Morris v. Schoonfield

PETITIONER:Morris
RESPONDENT:Schoonfield
LOCATION:United States District Court for the Central District of California

DOCKET NO.: 782
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 399 US 508 (1970)
ARGUED: Apr 22, 1970
DECIDED: Jun 29, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – April 22, 1970 in Morris v. Schoonfield

Warren E. Burger:

Number 782, Morris against Schoonfield.

Robert G. Fisher:

May it please the Court.

My name is Robert Fisher.

I represent a class of plaintiff appellants.

The class is defined as those people who are incarcerated in the Baltimore City Jail and we have defined it as a continuing class.

We brought this action in July 1968 and there are currently about a 150 people in the Baltimore City Jail under the statute that we are attacking.

This case is different from the Williams case that the Court has just heard, in that there, only I — and unusual application of the jail or fine statute was being contested.

The situation where the judge gives both the maximum jail sentence and a fine, and the person is required to serve more than the maximum amount allowed.

Our case covers all types of incarceration for non-payment of fines except the contumacious refusal to pay situation.

We’re not concerned with that.

Our case involves a two-dollar rate instead of a five-dollar rate.

It is a mandatory rate as the statute says the judge shall commit him and then pursuant to the terms of the statute, then the statute provides a two-dollar rate.

Hugo L. Black:

$2.00 per day?

Robert G. Fisher:

I’m sorry?

Hugo L. Black:

$2.00 per day?

Robert G. Fisher:

$2.00 per day.

Potter Stewart:

Your statute has been substantially amended and I — but I expect you’re going to tell us about that in due —

Robert G. Fisher:

That’s right Your Honor.

The new statute should be enforced, but it is not.

I called the Chief Judge of the Municipal Court of Baltimore City yesterday, and he said he had never heard of the new statute.

He asked me to send him a copy which I did.

I called the jail and they said they had not heard of the new statute and that nobody was getting out under it.

The new statute by the way just gives a judicial remedy.

It does not say that everybody who’s committed under the old statute should get out, and only gives them a right to apply to the justice that committed them for re-determination under the new statute and it does not guarantee that we — they will get out.

Potter Stewart:

It gives a judicial — excuse me, excuse me.

Hugo L. Black:

I’m just going to ask does it have a date and rate, in the new statute?

Robert G. Fisher:

It has a minimum rate of $10.00 per day.

Potter Stewart:

So, it gives a judicial potential, judicial remedy to those now in jail, and it also for the future sets up a — quite inconsistent doesn’t it?

Robert G. Fisher:

That’s right.

If Your Honor, it gives a potential remedy, but it doesn’t require that they be notified of the existence of the remedy and the Chief Judge of the municipal court doesn’t know about it a week after it was passed.

Robert G. Fisher:

Our —

Potter Stewart:

— now you told him.

Robert G. Fisher:

Our people that are locked up in jail where they don’t have television or newspapers or radios supposed to find out about it.

So they —

Is that new statute part of your papers that was submitted here?

Robert G. Fisher:

I’m sorry sir.

Is the new statute part of your papers?

Robert G. Fisher:

No, it is not Your Honor, but it is substantially the same as a copy that was printed in the brief of the state conceding jurisdiction and in addition, solicitor — city solicitor Russell has sent, do I understand, copies of the new statute to the Court.

William J. Brennan, Jr.:

May I ask, does this case involve offenses for which a fine only is provided?

Robert G. Fisher:

Yes it does Your Honor —

William J. Brennan, Jr.:

This does involve the traffic offense so that we are talking about —

Robert G. Fisher:

That’s right.

I’m aware of the colloquy before me and I notice that the Attorney General of Illinois said that it would be disastrous because there’d be no way to compel people to pay traffic fines, it serves a very good way of compelling people to pay traffic fines, and that is to take away their license if they don’t pay the fine, and they’re other traffic remedies.

So I — let me explain how we got here.

I have very little time, and then maybe I can start of with my argument on the equal protection and due process, cruel and unusual punishment, excessive fines and involuntary servitude when we come back after lunch.

We commenced this action under 42 United States Code, Section 1983 for an injunction of the warden of the Baltimore City Jail from — to restrain him from holding people unconstitutionally detained, and for a declaratory judgment that the statute is unconstitutional on its face.

The District Court held that the statute was constitutional on its face, but that it was unconstitutional as applied in two respects.

In the first place, it said it was —

Warren E. Burger:

I think we’ll suspend for lunch now Mr. Fisher and pick up after lunch.

[Luncheon Break]

Mr. Fisher, you may pick up where you left off.

Robert G. Fisher:

Where I left off Your Honor was the decision of the three-judge District Court.

It upheld the Maryland $2.00 a day statute as constitutional on its face, but it held that in each case, the sentencing judge had to hold a hearing to allow persons to be committed to tell a judge about their indigency and give him an opportunity to decide whether or not do reduce the fine or to put them on probation or to allow them to pay in installments or to commit them.

And it also held that as the statute was being applied with respect to costs at that particular time, the statute was unconstitutional.

For costs of people who were not being jailed, for costs in all cases, but they were in some cases and under the Rinaldi versus Yeager case, this was a discrimination and denial of equal protection, and at that particular time, the statute could not constitutionally be applied in the State of Maryland to jail people for non-payment of costs.

We have appealed from the statute under — from this decision under the authority of Article XXVIII, Section 1253, and our basic contention in this Court boils down really to one premise, and that is that one 24-hour day in jail with all of that entails in terms of the stigma in the community and that fact the man may loose his job, the fact that man maybe subjected to the unpleasant experiences of the jail, one 24-hour a day in jail does not equal dollars.

The poor man is being punished more severely than the rich man if the rich pays $2.00 and the poor man goes to jail for 24-hour a day.

