendant was convicted of third-degree y
assault in the Court of Special Sessions and sentenced to the maxi
mum confinement of one year and to pay a fine of $250 or to be
confined for one day in jail for each dollar of the fine unpaid. The
County Court held, on appeal, that the provision in the sentence
that the indigent defendant be detained unless he paid the fine in
addition to confinement for the maximum period was invalid be
cause it deprived him of the equal protection of the laws, guaran
teed by the Fourteenth Amendment.
40
the real sentence a man gets depend on the amount of
money he has, and that Griffin and its progeny have made
clear that such a system is forbidden. 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. Wain-
wright, 372 U.S. 335 (1963) (appointed counsel at trial) ;
Lane v. Brown, 372 U.S. 477 (1963); Douglas v. Cali
fornia, 372 U.S. 353 (1963) (appointed counsel for first
appeal as of right). It should be noted that the indigent
defendant is deprived of his liberty not because it is
thought that the protection of the community or his ref
ormation 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
declaration that neither the safety of the community
nor the welfare of the offender requires the imprison
ment of the offender and that the assumed values
of punishment can be accomplished without imprison
ment. S u t h e r l a n d and Cressey , Principles of Crim
inology 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, im
posed upon a man who has not the ability to pay is
in fact a sentence to prison, while a very substantial
fine imposed on one of ample financial resources is
an inconsequential punishment. McRuer, Sentences,
27 Can. B ar Rev. 1001, 1006 (1949).
Due process and equal protection do not sanction a system
which makes a man’s freedom dependent upon his ability
41
to pay. Cf. Harper v. Virginia State Board of Elections,
383 IT.S. 663, 668 (1966).22
In a case indistinguishable from this, People v. Saffore,
18 N.Y. 2d 101, 218 N.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,” vio
lated 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.23
22 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 a w o p C r im in a l C o r r e c t io n 238 (West Publ.
Co. 1963).
The federal judges’ pilot institute on sentencing recommended tha 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 F.R.D. 231, 380 (1959).
See also NCCD Advisory Council of Judges, G u id e s f o r S e n
t e n c in g 22 (1957); M o d e l P e n a l C o d e Sec. 7.02 (Official draft,
1962).
23 A rational purpose of imprisoning an indigent under an alter
native fine-imprisonment sentence is hard to find. Coercion of the
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., C r im in a l L a w , §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.
42
The Court found its holding compelled particularly
by the circumstance that the dollar-a-day confinement in
default resulted in the defendant being sentenced to a
period of imprisonment in excess of the statutory maxi
mum—a circumstance also present here.24 Accord: Sawyer
v. District of Columbia, 2 Cr. L. 2405 (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 U.S. 660
(1962), the Supreme Court held that the Eighth Amend
ment’s prohibition of cruel and unusual punishment, ap
plicable to the states through the Due Process Clause,
proscribed California’s attempt to make criminal an in
dividual’s status of narcotic addiction. (Id. at 667). Nor
can “an involuntary symptom of a status” be criminally
punished. Driver v. Hinnant, 356 F.2d 761, 765 (4th Cir.
1966) (public intoxication of a chronic alcoholic may not
be criminally punished).
The failure of the defendant in this case to pay the
fine was an “involuntary symptom” of his involuntary
poverty, see Fenster v. Leary, 20 N.Y.2d 309, 229 N,E.2d
426 (1967); Alegata v. Commonwealth, 352 Mass. ----- ,
231 N.E.2d 201 (1967); Baker v. Binder, 274 F. Supp. 658
(W.D. Ky. 1967). This is not the case of a contumacious
convict, who refuses to pay a fine which he is able to pay.
Here we have a mere failure, due to genuine inability,
to pay. Cf. Lambert v. California, 355 U.S. 225, 228 (1957).
To imprison the defendant for this reason, no matter how
24 Compare 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) 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.
43
small the fine or how short the term of incarceration, is
cruel and unusual punishment 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. 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 the dollar-a-day statute
is over 75 years old. But the legislature has not even
acted to amend the rate at which an indigent “works off”
his fine despite the fact that the statute’s standard of
value is totally inconsistent with modern standards, com
pare 29 U.S.C. § 206 (minimum wage: $1.60 per hour).
