Williams v. Illinois/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

I concur in today's judgment, but in doing so wish to dissociate myself from the 'equal protection' rationale employed by the Court to justify its conclusions.

The 'equal protection' analysis of the Court is, I submit, a 'wolf in sheep's clothing,' for that rationale is no more than a masquerade of a supposedly objective standard for subjective judicial judgment as to what state legislation offends notions of 'fundamental fairness.' Under the rubric of 'equal protection' this Court has in recent times effectively substituted its own 'enlightened' social philosophy or that of the legislature no less than did in the older days the judicial adherents of the now discredited doctrine of 'substantive' due process. I, for one, would prefer to judge the legislation before us in this case in terms of due process, that is to determine whether it arbitrarily infringes a constitutionally protected interest of this appellant. Due process, as I noted in my dissenting opinion in Poe v. Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961), is more than merely a procedural safeguard; it is also a "bulwark * *  * against arbitrary legislation.' Hurtado v. People of State of California, 110 U.S. 516, at page 532, 4 S.Ct. 111, at page 119, 28 L.Ed. 232.' See Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), and my dissenting opinion in Shapiro v. Thompson, 394 U.S. 618, 655, 89 S.Ct. 1322, 1342, 22 L.Ed.2d 600 (1969).

The matrix of recent 'equal protection' analysis is that the 'rule that statutory classifications which either are based upon certain 'suspect' criteria or affect 'fundamental rights' will be held to deny equal protection unless justified by a 'compelling' governmental interest,' Shapiro v. Thompson, supra, at 658, 89 S.Ct. at 1344 (Harlan, J., dissenting). In Shapiro, Harper v. Virginia Board of Elections, 383 U.S. 663, 680, 86 S.Ct. 1079, 1088, 16 L.Ed.2d 169 (1966), and Williams v. Rhodes, 393 U.S. 23, 41, 89 S.Ct. 515, 21 L.Ed.2d 24 (1968), I attempted to expose the weakness in the precedential and jurisprudential foundation upon which the current doctrine of 'equal protection' sits. See also Griffin v. Illinois, 351 U.S. 12, 34-36, 76 S.Ct. 585, 597-599, 100 L.Ed. 891 (1956) (dissenting opinion); Douglas v. California, 372 U.S. 353, 360, 83 S.Ct. 814, 818, 9 L.Ed.2d 811 (1963) (dissenting opinion). I need not retrace the views expressed in these cases, except to object once again to this rhetorical preoccupation with 'equalizing' rather than analyzing the rationality of the legislative distinction in relation to legislative purpose.

An analysis under due process standards, correctly understood, is, in my view, more conducive to judicial restraint than an approach couched in slogans and ringing phrases, such as 'suspect' classification or 'invidious' distinctions, or 'compelling' state interest, that blur analysis by shifting the focus away from the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, the existence of alternative means for effectuating the purpose, and the degree of confidence we may have that the statute reflects the legislative concern for the purpose that would legitimately support the means chosen. Accordingly, I turn to the case at hand.

* The State of Illinois has made the unquestionably legitimate determination that the crime of petty larceny should be punished by a jail term of days, up to one year, in combination with a fine of a dollar amount. Anyone who, in the judgment of the trial judge, should receive the stiffest penalty known to Illinois law for this crime may, if he possesses funds, satisfy the demands of the criminal law by paying the fine superimposed on the jail term. If he cannot pay his debt to society, it is surely not unequal, but, to the contrary, most equal, that some substitute sanction be imposed lest the individual of means be subjected to a harsher penalty than one who is impoverished. If equal protection implications of the Court's opinion were to be fully realized, it would require that the consequence of punishment be comparable for all individuals; the State would be forced to embark on the impossible task of developing a system of individualized fines, so that the total disutility of the entire fine, or the marginal disutility of the last dollar taken, would be the same for all individuals. Cf. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv.L.Rev. 7 (1969). Today's holding, and those in the other so-called 'equal protection' decisions, e.g., Douglas v. California, supra; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), offer no pretense to actually providing such equal treatment. It cannot be argued that the requirement of counsel on appeal is the right to the most skilled advocate who is theoretically at the call of the defendant of means. However desirable and enlightened a theory of social and economic equality may be, it is not a theory that has the blessing of the Fourteenth Amendment. Not 'every major social ill in this country can find its cure in some constitutional 'principle,' and * *  * this Court (is not equipped to) 'take the lead' in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.' Reynolds v. Sims, 377 U.S. 533, 624-625, 84 S.Ct. 1362, 1414, 12 L.Ed.2d 566 (1964) (dissenting opinion).

The reluctance of the Court to carry its 'equal protection' approach to its most logical consequences accents what I deem to be the true considerations involved in this case, namely, whether the legislature has impermissibly affected an individual right or has done so in an arbitrary fashion. Cf. Michelman, supra. While legislation usually will not be deemed arbitrary if its means can arguably be supposed to be related to a legitimate purpose (see my dissenting opinion in Shapiro v. Thompson, supra), and generally the burden of demonstrating the existence of a rational connection between means and ends is not borne by the State (see Flemming v. Nestor, supra, and my dissenting opinion in Swann v. Adams, 385 U.S. 440, 447, 87 S.Ct. 569, 573, 17 L.Ed.2d 501 (1967)), the presumption of regularity that comes with legislative judgment is one that is not equally acceptable in all instances, nor is it blind to the nature of the interests affected.

