Illinois law gives every person convicted in a criminal trial a
right of review by writ of error; but a full direct appellate
review can be had only by furnishing the appellate court with a
bill of exceptions or report of the trial proceedings, certified by
the trial judge, and it is sometimes impossible to prepare such
documents without a stenographic transcript of the trial
proceedings, which are furnished free only to indigent defendants
sentenced to death. Convicted in an Illinois state court of armed
robbery, petitioners moved in the trial court that a certified copy
of the entire record, including a stenographic transcript of the
proceedings, be furnished to them without cost. They alleged that
they were without funds to pay for such documents, and that failure
of the court to provide them would violate the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. Their motion
was denied. They then filed a petition under the Illinois
Post-Conviction Hearing Act, under which only questions arising
under the State or Federal Constitution may be raised. They alleged
that there were manifest nonconstitutional errors in the trial
which entitled them to have their convictions set aside on appeal,
that the only impediment to full appellate review was their lack of
funds to buy a transcript, and that refusal to afford full
appellate review solely because of their poverty was a denial of
due process and equal protection. This petition was dismissed, and
the Illinois Supreme Court affirmed, solely on the ground that the
petition raised no substantial state or federal constitutional
question.
Held: Petitioners' constitutional rights were violated,
the judgment of the Illinois Supreme Court is vacated, and the
cause is remanded to that Court for further action affording
petitioners adequate and effective appellate review. Pp.
351 U. S.
13-26.
Judgment vacated, and cause remanded.
Page 351 U. S. 13
MR. JUSTICE BLACK announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR.
JUSTICE CLARK join.
Illinois law provides that "Writs of error in all criminal cases
are writs of right and shall be issued of course." [
Footnote 1] The question presented here is
whether Illinois may, consistent with the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, administer this
statute so as to deny adequate appellate review to the poor, while
granting such review to all others.
The petitioners Griffin and Crenshaw were tried together and
convicted of armed robbery in the Criminal Court of Cook County,
Illinois. Immediately after their conviction, they filed a motion
in the trial court asking that a certified copy of the entire
record, including a stenographic transcript of the proceedings, be
furnished them without cost. They alleged that they were "poor
persons with no means of paying the necessary fees to acquire the
Transcript and Court Records needed to prosecute an appeal. . . ."
These allegations were not denied. Under Illinois law, in order to
get full direct appellate review of alleged errors by a writ of
error, it is necessary for the defendant to furnish the appellate
court with a bill of exceptions or report of proceedings at the
trial certified by the trial judge. [
Footnote 2] As Illinois concedes, it is sometimes
Page 351 U. S. 14
impossible to prepare such bills of exceptions [
Footnote 3] or reports without a stenographic
transcript of the trial proceedings. [
Footnote 4] Indigent defendants sentenced to death are
provided with a free transcript at the expense of the county where
convicted. [
Footnote 5] In all
other criminal cases, defendants needing a transcript, whether
indigent or not, must themselves buy it. The petitioners contended
in their motion before
Page 351 U. S. 15
the trial court that failure to provide them with the needed
transcript would violate the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. The trial court denied the
motion without a hearing.
Griffin and Crenshaw then filed a petition under the Illinois
Post-Conviction Hearing Act. [
Footnote 6] Only questions arising under the Illinois or
Federal Constitution may be raised in proceedings under this Act. A
companion state act provides that indigent petitioners under the
Post-Conviction Act may, under some circumstances, obtain a free
transcript. [
Footnote 7] The
effect is that indigents may obtain a free transcript to obtain
appellate review of constitutional questions, but not of other
alleged trial errors, such as admissibility and sufficiency of
evidence. In their post-conviction proceeding, petitioners alleged
that there were manifest nonconstitutional errors in the trial
which entitled them to have their convictions set aside on appeal,
and that the only impediment to full appellate review was their
lack of funds to buy a transcript. These allegations have not been
denied. Petitioners repeated their charge that refusal to afford
full appellate review solely because of poverty was a denial of due
process and equal protection. This petition, like the first, was
dismissed without hearing any evidence. The Illinois Supreme Court
affirmed the dismissal solely on the ground that the charges raised
no substantial state or federal constitutional questions -- the
only kind of questions which may
Page 351 U. S. 16
be raised in Post-Conviction proceedings. We granted certiorari.
349 U.S. 937.
Counsel for Illinois concedes that these petitioners needed a
transcript in order to get adequate appellate review of their
alleged trial errors. [
Footnote
8] There is no contention that petitioners were dilatory in
their efforts to get appellate review, or that the Illinois Supreme
Court denied review on the ground that the allegations of trial
error were insufficient. We must therefore assume, for purposes of
this decision, that errors were committed in the trial which would
merit reversal, but that the petitioners could not get appellate
review of those errors solely because they were too poor to buy a
stenographic transcript. Counsel for Illinois denies that this
violates either the Due Process or the Equal Protection Clause, but
states that, if it does, the Illinois Post-Conviction statute
entitles petitioners to a free transcript. The sole question for us
to decide, therefore, is whether due process or equal protection
has been violated. [
Footnote
9]
Providing equal justice for poor and rich, weak and powerful
alike, is an age-old problem. [
Footnote 10] People have never ceased to hope and strive
to move closer to that goal. This hope, at least in part, brought
about in 1215 the royal concessions of Magna Charta:
"To no one will we sell, to no one will we refuse, or delay,
right or justice. . . . No free man shall be taken or imprisoned,
or
Page 351 U. S. 17
disseised, or outlawed, or exiled, or anywise destroyed; nor
shall we go upon him nor send upon him, but by the lawful judgment
of his peers or by the law of the land."
These pledges were unquestionably steps toward a fairer and more
nearly equal application of criminal justice. In this tradition,
our own constitutional guaranties of due process and equal
protection both call for procedures in criminal trials which allow
no invidious discriminations between persons and different groups
of persons. Both equal protection and due process emphasize the
central aim of our entire judicial system -- all people charged
with crime must, so far as the law is concerned, "stand on an
equality before the bar of justice in every American court."
Chambers v. Florida, 309 U. S. 227,
309 U. S. 241.
See also Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S. 369.