Thus the state has not only chosen to punish the status
of poverty but has done so at an unconscionable rate,
disproportionate to the value of petitioner’s labor. Weems
v. United States, 217 U.S. 349 (1910); compare U. S.
Const. XIII.
44
CONCLUSION
Wherefore, Appellee prays that the judgment of the
court below be affirmed.
Respectfully submitted,
J ack G reenberg
M ic h a e l M eltsn er
10 Columbus Circle
New York, New York
J o h n W . W a lk er
N orman C h a c h k in
1304-B Wright Avenue
Little Rock, Arkansas
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania
Attorneys for Appellee
APPENDIX
Appendix of Statutes and Ordinances Involved
18 U.S.G. §1 Offenses Classified
Notwithstanding any Act of Congress to the contrary:
(3) Any misdemeanor, the penalty for which does not
exceed imprisonment for a period of six months or a fine
of not more than $500, or both, is a petty offense.
18 U.S.G. §3006A
(b) Appointment of counsel—In every criminal case in
which the defendant is charged with a felony or a mis
demeanor, other than a petty offense, and appears without
counsel, the United States commissioner or the court shall
advise the defendant that he has the right to be repre
sented by counsel and that counsel will be appointed to
represent him if he is financially unable to obtain counsel.
Unless the defendant waives the appointment of counsel,
the United States commissioner or the court, if satisfied
after appropriate inquiry that the defendant is financially
unable to obtain counsel, shall appoint counsel to repre
sent him. The United States commissioner or the court
shall appoint separate counsel for defendants who have
such conflicting interests that they cannot properly be
represented by the same counsel, or when other good
cause is shown. Counsel appointed by the United States
commissioner or a judge of the district court shall be
selected from a panel of attorneys designated or approved
by the district court.
Ark. Stat. Ann. §19-2409 (1947) —Maximum penalties
permitted. Municipal corporations shall not have power
to inflict any fine or penalty, by ordinance or otherwise,
to a greater sum than twenty-five dollars ($25.00) for
any one specified offense or violation of such by-law or
2a
Appendix of Statutes and Ordinances Involved
ordinance, or double that sum for each repetition of such
offense or violation. If a thing prohibited or rendered
unlawful is, in its nature, continuous in respect to time,
the fine or penalty for allowing the continuance thereof,
in violation of the by-laws or ordinance, shall not exceed
fifteen dollars ($15.00) for each day that the same may
be unlawfully continued. If any by-law or ordinance
provide for any greater fine, penalty or forfeiture than
is herein provided, it shall and may be lawful, in any suit
or prosecution for the recovery thereof, to reduce the
same to such amount as shall be deemed reasonable and
proper, and to permit a recovery or render a judgment
for such amount as this act authorized.
Ark. Stat. Ann. §19-2410 (1947) —Ordinance punishing act
made misdemeanor by state law—-Penalty prescribed by
state law not to be exceeded.—The town or city council in
all cities or incorporated towns in this State are hereby
authorized and empowered to prohibit and punish any act,
matter or thing which the laws of this State make a mis
demeanor, and to prescribe penalties for all offenses in
violating any ordinance of said city or town not exceeding
the penalties prescribed for similar offenses against the
State laws by the Statutes of this State.
Ark. Stat. Ann. §19-2418 (1947)—Persons in jail for
violation of city or town ordinance may be required to
work on streets and improvements.—Prisoners confined in
the county jail or city prison, by sentence of the Mayor
or Police Court, for a violation of a city or town by-law,
or ordinance, or regulation, may, by ordinance, be re
quired to work out the amount of all fines, penalties, for
feitures and costs, at the rate of one dollar ($1.00) per
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Appendix of Statutes and Ordinances Involved
day on the streets or other improvement, under the con
trol of the City Council.
Ark. Stat. Arm. §41-103 (1947)—Felony defined—A felony
is an offense of which the punishment is death or confine
ment in the penitentiary.
Ark. Stat, Ann. §41-104 (1947)—Misdemeanor defined—
All other public offenses are misdemeanors.
