Petitioner, who pleaded guilty to a crime and was given a
probationary sentence, conditioned upon his complying with a jail
work-release program permitting him to attend college and also upon
his reimbursing the county for the fees and expenses of an attorney
and investigator whose services had been provided him because of
his indigency, attacks the constitutionality of Oregon's recoupment
statute, which was upheld on appeal. That law requires convicted
defendants who are indigent at the time of the criminal proceedings
against them but who subsequently acquire the financial means to do
so, to repay the costs of their legal defense. Defendants with no
likelihood of having the means to repay are not even conditionally
obligated to do so, and those thus obligated are not subjected to
collection procedures until their indigency has ended and no
manifest hardship will result.
1. The Oregon recoupment scheme does not violate the Equal
Protection Clause of the Fourteenth Amendment. Pp. 417 U. S.
(a) The statute retains all the exemptions accorded to other
judgment debtors, in addition to the opportunity to show that
recovery of legal defense costs will impose "manifest hardship."
James v. Strange, 407 U. S. 128
distinguished. Pp. 417 U. S.
(b) The statutory distinction between those who are convicted,
on the one hand, and those who are not or whose convictions are
reversed, on the other, is not an invidious classification, since
the Legislative decision not to impose a repayment obligation on a
defendant forced to submit to criminal prosecution that does not
end in conviction is objectively rational. Pp. 417 U. S.
2. The Oregon law does not infringe upon a defendant's right to
counsel, since the knowledge that he may ultimately have to repay
the costs of legal services does not affect his ability to obtain
such services. The challenged statute is thus not similar to a
provision that "chill[s] the assertion of constitutional rights by
penalizing those who choose to exercise them," United States v.
Jackson, 390 U. S. 570
390 U. S. 581
Pp. 417 U. S.
12 Ore.App. 152, 504
Page 417 U. S. 41
STEWART J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
DOUGLAS, J., filed an opinion concurring in the judgment,
p. 417 U. S. 54
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 417 U. S.
MR. JUSTICE STEWART delivered the opinion of the Court.
In this case, we are called upon to determine whether Oregon may
constitutionally require a person convicted of a criminal offense
to repay to the State the costs of providing him with effective
representation of counsel, when he is indigent at the time of the
criminal proceedings but subsequently acquires the means to bear
the costs of his legal defense.
The petitioner Fuller pleaded guilty, on July 20, 1972, to an
information charging him with sodomy in the third degree. [Footnote 1
] At the hearing on the plea
and in other court proceedings, he was represented by a local
member of the bar appointed by the court upon the petitioner's
representation that he was indigent and unable to hire a lawyer.
Fuller's counsel, in turn, hired an investigator to aid in
gathering facts for his defense, and the investigator's fees were
also assumed by the State. Fuller was
Page 417 U. S. 42
subsequently sentenced to five years of probation, conditioned
upon his satisfactorily complying with the requirements of a
work-release program at the county jail that would permit him to
attend college, and also upon his reimbursement to the county of
the fees and expenses of the attorney and investigator whose
services had been provided him because of his indigent status. On
appeal to the Oregon Court of Appeals, his principal contention was
that the State could not constitutionally condition his probation
on the repayment of these expenses. [Footnote 2
] With one judge dissenting, the imposition of
his sentence was affirmed, 12 Ore.App. 152, 504
, and the Supreme Court of Oregon subsequently denied
Fuller's petition for review. Because of the importance of the
question presented and the conflict of opinion on the
constitutional issue involved, [Footnote 3
] we granted certiorari, 414 U.S. 1111.
Page 417 U. S. 43
We begin with consideration of the plan and operation of the
challenged statute. By force of interpretation of the State's
Constitution and comprehensive legislation, Oregon mandates that
every defendant in a criminal case must be assigned a lawyer at
state expense if "[i]t appears to the court that the defendant is
without means and is unable to obtain counsel." Ore.Rev.Stat. §
135.050(1)(d) (1973). [Footnote
] As part of a recoupment statute passed in 1971, Oregon
requires that, in some cases, all or part of the "expenses
specially incurred by the state in prosecuting the defendant," §
161.665(2), be repaid to the State, and that, when a convicted
person is placed on probation, repayment of such expenses may be
made a condition of probation. [Footnote 5
] These expenses include the costs of the
convicted person's legal defense. [Footnote 6
Page 417 U. S. 44
As the Oregon appellate court noted in its opinion in this case,
however, the requirement of repayment "is never mandatory." 12
Ore.App. at 156, 504 P.2d
Page 417 U. S. 45
at 1395. Rather, several conditions must be satisfied before a
person may be required to repay the costs of his legal defense.
