Appellant was given the maximum sentence for petty theft under
Illinois law of one year' imprisonment and a $500 fine, plus $5 in
court costs. The judgment, as permitted by statute, provided that,
if, when the one-year sentence expired, he did not pay the monetary
obligation, he had to remain in jail to work them off at the rate
of $5 a day. While in jail, appellant, alleging indigency,
unsuccessfully petitioned the sentencing judge to vacate that
portion of the order confining him to jail after the sentence
expired, because of nonpayment of the fine and cost. The Illinois
Supreme Court rejected appellant's claim that the State statutory
provision constituted discriminatory treatment against those unable
to pay a fine and court costs, and affirmed the lower court's
dismissal of appellant's petition, holding that "there is no denial
of equal protection of the law when an indigent defendant is
imprisoned to satisfy payment of the fine."
Held: Though a State has considerable latitude in
fixing the punishment for state crime, and may impose alternative
sanction, it may not, under the Equal Protection Clause, subject a
certain class of convicted defendants to a period of Imprisonment
beyond the statutory maximum solely by reason of their indigency.
Pp.
399 U. S.
239-245.
41 Ill. 2d
511,
244 N.E.2d
197, vacated and remanded.
Page 399 U. S. 236
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This appeal from Illinois presents an important question
involving a claim of discriminatory treatment based upon financial
inability to pay a fine and court costs imposed in a criminal case.
The narrow issue raised is whether an indigent may be continued in
confinement beyond the maximum term specified by statute because of
his failure to satisfy the monetary provisions of the sentence. We
noted probable jurisdiction [
Footnote 1] and set the case for oral argument with No.
782,
Morris v. Schoonfield, post, p.
399 U. S. 508,
also decided today.
On August 16, 1967, appellant was convicted of petty theft, and
received the maximum sentence provided by state law: one year
imprisonment and a $500 fine. [
Footnote 2] Appellant was also taxed $5 in court costs.
The judgment directed, as permitted by statute, that, if appellant
was in default of the payment of the fine and court costs at the
expiration of the one-year sentence, he should remain in jail
pursuant to § 1-7(k) of the Illinois Criminal Code to "work off"
the monetary obligations at the rate of $5 per day. [
Footnote 3] Thus, whereas the maximum term of
imprisonment for petty theft was one year, the effect of the
sentence imposed here required appellant to be
Page 399 U. S. 237
confined for 101 days beyond the maximum period of confinement
fixed by the statute, since he could not pay the fine and costs of
$505.
On November 29, 1967, appellant, while still an inmate in the
county jail, petitioned the sentencing judge [
Footnote 4] to vacate that portion of the order
requiring that he remain imprisoned upon expiration of his one-year
sentence because of nonpayment of the fine and court costs.
Appellant alleged that he was indigent at all stages of the
proceeding, was without funds or property to satisfy the money
portion of the sentence, and that he would "be able to get a job
and earn funds to pay the fine and costs if . . . released from
jail upon expiration of his one-year sentence." The State did not
dispute the factual allegations, [
Footnote 5] and the trial court granted the State's motion
to dismiss the petition
"for the reason that [appellant] was not legally entitled at
that time to the relief requested . . . , because he still has time
to serve on his jail sentence, and, when that sentence has been
served, his financial ability to pay a fine might not be the same
as it is of the date [of sentencing]. "
Page 399 U. S. 238
Appeal was taken directly to the Supreme Court of Illinois,
which appears to have rejected any suggestion by the trial court
that the petition was premature, and went on to decide appellant's
constitutional claim on the merits. It held that "there is no
denial of equal protection of the law when an indigent defendant is
imprisoned to satisfy payment of the fine."
People v.
Williams, 41 Ill. 2d
511, 517,
244 N.E.2d
197, 200 (1969). [
Footnote
6]
In addition to renewing the constitutional argument rejected by
the state courts, appellant advances a host of other claims
[
Footnote 7] which, in light of
our disposition, we find unnecessary to reach or decide. Appellant
challenges the constitutionality of § 1-7(k) of the Illinois
Criminal Code, and argues primarily that the Equal Protection
Clause of the Fourteenth Amendment prohibits imprisonment of an
indigent beyond the maximum term authorized by the statute
governing the substantive offense when that imprisonment flows
directly from his present inability to pay a fine and court costs.
In response, the State asserts its interest in the collection of
revenues produced by payment of fines, and contends that a
"work-off" system, as provided by § 1-7(k), is a rational means of
implementing that policy. That interest is substantial and
legitimate, but, for present purposes, it is not unlike the State's
interest in collecting a fine from an indigent person in
circumstances where no imprisonment is included in the judgment.
The State argues further that the statute is not constitutionally
infirm simply because the legislature could have achieved the same
result
Page 399 U. S. 239
by some other means. With that general proposition, we have no
quarrel, but that generality does not resolve the issue.
As noted earlier, appellant's incarceration beyond the statutory
maximum stems from separate, albeit related, reasons: nonpayment of
a fine and nonpayment of court costs. We find that neither of those
grounds can constitutionally support the type of imprisonment
imposed here, but we treat the fine and costs together, because
disposition of the claim on fines governs our disposition on costs.
[
Footnote 8]
The custom of imprisoning a convicted defendant for nonpayment
of fines date back to medieval England, [
Footnote 9] and has long been practiced in this
country. At the present time, almost all States and the Federal
Government have statutes authorizing incarceration under such
circumstances. Most States permit imprisonment beyond the maximum
term allowed by law, and, in some, there is no limit on the length
of time one may serve for nonpayment. [
Footnote 10] While neither the antiquity of a practice
nor the fact of steadfast legislative and judicial adherence to it
through the centuries insulates it from constitutional attack,
these factors should be weighed in
Page 399 U. S. 240
he balance. [
Footnote 11]
Indeed, in prior cases, this Court seems to have tacitly approved
incarceration to "work-off" unpaid fines.
See Hill v.
Wampler, 298 U. S. 460
(1936);
Ex parte Jackson, 96 U. S.
727 (1878). [
Footnote
12]
The need to be open to reassessment of ancient practices other
than those explicitly mandated by the Constitution is illustrated
by the present case, since the greatly increased use of fines as a
criminal sanction has made nonpayment a major cause of
incarceration in this country. [
Footnote 13] Default imprisonment has traditionally been
justified on the ground that it is a coercive device to ensure
obedience to the judgment of the court. [
Footnote 14] Thus, commitment for failure to pay has
not been viewed as a part of the punishment or as an increase in
the penalty; rather, it has been viewed as a means of enabling the
court to enforce collection of money that a convicted defendant was
obligated by the sentence to pay. The additional imprisonment, it
has been said, may always be avoided by payment of the fine.