[
Footnote 11]
Surely no one would contend that either a State or the Federal
Government could constitutionally provide that defendants unable to
pay court costs in advance should be denied the right to plead not
guilty or to defend themselves in court. [
Footnote 12] Such a law would make the constitutional
promise of a fair trial a worthless thing. Notice, the right to be
heard and the right to counsel would, under such circumstances, be
meaningless promises to the poor. In criminal trials, a State can
no more discriminate on account of poverty than on account of
religion, race, or color. Plainly, the ability to pay costs in
advance bears no rational relationship to a defendant's
Page 351 U. S. 18
guilt or innocence, and could not be used as an excuse to
deprive a defendant of a fair trial. Indeed, a provision in the
Constitution of Illinois of 1818 provided that every person in
Illinois
"ought to obtain right and justice freely, and without being
obliged to purchase it, completely and without denial, promptly and
without delay, conformably to the laws. [
Footnote 13]"
There is no meaningful distinction between a rule which would
deny the poor the right to defend themselves in a trial court and
one which effectively denies the poor an adequate appellate review
accorded to all who have money enough to pay the costs in advance.
It is true that a State is not required by the Federal Constitution
to provide appellate courts or a right to appellate review at all.
See, e.g., McKane v. Durston, 153 U.
S. 684,
153 U. S.
687-688. But that is not to say that a State that does
grant appellate review can do so in a way that discriminates
against some convicted defendants on account of their poverty.
Appellate review has now become an integral part of the Illinois
trial system for finally adjudicating the guilt or innocence of a
defendant. Consequently at all stages of the proceedings, the Due
Process and Equal Protection Clauses protect persons like
petitioners from invidious discriminations.
See Cole v.
Arkansas, 333 U. S. 196,
333 U. S. 201;
Dowd v. United States ex rel. Cook, 340 U.
S. 206,
340 U. S. 208;
Cochran v. Kansas, 316 U. S. 255,
316 U. S. 257;
Frank v. Mangum 237 U. S. 309,
237 U. S.
327.
All of the States now provide some method of appeal from
criminal convictions, recognizing the importance of appellate
review to a correct adjudication of guilt or innocence. Statistics
show that a substantial proportion of criminal convictions are
reversed by state appellate
Page 351 U. S. 19
courts. [
Footnote 14]
Thus, to deny adequate review to the poor means that many of them
may lose their life, liberty or property because of unjust
convictions which appellate courts would set aside. Many States
have recognized this, and provided aid for convicted defendants who
have a right to appeal and need a transcript, but are unable to pay
for it. [
Footnote 15] A few
have not. Such a denial is a misfit in a country dedicated to
affording equal justice to all and special privileges to none in
the administration of its criminal law. [
Footnote 16] There can be no equal justice where the
kind of trial a man gets depends on the amount of money he has.
Destitute defendants must be afforded as adequate appellate review
as defendants who have money enough to buy transcripts.
The Illinois Supreme Court denied these petitioners relief under
the Post-Conviction Act because of its holding that no
constitutional rights were violated. In view of our holding to the
contrary, the State Supreme Court may decide that petitioners are
now entitled to a transcript, as the State's brief suggests.
See Ill.Rev.Stat., 1955, c. 37, § 163f.
Cf. Dowd v.
United States ex rel. Cook, 340
Page 351 U. S. 20
U.S. at
340 U. S.
209-210. We do not hold, however, that Illinois must
purchase a stenographer's transcript in every case where a
defendant cannot buy it. The Supreme Court may find other means of
affording adequate and effective appellate review to indigent
defendants. For example, it may be that bystanders' bills of
exceptions or other methods of reporting trial proceedings could be
used in some cases. [
Footnote
17] The Illinois Supreme Court appears to have broad power to
promulgate rules of procedure and appellate practice. [
Footnote 18] We are confident that
the State will provide corrective rules to meet the problem which
this case lays bare.
The judgment of the Supreme Court of Illinois is vacated, and
the cause is remanded to that court for further action not
inconsistent with the foregoing paragraph.
MR. JUSTICE FRANKFURTER joins in this disposition of the
case.
Vacated and remanded.
[
Footnote 1]
Ill.Rev.Stat., 1955, c. 38, § 769.1.
[
Footnote 2]
Ill.Rev.Stat., 1953, c. 110, § 259.70A (Supreme Court Rule 70A),
now Ill.Rev.Stat., 1955, c. 110, § 101.65 (Supreme Court Rule 65).
A writ of error may also be prosecuted on a "mandatory record" kept
by the clerk, consisting of the indictment, arraignment, plea,
verdict and sentence. The "mandatory record" can be obtained free
of charge by an indigent defendant. In such instances, review is
limited to errors on the face of the mandatory record, and there is
no review of trial errors such as an erroneous ruling on the
admission of evidence.
See People v. Loftus, 400 Ill. 432,
81 N.E.2d 495.
See also Cullen v. Stevens, 389 Ill. 35, 58
N.E.2d 456; A Study of the Illinois Supreme Court, 15 U. of
Chi.L.Rev. 107, 125.
[
Footnote 3]
"A complete bill of exceptions consists of all proceedings in
the case from the time of the convening of the court until the
termination of the trial. It includes all of the motions and
rulings of the trial court, evidence heard, instructions and other
matters which do not come within the clerk's mandatory record."
People ex rel. Iasello v. McKinlay, 409 Ill. 120,
124 125,
98 N.E.2d
728,
730.
[
Footnote 4]
In oral argument, counsel for Illinois stated:
"With respect to the so-called bystanders' bill of exceptions or
the bill of exceptions prepared from someone's memory in condensed
and narrative form and certified to by the trial judge -- as to
whether that's available in Illinois, I can say that everybody out
there understands that it is, but nobody has heard of its ever
being actually used in a criminal case in Illinois in recent years.
I think if you went back before the days of court reporting, you
would find them, but none today. And I will say that Illinois has
not suggested in the brief that such a narrative transcript would
necessarily or even generally be the equivalent of a verbatim
transcript of all of the trial."
"
* * * *"
"There isn't any way that an Illinois convicted person in a
noncapital case can obtain a bill of exceptions without paying for
it."