First, a requirement of repayment may be imposed only upon a
defendant; those who are acquitted, whose trials
end in mistrial or dismissal, and those whose convictions are
overturned upon appeal face no possibility of being required to
pay. Ore.Rev.Stat. § 161.665(1). Second, a court may not order a
convicted person to pay these expenses unless he "is or will be
able to pay them." § 161.665(3). The sentencing court must "take
account of the financial resources of the defendant and the nature
of the burden that payment of costs will impose." Ibid.
the Oregon court put the matter in this case, no requirement to
repay may be imposed if it appears at the time of sentencing that
"there is no likelihood that a defendant's indigency will end. . .
." 12 Ore.App. at 159, 504 P.2d at 1397. Third, a convicted person
under an obligation to repay "may at any time petition the court
which sentenced him for remission of the payment of costs or of any
unpaid portion thereof." Ore.Rev.Stat. § 161.665(4). The court is
empowered to remit if payment "will impose manifest hardship on the
defendant or his immediate
Page 417 U. S. 46
family. . . ." Ibid.
Finally, no convicted person may
be held in contempt for failure to repay if he shows that
"his default was not attributable to an intentional refusal to
obey the order of the court or to a failure on his part to make a
good faith effort to make the payment. . . ."
Thus, the recoupment statute is quite clearly directed only at
those convicted defendants who are indigent at the time of the
criminal proceedings against them but who subsequently gain the
ability to pay the expenses of legal representation. Defendants
with no likelihood of having the means to repay are not put under
even a conditional obligation to do so, and those upon whom a
conditional obligation is imposed are not subjected to collection
procedures until their indigency has ended and no "manifest
hardship" will result. The contrast with appointment of counsel
procedures in States without recoupment requirements [Footnote 7
] is thus relatively small: a
lawyer is provided at the expense of the State to all defendants
who are unable, even momentarily, to hire one, and the obligation
to repay the State accrues only to those who later acquire the
means to do so without hardship.
The petitioner's first contention is that Oregon's recoupment
system violates the Equal Protection Clause of the Fourteenth
Amendment because of various classifications explicitly or
implicitly drawn by the legislative provisions. He calls attention
to our decision in James v. Strange, 407 U.
, which held invalid under the Equal Protection
Clause a law enacted by Kansas that
Page 417 U. S. 47
was somewhat similar to the legislation now before us. But the
offending aspect of the Kansas statute was its provision that, in
an action to compel repayment of counsel fees,
"[n]one of the exemptions provided for in the code of civil
procedure [for collection of other judgment debts] shall apply to
any such judgment . . . ,"
Kan.Stat.Ann. § 22-4513(a) (Supp. 1971), a provision which
"strip[ped] from indigent defendants the array of protective
exemptions Kansas has erected for other civil judgment debtors. . .
." 407 U.S. at 407 U. S. 135
] The Court found
that the elimination of the exemptions normally available to
judgment debtors "embodie[d] elements of punitiveness and
discrimination which violate the rights of citizens to equal
treatment under the law." Id.
at 407 U. S.
The Oregon statute under consideration here suffers from no such
infirmity. As the Oregon Court of Appeals observed, "[n]o denial of
the exemptions from execution afforded to other judgment debtors is
included in the Oregon statutes." 12 Ore.App. at 159, 504 P.2d at
1397. Indeed, a separate provision directs that
"[a] judgment that the defendant pay money, either as a fine or
as costs and disbursements of the action, or both, shall be
docketed as a judgment in a civil action and with like effect. . .
Ore.Rev.Stat. § 137.180. The convicted person from whom
recoupment is sought thus retains all the exemptions accorded other
judgment debtors, in addition to the opportunity to show at any
time that recovery of the costs of his legal defense will impose
"manifest hardship," § 161.665(4). The legislation before us,
Page 417 U. S. 48
therefore, is wholly free of the kind of discrimination that was
held in James v. Strange
to violate the Equal Protection
Clause. [Footnote 9
The petitioner contends further, however, that the Oregon
statute denies equal protection of the laws in another way -- by
discriminating between defendants who
Page 417 U. S. 49
are convicted, on the one hand, and those who are not convicted
or whose convictions are reversed, on the other. Our review of this
distinction, of course, is a limited one. As the Court stated in
James v. Strange:
"We do not inquire whether this statute
is wise or desirable. . . . Misguided laws may nonetheless be
constitutional." 407 U.S. at 407 U. S. 133
Our task is merely to determine whether there is "some rationality
in the nature of the class singled out." Rinaldi v.