We submit that this goes to the — initial is so fundamental that it’s written in stone on the front of this Court House, equal justice under law.

Potter Stewart:

How far would that argument go?

Let’s assume a $10.00 fine on a person and that person — all that all that person possessed in the world is $10.00 as compared to a $10.00 fine on a person who had a million dollars.

Potter Stewart:

Now That would be unequal protection, wouldn’t it, under your standard?

Robert G. Fisher:

Well, the way our society looks at the man who has paid the fine is different from the way our society looks at the man who’s going to jail.

The man who’s going to jail is a criminal.

The man who has paid the fine as somebody who might have gotten a traffic ticket.

Potter Stewart:

And that’s not what the Maryland legislature has said.

Maryland legislature said they are equivalent.

Robert G. Fisher:

It’s — they are not —

Potter Stewart:

That’s the way society as represented in the Maryland legislature disagrees with you, doesn’t it?

Robert G. Fisher:

Well, no.

The Maryland legislature has another purpose in passing the statute and that is compel people with money to pay.

The Maryland legislature has deliberately made the alternative to non-payment a harsher penalty so that people will choose the — who with money will choose the alternative of paying and that’s the dominant — we submit, that’s the only purpose behind the statute.

The other side disagrees, but that a certainly the dominant purpose of this statute.

The legislative history makes that clear to collect money from those who can’t pay by threatening them with jail.

Now —

Potter Stewart:

And by jailing those who don’t pay, isn’t that correct?

Robert G. Fisher:

If you jail those who don’t pay, you’re punishing a man unfairly in a greater amount than the judge adjudicated in order to make somebody else pay.

He’s a sacrificial goat so to speak for the man who doesn’t want to pay and has being made to pay and we submit this —

Potter Stewart:

What’s to happen to the scofflaw who collects dozens and dozens of parking tickets in his friend’s automobile and who hasn’t got a nickel to his name?

Robert G. Fisher:

We have an intervener in this case who’s in that very position.

He had something like $1,200.00 worth of fine.

He was a scofflaw.

He was a school teacher.

He went to jail for — he would have gone to jail, but for this case for over a year, whereas another scofflaw who had $1,200.00 would not have gone to jail at all.

The school teacher lost his right to teach school.

He can never teach school in the State of Maryland again because they found out; they found out that he had been sent to jail.

The man who pays the $1,200.00 because he’s got a — they never find that out.

Warren E. Burger:

Do you think the appraisal would have been higher if he had just — if they found out that he just had scoffed at the law for $1,200.00 worth of traffic tickets?

Robert G. Fisher:

They never would have found out if he had the money to pay.

Warren E. Burger:

Oh, now, you’re talking just about a practical aspect.

Robert G. Fisher:

No.

Robert G. Fisher:

I don’t think I am.

I think when you’re talking about the way justice treats two people, you’re talking about a fundamental aspect —

Warren E. Burger:

How do you think they should have treated him?

Robert G. Fisher:

The scofflaw?

Warren E. Burger:

Do you suggest that he could not have paid that fine?

Robert G. Fisher:

I think that as a matter of wisdom, the State of Maryland should provide a statute that sends scofflaws of all kinds to jail.

If scofflaw should be sent to jail, all scofflaws should be sent to jail and the State of Maryland can make that decision, and I think it should have made that decision.

What the State of Maryland cannot do is ruin the career of one’s scofflaw in order to make another scofflaw pay.

Warren E. Burger:

Well, I realize, we’re not arguing the school teacher’s case today —

Robert G. Fisher:

No.

Warren E. Burger:

— but for years that this an analogy and I’m lost.

If he was a school teacher presumably, he got paid for teaching school, what would be unjust about sending him to jail when he could’ve paid and didn’t?

Robert G. Fisher:

He didn’t have $1,200.00 on the day that he was supposed to pay.

He could’ve paid if he’d been allowed to pay in installments.

Warren E. Burger:

Of course, the law afforded him an opportunity to pay it installment in the first instance?

Robert G. Fisher:

No, it did not.

Warren E. Burger:

He didn’t get on these traffic tickets on one day or one week, did he?

Robert G. Fisher:

Oh, no, he did not, that’s true.

He did — the law afforded him an opportunity not to commit a crime.

It also afforded that opportunity to the scofflaw —

Warren E. Burger:

Wait a minute, wait a minute.

It afforded him an opportunity to pay two, four or $6.00 each time he got the tickets, that’s what I’m talking about.

And now, you suggest that there’s something inherently unfair about the fact that the boom was lowered on him finally at the $1,200.00 mark?

Robert G. Fisher:

I think there’s something unfair — apparently unfair that the boom was lowered on him when it was not lowered on somebody else who led his traffic tickets accumulate.

Two people, justice has taken her blindfold off and look at this man and the only thing that she has seen that’s different from the other man as the fact that he doesn’t have $1,200.00 today.

She’s suppose to keep that blindfold on that —

Warren E. Burger:

But so far as I’m concerned, your school teacher analogy doesn’t help you or this — or your case very much.

I’m puzzled yet by what it supposed to do with it.

Robert G. Fisher:

Well, let’s — I was asked about the scofflaw, this is the actual — these are the actual facts.

Let’s take another person who’s committed disorderly conduct case and he’s done it only once and he’s fined once —

Warren E. Burger:

The single instance case.

Robert G. Fisher:

Single instance’s case.

Warren E. Burger:

Do you think that’s the same as the school teacher who let $1,200.00 for the traffic tickets accumulate?

Robert G. Fisher:

The statute makes no distinction between any of a great variety of cases.

The usual case is obviously not to stop scofflaw case.

The usual case is a person who gets a $25.00 fine or $50.00 fine.