See People v. Yetter, 386 Ill. 594, 54 N.E.2d 532;
People v. Johns, 388 Ill. 212, 57 N.E.2d 895;
Jennings
v. Illinois, 342 U. S. 104,
342 U. S.
109-110,
on remand, 411 Ill. 21,
23, 25, 27,
102 N.E.2d
824, 825-827;
People v. Joyce, 1 Ill. 2d
225, 230,
115 N.E.2d
262, 264-265;
People v. La Frana, 4 Ill. 2d
261, 266,
122 N.E.2d
583, 585-586;
People ex rel. Iasello v.
McKinlay, 409 Ill. 120,
98 N.E.2d
728;
People v. O'Connell, 411 Ill.
591,
104 N.E.2d
825.
[
Footnote 5]
Ill.Rev.Stat., 1955, c. 38, § 769a.
[
Footnote 6]
Ill.Rev.Stat., 1955, c. 38, §§ 826-832.
[
Footnote 7]
Ill.Rev.Stat., 1955, c. 37, § 163f. This section provides in
part that,
"In any case arising under [the Post-Conviction Hearing Act] in
which the presiding judge has determined that the post-conviction
petition is sufficient to require an answer, it shall be the duty
of the official court reporter to transcribe, in whole or in part,
his stenographic notes of the evidence introduced at the trial in
which the petitioner was convicted, if instructed so to do by the
State's Attorney or by the court."
[
Footnote 8]
See note 4
supra, and cases there cited.
[
Footnote 9]
A dissenting opinion argues that the constitutional question is
narrower because petitioners alleged that a transcript was needed,
rather than required. The State made no such claim, and all the
briefs and arguments on both sides, together with the opinion of
the Illinois Supreme Court, treated the sole question as being as
we have stated it.
[
Footnote 10]
"Ye shall do no unrighteousness in judgment: thou shalt not
respect the person of the poor, nor honour the person of the
mighty: but in righteousness shalt thou judge thy neighbor."
Leviticus, c.19 v. 15.
[
Footnote 11]
Dissenting opinions here argue that the Illinois law should be
upheld since, by its terms, it applies to rich and poor alike. But
a law nondiscriminatory on its face may be grossly discriminatory
in its operation. For example, this Court struck down the so-called
"grandfather clause" of the Oklahoma Constitution as discriminatory
against Negroes although that clause was, by its terms,
nondiscriminatory.
Guinn v. United States, 238 U.
S. 347.
See also Lane v. Wilson, 307 U.
S. 268.
[
Footnote 12]
See discussion in
Hovey v. Elliott,
167 U. S. 409.
[
Footnote 13]
Ill. Constitution of 1818, Art. VIII, § 12. Substantially the
same provision has been carried over into the present Illinois
Constitution, Art. II, § 19.
[
Footnote 14]
See Note, Reversals in Illinois Criminal Cases, 42
Harv.L.Rev. 566.
[
Footnote 15]
See, e.g., Ariz.Code Ann., 1939, § 44-2525; Ark.Stat.,
1947, § 22-357; Page's Ohio Rev.Code Ann., 1954, § 2301.24;
S.C.Code, 1952, § 15-1903; McKinney's N.Y.Laws, Crim.Code, 1945
(Supp. 1955), § 456.
See also Note, 100 A.L.R. 321.
[
Footnote 16]
The Criminal Court of Appeals in Oklahoma in 1913 spoke in the
tradition of this country's dedication to due process and equal
protection when it declared that the law is no respecter of persons
and said:
"We want the people of Oklahoma to understand, one and all, that
the poorest and most unpopular person in the state . . . can depend
upon it that justice is not for sale in Oklahoma, and that no one
can be deprived of his right of appeal simply because he is unable
to pay a stenographer to extend the notes of the testimony."
Jeffries v. State, 9 Okla.Cr. 573, 576, 132 P. 823,
824.
[
Footnote 17]
See Weatherford v. Wilson, 3 Ill. (2 Scam.) 253 (1840);
People ex rel. Maher v. Williams, 91 Ill. 87 (1878);
People ex rel. Hall v. Holdom, 193 Ill. 319, 61 N.E. 1014
(1901);
People v. Joyce, 1 Ill. 2d
225, 230,
115 N.E.2d
262, 264-265 (1953);
Miller v. United States,
317 U. S. 192
(1942); Note, 15 Ann.Cas. 737.
[
Footnote 18]
Ill.Rev.Stat., 1955, c. 110, § 2; Ill.Rev.Stat., 1955, c. 110, §
101.65 (Supreme Court Rule 65);
People v. Callopy, 358
Ill. 11, 192 N.E. 634.
MR. JUSTICE FRANKFURTER, concurring in the judgment.
The admonition of de Tocqueville not to confuse the familiar
with the necessary has vivid application to appeals in criminal
cases. The right to an appeal from a conviction for crime is today
so established that this leads to the easy assumption that it is
fundamental to the protection of life and liberty, and therefore a
necessary ingredient of due process of law. "Due process" is,
perhaps, the least frozen concept of our law -- the least
Page 351 U. S. 21
confined to history and the most absorptive of powerful social
standards of a progressive society. But neither the unfolding
content of "due process" nor the particularized safeguards of the
Bill of Rights disregard procedural ways that reflect a national
historic policy. It is significant that no appeals from convictions
in the federal courts were afforded (with roundabout exceptions
negligible for present purposes) for nearly a hundred years; and,
despite the civilized standards of criminal justice in modern
England, there was no appeal from convictions (again with
exceptions not now pertinent) until 1907. Thus, it is now settled
that due process of law does not require a State to afford review
of criminal judgments.
Nor does the equal protection of the laws deny a State the right
to make classifications in law when such classifications are rooted
in reason.
"The equality at which the 'equal protection' clause aims is not
a disembodied equality. The Fourteenth Amendment enjoins 'the equal
protection of the laws,' and laws are not abstract
propositions."
Tigner v. Texas, 310 U. S. 141,
310 U. S. 147.
Since capital offenses are
sui generis, a State may take
account of the irrevocability of death by allowing appeals in
capital cases and not in others. Again, "the right of appeal may be
accorded by the State to the accused upon such terms as in its
wisdom may be deemed proper."
McKane v. Durston,
153 U. S. 684,
153 U. S.
687-688. The States have exercised this discriminating
power. The different States and the same State from time to time
have conditioned criminal appeals by fixing the time within which
an appeal may be taken, by delimiting the scope of review, by
shaping the mechanism by which alleged errors may be brought before
the appellate tribunal, and so forth.