Yeager, 384 U. S. 305
384 U. S.
-309. See also McGinnis v. Royster,
410 U. S. 263
McGowan v. Maryland, 366 U. S. 420
the Court found impermissible New Jersey's
decision to single out prisoners confined to state institutions for
imposition of an obligation to repay to the State costs incurred in
providing free transcripts of trial court proceedings required by
this Court's decision in Griffin v. Illinois, 351 U. S.
. The legislative decision to tax those confined to
prison but not those also convicted but given a suspended sentence,
probation, or a fine without imprisonment was found to be
invidiously discriminatory, and thus violative of the requirements
of the Equal Protection Clause. In the case before us, however, the
sole distinction is between those who are ultimately convicted and
those who are not. [Footnote
We conclude that this classification is wholly noninvidious. A
defendant whose trial ends without conviction
Page 417 U. S. 50
or whose conviction is overturned on appeal has been seriously
imposed upon by society without any conclusive demonstration that
he is criminally culpable. His life has been interrupted and
subjected to great stress, and he may have incurred financial
hardship through loss of job or potential working hours. His
reputation may have been greatly damaged. The imposition of such
dislocations and hardships without an ultimate conviction is, of
course, unavoidable in a legal system that requires proof of guilt
beyond a reasonable doubt and guarantees important procedural
protections to every defendant in a criminal trial. But Oregon
could surely decide with objective rationality that, when a
defendant has been forced to submit to a criminal prosecution that
does not end in conviction, he will be freed of any potential
liability to reimburse the State for the costs of his defense. This
legislative decision reflects no more than an effort to achieve
elemental fairness, and is a far cry from the kind of invidious
discrimination that the Equal Protection Clause condemns. [Footnote 11
Page 417 U. S. 51
The petitioner's second basic contention is that Oregon's
recoupment statute infringes upon his constitutional right to have
counsel provided by the State when he is unable because of
indigency to hire a lawyer. Gideon v. Wainwright,
372 U. S. 335
Argersinger v. Hamlin, 407 U. S. 25
argument is not that the legal representation actually provided in
this case was ineffective or insufficient. Nor does the petitioner
claim that the fees and expenses he may have to repay constitute
unreasonable compensation for the defense provided him. Rather, he
asserts that a defendant's knowledge that he may remain under an
obligation to repay the expenses incurred in providing him legal
representation might impel him to decline the services of an
appointed attorney, and thus "chill" his constitutional right to
This view was articulated by the Supreme Court of California, in
a case invalidating California's recoupment legislation, in the
"[W]e believe that, as knowledge of [the recoupment] practice
has grown and continues to grow, many indigent defendants will come
to realize that the judge's offer to supply counsel is not the
gratuitous offer of assistance that it might appear to be; that, in
the event the case results in a grant of probation, one of the
conditions might well be the reimbursement of the county for the
expense involved. This knowledge is quite likely to deter or
discourage many defendants from accepting the offer of counsel
despite the gravity of the need for such representation as
emphasized by the [Supreme] [C]ourt in Gideon.
. . ."
In re Allen, 71 Cal. 2d
, 391, 455 P.2d 143, 144.
Page 417 U. S. 52
We have concluded that this reasoning is wide of the
The focal point of this Court's decisions securing the right to
state-appointed counsel for indigents was the "noble ideal" that
every criminal defendant be guaranteed not only
"procedural and substantive safeguards designed to assure fair
trials before impartial tribunals in which every defendant stands
equal before the law,"
but also the expert advice necessary to recognize and take
advantage of those safeguards. Gideon v. Wainwright,
at 372 U. S. 344
In the now familiar words of the Court's seminal opinion in
Powell v. Alabama, 287 U. S. 45
287 U. S. 68
quoted in Gideon
at 372 U. S.
"The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of
counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because
he does not know how to establish his innocence."
Oregon's system for providing counsel quite clearly does not
deprive any defendant of the legal assistance necessary to meet
these needs. As the State Court of Appeals observed in this case,
an indigent is entitled to
Page 417 U. S. 53
free counsel "when he needs it" -- that is, during every stage
of the criminal proceedings against him. 12 Ore.App. at 1515, 504
P.2d at 136. The fact that an indigent who accepts state-appointed
legal representation knows that he might someday be required to
repay the costs of these services in no way affects his eligibility
to obtain counsel. The Oregon statute is carefully designed to
insure that only those who actually become capable of repaying the
State will ever be obliged to do so. [Footnote 12
] Those who remain indigent or for whom
repayment would work "manifest hardship" are forever exempt from
any obligation to repay.
