Criminal Procedures, Sentences, and Poverty

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“[I]t is now fundamental that, once established, . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” 1 “In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . .” 2 No state may condition the right to appeal3 or the right to file a petition for habeas corpus4 or other form of postconviction relief upon the payment of a docketing fee or some other type of fee when the petitioner has no means to pay. Similarly, although the states are not required to furnish full and complete transcripts of their trials to indigents when excerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, either on appeal or through procedures for postconviction relief, the transcript must be provided to indigent defendants or to others unable to pay.5 This right may not be denied by drawing a felony-misdemeanor distinction or by limiting it to those cases in which confinement is the penalty.6 A defendant’s right to counsel is to be protected as well as the similar right of the defendant with funds.7 The right to counsel on appeal necessarily means the right to effective assistance of counsel.8

But, deciding a point left unresolved in Douglas, the Court held that neither the Due Process nor the Equal Protection Clause requires a state to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the state’s higher courts or in the United States Supreme Court. Due process does not require that, after an appeal has been provided, the state must always provide counsel to indigents at every stage. “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.” That essentially equal protection issue was decided against the defendant in the context of an appellate system in which one appeal could be taken as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance.9 Not even death row inmates have a constitutional right to an attorney to prepare a petition for collateral relief in state court.10

This right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that in the absence of other adequate assistance, as through a functioning public defender system, a state may not deny prisoners legal assistance of another inmate,11 and it must make available certain minimal legal materials.12

A convicted defendant may not be imprisoned solely because of his indigency. Williams v. Illinois13 held that it was a denial of equal protection for a state to extend the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine that was also levied upon conviction. And Tate v. Short14 held that, in situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.

1: Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).
2: Draper v. Washington, 372 U.S. 487, 496 (1963).
3: Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960).
4: Smith v. Bennett, 365 U.S. 708 (1961).
5: Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Wash. Prison Bd., 357 U.S. 214 (1958) (unconstitutional to condition free transcript upon trial judge’s certification that “justice will thereby be promoted” ); Draper v. Washington, 372 U.S. 487 (1963) (unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not “frivolous” ); Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional to deny free transcript upon determination of public defender that appeal was in vain); Long v. District Court, 385 U.S. 192 (1966) (indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California, 393 U.S. 367 (1969) (on filing of new habeas corpus petition in appellate court upon an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager, 384 U.S. 305 (1966). For instances in which a transcript was held not to be needed, see Britt v. North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426 U.S. 317 (1976).
6: Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago, 404 U.S. 189 (1971).
7: Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258 (1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748 (1967). A rule requiring a court-appointed appellate counsel to file a brief explaining reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Ct. of Appeals, 486 U.S. 429 (1988). The right is violated if the court allows counsel to withdraw by merely certifying that the appeal is “meritless” without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding California law providing that appellate counsel may limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non-frivolous issues). On the other hand, since there is no constitutional right to counsel for indigent prisoners seeking postconviction collateral relief, there is no requirement that withdrawal be justified in an Anders brief if a state has provided counsel for postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987) (counsel advised the court that there were no arguable bases for collateral relief).
8: Evitts v. Lucey, 469 U.S. 387 (1985).
9: Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v. Oregon, 417 U.S. 40 (1974) (statute providing, under circumscribed conditions, that indigent defendant, who receives state-compensated counsel and other assistance for his defense, who is convicted, and who subsequently becomes able to repay costs, must reimburse state for costs of his defense in no way operates to deny him assistance of counsel or the equal protection of the laws).
10: Murray v. Giarratano, 492 U.S. 1 (1989) (upholding Virginia’s system under which “unit attorneys” assigned to prisons are available for some advice prior to the filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing a petition with at least one non-frivolous claim).
11: Johnson v. Avery, 393 U.S. 483 (1969).
12: Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1977).
13: 399 U.S. 235 (1970).
14: 401 U.S. 395 (1971). The Court has not yet treated a case in which the permissible sentence is “$30 or 30 days” or some similar form where either confinement or a fine will satisfy the state’s penal policy.