Ark. Stat. Ann. §41-106 (1947)—Penalty for misdemeanor
when not otherwise prescribed.—Every person who shall
be convicted of any misdemeanor, the punishment of which
is not defined in this or some other statute, shall be pun
ished by imprisonment not exceeding one (1) year, or by
fine not exceeding two hundred and fifty dollars ($250),
or by fine and imprisonment both.
Ark. Stat. Ann. 43-716—Surrender of defendant—Eight
of bail—At any time before the forfeiture of their bond, the
bail may surrender the defendant, or the defendant may
surrender himself, to the jailer of the county in which
the offense was committed; but the surrender must be
accompanied by a certified copy of the bail-bond to be
delivered to the jailer, who must detain the defendant in
custody thereon as upon a commitment, and give a writ
ten acknowledgment of the surrender; and the bail shall
thereupon be exonerated.
Ark. Stat. Ann. 43-730—Recommitment after bail or de
posit of mony—When ordered—The court in which a prose
cution for a public offense is pending, may, by an order,
direct the defendant to be arrested and committed to
4a
Appendix of Statutes and Ordinances Involved
jail until legally discharged, after he has given bail, or
deposited money in lieu thereof, in the following cases:
First. When by having failed to appear, a forfeiture
of bail, or of the money deposited, has been incurred.
Second. When the court is satisfied that his bail, or
either of them, is dead, or insufficient, or has removed
from the State.
Third. Upon an indictment being found for an offense
not bailable.
Ark. Stat. Ann. §44-115 (1947)—Police courts-Trials-Costs
—All trials in the police court, for a violation of the by
laws or ordinances of such city, shall be before the police
judge without the intervention of a jury, but the defen
dant, upon appeal, shall have the right to a jury trial
in the circuit court, and the police court of any such city
shall have concurrent jurisdiction with justices of the
peace over all misdemeanors committed in violation of
the laws of the State within the corporate limits of such
city, and, in cases of conviction therefor, the like fees
and costs shall be taxed and allowed as in similar cases
before justices of the peace; provided, however, those
items that would be allowed justices of the peace, or
constables shall not be paid to the police judge, or police
officers, but shall be paid into the city treasury, and every
defendant convicted of such misdemeanor and committed
to imprisonment, either as a part of his punishment or
in default of the payment of fine or costs, shall be com
mitted to the county jail in the same manner as if com
mitted by a justice of the peace and all fines imposed
in the police court shall be paid into the city treasury.
5a
Appendix of Statutes and Ordinances Involved
Ark. Stat. Ann. §44-504 (1947)—-Time for appeal—Any
person convicted before any justice court, or police court,
or city court of any crime, misdemeanor, breach of the
penal laws of this State, or of violation of any city or
town ordinance, may appeal therefrom to the circuit court
of the county in which such conviction occurred at any
time within sixty (60) days thereafter.
Ark. Stat. Ann. §44-509 (1947)—Trial de novo—Uon the
appeal the case shall be tried anew as if no judgment
had been rendered, and the judgment shall be considered
as affirmed if a judgment for any amount is rendered
against the defendant, and thereupon he shall be adjudged
to pay the costs of the appeal.
Ordinances of the City of Little Rock No. 25-121—It is
hereby declared to be a misdemeanor for any person to
participate in any public place in any obscene or lascivi
ous conduct, or to engage in any conduct calculated or
inclined to promote or encourage immorality, or to invite
or entice any person or persons upon any street alley,
road or public place, park or square in Little Rock, to
accompany, go with or follow him or her to any place
for immoral purposes, and it shall be unlawful for any
person to invite, entice, or address any person from any
door, window, porch, or portico of any house or building,
to enter any house or go with, accompany or follow him
or her to any place whatever for immoral purposes.
The term “public place” is defined to mean any place
in which the public as a class is invited, allowed or per
mitted to enter, and includes the public streets, alleys,
sidewalks and thoroughfares, as well as theaters, restau-
6a
Appendix of Statutes and Ordinances Involved
rants, hotels, as well as other places. The term “public
place” is to be interpreted liberally.
Any person found guilty of violating the provisions of
this section shall, upon conviction, be fined in any sum
not less than ten dollars, nor more than two hundred
and fifty dollars or imprisoned for not less than five days
nor more than thirty days, or both fined and imprisoned.
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