We live in a society where the distribution of legal assistance,
like the distribution of all goods and services, is generally
regulated by the dynamics of private enterprise. A defendant in a
criminal case who is just above the line separating the indigent
from the nonindigent must borrow money, sell off his meager assets,
or call upon his family or friends in order to hire a lawyer. We
cannot say that the Constitution requires that those only slightly
poorer must remain forever immune from any
Page 417 U. S. 54
obligation to shoulder the expenses of their legal defense, even
when they are able to pay without hardship.
This case is fundamentally different from our decisions relied
on by the petitioner which have invalidated state and federal laws
that placed a penalty on the exercise of a constitutional right.
See Uniformed Sanitation Men v. Sanitation Comm'r,
392 U. S. 280
Gardner v. Broderick, 392 U. S. 273
United States v. Jackson, 390 U.
. Unlike the statutes found invalid in those
cases, where the provisions "had no other purpose or effect than to
chill the assertion of constitutional rights by penalizing those
who choose to exercise them," id.
at 390 U. S. 581
Oregon's recoupment statute merely provides that a convicted person
who later becomes able to pay for his counsel may be required to do
so. Oregon's legislation is tailored to impose an obligation only
upon those with a foreseeable ability to meet it, and to enforce
that obligation only against those who actually become able to meet
it without hardship.
The judgment of the Court of Appeals of Oregon is affirmed.
It is so ordered.
Other charges contained in the information against Fuller were
dismissed when his guilty plea was accepted.
In addition, Fuller argued that the section of the Oregon
recoupment statute authorizing an obligation to repay "expenses
specially incurred by the state in prosecuting the defendant,"
Ore.Rev.Stat. § 161.665(2), see n
was not intended by the state
legislature to include counsel fees. This issue of state law was
resolved against the petitioner in the state court, and properly is
not raised here. Murdock v. City of
20 Wall. 590.
Courts of some other States, in reviewing legislation similar to
that, in question here, have expressed views on the
constitutionality of the recoupment of defense costs inconsistent
with the decision of the Oregon Court of Appeals in this case.
In re Allen, 71 Cal. 2d
, 455 P.2d 143; Opinion of the Justices,
508, 256 A.2d 500; State ex rel. Brundage v.
Eide, 83 Wash. 2d
, 521 P.2d
. Cf. Strange v. James, 323 F.
(Kan.), aff'd on other grounds,
407 U. S. 128
American Bar Association Project on
Standards for Criminal Justice, Providing Defense Services § 6.4,
pp. 58-59 (Approved Draft 1968); Comment, Reimbursement of Defense
Costs as a Condition of Probation for Indigents, 67 Mich.L.Rev.
1404 (1969); Comment, Charging Costs of Prosecution to the
Defendant, 59 Geo.L.J. 991 (1971).
Ore.Rev.Stat. § 135.050(3)(a) (1973) directs that counsel be
appointed for an indigent defendant when he is "[c]harged with a
Ore.Rev.Stat. § 161.665 provides:
"(1) The court may require a convicted defendant to pay
"(2) Costs shall be limited to expenses specially incurred by
the state in prosecuting the defendant. They cannot include
expenses inherent in providing a constitutionally guaranteed jury
trial or expenditures in connection with the maintenance and
operation of government agencies that must be made by the public
irrespective of specific violations of law."
"(3) The court shall not sentence a defendant to pay costs
unless the defendant is or will be able to pay them. In determining
the amount and method of payment of costs, the court shall take
account of the financial resources of the defendant and the nature
of the burden that payment of costs will impose."
"(4) A defendant who has been sentenced to pay costs and who is
not in contumacious default in the payment thereof may at any time
petition the court which sentenced him for remission of the payment
of costs or of any unpaid portion thereof. If it appears to the
satisfaction of the court that payment of the amount due will
impose manifest hardship on the defendant or his immediate family,
the court may remit all or part of the amount due in costs, or
modify the method of payment under ORS 161.675."
Ore.Rev.Stat. § 161.675 provides:
"(1) When a defendant is sentenced to pay a fine or costs, the
court may grant permission for payment to be made within a
specified period of time or in specified instalments. If no such
permission is included in the sentence the fine shall be payable
"(2) When a defendant sentenced to pay a fine or costs is also
placed on probation or imposition or execution of sentence is
suspended, the court may make payment of the fine or costs a
condition of probation or suspension of sentence."