Thurgood Marshall:

Well Mr. Fisher, you’re in further trouble because I’ve never heard of a school teacher being able to plead that he was a pauper?

Robert G. Fisher:

Well, this school teacher was not a pauper.

He just didn’t have $1,200.00 at one time.

Thurgood Marshall:

He could’ve gotten it unless the banks were all closed up.

Robert G. Fisher:

No.

Actually, he was a part-time school teacher and he probably —

Thurgood Marshall:

But he wasn’t a pauper?

Robert G. Fisher:

He did not have $1,200.00, but he —

Thurgood Marshall:

But is there anything that he couldn’t get $1,200.00?

Robert G. Fisher:

He signed an affidavit that he would — could not get to raise the money, and I assume that —

Thurgood Marshall:

I agree with the Chief Justice argument.

I would hate to see this case turn on that case.

Robert G. Fisher:

Well, it does —

Thurgood Marshall:

Hypothetical or not.

Robert G. Fisher:

It does not turn on that case.

It turns on a statute which covers all sorts of cases.

It covers the man who doesn’t have $10.00, who gets a $10.00 fine and goes to jail for five days.

It covers the scofflaw, it covers the man who gets five $50.00 fines in a row for five counts because he —

Thurgood Marshall:

Well, does your case — your case, not the statute, cover a man who lies?

Robert G. Fisher:

No.

Thurgood Marshall:

Who’s not a pauper?

Robert G. Fisher:

No.

Thurgood Marshall:

Who could get the money?

Robert G. Fisher:

No, no, it certainly does not.

Robert G. Fisher:

That’s the case of the person who contumaciously refuses to pay.

Thurgood Marshall:

Well unless conditions have changed in Baltimore, if you have that many convictions of any kind, you loose your job as a teacher when you pay the fine or anything else.

Robert G. Fisher:

Well, there are people who go and pay fines and nobody ever hears about it.

Many people —

Thurgood Marshall:

I said where they do hear about it?

Robert G. Fisher:

Well, they may —

Thurgood Marshall:

And I would assume that the $1,200.00, it was in the newspapers?

Robert G. Fisher:

Well, it might be, it might be.

But there are certainly are other people who do not make the newspapers because hundreds of people are —

Thurgood Marshall:

One other man that had $1,200.00 and paid the fine, where did you find that out except the newspapers?

Robert G. Fisher:

I was hypothetically creating that other man.

Thurgood Marshall:

I see.

Robert G. Fisher:

But I’m sure, there are such people.

Warren E. Burger:

Mr. Fisher, well, we have you stopped for a moment.

I can sympathize with your arguments about $2.00 a day for 24-hour a day.

What if the Maryland legislature had said that it should be tied to the minimum wage established by the Department of Labor which I think is a $1.60 an hour now, isn’t it?

If that so, that’d be $38.48.

Suppose they fixed it to that and you got $38.48 credit on a fine for every 24 hours he served in jail, would you have problems?

Robert G. Fisher:

I would still have problems, but I would have less problems.

What Your Honor is suggesting is a sort of a separate but equal doctrine whereas a man without money is punished separately and — in a way that’s suppose to be equivalent.

And because of the other problems that attend the jail punishment, I don’t think that it’s possible to equate jail punishment and the fine punishment.

But certainly, that would be a much better situation than we have here where we have a $2.00 statute which is designed to be unequal, because it’s really designed to compel the person with the money to pay.

This statute cannot simultaneously have the two purposes that had been advanced for it, one to equate jail and time and fine money and two, to compel people who don’t have money to pay — that do have money to pay.

Potter Stewart:

Because the premise of the latter proposition is that it’s much easier to — to go to jail is much more unpleasant than to pay.

Robert G. Fisher:

Sure.

Potter Stewart:

Isn’t it?

Robert G. Fisher:

Sure.

Potter Stewart:

That they’re not equal?

Robert G. Fisher:

That’s right.

Now, what Your Honor is suggesting is that the state might design a new statute.

Robert G. Fisher:

Actually, they have attempted to do it.

I think the State of Maryland has recognized the unconstitutionality of this statute in passing the new statute and they have attempted to improve upon it and they have raised the figure to $10.00 a day.

What Your Honor is suggesting that that is certainly more equal and better, but it is —

Potter Stewart:

No.

Isn’t really dusting it Mr. Fisher, I want to know what you have to say about it?

Robert G. Fisher:

Well, what I say is its more equal but it still no equal.

It’s a type of separate but equal doctrine that that just cannot be equated.

Now, there are other things that the state can do in order to punish the man or deter the man that are more equal to a fine that he cannot — that one of the arguments that’s been raised says there’s no way that the state can punish these people; no way that they can deter them and that just is not true.

There are other things that can be done.

One that we’ve suggested is that man can be allowed to pay in installments.

This is actually fulfilling the sentence of the judge who sentenced them.

He wanted them to pay a fine.

He thought that was the deterrent.

The state legislature provided that the judge could fine him.

They expected him to use his best judgment in deciding what was appropriate.

He decided the fine was appropriate and the way that he can carry out the state legislature’s intent in the situation is to allow the man to pay on terms that he can pay.

This is certainly a more equal alternative.

Now, suppose the man cannot pay, he can still put him in jail as the model penal code suggests, if the man fails to make a showing that he has made reasonable efforts to make the money, get the money.

In that case, they’ll be putting him in jail for contempt or for some additional act or omission, he can take away his driver’s license.

As the Rinaldi versus Yeager case suggested, they can garnish his salary if he has any or collect the judgment by attachment, probably not a feasible way of doing it.

They can put him on probation with conditions that he worked in the court house, you don’t have to lock him up in maximum security in order to get some work out of him.

They can send him to driver’s school.