But neither the fact that a State may deny the right of appeal
altogether nor the right of a State to make an appropriate
classification, based on differences in crimes and their
punishment, nor the right of a State to lay down
Page 351 U. S. 22
conditions it deems appropriate for criminal appeals, sanctions
differentiations by a State that have no relation to a rational
policy of criminal appeal or authorizes the imposition of
conditions that offend the deepest presuppositions of our society.
Surely it would not need argument to conclude that a State could
not, within its wide scope of discretion in these matters, allow an
appeal for persons convicted of crimes punishable by imprisonment
of a year or more, only on payment of a fee of $500. Illinois, of
course, has done nothing so crude as that. But Illinois has said,
in effect, that the Supreme Court of Illinois can consider alleged
errors occurring in a criminal trial only if the basis for
determining whether there were errors is brought before it by a
bill of exceptions, and not otherwise.
* From this it
follows that Illinois has decreed that only defendants who can
afford to pay for the stenographic minutes of a trial may have
trial errors reviewed on appeal by the Illinois Supreme Court.
(
See People v. La Frana, 4 Ill. 2d
261,
Page 351 U. S. 23
266,
122 N.E.2d
583, 585-586.) It has thereby shut off means of appellate
review for indigent defendants.
This Court would have to be willfully blind no to know that
there have in the past been prejudicial trial errors which called
for reversal of convictions of indigent defendants, and that the
number of those who have not had the means for paying for the cost
of a bill of exceptions is not so negligible as to invoke whatever
truth there may be in the maxim
de minimis.
Law addresses itself to actualities. It does not face actuality
to suggest that Illinois affords every convicted person,
financially competent or not, the opportunity to take an appeal,
and that it is not Illinois that is responsible for disparity in
material circumstances. Of course, a State need not equalize
economic conditions. A man of means may be able to afford the
retention of an expensive, able counsel not within reach of a poor
man's purse. Those are contingencies of life which are hardly
within the power, let alone the duty, of a State to correct or
cushion. But when a State deems it wise and just that convictions
be susceptible to review by an appellate court, it cannot, by force
of its exactions, draw a line which precludes convicted indigent
persons, forsooth erroneously convicted, from securing such a
review merely by disabling them from bringing to the notice of an
appellate tribunal errors of the trial court which would upset the
conviction were practical opportunity for review not
foreclosed.
To sanction such a ruthless consequence, inevitably resulting
from a money hurdle erected by a State, would justify a latter-day
Anatole France to add one more item to his ironic comments on the
"majestic equality" of the law. "The law, in its majestic equality,
forbids the rich as well as the poor to sleep under bridges, to beg
in the streets, and to steal bread." (John Cournos, A Modern
Plutarch, p. 27.)
Page 351 U. S. 24
The State is not free to produce such a squalid discrimination.
If it has a general policy of allowing criminal appeals, it cannot
make lack of means an effective bar to the exercise of this
opportunity. The State cannot keep the word of promise to the ear
of those illegally convicted and break it to their hope. But in
order to avoid or minimize abuse and waste, a State may
appropriately hedge about the opportunity to prove a conviction
wrong. When a State not only gives leave for appellate correction
of trial errors but must pay for the cost of its exercise by the
indigent, it may protect itself so that frivolous appeals are not
subsidized and public moneys not needlessly spent. The growing
experience of reforms in appellate procedure and sensible, economic
modes for securing review still to be devised, may be drawn upon to
the end that the State will neither bolt the door to equal justice
nor support a wasteful abuse of the appellate process.
It follows that the petitioners must be accorded an appeal from
their conviction, either by having the State furnish them a
transcript of the proceedings in the trial court, or by any other
means, of which we have not been advised, that may be available
under Illinois law, so that the errors of which they complain can
effectively be brought for review to the Illinois Supreme Court. It
is not for us to tell Illinois what means are open to the indigent
and must be chosen. Illinois may prescribe any means that are
within the wide area of its constitutional discretion.
The case of these petitioners is that the only adequate means of
bringing for review allegedly fatal trial defects resulting in a
potentially reversible conviction was a bill of exceptions which
their poverty precluded them from securing. The order of the
Illinois Supreme Court and the argument of the Attorney General of
Illinois in support of that court's judgment apparently assumed
that that was the case. Considering the nature of the issue
Page 351 U. S. 25
thus raised by petitioners appearing for themselves, it would
savor of disrespect to the Supreme Court of Illinois for us to find
an implication in its unqualified rejection of the claims of the
petitioners that an effective review other than by bill of
exceptions could be had in the present situation.
Cf. Diaz v.
Gonzalez, 261 U. S. 102,
261 U. S.
105-106. When the case again reaches the Illinois
Supreme Court, that court may, of course, find within the existing
resources of Illinois law means of according to petitioners
effective satisfaction of their constitutional right not to be
denied the equal protection of the laws.
We must be mindful of the fact that there are undoubtedly
convicts under confinement in Illinois prisons, in numbers unknown
to us and under unappealed sentences imposed years ago, who will
find justification in this opinion, unless properly qualified, for
proceedings both in the state and the federal courts upon claims
that they are under illegal detention in that they have been denied
a right under the Federal Constitution. It would be an easy answer
that a claim that was not duly asserted -- as was the timely claim
by these petitioners -- cannot be asserted now. The answer is too
easy. Candor compels acknowledgement that the decision rendered
today is a new ruling. Candor compels the further acknowledgement
that it would not be unreasonable for all indigent defendants, now
incarcerated, who at the time were unable to pay for transcripts of
proceedings in trial courts, to urge that they were justified in
assuming that such a restriction upon criminal appeals in Illinois
was presumably a valid exercise of the State's power at the time
when they suffered its consequences. Therefore it could well be
claimed that thereby any conscious waiver of a constitutional right
is negatived.
The Court ought neither to rely on casuistic arguments in
denying constitutional claims, nor deem itself imprisoned within a
formal, abstract dilemma. The judicial
Page 351 U. S. 26
choice is not limited to a new ruling necessarily retrospective,
or to rejection of what the requirements of equal protection of the
laws, as now perceived, require. For sound reasons, law generally
speaks prospectively. More than a hundred years ago, for instance,
the Supreme Court of Ohio, confronted with a problem not unlike the
one before us, found no difficulty in doing so when it concluded
that legislative divorces were unconstitutional.