Ore.Rev.Stat. § 161.685 provides:
"(1) When a defendant sentenced to pay a fine defaults in the
payment thereof or of any installment, the court on motion of the
district attorney or upon its own motion may require him to show
cause why his default should not be treated as contempt of court,
and may issue a show cause citation or a warrant of arrest for his
"(2) Unless the defendant shows that his default was not
attributable to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith effort to
make the payment, the court may find that his default constitutes
contempt and may order him committed until the fine, or a specified
part thereof, is paid."
"(3) When a fine is imposed on a corporation or unincorporated
association, it is the duty of the person authorized to make
disbursement from the assets of the corporation or association to
pay the fine from those assets, and his failure to do so may be
held to be contempt unless he makes the showing required in
subsection (2) of this section."
" (4) The term of imprisonment for contempt for nonpayment of
fines shall be set forth in the commitment order and shall not
exceed one day for each $25 of the fine, 30 days if the fine was
imposed upon conviction of a violation or misdemeanor, or one year
in any other case, whichever is the shorter period. A person
committed for nonpayment of a fine shall be given credit toward
payment for each day of imprisonment at the rate specified in the
"(5) If it appears to the satisfaction of the court that the
default in the payment of a fine is not contempt, the court may
enter an order allowing the defendant additional time for payment,
reducing the amount thereof or of each installment or revoking the
fine or the unpaid portion thereof in whole or in part."
"(6) A default in the payment of a fine or costs or any
installment thereof may be collected by any means authorized by law
for the enforcement of a judgment. The levy of execution for the
collection of a fine shall not discharge a defendant committed to
imprisonment for contempt until the amount of the fine has actually
The recoupment provisions of other States are set out in the
Court's opinion in James v. Strange, 407 U.
, 407 U. S.
-133, and n. 8. The federal reimbursement provision
is found in 18 U.S.C. § 3006A(f).
The Kansas statute allowed only one exception from the blanket
denial of exemptions usually available to judgment debtors,
permitting debtors upon whom judgments for costs of legal defense
were executed to maintain their homesteads intact. 407 U.S. at
407 U. S.
The dissenting opinion today argues that Fuller's conditional
obligation to repay constitutes an impermissible discrimination
based on wealth in violation of the Equal Protection Clause. More
precisely, the argument is made that, unlike a nonindigent
defendant, an indigent defendant's "failure to pay his debt can
result in his being sent to prison." Post
at 417 U. S. 60
This contention was not made in the petitioner's brief or oral
argument before this Court, and appears not to have been raised in
the Oregon courts. It is, therefore, not properly before us.
Furthermore, insofar as the dissent deals with Art.
1, § 19, of the Oregon Constitution, which forbids "imprisonment
for debt," the dissent purports to resolve questions of state law
that this Court does not have power to decide. Murdock v.
City of Memphis,
20 Wall. 590.
More fundamentally, the imposition of a repayment requirement
upon those for whom counsel was appointed but not upon those who
hired their own counsel simply does not constitute invidious
discrimination against the poor. Indeed, the entire thrust of
Oregon's appointment of counsel plan is to insure an indigent
effective representation of counsel at all significant steps of the
criminal process. Those who are indigent may be conditionally
required to repay because only they, in contrast to nonindigents,
were provided counsel by the State in the first place. Moreover,
the fact that a conditional requirement to repay may be made a
condition of probation does not mean that the State "impose[s]
unduly harsh or discriminatory terms merely because the obligation
is to the public treasury, rather than to a private creditor."
James v. Strange,
407 U.S. at 407 U. S. 138
Under Oregon's recoupment statute, revocation of probation is not a
collection device used by the State to enforce debts to it, but is
a sanction imposed for "an intentional refusal to obey the order of
the court," Ore.Rev.Stat. § 161.685(2). Since an order to repay can
be entered only when a convicted person is financially able but
unwilling to reimburse the State, the constitutional invalidity
found in James v. Strange
simply does not exist.
The petitioner also claims in his brief that a requirement to
repay legal defense expenses has been imposed only on convicted
defendants placed on probation, and "has not been applied to those
convicted indigents who were sentenced to terms of imprisonment."
While this distinction might well be justified on the ground that
those released on probation are more likely than those incarcerated
to have the ability to earn money to repay, we need not reach this
issue, since the statute itself makes no such distinction and the
petitioner has not demonstrated on this record that the State has
engaged in any pattern or practice embracing it.
The petitioner's brief also raises, without extended discussion,
various due process claims that imposition of the conditional
obligation to repay was made without sufficient notice or hearing.
Since these contentions appear not to have been raised in the state
courts, and were not discussed by the Oregon Court of Appeals, we
need not reach them here.