I anticipate that Mr. Russell is going to talk about mootness and I would like to reserve some time so that I can answer whatever he has to say about the mootness.

So, I’m going to sit down at this point.

Warren E. Burger:

Very well.

Mr. Russell.

George L. Russell, Jr.:

Mr. Chief Justice and may it please the Court.

My brother is correct.

The first argument are intend to make is that this case is moot in light of the statute recently passed by the Maryland legislature as an emergency Bill in Title Chapter 147 and it was signed by Governor Mandel on the 15th of April.

This statute under Section 6 is retroactive in its application and therefore, the plaintiffs or the appellants in this case may take advantage of it.

George L. Russell, Jr.:

It provides that any person incarcerated for default of payment of a fine may apply for a hearing or by general order of the court may have a hearing on his indigent status.

The court after conducting an inquiry if it finds that this individual is unable to pay the fine immediately, the court may provide installment payments.

If the court finds that installment payments are not feasible under the circumstances, then may offer to the defendant substitute punishment, and this is the theory under which Maryland has enacted its legislation.

The theory that there must be an alternative punishment appropriately imposed upon a defendant upon whom financial criminal sanctions would have no relevancy.

And in this case in the Maryland statute, the court cannot impose a confinement that exceeds $10.00 a day.

That is to state that the — if the fine is $500.00 and the court finds that the defendant is indigent, it may state that I believe that one day in jail is sufficient, but the court cannot impose a sentence which would exceed $10.00 a day; that is the minimum that it can allow.

Potter Stewart:

When did that legislation become effective?

George L. Russell, Jr.:

April 15th, immediately upon signing by the governor and that is the reason that my brother anticipated the mootness statute because we propose that this is the law of the case under prior Supreme Court rulings.

Now as to the philosophy under which their substitute punishment —

William O. Douglas:

It would hardly be moot technically because they’re still in the jail?

George L. Russell, Jr.:

Well, that is true.

William O. Douglas:

Is more — be more accurate to say that there is a new state remedy?

George L. Russell, Jr.:

They have this remedy available to him upon application or by general order of the court.

That is to say the statute anticipates that perhaps the Chief Judge of the municipal court or the Chief Judge of the supreme bench of Baltimore City can by general order make this available for all of the —

William O. Douglas:

Has there been any such general order?

George L. Russell, Jr.:

Not to my knowledge, no sir.

Warren E. Burger:

The true mootness perhaps could have done right on — by action yesterday by an appropriate general order, could it not?

George L. Russell, Jr.:

Except to the extent that substitute punishment as a philosophy is not a denial of equal protection of the law.

I think that my brother is arguing that the whole theory of substitute punishment, alternative punishment is a violation of Fourteenth Amendment.

Thurgood Marshall:

Mr. Russel, if you did have the alternative in the State of Maryland, you have a judicial order which would have released this man yesterday, is that right?

George L. Russell, Jr.:

That is correct sir.

Thurgood Marshall:

Well, what reason are you here other than seeking to get this Court to approve a law that doesn’t apply anymore?

George L. Russell, Jr.:

I understood that my brother was raising the issue that the theory of substitute punishment is a denial of equal protection of the laws.

That is under any circumstances, if a man is indigent where the statute only provides as a penalty of fine, that it would be unconstitutional to give as an alternative punishment to an indigent man confined in jail.

Thurgood Marshall:

Well it makes no difference as to whether we agree with the petitioner or the Chief Judge of the supreme bench issues an order, either way, this petitioner that gets out if it?

George L. Russell, Jr.:

These petitioners already out except for the one petitioner who is serving 21 years in the Maryland penitentiary, and he alleges that he will have difficulty getting parole because a fine is been imposed upon him.

Well, this statute provides him for — with the remedy if he can get a job that and could becoming — and an earnings capacity or have the capacity to make money, he could be afforded the installment program.

But the —

Potter Stewart:

But the new law your point is, the new law with all its ameliorations nonetheless still does preserve the theory of substitute punishment?

George L. Russell, Jr.:

Yes sir.

George L. Russell, Jr.:

And this is the fair —

Potter Stewart:

And that if you understand your brother on the other side attacks continues to attack in that it is that that you’re here to do — to defend?

George L. Russell, Jr.:

Address myself to, yes sir.

Now, to get involve with the theory of substitute punishment, I think one must view first of all the function of the State of Maryland; that is to provide sanctions so that people will obey its criminal laws.

Now, we’ve created the class of people in Maryland, those who can pay fines and those who are too poor to pay fines.

And so that state has been left with the obligation to the overwhelming class in the state, the law abiding citizens to impose criminal sanctions to protect the law abiding citizens of Maryland from those who violate the laws of Maryland and do not have funds or intend to plead poverty as a defense to punishment.

Maryland in its judgment has stated that there shall be a substitute punishment or alternative punishment, and this was the theory of Judge Thompson’s majority opinion, and the statute of course codified it.

Now, to the extent that my brother feels that Maryland has not been wise in its judgment, that there are other alternatives that the State of Maryland could’ve made, that may have been better, that may have been reach the problem better.

This Court has said time and time again that the equal protection of the laws does not require this Court to substitute its judgment for that of the Maryland legislature or indeed any state legislature as long as it meets the requirement of the constitution.

And as I understand it and I propose that the Equal Protection Clause requires only that the remedy be reasonable and that it be related to a legitimate state interest.

And in this case, deterrence of criminal activity or deterrence of the violation of criminal laws is a legitimate function of the state, and we believe that the alternative punishment is rationally related to it and under the cases that this law should be upheld.

Thurgood Marshall:

Well, how is it that a man who’s a millionaire commits the exact same crime as the pauper, and the millionaire pays a fine and the pauper goes to jail?

George L. Russell, Jr.:

The problem is —

Thurgood Marshall:

Is it that simple?