Thus, as a due process matter I have subscribed to the admonition of Skinner v. Oklahoma, 316 U.S. 535, 541, 52 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), where the Court cautioned that there are limits to the extent to which the presumption of constitutionality can be pressed where a 'basic liberty' is concerned. See my dissenting opinion in Poe v. Ullman, 367 U.S., at 543, 81 S.Ct., at 1777. The same viewpoint was implicit in Flemming v. Nestor, supra, where the Court noted the breadth of latitude to be accorded to a legislative judgment when the interest was that of a 'noncontractual benefit under a social welfare program.' 363 U.S., at 611, 80 S.Ct., at 1373. Thus while that 'interest * *  * is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause,' when that interest is the 'withholding of a noncontractual benefit under a social welfare program *  *  *, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.' Ibid.

The implication of Flemming is, however, that the deference owed to legislative judgment is not the same in all cases. Thus legislation that regulates conduct but incidentally affects freedom of expression may, although it is a rational choice to effectuate a legitimate legislative purpose, be invalid because it imposes a burden on that right, or because other means, entailing less imposition, may exist. See NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Garner v. Louisiana, 368 U.S. 157, 185, 82 S.Ct. 248, 263, 7 L.Ed.2d 207 (1961) (concurring in the judgment); United States v. O'Brien, 391 U.S. 367, 388, 88 S.Ct. 1673, 1685, 20 L.Ed.2d 672 (1968) (concurring opinion).

These decisions, by no means dispositive of the case before us, unquestionably show that this Court will squint hard at any legislation that deprives an individual of his liberty-his right to remain free. Cf. my dissenting opinion in Poe v. Ullman, supra. While the interest of the State, that of punishing one convicted of crime is no less substantial, cf. concurring opinion of Mr. Justice Brennan in Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353 (1970), the 'balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society,' Poe v. Ullman, supra, 367 U.s., at 542, 81 S.Ct., at 1776, 'having regard to what history teaches' is not such that the State's interest here outweighs that of the individual so as to bring into full play the application of the usual salutary presumption of rationality.

The State by this statute, or any other statute fixing a penalty of a fine, has declared its penological interest deterrence, retribution and rehabilitation-satisfied by a monetary payment, and disclaimed, as serving any penological purpose in such cases, a term in jail. While there can be no question that the State has a legitimate concern with punishing an individual who cannot pay the fine, there is serious question in my mind whether, having declared itself indifferent as between fine and jail, it can consistently with due process refrain from offering some alternative such as payment on the installment plan.

There are two conceivable justifications for not doing so. The most obvious and likely justification for the present statute is administrative convenience. Given the interest of the individual affected, I do not think a State may, after declaring itself indifferent between a fine and jail, rely on the convenience of the latter as a constitutionally acceptable means for enforcing its interest, given the existence of less restrictive alternatives. Cf. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The second conceivable justification is that the jail alternative serves a penological purpose that cannot be served by collection of a fine over time. It is clear that having declared itself satisfied by a fine, the alternative of jail to a fine serves neither a rehabilitative nor a retributive interest. The question is, then, whether the requirement of a lump-sum payment can be sustained as a rational legislative determination that deterrence is effective only when a fine is exacted at once after sentence and by lump sum, rather than over a term. This is a highly doubtful proposition, since, apart from the mere fact of conviction and the humiliation associated with it and the token of punishment evidenced by the forfeiture, the deterrent effect of a fine is apt to derive more from its pinch on the purse than the time of payment.

That the Illinois statute represents a considered judgment, evincing the belief that jail is a rational and necessary trade-off to punish the individual who possesses no accumulated assets seems most unlikely, since the substitute sentence provision, phrased in terms of a judgment collection statute, does not impose a discretionary jail term as an alternative sentence, but rather equates days in jail with a fixed sum. Thus, given that the only conceivable justification for this statute that would satisfy due process-that a lump-sum fine is a better deterrent than one payable over a period of time-is the one that is least likely to represent a considered legislative judgment, I would hold this statute invalid.

The conclusion I reach is only that when a State declares its penal interest may be satisfied by a fine or a forfeiture in combination with a jail term the administrative inconvenience in a judgment collection procedure does not, as a matter of due process, justify sending to jail, or extending the jail term of, individuals who possess no accumulated assets. I would reserve the question as to whether a considered legislative judgment that a lump-sum fine is the only effective kind of forfeiture for deterrence and that the alternative must be jail, would be constitutional. It follows, a fortiori, that no conclusion reached herein casts any doubt on the conventional '$30 or 30 days' if the legislature decides that should be the penalty for the crime. Note, Discriminations Against the Poor and the Fourteenth Amendment, 81 Harv.L.Rev. 435 (1967). Such a statute evinces the perfectly rational determination that some individuals will be adequately punished by a money fine, and others, indifferent to money-whether by virtue of indigency or other reasons-can be punished only by a jail term. Still more patently nothing said herein precludes the State from punishing ultimately by jail individuals who fail to pay fines or imprisoning immediately individuals who, in the judgment of a court, will not undertake to pay their fines.

On these premises I join the Court's judgment vacating appellant's sentence and remanding to the Supreme Court off Illinois to afford it an opportunity to instruct the sentencing judge as to any permissible alternatives under Illinois law. It may be that Illinois courts have the power to fashion a procedure pending further consideration of this problem by the state legislature. Cf. Rosado v. Wyman, 397 U.S. 397, 421-422, 90 S.Ct. 1207, 1222-1223, 25 L.Ed.2d 442 (1970), and my opinion concurring in the result in Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970).