"[T] his Court has stated that, when . . . the highest state
court has failed to pass upon a federal question, it will be
assumed that the omission was due to want of proper presentation in
the state courts, unless the aggrieved party in this Court can
affirmatively show the contrary."
Street v. New York, 394 U. S. 576
394 U. S. 582
We note in passing, however, that the recoupment statutes,
including a schedule of fees, were published in the Oregon Revised
Statutes at the time of the petitioner's plea, and further that
both Oregon's judgment execution statute and its parole revocation
procedures provide for a hearing before execution can be levied or
The limitation of the obligation to repay to those who are found
able to do so also disposes of the argument, presented by an
that revocation of probation for failure to
pay constitutes an impermissible discrimination based on wealth.
See Tate v. Short, 401 U. S. 395
Williams v. Illinois, 399 U. S. 235
the Court stated in Tate v. Short:
"We emphasize that our holding today does not suggest any
constitutional infirmity in imprisonment of a defendant with the
means to pay a fine who refuses or neglects to do so."
401 U.S. at 401 U. S.
Similarly, the wording of Oregon's statute makes it clear that a
determination that an indigent "will be able" to make subsequent
repayment is a condition necessary for the initial imposition of
the obligation to make repayment, but is not itself a condition for
granting probation, or even a factor to be considered in
determining whether probation should be granted.
MR. JUSTICE DOUGLAS, concurring in the judgment.
The petitioner in this case, charged with a felony, received
court-appointed counsel, which is available in Oregon to a
defendant who executes a statement that he is unable to obtain
counsel, when it appears to the court that the defendant is without
means. Ore.Rev.Stat. § § 135.050(1)(c), (d) (1973). Petitioner was
convicted, and sentenced to five years' probation. One of the
conditions of probation was that petitioner reimburse the county
for the cost of his appointed attorney's fees and for the expenses
of a defense investigator. [Footnote
] These costs were
Page 417 U. S. 55
assessed pursuant to the Oregon recoupment statute, §§
161.665-161.685, which authorizes the sentencing court to require a
convicted defendant to pay certain costs [Footnote 2/2
] and to condition probation on such
Although a defendant might have been indigent at the time of
trial, the Oregon statutory scheme recognizes that, at some point
after trial, a defendant may escape from indigency. As noted, the
recoupment statute thus allows the court to require a convicted
defendant to pay costs. § 161.665(1). Payment of the costs may be
made a condition of probation. § 161.675(2). But it forbids the
court to impose such a requirement at the time of sentencing unless
the defendant at that time "is or will be able to" pay those costs,
and requires the court to consider the "nature of the burden that
payment of costs will impose" on the defendant. § 161.665(3). Under
the statute, a court which has sentenced a defendant to pay costs
may remit the payment of the amount due, or modify the method of
payment, if it appears that the payment will impose manifest
hardship on the defendant or his immediate family. §
Page 417 U. S. 56
The Court of Appeals of Oregon construed the statutory scheme in
this case to limit sharply the discretion of the trial court to
require the repayment of costs. 12 Ore.App. 152, 504 P.2d
. As the court interpreted the statute, a defendant can be
required to repay appointed counsel's fee "only if and when he
is no longer indigent.
at 159, 504 P.2d at 1397
(emphasis added). While payment of costs may be made a condition of
probation, probation can be revoked only if the court specifically
"(1) the defendant has the present financial ability to repay
the costs involved (either all or by installments) without hardship
to himself or his family . . . and
(2) the defendant's
failure to repay . . . is an intentional, contumacious default. . .
Revocation is improper if both of these elements
are not established.
The narrow construction of the Oregon recoupment statute in this
case disposes of petitioner's claim that the statute "chills" the
exercise of the right to counsel. Repayment cannot be required
until a defendant is able to pay the costs, and probation cannot be
revoked for nonpayment unless there is a specific finding that
payment would not work hardship on a defendant or his family. Under
these circumstances, the "chill" on the exercise of the right to
counsel is no greater than that imposed on a nonindigent defendant
without great sums of money. Even though such a defendant can
afford counsel, he might well be more ready to accept free
appointed counsel than to retain counsel himself. Yet a State is
not therefore required by the Federal Constitution to provide
appointed counsel for nonindigent defendants. [Footnote 2/3
Page 417 U. S. 57
Nor is it a denial of equal protection to assess costs only
against those defendants who are convicted. The acquitted defendant
has prevailed at trial in defending against the charge brought by
the State. It is rational that the State not recover costs from
such a defendant while recovering costs from a defendant who has
been found guilty beyond a reasonable doubt of the crime that
necessitated the trial. Similarly, too, it is rational not to
assess defendants against whom charges have been dismissed, since
the State has not proved its charges against them. [Footnote 2/4
My Brother MARSHALL argues that the Oregon recoupment statute
denies indigent defendants equal protection of the laws in that it
contemplates revocation of probation and subsequent imprisonment
for nonpayment of counsel fees. He notes that Art. 1, § 19, of the
Oregon Constitution provides that "[t]here shall be no imprisonment
for debt, except in case of fraud or absconding debtors," and
argues that a defendant who failed to pay a bill to his retained
counsel could not be imprisoned.