[
Footnote 15]
We conclude that, when the aggregate imprisonment exceeds the
maximum period fixed by the statute, and
Page 399 U. S. 241
results directly from an involuntary nonpayment of a fine or
court costs we are confronted with an impermissible discrimination
that rests on ability to pay, and, accordingly, we vacate the
judgment below.
Griffin v. Illinois, 351 U. S. 12
(1956), marked a significant effort to alleviate discrimination
against those who are unable to meet the costs of litigation in the
administration of criminal justice. In holding that the failure to
provide an indigent criminal defendant with a trial transcript at
public expense in order to prosecute an appeal was a violation of
the Equal Protection Clause, this Court declared the "[t]here can
be no equal justice where the kind of trial a man gets depends on
the amount of money he has."
Id. at
351 U. S. 19. In
the years since the
Griffin case, the Court has had
frequent occasion to reaffirm allegiance to the basic command that
justice be applied equally to all persons. [
Footnote 16] Subsequent decisions of this Court
have pointedly demonstrated that the passage of time has
heightened, rather than weakened, the attempts to mitigate the
disparate treatment of indigents in the criminal process. [
Footnote 17] Applying the teaching
of the
Griffin case here, we conclude that an indigent
criminal defendant may not be imprisoned in default of payment of a
fine beyond the maximum authorized by the statute regulating the
substantive offense.
A State has wide latitude in fixing the punishment for state
crimes. Thus, appellant doe not assert that Illinois could not have
appropriately fixed the penalty, in the first instance, at one year
and 101 days. Nor has the claim been advanced that the sentence
imposed was excessive in light of the circumstances of the
commission of this particular offense. However, once the State
has
Page 399 U. S. 242
defined the outer limits of incarceration necessary to satisfy
its penological interests and policies, it may not then subject a
certain class of convicted defendants to a period of imprisonment
beyond the statutory maximum solely by reason of their
indigency.
It is clear, of course, that the sentence was not imposed upon
appellant because of his indigency, but because he had committed a
crime. And the Illinois statutory scheme does not distinguish
between defendants on the basis of ability to pay fines. But, as we
said in
Griffin v. Illinois, supra, "a law
nondiscriminatory on its face may be grossly discriminatory in its
operation."
Id. at
351 U. S. 17 n.
11. Here, the Illinois statute, as applied to Williams, works an
invidious discrimination solely because he is unable to pay the
fine. On its face, the statute extends to all defendants an
apparently equal opportunity for limiting confinement to the
statutory maximum simply by satisfying a money judgment. In fact,
this is an illusory choice for Williams or any indigent who, by
definition, is without funds. [
Footnote 18] Since only a convicted person with access to
funds can avoid the increased imprisonment, the Illinois statute,
in operative effect, exposes only indigents to the risk of
imprisonment beyond the statutory maximum. By making the maximum
confinement contingent upon one's ability to pay, the State has
visited different consequences on two categories of persons, since
the result is to make incarceration in excess of the statutory
maximum applicable only to those without the requisite resources to
satisfy the money portion of the judgment. [
Footnote 19]
Page 399 U. S. 243
The mere fact that an indigent in a particular case may be
imprisoned for a longer time than a non-indigent convicted of the
same offense does not, of course, give rise to a violation of the
Equal Protection Clause. Sentencing judges are vested with wide
discretion in the exceedingly difficult task of determining the
appropriate punishment in the countless variety of situations that
appear. The Constitution permits qualitative differences in meting
out punishment, and there is no requirement that two persons
convicted of the same offense receive identical sentences. Thus it
was that, in
Williams v. New York, 337 U.
S. 241,
337 U. S. 247
(1949), we said:
"The belief no longer prevails that every offence in a like
legal category calls for an identical punishment, without regard to
the past life and habits of a particular offender."
Nothing in today's decision curtails the sentencing prerogative
of a judge, because, as noted previously, the sovereign's purpose
in confining an indigent beyond the statutory maximum is to provide
a coercive means of collecting or "working out" a fine. After
having taken into consideration the wide range of factors
underlying the exercise of his sentencing function, nothing we now
hold precludes a judge from imposing on an indigent, as on any
defendant, the maximum penalty prescribed by law.
It bears emphasis that our holding does not deal with a judgment
of confinement for nonpayment of a fine in the familiar pattern of
alternative sentence of "$30 or 30 days." We hold only that a State
may not constitutionally imprison beyond the maximum duration fixed
by statute a defendant who is financially unable to pay a fine. A
statute permitting a sentence of both imprisonment and fine cannot
be parlayed into a longer term of imprisonment than is fixed by the
statute, since to do so would be to accomplish indirectly as to an
indigent that which cannot be done directly. We have no
Page 399 U. S. 244
occasion to reach the question whether a State is precluded in
any other circumstances from holding an indigent accountable for a
fine by use of a penal sanction. We hold only that the Equal
Protection Clause of the Fourteenth Amendment requires that the
statutory ceiling placed on imprisonment for any substantive
offense be the same for all defendants, irrespective of their
economic status. [
Footnote
20]
The State is not powerless to enforce judgments against those
financially unable to pay a fine; indeed, a different result would
amount to inverse discrimination, since it would enable an indigent
to avoid both the fine and imprisonment for nonpayment, whereas
other defendants must always suffer one or the other
conviction.
It is unnecessary for us to canvass the numerous alternatives to
which the State, by legislative enactment -- or judges within the
scope of their authority -- may resort in order to avoid
imprisoning an indigent beyond the statutory maximum for
involuntary nonpayment of a fine or court costs. Appellant has
suggested several plans, some of which are already utilized in some
State, while others resemble those proposed by various studies.
[
Footnote 21] The State
Page 399 U. S. 245
is free to choose from among the variety of solutions already
proposed and, of course, it may devise new ones. [
Footnote 22]
We are not unaware that today's holding may place a further
burden on States in administering criminal justice. Perhaps a
fairer and more accurate statement would be that new cases expose
old infirmities which apathy or absence of challenge has permitted
to stand. But the constitutional imperatives of the Equal
Protection Clause must have priority over the comfortable
convenience of the
status quo.
"Any supposed administrative inconvenience would be minimal,
since . . . [the unpaid portion of the judgment] could be reached
through the ordinary process of garnishment in the event of
default."
Rinaldi v. Yeager, 384 U. S. 305,
384 U. S. 310
(1966).