Is the problem that simple?

George L. Russell, Jr.:

The problem as I view it sir, is what sanctions does the State of Maryland have to prevent people from violating the laws?

Now —

Thurgood Marshall:

By saying that everybody who violates this law goes to jail; that’s one way of doing it, and that wouldn’t violate the constitution?

George L. Russell, Jr.:

That may well be the result if the Court finds as that many cases upheld, particularly the New York case and it’s been suggested in a Washington case that any conclusion that the alternative punishment theory is not constitutional would cause the kind of irreparable harm what would result from imprisonment for everyone.

Thurgood Marshall:

You mean it would be irreparable harm to imprison a millionaire?

George L. Russell, Jr.:

Imprisonment results a irreparable harm to anyone in my judgment Your Honor.

Thurgood Marshall:

But the only thing I see here in my case in yours is I say that when you put a poor man in jail and let the man who can pay his fine, pay his fine or you can say everybody that commits this crime shall go to jail?

Now, I don’t see how either one while the last one hurts anybody?

George L. Russell, Jr.:

Well, that’s I think that in theory —

Thurgood Marshall:

Under the Equal Protection Clause, it doesn’t hurt anybody?

George L. Russell, Jr.:

Well, the answer I would propose is that the Equal Protection Clause does not require the same punishment for all people.

Thurgood Marshall:

Absolutely not.

George L. Russell, Jr.:

It does not require — it simply requires that when you make a classification of a group of people that this classification be a reasonable one in that the — it’s be related to a legitimate state interest.

Thurgood Marshall:

I’d be interested in the case you’ll cite to me which says that you can make poor people a class that the state can —

George L. Russell, Jr.:

Well, this is why we’re here Your Honor.

George L. Russell, Jr.:

There has been no Supreme Court case that has stated as such —

Thurgood Marshall:

You got anything close?

George L. Russell, Jr.:

— that poor people can be made a class.

Thurgood Marshall:

You got anything close?

George L. Russell, Jr.:

Oh, we have the authority that Chief Judge Thompson relied on the Privitera case.

You see, the approach as we view it Your Honor is whether the state has a legitimate interest in imposing sanctions on people who are unable to pay fines.

We simply cannot have a system of justice which would call for charge account justice where by a man would violate the law and then bleed poverty and simply tell the court to put it on the account, and this is what exactly would result, it would be application under the theory that has been offered by the court here.

The Equal Protection Clause says not go so far, that is our position, that it’s impossible to equate imprisonment with fines.

Thurgood Marshall:

Do you mean that in the State of Maryland in its criminal process can say that a pauper is in a class by himself, and shall have sentences based on him solely because he’s a pauper?

George L. Russell, Jr.:

A sentence may it please the Court is not being imposed upon him solely because he’s poor.

Thurgood Marshall:

Why?

George L. Russell, Jr.:

It’s being imposed upon him because he’s violated the law.

The sanctions available to him under the law are useless because he is poor and therefore the State of Maryland had provided an alternative punishment.

Thurgood Marshall:

The alternate punishment is also given to the rich man.

He could either pay his fine or go to jail, right?

George L. Russell, Jr.:

That is correct sir.

Thurgood Marshall:

So, the poor man doesn’t have that alternative?

George L. Russell, Jr.:

Well, this is true, but I do not view this as being such a disparity as to violate the constitution.

Thurgood Marshall:

Is it solely because he’s poor that he goes to jail?

The only reason he goes to jail is because in the same category of everybody convicted of this one crime, everybody convicted of a crime, the only man who must go to jail is the poor man.

Is that true under the statute?

George L. Russell, Jr.:

Under the statute, he —

Thurgood Marshall:

Well, how can you justify it?

George L. Russell, Jr.:

I justify it because the State of Maryland otherwise would be powerless to impose sanctions upon people who are unable to pay fines.

What is the alternative?

Thurgood Marshall:

So, you take away the right of a man to be considered the equal of every other man.

I understood that this poor man in the court is exact the same rights as the wealthiest man in the state.

George L. Russell, Jr.:

That’s just true, he has his —

Thurgood Marshall:

How could he?

He ends up in jail.

George L. Russell, Jr.:

Well, he ends up in jail because he violated the law.

Thurgood Marshall:

No.

I’m talking about those who have been convicted, the class I’m talking about are those who have committed a crime, been tried and convicted, and you singled out of that class the paupers, and give him special treatment.

George L. Russell, Jr.:

We give special treatment to other people also.

We give special treatment to recidivists.

We give special treatment to many people as this Court has stated, they’re many factors that come into play.

Poverty is one factor that we here on today, but —

Thurgood Marshall:

I don’t assume that recidivist is a recidivist because he wants to be and did it deliberately.

I can assume that for a pauper.

George L. Russell, Jr.:

I would concur that this should not be assumed for pauper.

Man is poor from no fault but his own, but I must assume that he willfully violated the law and assuming that he willfully violated the law, he then should not be able to escape or be able to elect — dictate the kind of punishment he uses, or as to incur and under the present Maryland statute, the court is given wide latitude as to the amount of confinement.

For instance, in the case where the statute provides only a fine that confinement shall not be more than 15 days.

However, it can be shorter time as the judge feels in his wise discretion that the case before him dictates.

Warren E. Burger:

Can the judge allow him to pay the fine on installments?

George L. Russell, Jr.:

Yes sir.

That is provided in the statute also.

The commitment of a man is the last alternative that the court has before it.

Installment payments as a condition of probation, payment at once or the judge in his discretion and I’m speaking now where the statute calls only for fine because I do not deal with the problem where the statute provides for imprisonment, and the court and as the alternative makes a fine and commits him.