I do not believe that this claim was properly preserved below or
is properly before this Court. Petitioner did argue that the
possibility of imprisonment for debts owed the State under the
recoupment statute denied him equal protection, but there is no
indication that the Oregon Court of Appeals was alerted to the
Page 417 U. S. 58
posed by Art. 1, § 19. Petitioner did not even mention the
section in his brief before this Court. [Footnote 2/5
] Yet there is, as my Brother MARSHALL
notes, an apparent inconsistency between Art. 1, § 19, and the
recoupment statute. It may be, therefore, that the Oregon courts
would strike down the statute as being inconsistent with the
constitutional provision if they faced the issue. But on the record
of this case, they have not made that determination of state law.
Nor can we assume that the Oregon courts have, in fact, implicitly
rejected the applicability of Art. 1, § 19, in upholding the
recoupment statute in this case; there is no evidence that an
Oregon court must, or even may, sua sponte,
arguments not argued or briefed to it. While this Court may at
times adopt theories different from those urged by counsel or urged
before the state courts when resolving a particular question,
see Dewey v. Des Moines, 173 U. S. 193
173 U. S. 198
cf. Stanley v. Illinois, 405 U. S. 645
405 U. S. 658
n. 10, it will not pass on questions substantively different from
those presented to the state courts, even when the federal claim is
nominally based on the same federal constitutional clause relied on
before the state courts, see Wilson v. Cook, 327 U.
, 327 U. S. 48
More crucially, the federal Equal Protection Clause could be
violated in this case only if a particular construction of state
law were to be adopted by the state
Page 417 U. S. 59
courts. That construction was not adopted on the record before
us, and we cannot simply assume that the state court would so rule
and strike down the state statute on the basis of that
For these reasons, I do not reach the merits of the equal
protection question presented by the dissent. And since that
question is not properly before us, I believe that the Court errs
in rendering an advisory opinion on the merits, an error compounded
by the absence of any record below amplifying those merits. The
Court not only renders an advisory opinion; it renders it in a
vacuum. The proper construction of state law, and the proper
resolution of the dependent equal protection claim, would properly
be raised by another litigant or by petitioner by way of collateral
In view of the manner in which the application of the recoupment
statute has been stringently narrowed by the Court of Appeals of
Oregon, and because the claim urged by the dissent is not properly
before the Court, I concur in the judgment of the Court.
In this case, the petitioner's father apparently paid the costs,
and petitioner will repay his father.
The costs which can be assessed are limited by statute to those
"specially incurred" by the State in prosecuting a defendant.
Ore.Rev.Stat. § 161.665(2). The Oregon Court of Appeals found that
most costs on the prosecution side of the case could not be charged
to a defendant, including police investigations, district
attorneys' salaries, and sheriffs' salaries. 12 Ore.App. 152, 157,
, 1396. Also, jury fees and the costs of summoning
jurors cannot be charged to the defendant. Ibid.; see
Ore.Rev.Stat. § 161.665(2). The costs which can be charged appear
limited to those incurred for a defendant's benefit, such as
defense counsel, defense investigators, and so on, which would be
borne by a nonindigent defendant in a criminal trial. In addition,
the Oregon statutory scheme places limits on the fees which an
appointed counsel can receive, except in "extraordinary
circumstances," thus limiting the eventual responsibility of a
defendant under the recoupment statute. § 135.055.
Indeed, while a defendant who is not indigent at the time of
trial must pay counsel fees even if acquitted, the Oregon
recoupment statutes do not permit the assessment of costs against a
defendant who is not convicted.
Petitioner, relying on James v. Strange, 407 U.