Nothing we hold today limits the power of the sentencing judge
to impose alternative sanctions permitted by Illinois law; the
definition of such alternatives, if any, lies with the Illinois
courts. We therefore vacate the judgment appealed from and remand
to the Supreme Court of Illinois for further proceedings not
inconsistent with this opinion.
It is so ordered.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
Page 399 U. S. 246
|
399
U.S. 235app|
APPENDIX TO OPINION OF THE COURT *
STATE STATUTORY PROVISIONS CONCERNING
I
NCARCERATION FOR FAILURE TO PAY FINE
Alabama
If the fine is not paid, defendant is imprisoned in the county
jail, possibly at hard labor. The statute is so worded that
defendants who have been fined differing amounts may be imprisoned
for the same amount of time in satisfaction of the fine. There is
no provision in the statute for payment by installment. Ala.Code
Tit. 15, Sec. 341 (1958).
Alaska
The judgment that defendant pay a fine shall also direct
imprisonment until the fine is satisfied. Rate of credit: $5 per
day (additional $5 if prisoner works.) Alas.Stat. Sec. 12.55.010
(1962).
When an indigent defendant has been confined in prison 30 days
solely for the nonpayment of the fine, the defendant may petition
the magistrate for discharge if certain conditions are met.
Id. 12.55.030.
Arizona
The sentence of fine may also direct that defendant be
imprisoned until the fine is satisfied, but the imprisonment shall
not extend beyond the term for which defendant might be sentenced
to imprisonment for the offense of which he has been convicted.
Rate of credit: $1 per day. Ariz.Rev.Ann. Sec. 13-1648 (1956).
Page 399 U. S. 247
Arkansas
If the punishment of an offense is a fine, the judgment shall
direct that defendant be imprisoned until fine and costs are paid.
Rate of credit: $1 per day. Ark.Stat.Ann. Sec. 43-2315 (1964).
Specifically applying to convictions of misdemeanor and also
providing for imprisonment at the rate of $1 per day.
Id.
Sec. 46-510.
Providing that confinement shall not discharge the fine, which
can only be collected by proceeding against the defendant's
property.
Id. Sec. 43-2606.
California
Judgment that defendant pay a fine may also direct that he be
imprisoned until the fine is satisfied. Rate of credit: not less
than $2 per day. When defendant is convicted of a misdemeanor, the
judgment may provide for payment of the fine in installments, with
imprisonment in the event of default. Cal.Pen.Code Sec. 1205
(1968).
But imprisonment for nonpayment of a fine may not exceed in any
case the term for which the defendant might be sentenced for the
offense of which he has been convicted.
Id.
Colorado
Court shall have power, as part of its judgment, to order that
the offender be committed to jail until the fine is paid or
otherwise legally discharged. Colo.Rev.Stat.Ann. Sec. 39-10-10
(1964).
Persons confined in jail for fines who have no estate with which
to pay such fines may be discharged from imprisonment.
Id.
Sec. 39-10-9.
Connecticut
If a convict fails to pay a fine lawfully imposed, he shall be
committed to jail until the fine is paid. Conn.Gen.Stat.Ann. Sec
18-63 (1968).
Page 399 U. S. 248
Rate of credit: $3 per day.
Id. Sec. 18-50.
When a person is convicted of a crime punishable by a fine or
imprisonment, the court may impose upon the offender a conditional
sentence and order him to pay a fine within a limited time, and, in
default of so doing, to be imprisoned.
Id. Sec.
54-119.
Delaware
When a person is sentenced to pay a fine, the courts named in
this section may order imprisonment up to one year, if no term for
such nonpayment is otherwise fixed by law. Del.Code Ann. Tit. 11,
Sec. 4103(a) (Supp. 1968).
In the same situation, justices of the peace and other named
courts may order the person defaulting imprisoned for no longer
than 90 days.
Id. Tit. 11, Sec. 4103(b)
Florida
When a court sentences a person to pay a fine, the court shall
also provide in the sentence a period of time of imprisonment in
case of default. Fla.Stat.Ann. Sec. 921.14 (Supp. 1969).
In cases of convictions for misdemeanor, the court may order the
defendant to serve not exceeding sixty days in default of payment
of a fine.
Id., Sec. 775.07.
Rate of credit:
id., Sec. 951.16.
Georgia
Fines imposed by the court shall be paid immediately or within
such reasonable time as the court may grant. Ga.Code Ann. Sec.
27-2901 (1969 Supp.).
Judge may provide as a means of enforcing payment of a fine that
the defendant be imprisoned until the fine is paid.
R. E. Lee
v. State, 118 S.E.2d
599 (1961).
Hawaii
When a judgment to pay a fine is not satisfied by immediate
payment, the offender shall be committed to
Page 399 U. S. 249
prison until the judgment is satisfied. Hawaii Rev.Stat. Sec.
712-4 (1968).
A poor person, after having been confined for thirty days,
solely for the nonpayment of a fine, may make application to the
circuit court for the circuit in which he is imprisoned for
release. The person may then be discharged upon the taking of an
oath.
Id.
I
daho
A judgment that defendant pay a fine may also direct that the
defendant be imprisoned until the fine has been satisfied. Rate of
credit: $5 per day. Idaho Code Ann. Sec. 19-2517 (1969 Supp.).
Substantially the same is provided, for both felonies and
misdemeanors, by
id., Sec. 18-303.
I
llinois
In a judgment imposing a fine, the court may order that, upon
nonpayment of the fine, the offender may be imprisoned. Rate of
credit: $5 per day. But no person may be imprisoned in this fashion
for longer than six months. Ill.Rev.Stat. (1969) ch. 38, Sec.
1-7(k).
If a person confined in jail for failure to pay a fine has no
estate with which to pay the fine, the court may release that
person.
Id. ch. 38, Sec. 180-6.
I
ndiana
Whenever a person is fined for a felony or a misdemeanor, the
judgment shall be that he is committed until the fine is paid.
Ind.Ann.Stat. Sec. 9-2228 (1956).
Rate of credit: $5 per day.
Id., Sec. 9-2227a (Supp.
1969).
I
owa
The judgment that defendant pay a fine may also direct that he
be imprisoned until the fine is satisfied. Iowa Code Ann. Sec.
762.32 (1950).
Rate of credit: $3 1/3 per day.
Id., Sec. 789.17.
Page 399 U. S. 250
Kansas
Defendant to be ordered committed to county jail until fine is
paid. Kan.Gen.Stat.Ann. Sec. 62-1513 (1964).