Our statute states that in that case, he shall not serve more than one-third of the term provided for imprisonment or 90 days whichever is less.

But the problem arises of course in the case where only a fine is provided as a penalty and I submit that it is not a denial of equal protection of the laws to offer to this man or to impose upon him an alternative punishment since he is unable because of his poverty which obtained about through no fault of his own and presumably for the purpose of this case to no fault at anyone.

Now, to do otherwise would be asking this Court or would as I believe the — to ask — the appellants would be asking this Court to correct every inequity that existed in our society because of the poverty that’s there.

And while this is a praise worthy objective, I think it’s the function — I do not feel that it is a function of the court to interject and to substitute its judgment for the Maryland legislature how the poor the court may believe it they have been expressed.

Although, I submit that this is perhaps the most enlightening statute in the nation insofar as the punishment is concerned, I believe that the cases have held and this Court has held many times before that the court simply will not substitute its judgment.

Now, the sole question therefore as I view it is whether the alternative punishment theory is constitutional, not whether — it is the best alternative that could be offered, but whether it is a meet the requirements of the Equal Protection Clause, and I say that it does because it’s a reasonable classification, and secondly because it is related directly to a legitimate state interest.

The Court asked in the prior case about some statistics, and I thought that I would offer to the Court.

In Maryland, there are 99,000 traffic case is tried in one year.

Now, that is in Baltimore City and out of the 199,000, 157 were committed in default of payment of fines.

Now, we view it or offer that it’s less than 0.3 % of those cases tried that people are incarcerated because they cannot pay the fines.

In some cases in the criminal courts of course, people are committed into fault to payment of fines, and then suddenly, the money arrives.

And they of course are given credit for the time that they’ve served and the balance is paid and their release is effective.

Hugo L. Black:

Well, would a traffic — would the statistics and traffic violators really be your fair showing are the pattern of statistics in all kinds of crimes?

George L. Russell, Jr.:

I think that the statistics of traffic violators would be lower.

I think, more people are committed a default to fines in the criminal court than would be in the traffic court.

Hugo L. Black:

And that it is true wouldn’t it that you’d assume that if you had a law for instance that made every company, wholesale nation, they won’t say a company or the nation be a license of $15.00, you wouldn’t have much trouble for that $15.00, and you wouldn’t have much trouble collecting the fine that could be imposed as a rule on a traffic violator, would you?

George L. Russell, Jr.:

This is true.

I think that is the direct —

Hugo L. Black:

Same offense?

George L. Russell, Jr.:

Yes sir.

I think that’s a fair assumption.

Normally if a man is able to own an automobile or he’s driving one, usually in 99.9% of the cases at least in Maryland, I n Baltimore City, they’ll come up with the money with the fine.

Warren E. Burger:

Now, the figures you gave us first, that 3 %, was that —

George L. Russell, Jr.:

0.3 % Your Honor.

Warren E. Burger:

0.3 %, was that traffic or non-traffic?

George L. Russell, Jr.:

That was traffic.

Non-traffic, the statistics are bit different.

Now, figures here are indicate that in the six-month period, 2048 individuals where committed in the criminal court for default of payment of fines.

Warren E. Burger:

Out of the total of how many?

Just approximate, we don’t need the precisely — I lost that figure.

George L. Russell, Jr.:

It’s about 4%.

Warren E. Burger:

Well, go on with your argument, and if that shows up —

George L. Russell, Jr.:

Well, my brother has indicated in his brief that he felt that the Eighth Amendment of the Constitution was violated as well as the Thirteenth Amendment of the Constitution, and just to — because I only have one appearance here, I would like to state that vis-a-vis these cases that we feel that the Maryland statute that we believe was the law of the case now, in anyway violates either those amendments to the constitution.

Involuntary servitude or slavery or cruel and inhuman punishment or nor do we have the problem of excessive fines here.

All of the fines imposed are within the statutory limits and I simply want to acknowledge that we have reacted to this argument in our briefs, and we’d be prepared to answer any questions on those particular issues.

But as to the Equal Protection Clause, I feel viewed in its totality and viewing the function and the duty that’s states that have to its individual inhabitants to impose sanctions upon individuals and to determine the need to have sanctions and that this statutes meets the constitutional burden to the extent that it provides an alternative punishment for individuals who are unable to pay fines, and that this alternative punishment theory meets all of the requirements in constitution.

Thank you.

Warren E. Burger:

Thank you Mr. Russell.

Mr. Fisher?

Robert G. Fisher:

Your Honor, Mr. Russell and I are talking about different statutes.

He is defending the new statute and we’re attacking the old statute.

There is nobody as far as I know that has been committed to jail in Maryland so far under the new statute.

Robert G. Fisher:

The Chief Judge and the municipal court just found out about that statute, 2:30 yesterday afternoon from me.

There are a 150 people in jail today under the old statute.

Warren E. Burger:

But it furnishes them with the — it does furnish in the administrative means of softening that, does it not?

Robert G. Fisher:

It does not furnish any interpretation that I can see of the power to release these people by general order because one of the provisions of the new statute is that each case has to be decided on its own merits, and the $10.00 figure is only a minimum figure.

So, if the judge were to deal with all of these people by general order, he would be violating that part of the statutory scheme.

Warren E. Burger:

So let’s lay aside the general order mechanism.

Individually each incarcerated person or a person now on bail as your client has in some form of the administrative remedy available, does he not?

Robert G. Fisher:

Well —

Warren E. Burger:

Quasi judicial remedy?

Robert G. Fisher:

They do if they find out about it.

The statute doesn’t provide that they’re supposed to — that they’re to be notified.

They are indigents.

They don’t have lawyers.

They’re in jail where they don’t have access to news media.

Warren E. Burger:

Well obviously, the people that you’re talking about, the people you’re representing here today now before us do know about through you?