, also claims that the recoupment statute is
impermissible because it fails to provide the same exemptions from
execution provided other Oregon debtors. The Oregon Court of
Appeals in this case held that all exemptions provided other
debtors also apply under the recoupment statute. 12 Ore.App. at
159, 504 P.2d at 1397. Petitioner's claim that the statute deprives
him of due process was not raised below, and hence is not before
The opinion of the Oregon Court of Appeals, including the
dissent, does not mention Art. 1, § 19. Petitioner's equal
protection argument here was based on claims that the recoupment
statute did not provide the same statutory exemptions granted other
Oregon debtors, discriminated against convicted defendants as
opposed to acquitted defendants and defendants who had charges
dismissed, and favored defendants who were sentenced to the
penitentiary. The Art. 1, § 19, problem was brought to the
attention of the Court only by the amicus curiae
the National Legal Aid and Defender Association.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
In my view, the Oregon recoupment statute at issue in this case
discriminates against indigent defendants in violation of the Equal
Protection Clause and the principles established by this Court in
James v. Strange, 407 U. S. 128
(1972). In that case, we held unconstitutional under the Equal
Protection Clause a Kansas recoupment statute because it failed to
provide equal treatment between indigent defendants and other civil
judgment debtors. We relied on the fact that indigent defendants
were not entitled to the protective exemptions Kansas had erected
for other civil judgment debtors.
The Oregon recoupment statute at issue here similarly provides
unequal treatment between indigent defendants
Page 417 U. S. 60
and other civil judgment debtors. The majority obfuscates the
issue in this case by focusing solely on the question whether the
Oregon statute affords an indigent defendant the same protective
exemptions provided other civil debtors. True, as construed by the
Oregon Court of Appeals, the statute does not discriminate in this
regard. But the treatment it affords indigent defendants remains
unequal in another, even more fundamental, respect. The important
fact which the majority ignores is that, under Oregon law, the
repayment of the indigent defendant's debt to the State can be made
a condition of his probation, as it was in this case. Petitioner's
failure to pay his debt can result in his being sent to prison. In
this respect, the indigent defendant in Oregon, like the indigent
defendant in James v. Strange,
is treated quite
differently from other civil judgment debtors.
Petitioner's "predicament under this statute comes into sharper
focus when compared with that of one who has hired counsel in his
defense." 407 U.S. at 407 U. S. 136
Article 1, § 19, of the Oregon Constitution provides that "[t]here
shall be no imprisonment for debt, except in case of fraud or
absconding debtors." Hence, the nonindigent defendant in a criminal
case in Oregon who does not pay his privately retained counsel,
even after he obtains the means to do so, cannot be imprisoned for
such failure. The lawyer in that instance must enforce his judgment
through the normal routes available to a creditor -- by attachment,
lien, garnishment, or the like. Petitioner, on the other hand,
faces five years behind bars if he fails to pay his "debt" arising
out of the appointment of counsel.
Article 1, § 19, of the Oregon Constitution is representative of
a fundamental state policy consistent with the modern rejection of
the practice of imprisonment for debt as unnecessarily cruel and
Page 417 U. S. 61
Since Oregon chooses not to provide imprisonment for debt for
well-heeled defendants who do not pay their retained counsel, I do
not believe it can, consistent with the Equal Protection Clause,
imprison an indigent defendant for his failure to pay the costs of
his appointed counsel. [Footnote
] For as we held in James v. Strange,
a State may
not "impose unduly harsh or discriminatory terms merely because the
obligation is to the public treasury, rather than to a private
creditor." 407 U.S. at 407 U. S.
I would therefore hold the Oregon recoupment statute
unconstitutional under the Equal Protection Clause insofar as it
permits payment of the indigent defendant's debt to be made a
condition of his probation. [Footnote
] I respectfully dissent.
The majority argues that we have recognized no constitutional
infirmity in imprisoning a defendant with the means to pay a fine
who refuses or neglects to do so. Ante
at 417 U. S. 53
12. This case does not involve a fine, however, but rather
enforcement of a debt for legal services. The fact remains that
Oregon imprisons a defendant with appointed counsel who refuses or
neglects to pay his debt for legal services even though able to
pay, but does not imprison a defendant with retained counsel in the
In light of my disposition of the equal protection claim, I have
no occasion to consider petitioner's contention that some other
defendant's knowledge that he may have to reimburse the State for
providing him legal representation might impel him to decline the
services of an appointed attorney, and thus chill his Sixth
Amendment right to counsel. In any event, in my view, such a claim
could more appropriately be considered by this Court in the context
of an actual case involving a defendant who, unlike petitioner, had
refused appointed counsel and contended that his refusal was not a
knowing and voluntary waiver of his Sixth Amendment rights because
it was based upon his fear of bearing the burden of a debt for
appointed counsel or upon his failure to understand the limitations
the State imposes on such a debt.