Rate of credit: $2 per day.
Id., Sec. 62109.
A person imprisoned for failure to pay a fine may be discharged
from imprisonment if found to be unable to pay.
Id., Sec.
62-1515.
Kentucky
Judgment shall be rendered directing that the defendant shall
work at hard labor until the fine and costs are satisfied.
Ky.Rev.Stat. Sec. 431.140 (1969).
Rate of credit: $2 per day.
Id.
Louisiana
If a fine is imposed, the sentence shall provide that, in
default, the defendant shall be imprisoned for a specified period
not to exceed one year. But where the maximum prison sentence which
may be imposed as a penalty for a misdemeanor is six months or
less, the total period of imprisonment upon conviction of the
offense, including imprisonment for default, shall not exceed six
months for that offense. La.Crim.Pro.Code Ann. Art. 884 (1970
Pocket part).
Maine
Convict sentenced to pay fine may be committed or confined for
default thereof, but not longer than 11 months for any single fine.
Me.Rev.Stat.Ann. Tit. 15, Sec. 1904 (Supp. 1970).
Rate of credit: $5 per day.
Id.
Maryland
In default of payment of a fine, a person adjudged guilty shall
be committed to jail until discharged by due course of law.
Md.Ann.Code Art. 38, Sec. 1 (1965).
Page 399 U. S. 251
[This provision has been amended by Chapter 147 of the 1970 Laws
of Maryland (approved April 15, 1970).
See Morris v.
Schoonfield, post, p.
399
U. S. 508.]
Installment payments in some counties are provided for.
Id., Art. 52, Sec. 18 (1969 Supp.).
Rate of credit: $2 per day (with some modifications resulting in
shorter periods of confinement in some cases than would result at
$2 per day).
Id., Art. 38, Sec. 4 (1969 Supp.).
Massachusetts
When a person convicted is sentenced to pay a fine, he may also
be sentenced to be committed until it is paid. Mass.Ann.Laws ch.
27, Sec. l; ch. 127, Sec. 144 (199).
Rate of credit: $1 per day.
Id., ch. 127, Sec. 144.
The execution of the sentence of confinement may be suspended
and the defendant placed on probation on condition that he pay the
fine within a certain time, either in one payment or in
installments. In case of default, the court may revoke the
suspension of the execution of the sentence.
Id., ch. 279,
Sec. 1.
Discharge of poor prisoners incarcerated for failure to pay
fines.
Id., ch. 127, Sec. 145, (when fine is less than ten
dollars); Sec. 146, (when the prisoner has been confined for three
months).
Michigan
The court may impose upon the offender a conditional sentence
and order him to pay a fine within a limited time and, in default
of so doing, to be imprisoned. The court may also place the
offender on probation with a condition that he pay a fine in
installments and, in default of such payments, be imprisoned.
Mich.Comp.Laws Ann. Sec. 769.3 (1968).
Execution may issue for the collection of fines in cases where
no alternative sentence or judgment of imprisonment
Page 399 U. S. 252
has been rendered, but no one may be imprisoned under such
execution for longer than 90 days.
Id., Sec. 600.4815.
Minnesota
If a defendant's fine exceeds the amount of his bail, the
defendant shall be committed until the balance is paid.
Minn.Stat.Ann. Sec. 629.53 (1947).
Rate of credit: $3 per day.
Id., Sec. 641.10 (Supp.
1969).
Mississippi
Convict to be imprisoned until fine is fully paid. However, no
convict may be held for more than two years for failure to pay the
fine for any one offense. Miss.Code Ann. Sec. 7899 (1957).
Rate of credit: $3 per day.
Id., Sec. 7906.
Missouri
When a defendant is sentenced to pay a fine, he shall be
imprisoned until the sentence is fully complied with. Mo.Ann.Stat.
Sec. 546.830 (1953).
The judge, on petition of the prisoner, may sentence him to
imprisonment for a limited time in lieu of the fine.
Id.,
Sec. 546.840.
Rate of credit: $2 per day.
Id., Sec. 551.010.
Magistrates' courts have similar powers, but the rate of credit
may vary from $2 to $10 for each day of confinement.
Id.,
Secs. 543.260 and 543.270.
Montana
The judgment may be for fine and imprisonment until the fine is
paid. Mont.Rev.Codes Ann. Sec. 95-2302(b) (1969).
Rate of credit: $10 per day.
Id.
Nebraska
In cases where court or magistrate have power to sentence an
offender to pay a fine, those court or magistrates
Page 399 U. S. 253
may make it a part of the sentence that the party be committed
until the fine is paid. Neb.Rev.Stat. Sec. 29-2206 (1965).
Rate of credit: $6 per day.
Id., Sec. 29-2412.
In cases of misdemeanor, offenders may be committed to the
county jail until the fine is paid.
Id. Sec. 29-2404.
Nevada
A person sentenced to pay a fine may be confined until the fine
is satisfied. Nev.Rev.Stat. Sec. 176.065 (1967).
Rate of credit: $4 per day.
Id.
New Hampshire
A person sentenced to pay a fine shall be ordered to be
imprisoned until sentence is performed. N.H.Rev.Stat.Ann. Sec.
618.6 (1969 Supp.).
Rate of credit: $5 per day.
Id., Sec. 618.9.
New Jersey
Defendant may be placed at labor in a county jail or
penitentiary until the fine is paid. N.J.Stat.Ann. Sec. 2A:166-14
(1953).
Defendant may also be permitted to remain at large for a fixed
time to enable him to pay the fine. If defendant fails to pay, the
court may then order him into custody.
Id. Sec.
2A:166-15.
Rate of credit: $5 per day.
Id., Sec. 2A:166-16 (Supp.
1969).
A disorderly person who defaults in the payment of a fine may be
committed by the court.
Id. Sec. 2A:169-5 (Supp.
1969).
New Mexico
A person may be committed to prison for nonpayment of a fine.
N.M.Stat.Ann. Sec. 42-2-9 (Supp. 1969). (Applies to both county
jails and the state penitentiary -- Compiler's Note).
Page 399 U. S. 254
Rate of credit: $5 per day.
Id.
If a person so confined makes an affidavit that he has no
property out of which to pay the fine, he must be released after
three months of confinement.
Id. sub. B.
But convicts sentenced to the state penitentiary may not be
required to serve more than thirty days for a fine.
Id.
Sec. 42-1-60 (1964).