Robert G. Fisher:

Well, we representing the whole class of people who are defined as those people that are in the Baltimore City Jail, and those people that have detainers against them and we also submit that our request for declaratory judgment covers all of those people who have been in jail since the beginning of the lawsuit because they have an interest in this case.

So, the burden is always on the state — on the party asserting mootness to prove it and they’re in no position to assert mootness at this point.

In addition that the new statute would require these people to be re-sentenced in effect with the possibility that they could get a penalty that is more severe than the penalty they originally got, the fine and I submit that there are double jeopardy problems there and ex post facto law problems there.

So, this new statute simply is not a way out when you have people that are actually in jail under the old statute at this time and no evidence of the new statute has actually come into force other than up in the sky somewhere.

Does that retroactive apply to these people?

Robert G. Fisher:

All — no.

Yes and no I should say Your Honor.

The new statute merely gives them a remedy to ask to have their sentences re determined under the provisions of the new statute.

New statute.

Do you question the statute subject to that?

Robert G. Fisher:

Well —

I mean, I know you say he is not hefty here, what your view about that?

Robert G. Fisher:

I submit that in the broad argument that I’ve made that jail could never be equated with money.

So, I would have to question it, but I’m not really questioning it today because I got a $2.00 statute and under no circumstances can $2.00 be equated with 24 hours.

So, I don’t have to attack $10.00 and I’m in a much better position to attack $2.00.

Robert G. Fisher:

There is no overriding state interest in punishing poor people at a greater rate than rich people in order to make rich people pay.

There is no overriding that justifies having justice take her blindfold off and give poor people a harsher penalty than the judge who was charge with the state law — authorized by state law with determining the appropriate penalty determinant.

The state has other things that it can do to solve this problem.

I’m not asking this Court to tell the state what to do.

There are many different alternatives.

I’m not asking this Court to spell out for the state what they are.

I’m not — I suggest an analogy that the constitution is the foundation of our justice system, and that state penal system is the structure that the state builds upon that foundation.

In this case, the system the state has built is off of the foundation of equal justice under law, and it is properly the role of this Court to establish that foundation.

Potter Stewart:

Can you take a fine and reduce it a judgment?

Is there any provision for that?

Robert G. Fisher:

In the new statute, there is and I believe that could — it could be also be —

Potter Stewart:

Under the old statute?

Robert G. Fisher:

Under the old stat — the old statute itself may not have provided that, but there are other provisions.

Potter Stewart:

Other provision of law that entitle the status creditor or reduce the fine to a judgment, then have all the benefits of the judgment creditor?

Robert G. Fisher:

I believe so Your Honor.

Now that of course is that state’s interest in collecting the fine.

If that is the purpose of the statute, there’s no rational way that you can justify putting people who don’t have the money in the jail.

That costs the state money and they get — it prevents them from paying the fine.

Potter Stewart:

Is there a work, I forgot that there’s — there’s not the same kind of work program here is there was in the previous case, am I mistaken of that?

Robert G. Fisher:

No.

The state does not have a theory that it collects these — the fine in work.

Potter Stewart:

Right.

Warren E. Burger:

It is I’m sure equal protection thing here with perhaps or rather exaggerated hypothetical case.

Suppose — first, I assume that when you talk about rich people, you mean any person who is able to pay, that is a plumber or an electrician who’s making $600.00 to a $1,000.00 a month is what you call a rich person for these purposes?

Robert G. Fisher:

Certainly.

Warren E. Burger:

Now, suppose a group of plumbers and electricians and newspaper reporters would say all band together and say that there is a denial of equal protection because they must pay their fines in cash, whereas 13,412 people under your theory what the law to be didn’t have any money to pay at the time and therefore, they were excused from paying the fine that the man is making a salary has been required to do so, is that a denial of equal protection in the other way?

Robert G. Fisher:

It certainly would not be equal.

I think that poor people should be punished in some way.

I’m saying the state must find an equal way of punishing them.

It certainly cannot find a grossly unequal way of punishing them when it is not necessary to do so, and it has no compelling interest in punishing these people more severely than other people that are equally guilty of the same offense.

Warren E. Burger:

But you do seem to concede that this other category I spoke of, electrician, etcetera.

Robert G. Fisher:

I do.

Warren E. Burger:

They would be discriminated against by having to pay a fine in the same circumstances where this indigent person did not pay?

Robert G. Fisher:

As a matter of fact, the Court in Stratman v. Stad stated that it would be a denial of equal protection to let the poor man go and I’m not suggesting that he be let go.

I’m suggesting that the best thing to do is to do what the judge decided should be done, to find a way to make him pay his fine, and that can be done.

Your Honor asked the question in the previous argument about whether the new statute will be counter productive, where there a judge would start sending people to jail.

I think we have to assume that judges will act the way judges are suppose to act and keep their — the blindfold on as far as the person’s poverty is concerned, and that they will be sentence people fairly and judicially, even though they may under some new scheme not be able to send them to jail for non-payment of a fine.

So, I don’t think — I see my time is up.

I don’t think that it will be counter protected.

Hugo L. Black:

How would you suggest that Maryland can handle this problem?

Are you saying that all punishment of money are necessary going because the denial of equal protection of the law?

Robert G. Fisher:

Oh no Your Honor.

Hugo L. Black:

What is your — the extent, what you say happens to the law?

Robert G. Fisher:

I’m merely saying that the State of Maryland cannot select a class of people and treat them differently only because of their poverty.

If the State of Maryland has a number of different alternative ways, probation, ordering him to pay work, order them to work, ordering them to go to driver’s school, taking away the driver’s license, ordering them to pay in installments, punishing then if they did not make a showing of themselves that they’d made reasonable efforts to get the money.