Bingham v.
Miller, 17 Ohio 445. In arriving at a new principle, the
judicial process is not impotent to define its scope and limits.
Adjudication is not a mechanical exercise, nor does it compel
"either/or" determinations.
We should not indulge in the fiction that the law now announced
has always been the law and, therefore, that those who did not
avail themselves of it waived their rights. It is much more
conducive to law's self-respect to recognize candidly the
considerations that give prospective content to a new pronouncement
of law. That this is consonant with the spirit of our law, and
justified by those considerations of reason which should dominate
the law, has been luminously expounded by Mr. Justice Cardozo,
shortly before he came here and in an opinion which he wrote for
the Court.
See Address of Chief Judge Cardozo, 55 Report
of New York State Bar Assn., 263, 294
et seq., and
Great Northern R. Co. v. Sulburst Oil & Refining Co.,
287 U. S. 358,
287 U. S.
363-366. Such a molding of law by way of adjudication is
peculiarly applicable to the problem at hand. The rule of law
announced this day should be delimited as indicated.
*
"The record in the trial court may consist only of the mandatory
record,
viz., indictment, arraignment, plea, trial and
judgment. . . . This appears in the clerk's record in every case. .
. . The record may include also a bill of exceptions, which
consists of all of the motions and rulings of the trial court,
evidence heard, instructions, and other matters which do not come
directly within the clerk's mandatory record. This may be only a
part of the record on review when a bill of exceptions is prayed
and allowed, and certified by the court. . . . Therefore, when the
review is had upon the common law record, the sole matter only that
may be considered by the court is error appearing upon the face of
the record, and matters may not be added by argument, affidavit, or
otherwise, to supply or expand the record. The case must stand or
fall upon the errors appearing in the record. Of course, where
there is a bill of exceptions, which includes motions, evidence,
rulings on evidence, instructions, and the like, and such bill of
exceptions is made a part of the record, errors may be reached by
the remedy of writ of error. . . ."
People v. Lofts, 400 Ill. 432, 433-434, 81 N.E.2d 495,
497-498.
MR. JUSTICE BURTON and MR. JUSTICE MINTON, whom MR. JUSTICE REED
and MR. JUSTICE HARLAN join, dissenting.
While we do not disagree with the desirability of the policy of
supplying an indigent defendant with a free transcript of testimony
in a case like this, we do not agree
Page 351 U. S. 27
that the Constitution of the United States compels each State to
do so with the consequence that, regardless of the State's
legislation and practice to the contrary, this Court must hold
invalid state appellate proceedings wherever a required transcript
has not been provided without cost to an indigent litigant who has
requested that it be so provided. It is one thing for Congress and
this Court to prescribe such procedure for the federal courts. It
is quite another for this Court to hold that the Constitution of
the United States has prescribed it for all state courts.
In the administration of local law the Constitution has been
interpreted as permitting the several States generally to follow
their own familiar procedure and practice. In so doing, this Court
has recognized the widely differing but locally approved procedures
of the several States. Whether approving of the particular
procedures or not, this Court has treated them largely as matters
reserved to the States and within the broad range of permissible
"due process" in a constitutional sense.
Illinois, as the majority admit, could thus deny an appeal
altogether in a criminal case without denying due process of law.
McKane v. Durston, 153 U. S. 684. To
allow an appeal at all, but with some difference among convicted
persons as to the terms upon which an appeal is exercised, does not
deny due process. It may present a question of equal protection.
The petitioners urge that point here.
Whether the Illinois statute denies equal protection depends
upon whether, first, it is an arbitrary and unreasonable
distinction for the legislature to make, between those convicted of
a capital offense and those convicted of a lesser offense, as to
their right to a free transcript. It seems to us the whole practice
of criminal law teaches that there are valid distinctions between
the ways in which criminal cases may be looked upon and treated
Page 351 U. S. 28
without violating the Constitution. Very often we have cases
where the convicted seek only to avoid the death penalty. As all
practicing lawyers know who have defended persons charged with
capital offenses, often the only goal possible is to avoid the
death penalty. There is something pretty final about a death
sentence.
If the actual practice of law recognizes this distinction
between capital and noncapital cases, we see no reason why the
legislature of a State may not extend the full benefit of appeal to
those convicted of capital offenses and deny it to those convicted
of lesser offenses. It is the universal experience in the
administration of criminal justice that those charged with capital
offenses are granted special considerations. Examples of such will
readily occur. All States allow a larger number of peremptory
challenges of jurors in capital cases than in other cases. Most
States permit changes of venue in capital cases on different terms
than in other criminal cases. Some States require a verdict of 12
jurors for conviction in a capital case, but allow less than 12
jurors to convict in noncapital cases. On the other side of the
coin, most States provide no statute of limitations in capital
cases. We think the distinction here made by the Illinois statute
between capital cases and noncapital cases is a reasonable and
valid one.
Secondly, certainly Illinois does not deny equal protection to
convicted defendants when the terms of appeal are open to all,
although some may not be able to avail themselves of the full
appeal because of their poverty. Illinois is not bound to make the
defendants economically equal before its bar of justice. For a
State to do so may be a desirable social policy, but what may be a
good legislative policy for a State is not necessarily required by
the Constitution of the United States. Persons charged with crimes
stand before the law with varying degrees of economic and social
advantage. Some can afford better
Page 351 U. S. 29
lawyers and better investigations of their cases. Some can
afford bail, some cannot. Why fix bail at any reasonable sum if a
poor man can't make it?
The Constitution requires the equal protection of the law, but
it does not require the States to provide equal financial means for
all defendants to avail themselves of such laws.
MR. JUSTICE BLACK's opinion is not limited to the future. It
holds that a past, as well as a future, conviction of crime in a
state court is invalid where the State has failed to furnish a free
transcript to an indigent defendant who has sought, as petitioner
did here, to obtain a review of a ruling that was dependent upon
the evidence in his case. This is an interference with state power
for what may be a desirable result, but which we believe to be
within the field of local option.
Whether Illinois would permit appeals adequate to pass upon
alleged errors on bills of exception, prepared by counsel and
approved by judges, without requiring that full stenographic notes
be transcribed is not before us. We assume that it would.
MR. JUSTICE HARLAN, dissenting.