New York
In the event the defendant fails to pay a fine as directed, the
court may direct that he be imprisoned until the fine is satisfied
(limitations: for a felony, the imprisonment may not exceed one
year; for a misdemeanor, it may not exceed one third of the maximum
authorized sentence.) N.Y.Code Crim.Proc. Sec. 470-d (Supp.
1969).
Sec. 470-d has been limited by
People v. Saffore, 18
N.Y.2d 101, 218 N.E.2d 686 (1966).
North Carolina
If a guilty party is sentenced to pay a fine and it is not
immediately paid, the guilty person may be committed to the county
jail until the fine is paid. N.C.Gen.Stat. Sec. 6-65 (Supp.
1970).
Persons committed for fines may be discharged from imprisonment
upon taking an insolvent debtor's oath.
Id., Secs. 23-23
and 23-24 (1965).
North Dakota
A judgment that the defendant pay a fine also may direct that he
be imprisoned until the fine is satisfied. N.D.Cent.Code Sec.
29-26-21 (1960).
Rate of credit: $2 per day (but such imprisonment does not
discharge the judgment for the fine).
Id.
Page 399 U. S. 255
Ohio
When a fine is the whole or part of a sentence, the court or
magistrate may order that the person sentenced remain in jail until
the fine is paid, but no commitment may exceed six months. Ohio
Rev.Code Ann. Sec. 2947.14 (1954).
Rate of credit: $3 per day.
Id.
In a case of conviction for a misdemeanor, the judge or
magistrate has the same power as above, but there is no limit of
six months.
Id., Sec. 2947.20.
Oklahoma
Persons sentenced to pay a fine who refuse or fail to pay it may
be imprisoned. Okla.Stat. Tit. 11, Sec. 794 (Supp. 1969).
Rate of credit: $2 per day.
Id.
A poor convict who has been imprisoned for nonpayment of a fine
may be discharged after serving six months if two justices of the
peace are satisfied that the convict has not had, since his
conviction, any estate with which he might have paid the fine.
Id. Tit. 57, Sec. 15 (1969).
Oregon
A judgment that the defendant pay a fine shall also direct that
he be imprisoned in the county jail until the fine is satisfied.
Ore.Rev.Stat. Sec. 137.150 (1963).
Rate of credit: $5 per day.
Id.
Indigents imprisoned for nonpayment of fine may be discharged
after serving thirty days solely for such nonpayment if, in the
opinion of a magistrate or court, it appears that the prisoner is
unable to pay the fine. Ore.Rev.Stat. Sec. 169.160 (1967).
Page 399 U. S. 256
Pennsylvania
Persons may be imprisoned in an action for fines or penalties.
Pa.Stat.Ann. Tit. 12, Sec. 257 (1953). A person confined for
nonpayment of a fine may be discharged if he conforms to the
provisions for insolvent debtors, but no application is allowed
until the prisoner has served at least three months.
Id.,
Tit. 39, Sec. 323 (1954).
The sentencing authority may allow payment of a fine by
installments, but, upon default, the defendant may be committed.
Id., Tit.19, Secs. 953 and 956 (1964).
Rhode Island
Persons may be committed to the adult correctional institutions
for the nonpayment of fines. R.I.Gen.Laws Ann. Sec. 13-2-36
(1957).
Rate of credit: $5 per day.
Id.
The director of social welfare may recommend the release of
persons so confined, but no guidelines are set out in the statute.
Id.
South Carolina
Offenders may be committed to jail, if they are unable to pay
forfeitures, until the amount is satisfied. S.C. Code Ann. Sec.
17-574 (1962).
Offenders so committed are entitled to the privilege of
insolvent debtors.
Id.
Installment payments as a condition of probation.
Id.,
Sec. 55-593.
South Dakota
A judgment that the offender pay a fine may also direct that he
be imprisoned until the fine is satisfied. S.D.Comp.Laws Ann. Sec.
23-48-23 (1969).
Rate of credit: $2 per day.
Id.
Page 399 U. S. 257
If a fine is not paid, the defendant shall be imprisoned until
it is paid. Tenn.Code Ann. Sec. 40-3203 (1955).
Rate of credit: $5 per day.
Id. Sec. 41-1223
(1956).
Texas
When a defendant convicted of a misdemeanor is unable to pay the
fine adjudged against him, he may be put to work or imprisoned for
a sufficient length of time to discharge the amount. Tex.Code
Crim.Proc. Art. 43.09 (1966).
Utah
A judgment that a defendant pay a fine may also direct that he
be imprisoned until the fine is satisfied. Utah Code Ann. Sec.
77-35-15 (1953).
Rate of credit: $2 per day.
Id.
V
ermont
When a person is sentenced to imprisonment and also to pay a
fine, the court may order him imprisoned for failure to pay the
fine, the term of imprisonment to begin at the end of the term in
the original sentence. Vt.Stat.Ann. Tit. 13, Sec. 7222 (Supp.
1969).
When a person is sentenced only to pay a fine, the court shall
order that, if the sentence is not complied with within twenty-four
hours, the person may be imprisoned.
Id. Sec. 7223.
Rate of credit: $1 per day.
Id., Secs. 7222 and
7223.
V
irginia
The circuit or corporation court in which any judgment for a
fine is rendered may commit the defendant to jail until the fine is
paid. Va.Code Ann. Sec.19.1-339 (Supp. 1968).
Page 399 U. S. 258
In any misdemeanor case tried before a court not of record in
which a fine is imposed on a defendant, if no security is given,
the defendant may be committed to jail until the fine is paid.
Id. Sec.19.1-338.
Washington
If a person does not pay the fine adjudged against him within
five days, that person may be imprisoned in the county jail until
the fine is paid. Wash.Rev.Code Ann. Sec. 10.82.030 (Supp.
1969).
Installment payments permitted.
Id. (1961).
West Virginia
When a judgment for a fine is rendered by a court of record
having jurisdiction in criminal cases, the court may also provide,
as a part of the judgment, that the defendant be imprisoned until
the fine is paid. W.Va.Code Ann. Sec. 629 (1966).
Rate of credit: $1.50 per day.
Id., Sec. 6210.
Confinement for failure to pay a fine shall not exceed the term
of six months.
Id.
Wisconsin
When a fine is imposed, the court shall also sentence the
defendant to be committed to the county jail until the fine and
costs are paid or discharged. Wis.Stat.Ann. Sec. 959.055 (Supp.
1969).
The court may grant a reasonable time not exceeding one stay of
30 days based on the defendant's circumstances in which to make
payment before committing him to the county jail.
Id.
The time of imprisonment, in addition to any other imprisonment,
shall not exceed six months.
Id.