There are a number of different ways that the State of Maryland can in its wisdom decide what to do about the situation.

Hugo L. Black:

Well, it requires a pretty good amount of wisdom, doesn’t it?

Robert G. Fisher:

Well —

Hugo L. Black:

Depend on what you’re doing in these cases.

Robert G. Fisher:

These are tremendous problems and they do require a great deal of wisdom.

But the foundation that that wisdom ought to be built on the principle that’s even older than the jailer’s fine statute that the law looks at a man without regard to his status in the community.

Hugo L. Black:

Would the law be invalid only as applied?

Robert G. Fisher:

No.

Hugo L. Black:

To the indigent?

Robert G. Fisher:

The law — it would only invalid as applied to indigents, but the discrimination is apparent on the face of the law.

Hugo L. Black:

Therefore, it can’t be done?

You can have a law that fixes a punishment by payment of money?

Robert G. Fisher:

I’m sorry Your Honor —

Hugo L. Black:

Well, you have a situation where you claim that the law is invalid, either as applied on its face.

Robert G. Fisher:

Correct.

Hugo L. Black:

Now, if it’s invalid on it face, invalid as applied to everybody, what substitute can the State of Maryland or any state provide for punishment but money fines?

Robert G. Fisher:

They can provide that if a man fails to pay this money fine, I’m assuming they’ll continue to find most people provide a law that says the judge can either send up to jail or fine him in the first instances.

That in the case where it comes to the attention of the court that he cannot pay, they then must provide some other means for punishing him, deterring him, collecting money from him, than the one they have provided here which is to send him to jail at an unfair rate.

Potter Stewart:

I thought you are basic contention was that it would be unconstitutional to jail a person and lieu of a money fine at any rate, at any rate that there’s a difference not only in the degree, but in kind between those two punishments, a constitutional difference in kind between the fine and imprisonment and that violates the equal protection to have any prisoner in lieu of the money fine.

Robert G. Fisher:

When the Chief Justice asked question, I said that is — that is my contention.

All I said I did not have to argue that in here because the $2.00 rate is unequal in any event and this is true of the rates in most of the state statutes.

They have some that are $1.00 rates.

Hugo L. Black:

But how would we decide that question fact, you say in any case, $2.00 is not enough.

How would we decide what is enough?

Robert G. Fisher:

I don’t know Your Honor.

If you had to decide that question, I think you can decide that is not enough, especially when the purpose of the state statute is to make an unequal punishment in order to collect the money from that can pay.

You can decide that easily and I have never heard anybody suggest to me that $2.00 is equal to 24 hours.

Nobody has actually asserted that to me in two years I been litigating this case.

Hugo L. Black:

Who is admitted $10.00?

Robert G. Fisher:

I’m sorry?

Hugo L. Black:

Who is admitted $10.00?

Robert G. Fisher:

Well, my position is that $10.00 is still not equal to one day in jail, but it —

Hugo L. Black:

And you get to going up until we could find some way of to say that well, not a work, but they requires with as much as in the man have to pay in money?

That’s a pretty difficult task.

Robert G. Fisher:

I would hope that you would never decide it on that basis.

I would hope that you would decide in accordance with my philosophy that one day in jail can never equal any amount of money because —

Hugo L. Black:

That would just settle this case.

Robert G. Fisher:

I’m sorry.

Hugo L. Black:

That would just settle this case, wouldn’t it?

It wouldn’t settle them all, would it?

If we just decided that certain amount of money is too little to compensate for the fine.

Robert G. Fisher:

If you just decide it that that would only settle this case, it would not settle the $10.00 case, or the $15.00 case.

Hugo L. Black:

Go and settle, the deep problem is raised for you gentlemen here today, wouldn’t it?

Robert G. Fisher:

No.

But it would settle the other case if you went further than I have asked you to go and reach the basic value judgment that jail and money cannot be equated, it would settle all the cases.

Hugo L. Black:

It would seems to me that your argument and it maybe right, I am not saying it’s right or wrong, it seems to me that your argument and the other arguments made today on that side assume that no law can be passed, which makes it fair and on non-violation of the equal protection law to fix punishment by fines.

Robert G. Fisher:

I do not — I do not understand that.

Hugo L. Black:

Well, how can you pass a law that will equalize it?

Robert G. Fisher:

Could equal two people, yes it can.

Hugo L. Black:

Here’s a man with the $100,000.00, there’s another one that makes $30.00 a week.

How could you equalize of your fine of money for those two?

Robert G. Fisher:

It could be done and it has been done in country like Sweden where they have the day fine principle, where the judge attempts to sting the man’s pocket book by an amount that will take into account how much he can pay.

Hugo L. Black:

Well, maybe he couldn’t afford to pay any.

Robert G. Fisher:

Then it seems to —

Hugo L. Black:

I assume that’s true that some of them couldn’t afford to pay any?

Robert G. Fisher:

That’s —

Hugo L. Black:

They are too poor.

Robert G. Fisher:

That’s probably true.

Hugo L. Black:

What you do then on?

Robert G. Fisher:

You’d have to collect the money from the — at a later time or in a different way?

Hugo L. Black:

They might not make another, it might be —

Robert G. Fisher:

Well, then, you have to find some other way to —

Hugo L. Black:

Well you have to get down — don’t you finally, bedrock argument that punishment by fine is so inherently unfair and unjust and discriminating between people that it should be allowed.

Robert G. Fisher:

Well, I don’t get down not far Your Honor, but it’s — I understand how a person could see that.

Hugo L. Black:

We might have.

Robert G. Fisher:

You like decide to do it, but I’m not urging you to.

Hugo L. Black:

Our Court would know how to avoid it.

Warren E. Burger:

Thank you Mr. Fisher.

The case is submitted.