Much as I would prefer to see free transcripts furnished to
indigent defendants in all felony cases, I find myself unable to
join in the Court's holding that the Fourteenth Amendment requires
a State to do so or to furnish indigents with equivalent means of
exercising a right to appeal. The importance of the question
decided by the Court justifies adding to what MR. JUSTICE BURTON
and MR. JUSTICE MINTON have written my further grounds for
dissenting and the reasons why I find the majority opinions
unsatisfying.
1.
Inadequacy of the Record. -- I would decline to
decide the constitutional question tendered by petitioners because
the record does not present it in that "clean-cut,"
Page 351 U. S. 30
"concrete," and "unclouded" form usually demanded for a decision
of constitutional issues.
Rescue Army v. Municipal Court of Los
Angeles, 331 U. S. 549,
331 U. S. 584.
In my judgment, the case should be remanded to the Illinois courts
for further proceedings, so that we might know the precise nature
of petitioners' claim before passing on it.
The record contains nothing more definite than the allegation
that
"petitioners are poor persons with no means of paying the
necessary fees to acquire the Transcript and Court Records needed
to prosecute an appeal from their convictions."
For my part, I cannot tell whether petitioners' claim is that a
transcript was "needed" because (a) under Illinois law, a
transcript is a prerequisite to appellate review of trial errors,
[
Footnote 2/1] or (b) as a factual
matter, petitioners could not prepare an adequate bill of
exceptions short of having a transcript.
If the claim is that a transcript was legally necessary, it is
based on an erroneous view of Illinois law. The Illinois cases
cited by the petitioners establish only that trial errors cannot be
reviewed in the absence of a bill of exceptions, and not that a
transcript is essential to the preparation of such a bill.
[
Footnote 2/2] To the contrary,
an
Page 351 U. S. 31
unbroken line of Illinois cases establishes that a bill of
exceptions may consist simply of a narrative account of the trial
proceedings prepared from any available sources -- for example,
from the notes or memory of the trial judge, counsel, the
defendant, or bystanders -- and that the trial judge must either
certify such a bill as accurate or point out the corrections to be
made. [
Footnote 2/3] Viewed in the
light of these cases, the only constitutional question
Page 351 U. S. 32
presented by petitioners' bare allegation that they were unable
to purchase a transcript would be: is an indigent defendant, who
has not shown that he is unable to obtain full appellate review of
his conviction by a narrative bill of exceptions, constitutionally
entitled to the added advantage of a free transcript of the trial
proceedings for use as a bill of exceptions? I need hardly pause to
suggest that such a claim would present no substantial
constitutional question.
The Court, however, either takes judicial notice that, as a
practical matter, the alternative methods of preparing a bill of
exceptions are inadequate or finds in petitioners' claims an
allegation of fact that their circumstances were such as to prevent
them from utilizing the alternative methods. But even accepting
this reading of the pleadings, the constitutional question tendered
should not be decided without knowing the circumstances underlying
the conclusory allegation of "need." Petitioners' indigence, the
only underlying "fact" alleged, did not, in itself, necessarily
preclude them from preparing a narrative bill of exceptions, and we
are told nothing as to the other circumstances which prevented them
from doing so. The record does not even disclose whether
petitioners were incarcerated during the period in which the bill
of exceptions had to be filed, or whether they were represented by
counsel at the trial. We are left to speculate on the nature of the
alleged trial errors and the scope of the bill of exceptions needed
to present them. Who can say that, if we knew the facts, we might
not have before us a much narrower constitutional question than the
one decided today, or perhaps no such question at all. In these
circumstances, I would follow the salutary policy "of avoiding
constitutional decisions until the issues are presented with
clarity, precision and certainty,"
Rescue Army v. Municipal
Court of Los Angeles, supra, at p.
331 U. S. 576,
and would refuse to decide the
Page 351 U. S. 33
constitutional question in the abstract form in which it has
been presented here.
According to petitioners' tabulation, no more than 29 States
provide free transcripts as of right to indigents convicted of
noncapital crimes. Thus, the sweeping constitutional pronouncement
made by the Court today will touch the laws of at least 19 States,
[
Footnote 2/4] and will create a
host of problems affecting the status of an unknown multitude of
indigent convicts. A decision having such wide impact should not be
made upon a record as obscure as this, especially where there are
means ready at hand to have clarified the issue sought to be
presented.
However, since I stand alone in my view that the Court should
refrain from deciding the broad question urged upon us until the
necessity for such a decision becomes manifest, I deem it
appropriate also to note my disagreement with the Court's decision
of that question. Inasmuch as the Court's decision is not -- and,
on this record, cannot be -- based on any facts peculiar to this
case, I consider that question to be: is an indigent defendant
Page 351 U. S. 34
who "needs" a transcript in order to appeal constitutionally
entitled, regardless of the nature of the circumstances producing
that need, to have the State either furnish a free transcript or
take some other action to assure that he does, in fact, obtain full
appellate review?
2.
Equal Protection. -- In finding an answer to that
question in the Equal Protection Clause, the Court has painted with
a broad brush. It is said that a State cannot discriminate between
the "rich" and the "poor" in its system of criminal appeals. That
statement, of course, commands support, but it hardly sheds light
on the true character of the problem confronting us here. Illinois
has not imposed any arbitrary conditions upon the exercise of the
right of appeal, nor any requirements unnecessary to the effective
working of its appellate system. Trial errors cannot be reviewed
without an appropriate record of the proceedings below; if a
transcript is used, it is surely not unreasonable to require the
appellant to bear its cost, and Illinois has not foreclosed any
other feasible means of preparing such a record. Nor is this a case
where the State's own action has prevented a defendant from
appealing.
Cf. Dowd v. United States ex rel. Cook,
340 U. S. 206;
Cochran v. Kansas, 316 U. S. 255. All
that Illinois has done is to fail to alleviate the consequences of
differences in economic circumstances that exist wholly apart from
any state action.
The Court thus holds that, at least in this area of criminal
appeals, the Equal Protection Clause imposes on the States an
affirmative duty to lift the handicaps flowing from differences in
economic circumstances. That holding produces the anomalous result
that a constitutional admonition to the States to treat all persons
equally means, in this instance, that Illinois must give to some
what it requires others to pay for. Granting that such a
classification would be reasonable, it does not follow that a
State's failure to make it can be regarded as discrimination.