Installment payments permitted.
Id. Sec. 57.04.
Page 399 U. S. 259
Any court shall have power, in cases of conviction where a fine
is inflicted, to order as part of its judgment that the offender
shall be committed to jail until the fine is paid or otherwise
legally discharged. Wyo.Stat.Ann. Sec. 7-280 (1959).
Rate of credit: $1 per day.
Id., Sec. 6-8.
* [REPORTER'S NOTE: This appendix is reproduced in virtually the
same form in which it appeared in the brief filed by the National
Legal Aid and Defender Assn. as
amicus curiae. See
supra at
399 U. S. 239
n. 10. Any change in the statute listed herein are not indicated,
except for the bracketed entry applicable to Maryland,
infra at
399 U. S.
251.]
[
Footnote 1]
396 U.S. 1036.
[
Footnote 2]
Ill.Rev.Stat., c. 38, § 16-1 (1967), which proscribes theft of
property not from the person and not exceeding $150 in value.
[
Footnote 3]
Section 1-7(k) of the Criminal Code of 1961 provides:
"Working out Fines."
"A judgment of a fine imposed upon an offender may be enforced
in the same manner as a judgment entered in a civil action;
Provided, however, that, in such judgment imposing the fine, the
court may further order that, upon nonpayment of such fine, the
offender may be imprisoned until the fine is paid or satisfied at
the rate of $5.00 per day of imprisonment; Provided, further,
however, that no person shall be imprisoned under the first proviso
hereof for a longer period than 6 months."
[
Footnote 4]
The post-conviction petition was filed pursuant to § 72 of the
Illinois Civil Practice Act.
[
Footnote 5]
Parenthetically, we note that appellant was unable to post
pretrial bail of $2000, and was therefore required to remain in
custody.
On May 23, 1968, appellant completed service of his one-year
sentence, less time off for time spent in custody prior to trial.
He then began serving the period of incarceration required to
satisfy the $505 fine and costs. On May 28, 1968, however, the
Supreme Court of Illinois, on motion of appellant's counsel, set
bail pending appeal at $500; the 10% deposit was posted by the
Civil Legal Aid Service. Appellant is free on bond, and, since he
has not yet served the full period of incarceration to satisfy the
fine and costs, the case is not moot.
[
Footnote 6]
The Supreme Court of Illinois dealt exclusively with that
portion of the unpaid sum stemming from the fine. Its opinion
contains no discussion of the constitutionality of incarceration
arising from failure to pay court costs, even though the issue was
tendered.
[
Footnote 7]
Appellant also argues that every instance of default
imprisonment violates either the Equal Protection and/or Due
Process Clause(s) of the Fourteenth Amendment. He also asserts that
the $5
per diem figure is unreasonable and irrational.
[
Footnote 8]
See n 20,
infra.
[
Footnote 9]
See generally 2 W. Holdsworth, A History of English Law
43-44 (3d ed.1927); 1 J. Bishop on Criminal Law § 940, p. 693 (9th
ed.1923); 1 J. Stephen, A History of the Criminal Law of England 57
(1883).
See also Comment, Fines, Imprisonment, and the
Poor: "Thirty Dollars or Thirty Days," 57 Calif.L.Rev. 778, 780-787
(1969).
[
Footnote 10]
The National Legal Aid and Defender Association, as
Amicus
Curiae, has filed a brief containing an extensive appendix
which includes state statutes with helpful annotations. We have
reproduced this portion of its brief as an
399
U.S. 235app|>appendix to this opinion. The corresponding
federal statutes are 18 U.S.C. §§ 3565, 3569.
See also
Note, The Equal Protection Clause and Imprisonment of the Indigent
for Nonpayment of Fines, 64 Mich.L.Rev. 938 (1966).
[
Footnote 11]
See Walz v. Tax Comm'n, decided May 4, 1970,
397 U. S. 397 U.S.
664,
397 U. S. 678,
where we noted that,
"Nearly 50 years ago, Mr. Justice Holmes stated: "
" If a thing has been practised for two hundred years by common
consent, it will need a strong case for the Fourteenth Amendment to
affect it. . . ."
"
Jachman v. Rosenbaum Co., 260 U. S.
22,
260 U. S. 31 (1922)."
[
Footnote 12]
We note, however, that neither in those cases, nor at any other
time, were the constitutional issues flowing from lack of funds
presented to this Court for resolution.
[
Footnote 13]
See, e.g., American Bar Foundation, L. Silverstein,
Defense of the Poor in Criminal Cases in American State Courts 123
(1965); S. Rubin, The Law of Criminal Correction 253 (1963).
[
Footnote 14]
See, e.g., Chief Judge Desmond's excellent treatment of
the historical development in
People v. Saffore, 18 N.Y.2d
101, 218 N.E.2d 686 (1966).
[
Footnote 15]
See, e.g., People v. District of
Columbia, 75
A.2d 845, 847 (D.C.Mun.Ct.App. 1950).
[
Footnote 16]
See Note, Discriminations Against the Poor and the
Fourteenth Amendment, 81 Harv.L.Rev. 435 (1967).
[
Footnote 17]
See, e.g., Rinaldi v. Yeager, 384 U.
S. 305 (1966);
Douglas v. California,
372 U. S. 353
(1963);
Smith v. Bennett, 365 U.
S. 708 (1961).
[
Footnote 18]
See, e.g., Goldberg, Equality and Government Action, 39
N.Y.U.L.Rev. 205, 221 (1964).
[
Footnote 19]
We wish to make clear that nothing in our decision today
precludes imprisonment for willful refusal to pay a fine or court
costs.
See Ex parte Smith, 97 Utah 280, 92 P.2d 1098
(1939).
Cf. Illinois v. Allen, 397 U.
S. 337 (1970).
[
Footnote 20]
What we have said regarding imprisonment for involuntary
nonpayment of fines applies with equal force to imprisonment for
involuntary nonpayment of court costs. Although the actual amounts
prescribed for fines and court costs reflect quite different
considerations,
see generally Note, Litigation Costs: The
Hidden Barrier to the Indigent, 56 Geo.L.J. 516 (1968), the purpose
of incarceration appears to be the same in both instances: ensuring
compliance with a judgment. Thus, inability to pay court costs
cannot justify imprisoning an indigent beyond the maximum statutory
term, since the Equal Protection Clause prohibits expanding the
maximum term specified by the statute simply because of inability
to pay.
[
Footnote 21]
Appellant has suggested that the fine and costs could be
collected through an installment plan, as is currently used in
several States.
E.g., Cal.Penal Code § 1205;
Mich.Comp.Laws 76.3 (1948); Pa.Stat.Ann., Tit.19, §§ 953-956
(1964).
See also American Bar Association Project,
Standards for Criminal Justice, Sentencing Alternatives and
Procedures § 2.7(b), pp. 117-123 (Approved Draft 1968).
Appellant also suggests that the trial judge could impose a
parole requirement on an indigent that he do specified work during
the day to satisfy the fine.
Cf. 50 U.S.C.App. § 456.
See also Model Penal Code § 7.02(3)(a) (Proposed
Official Draft 1962).
[
Footnote 22]
Cf. United States v. Wade, 388 U.
S. 218,
388 U. S. 239
(1967).
MR. JUSTICE HARLAN, concurring in the result.
I concur in today' judgment, but, in doing. so wish to
dissociate myself from the "equal protection" rationale employed by
the Court to justify its conclusions.
The "equal protection" analysis of the Court is, I submit, a
"wolf in sheep's clothing," for that rationale is no more than a
masquerade of a supposedly objective standard for
subjective judicial judgment as to what state legislation
offends notions of "fundamental fairness." Under the rubric of
"equal protection" this Court has in recent times effectively
substituted its own "enlightened" social philosophy for that of the
legislature no less than did in the older days the judicial
adherents of the now discredited doctrine of "substantive" due
process. I, for one, would prefer to judge the legislation before
us in this case in terms of due process, that is to determine
whether it arbitrarily infringes a constitutionally protected
interest of this appellant. Due process, as I noted in my
dissenting opinion in
Poe v. Ullman, 367 U.
S. 497,
367 U. S. 541
(1961), is more than merely a procedural safeguard; it is also a
"
bulwark . . . against arbitrary legislation.' Hurtado v.
California, 110 U. S. 516, at
110 U. S.
532." See Flemming v. Nestor, 363 U.
S. 603 (1960), and my dissenting opinion in Shapiro
v. Thompson, 394 U. S. 618,
394 U. S. 655
(1969).
Page 399 U. S. 260
The matrix of recent "equal protection" analysis is that the
"rule that statutory classifications which either are based upon
certain 'suspect' criteria or affect 'fundamental rights' will be
held to deny equal protection unless justified by a 'compelling'
governmental interest,"
Shapiro v. Thompson, supra, at
394 U. S. 658
(HARLAN, J., dissenting). In
Shapiro, Harper v. Virginia Board
of Elections, 383 U. S. 663,
383 U. S. 680
(1966), and
William v. Rhodes, 393 U. S.
23,
393 U. S. 41
(1968), I attempted to expose the weakness in the precedential and
jurisprudential foundation upon which the current doctrine of
"equal protection" sits.
See also Griffin v. Illinois,
351 U. S. 12,
351 U. S. 34-36
(1956) (dissenting opinion);
Douglas v. California,
372 U. S. 353,
372 U. S. 360
(1963) (dissenting opinion). I need not retrace the views expressed
in these cases, except to object once again to this rhetorical
preoccupation with "equalizing," rather than analyzing the
rationality of the legislative distinction in relation to
legislative purpose.
An analysis under due process standards, correctly understood,
is, in my view, more conducive to judicial restraint than an
approach couched in slogans and ringing phrases, such as "suspect"
classification or "invidious" distinctions, or "compelling" state
interest, that blur analysis by shifting the focus away from the
nature of the individual interest affected, the extent to which it
is affected, the rationality of the connection between legislative
means and purpose, the existence of alternative means for
effectuating the purpose, and the degree of confidence we may have
that the statute reflects the legislative concern for the purpose
that would legitimately support the means chosen. Accordingly, I
turn to the case at hand.
I
The State of Illinois has made the unquestionably legitimate
determination that the crime of petty larceny
Page 399 U. S. 261
should be punished by a jail term of days, up to one year, in
combination with a fine of a dollar amount. Anyone who, in the
judgment of the trial judge, should receive the stiffest penalty
known to Illinois law for this crime may, if he possesses funds,
satisfy the demands of the criminal law by paying the fine
superimposed on the jail term. If he cannot pay his debt to
society, it is surely not unequal, but, to the contrary, most
equal, that some substitute sanction be imposed lest the individual
of means be subjected to a harsher penalty than one who is
impoverished. If equal protection implications of the Court's
opinion were to be fully realized, it would require that the
consequence of punishment be comparable for all individuals; the
State would be forced to embark on the impossible task of
developing a system of individualized fines, so that the total
disutility of the entire fine, or the marginal disutility of the
last dollar taken, would be the same for all individuals.
Cf. Michelman, Foreword: On Protecting the Poor Through
the Fourteenth Amendment, 83 Harv.L.Rev. 7 (1969). Today's holding,
and those in the other so-called "equal protection" decisions,
e.g., Douglas v. California, supra; Anders v. California,
386 U. S. 738
(1967), offer no pretense to actually providing such equal
treatment. It cannot be argued that the requirement of counsel on
appeal is the right to the most skilled advocate who is
theoretically at the call of the defendant of means. However
desirable and enlightened a theory of social and economic equality
may be, it is not a theory that has the blessing of the Fourteenth
Amendment. Not
"every major social ill in this country can find its cure in
some constitutional 'principle,' and . . . this Court [is not
equipped to] 'take the lead' in promoting reform when other
branches of government fail to act. The Constitution is not a
panacea for every blot upon the public welfare, nor should this
Court, ordained as a
Page 399 U. S. 262
judicial body, be thought of as a general haven for reform
movements."
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 624-625 (1964)
(dissenting opinion).
II
The reluctance of the Court to carry its "equal protection"
approach to its most logical consequences accents what I deem to be
the true considerations involved in this case, namely, whether the
legislature has impermissibly affected an individual right, or has
done so in an arbitrary fashion.
Cf. Michelman, supra.
While legislation usually will not be deemed arbitrary if its means
can arguably be supposed to be related to a legitimate purpose
(
see my dissenting opinion in
Shapiro v. Thompson,
supra) and generally the burden of demonstrating the existence
of a rational connection between means and ends is not borne by the
State (
see Flemming v. Nestor, supra, and my dissenting
opinion in
Swann v. Adams, 385 U.
S. 440,
385 U. S. 447
(1967)), the presumption of regularity that comes with legislative
judgment is one that is not equally acceptable in all instances,
nor is it blind to the nature of the interests affected.
Thus, as a due process matter, I have subscribed to the
admonition of
Skinner v. Oklahoma, 316 U.