Page 351 U. S. 35
It may as accurately be said that the real issue in this case is
not whether Illinois
has discriminated, but whether it has
a duty
to discriminate.
I do not understand the Court to dispute either the necessity
for a bill of exceptions or the reasonableness of the general
requirement that the trial transcript, if used in its preparation,
be paid for by the appealing party. The Court finds in the
operation of these requirements, however, an invidious
classification between the "rich" and the "poor." But no economic
burden attendant upon the exercise of a privilege bears equally
upon all, and, in other circumstances, the resulting
differentiation is not treated as an invidious classification by
the State, even though discrimination against "indigents" by name
would be unconstitutional. Thus, while the exclusion of "indigents"
from a free state university would deny them equal protection,
requiring the payment of tuition fees surely would not, despite the
resulting exclusion of those who could not afford to pay the fees.
And if imposing a condition of payment is not the equivalent of a
classification by the State in one case, I fail to see why it
should be so regarded in another. Thus, if requiring defendants in
felony cases to pay for a transcript constitutes a discriminatory
denial to indigents of the right of appeal available to others, why
is it not a similar denial in misdemeanor cases or, for that
matter, civil cases?
It is no answer to say that equal protection is not an absolute,
and that, in other than criminal cases, the differentiation is
"reasonable." The resulting classification would be invidious in
all cases, and an invidious classification offends equal protection
regardless of the seriousness of the consequences. Hence, it must
be that the differences are "reasonable" in other cases not because
the "classification" is reasonable, but simply because it is not
unreasonable in those cases for the State to fail to relieve
indigents of the economic burden. That is, the issue here
Page 351 U. S. 36
is not the typical equal protection question of the
reasonableness of a "classification" on the basis of which the
State has imposed legal disabilities, but rather the reasonableness
of the State's failure to remove natural disabilities. The Court
holds that the failure of the State to do so is constitutionally
unreasonable in this case, although it might not be in others. I
submit that the basis for that holding is simply an unarticulated
conclusion that it violates "fundamental fairness" for a State
which provides for appellate review, and thus apparently considers
such review necessary to assure justice, not to see to it that such
appeals are, in fact, available to those it would imprison for
serious crimes. That, of course, is the traditional language of due
process,
see Betts v. Brady, 316 U.
S. 455,
316 U. S. 462,
and I see no reason to import new substance into the concept of
equal protection to dispose of the case, especially when to do so
gives rise to the all-too-easy opportunity to ignore the real issue
and solve the problem simply by labeling the Illinois practice as
invidious "discrimination."
3.
Due Process. -- Has there been a violation of the
Due Process Clause? The majority of the Court concedes that the
Fourteenth Amendment does not require the States to provide for any
kind of appellate review. Nevertheless, Illinois, in the forefront
among the States, established writs of error in criminal cases as
early as 1827. [
Footnote 2/5] In
1887, it provided for official court reporters, thereby relieving
defendants of the burden of hiring reporters in order to obtain a
transcript. [
Footnote 2/6] In 1927,
it provided that, for indigents sentenced to death, "all necessary
costs and expenses" incident to a writ of error, including the cost
of a transcript, would be paid by
Page 351 U. S. 37
the counties. [
Footnote 2/7]
And, in 1953, free transcripts were authorized for the presentation
of constitutional claims. [
Footnote
2/8] Thus, Illinois has steadily expanded the protection
afforded defendants in criminal cases, and, in recent years, has
made substantial strides towards alleviating the natural
disadvantages of indigents. Can it be that, while it was not
unconstitutional for Illinois to afford no appeals, its steady
progress in increasing the safeguards against erroneous convictions
has resulted in a constitutional decline?
Of course, the fact that appeals are not constitutionally
required does not mean that a State is free of constitutional
restraints in establishing the terms upon which appeals will be
allowed. It does mean, however, that there is no "right" to an
appeal in the same sense that there is a right to a trial.
[
Footnote 2/9] Rather, the
constitutional right under the Due Process Clause is simply the
right not to be denied an appeal for arbitrary or capricious
reasons. Nothing of that kind, however, can be found in any of the
steps by which Illinois has established its appellate system.
We are all agreed that no objection of substance can be made to
the provisions for free transcripts in capital and constitutional
cases. The due process challenge must therefore be directed to the
basic step of permitting appeals at all without also providing an
in forma pauperis procedure. But whatever else may be said
of Illinois' reluctance to expend public funds in perfecting
appeals for indigents, it can hardly be said to be arbitrary. A
policy of economy may be unenlightened, but it is certainly
Page 351 U. S. 38
not capricious. And that it has never generally been so regarded
is evidenced by the fact that our attention has been called to no
State in which
in forma pauperis appeals were established
contemporaneously with the right of appeal. I can find nothing in
the past decisions of this Court justifying a holding that the
Fourteenth Amendment confines the States to a choice between
allowing no appeals at all or undertaking to bear the cost of
appeals for indigents, which is what the Court, in effect, now
holds.
It is argued, finally, that, even if it cannot be said to be
"arbitrary," the failure of Illinois to provide petitioners with
the means of exercising the right of appeal that others are able to
exercise is simply so "unfair" as to be a denial of due process. I
have some question whether the non-arbitrary denial of a right that
the State may withhold altogether could ever be so characterized.
In any event, however, to so hold it is not enough that we consider
free transcripts for indigents to be a desirable policy, or that we
would weigh the competing social values in favor of such a policy
were it our function to distribute Illinois' public funds among
alternative uses. Rather, the question is whether some method of
assuring that an indigent is able to exercise his right of appeal
is "implicit in the concept of ordered liberty,"
Palko v.
Connecticut, 302 U. S. 319,
302 U. S. 325,
so that the failure of a State so to provide constitutes a "denial
of fundamental fairness, shocking to the universal sense of
justice,"
Betts v. Brady, supra, at
316 U. S. 462.
Such an equivalence between persons in the means with which to
exercise a right of appeal has not, however, traditionally been
regarded as an essential of "fundamental fairness," and the reforms
extending such aid to indigents have only recently gained
widespread acceptance. Indeed, it was not until an Act of Congress
in 1944 that defendants in federal criminal
Page 351 U. S. 39
cases became entitled to free transcripts, [
Footnote 2/10] and, to date, approximately
one-third of the States still have not taken that step. With due
regard for the constitutional limitations upon the power of this
Court to intervene in State matters, I am unable to bring myself to
say that Illinois' failure to furnish free transcripts to indigents
in all criminal cases is "shocking to the universal sense of
justice."
As I view this case, it contains none of the elements hitherto
regarded as essential to justify action by this Court under the
Fourteenth Amendment. In truth, what we have here is but the
failure of Illinois to adopt as promptly as other States a
desirable reform in its criminal procedure. Whatever might be said
were this a question of procedure in the federal courts, regard for
our system of federalism requires that matters such as this be left
to the States. However strong may be one's inclination to hasten
the day when
in forma pauperis criminal procedures will be
universal among the States, I think it is beyond the province of
this Court to tell Illinois that it must provide such
procedures.
[
Footnote 2/1]
The Illinois Supreme Court may have interpreted the pleadings in
this manner. It described the petitioners' "sole contention" as
being that they were "unable to purchase a bill of exceptions and
were, therefore, unable to obtain a complete review by this Court."
This suggests that the state court construed the claim to be that
an appeal was necessarily precluded by the lack of a transcript,
not that the petitioners' particular circumstances produced that
result. If that is what the Illinois court meant, its construction,
having a reasonable basis, would be binding on this Court, and
would constitute an adequate state ground for the denial of any
claim premised on the existence of particular circumstances
preventing the petitioners from pursuing other available methods of
review.
[
Footnote 2/2]
E.g., People v. Johns, 388 Ill. 212, 57 N.E.2d 895;
People v. Loftus, 400 Ill. 432, 81 N.E.2d 495;
People
v. O'Connell, 411 Ill. 591,
104 N.E.2d
825.
[
Footnote 2/3]
Weatherford v. Wilson, 3 Ill. (2 Scam.) 253 (1840);
People ex rel. Maher v. Williams, 91 Ill. 87 (1878);
People ex rel. Munson v. Gary, 105 Ill. 264 (1883);
People ex rel. Hall v. Holdom, 193 Ill. 319, 61 N.E. 1014
(1901);
162 East Ohio Street Hotel Corp. v. Lindheimer,
368 Ill. 294, 13 N.E.2d 970 (1938);
Weber v. Sneeringer,
247 Ill.App. 294 (1928);
Merkle v. Kegerreis, 350 Ill.App.
103, 112 N.E.2d 175 (1953);
see also People ex rel. North
American Restaurant v. Chetlain, 219 Ill. 248, 76 N.E. 364
(1906);
Mayville v. French, 246 Ill. 434, 92 N.E. 919
(1910);
People ex rel. Simus v. Donoghue, 377 Ill. 122, 35
N.E.2d 371 (1941). This line of cases was reaffirmed by the
Illinois Supreme Court in 1953, just three months before the
petitioners were convicted, in
People v.
Joyce, 1 Ill. 2d
225, 230,
115 N.E.2d
262, 264-265, in which the
Williams, Gary, Holdom, and
Lindheimer cases, supra, were cited with approval for the
proposition that trial errors may be presented on a writ of error
by a "constructed or
bystander's' bill of exceptions." The
holding of that case was that a defendant to whom these alternative
methods were not available "as a practical matter" because of his
indigence and incarceration did not, by failing to seek direct
review of his conviction, "waive" the right given him by the
Illinois Post-Conviction Hearing Act to assert his constitutional
claims in a collateral proceeding. Accord: People v. La
Frana, 4 Ill. 2d
261, 266, 122 N.E.2d
583, 585-586. That holding does not, of course, detract from
the court's affirmation that a transcript is not legally required
for appellate review of trial errors. It is equally clear that
Illinois' recognition of "practicalities" in not applying a strict
doctrine of waiver to the remedial Post-Conviction Hearing Act does
not necessarily mean that the alternative methods of obtaining
review are not sufficiently "available" to satisfy any supposed
constitutional requirements. That question would depend upon the
facts of the particular case -- of which we have not been informed
here -- and upon the evaluation of them for constitutional
purposes.
[
Footnote 2/4]
Of these 19, at least 5 have, however, expressly given the trial
courts discretionary power to order free transcripts in noncapital
cases. Mass.Ann.Laws, c. 278, § 33A, as amended by Acts 1955, c.
352 ("by order of the court"); N.D.Rev.Code, 1943, § 27-0606 (when
"there is reasonable cause therefor"); Ore.Rev.Stat., 1953, §
21.470 (if "justice will be thereby promoted"); S.D.Code, 1939, §
34.3903 (if "essential to the protection of the substantial rights
of the defendant"); Wash.Rev.Code, 1951, § 2.32.240 (if "justice
will thereby be promoted"). The Rhode Island Supreme Court has
reached a similar result by interpretation of a statute authorizing
reimbursement for expenditures of appointed counsel.
State v.
Hudson, 55 R.I. 141, 179 A. 130 (1935) ("sound discretion . .
. to be exercised with great circumspection and only for serious
cause"). In addition, petitioners' brief refers to a letter from
the Chief Justice of the Connecticut Supreme Court of Errors which
states that free transcripts may be furnished in the discretion of
the court in noncapital cases.
[
Footnote 2/5]
Ill.Rev.L. 1827, Crim.Code, §§ 186, 187; Ill.Rev.Stat., 1955,
c.38, § 769.1.
[
Footnote 2/6]
Ill.Laws 1887, p. 159; Ill.Rev.Stat., 1955, c. 37, § 163b.
[
Footnote 2/7]
Ill.Laws 1927, p. 400 § 1 1/2; Ill.Rev.Stat., 1955, c. 38, §
769a.
[
Footnote 2/8]
Ill.Laws 1953, p. 859; Ill.Rev.Stat., 1955, c. 37, § 163f.
[
Footnote 2/9]
This difference makes of dubious validity any analogy between a
condition imposed upon the right to defend oneself and a condition
imposed upon the right to appeal.
[
Footnote 2/10]
58 Stat. 5, 28 U.S.C. §§ 753(f), 1915(a). On the prior federal
practice,
see, e.g., Estabrook v. King, 119 F.2d 607, 610
(C.A. 8th Cir.);
United States v. Fair, 235 F. 1015
(D.C.N.D. Calif.).