S. 535,
316 U. S. 541
(1942), where the Court cautioned that there are limits to the
extent to which the presumption of constitutionality can be pressed
where a "basic liberty" is concerned.
See my dissenting
opinion in
Poe v. Ullman, supra, at
367 U. S. 543.
The same viewpoint was implicit in
Flemming v. Nestor,
supra, where the Court noted the breadth of latitude to be
accorded to a legislative judgment when the interest was that of a
"noncontractual benefit under a social welfare program." 363 U.S.
at
363 U. S. 611.
Thus, while that
"interest . . . is of sufficient substance to fall within the
protection from arbitrary governmental action
Page 399 U. S. 263
afforded by the Due Process Clause,"
when that interest is the
"withholding of a noncontractual benefit under a social welfare
program . . . , we must recognize that the Due Process Clause can
be thought to interpose a bar only if the statute manifests a
patently arbitrary classification, utterly lacking in rational
justification."
Ibid.
The implication of
Flemming is, however, that the
deference owed to legislative judgment is not the same in all
cases. Thus, legislation that regulates conduct but incidentally
affects freedom of expression may, although it is a rational choice
to effectuate a legitimate legislative purpose, be invalid because
it imposes a burden on that right, or because other means,
entailing less imposition, may exist.
See NAACP v.
Alabama, 357 U. S. 449
(1958);
Lovell v. City of Griffin, 303 U.
S. 444 (1938);
Garner v. Louisiana,
368 U. S. 157,
368 U. S. 185
(1961) (concurring in the judgment);
United States v.
O'Brien, 391 U. S. 367,
391 U. S. 388
(1968) (concurring opinion).
These decisions, by no means dispositive of the case before us,
unquestionably show that this Court will squint hard at any
legislation that deprives an individual of his liberty -- his right
to remain free.
Cf. my dissenting opinion in
Poe v.
Ullman, supra. While the interest of the State, that of
punishing one convicted of crime, is no less substantial,
cf. concurring opinion of MR. JUSTICE BRENNAN in
Illinois v. Allen, 397 U. S. 337,
397 U. S. 347
(1970), the
"balance which our Nation, built upon postulates of respect for
the liberty of the individual, has struck between that liberty and
the demands of organized society,"
Poe v. Ullman, supra, at
367 U. S. 542,
"having regard to what history teaches" is not such that the
State's interest here outweighs that of the individual so as to
bring into full play the application of the usual salutary
presumption of rationality.
Page 399 U. S. 264
III
The State by this statute or any other statute fixing a penalty
of a fine, has declared its penological interest -- deterrence,
retribution, and rehabilitation -- satisfied by a monetary payment,
and disclaimed, as serving any penological purpose in such cases, a
term in jail. While there can be no question that the State has a
legitimate concern with punishing an individual who cannot pay the
fine, there is serious question in my mind whether, having declared
itself indifferent as between fine and jail, it can, consistently
with due process, refrain from offering some alternative such as
payment on the installment plan.
There are two conceivable justifications for not doing so. The
most obvious and likely justification for the present statute is
administrative convenience. Given the interest of the individual
affected, I do not think a State may, after declaring itself
indifferent between a fine and jail, rely on the convenience of the
latter as a constitutionally acceptable means for enforcing its
interest, given the existence of less restrictive alternatives.
Cf. Mullane v. Central Hanover Trust Co., 339 U.
S. 306 (1950).
The second conceivable justification is that the jail
alternative serves a penological purpose that cannot be served by
collection of a fine over time. It is clear that, having declared
itself satisfied by a fine, the alternative of jail to a fine
serves neither a rehabilitative nor a retributive interest. The
question is, then, whether the requirement of a lump-sum payment
can be sustained as a rational legislative determination that
deterrence is effective only when a fine is exacted at once after
sentence and by lump sum, rather than over a term. This is a highly
doubtful proposition, since, apart from the mere fact of conviction
and the humiliation associated with it and the token of punishment
evidenced by the forfeiture,
Page 399 U. S. 265
the deterrent effect of a fine is apt to derive more from its
pinch on the purse than the time of payment.
That the Illinois statute represents a considered judgment,
evincing the belief that jail is a rational and necessary trade-off
to punish the individual who possesses no accumulated assets, seems
most unlikely, since the substitute sentence provision, phrased in
terms of a judgment collection statute, does not impose a
discretionary jail term as an alternative sentence, but, rather,
equates days in jail with a fixed sum. Thus, given that the only
conceivable justification for this statute that would satisfy due
process -- that a lump-sum fine is a better deterrent than one
payable over a period of time -- is the one that is least likely to
represent a considered legislative judgment, I would hold this
statute invalid.
The conclusion I reach is only that, when a State declares its
penal interest may be satisfied by a fine or a forfeiture in
combination with a jail term, the administrative inconvenience in a
judgment collection procedure does not, as a matter of due process,
justify sending to jail, or extending the jail term of, individuals
who possess no accumulated assets.* I would reserve the question as
to whether a considered legislative judgment that a lump-sum fine
is the only effective kind of forfeiture for deterrence, and that
the alternative must be jail, would be constitutional. It follows
a fortiori that no conclusion reached herein casts any
doubt on the conventional "$30 or 30 days" if the legislature
decides that should be the penalty for the crime. Note,
Discriminations Against the Poor and the Fourteenth Amendment, 81
Harv.L.Rev. 435 (1967). Such a statute
Page 399 U. S. 266
evinces the perfectly rational determination that some
individuals will be adequately punished by a money fine, and
others, indifferent to money -- whether by virtue of indigency or
other reasons -- can be punished only by a jail term. Still more
patently, nothing said herein precludes the State from punishing
ultimately by jail individuals who fail to pay fines or imprisoning
immediately individuals who, in the judgment of a court, will not
undertake to pay their fines.
On these premises, I join the Court's judgment vacating
appellant's sentence and remanding to the Supreme Court of Illinois
to afford it an opportunity to instruct the sentencing judge as to
any permissible alternatives under Illinois law. It may be that
Illinois courts have the power to fashion a procedure pending
further consideration of this problem by the state legislature.
Cf. Rosado v. Wyman, 397 U. S. 397,
397 U. S.
421-422 (170), and my opinion concurring in the result
in
Welsh v. United States, 398 U.
S. 333,
398 U. S. 344
(1970).
* In this regard, unlike the Court, I see no distinction between
circumstances where the State. through its judicial agent,
determines that effective punishment requires less than the maximum
prison term plus a fine, or a fine alone, and the circumstances of
this case.