*1 al. v. ILLINOIS. GRIFFIN et April 23, 1956. Argued No. 95. December 1955. Decided Horsky, acting A. Charles appointment under cause and a brief Court, argued 349 U. S. filed petitioners. Wines, William C. Attorney Assistant General *2 Illinois, argued the cause for him on respondent. With Castle, Attorney the brief was Latham General. judgment Justice Black announced the of Me. opinion Court and an in which The Chief Justice, and Me. join. Douglas, Justice Justice Claek Me. Illinois law provides that “Writs of error all criminal 1 cases are writs of right and shall be issued of course.” question presented The may, here is whether Illinois consistent with the Equal Due Process and Protection Clauses of the Fourteenth Amendment, administer statute so as deny adequate appellate review to poor while granting review to all such others. petitioners
The Griffin and were tried to- Crenshaw gether and convicted robbery of armed in the Criminal of Immediately Court Cook Illinois. their County, after they conviction filed a motion in the asking trial court copy record, certified of the entire including a steno- transcript graphic proceedings, of the them furnished They alleged they without cost. “poor persons were with no means of paying necessary acquire fees Transcript prosecute Records needed to an . . .” appeal. allegations These were not denied. Under law in order full get appellate Illinois direct review of by errors alleged necessary writ error it is for the defendant to furnish the with court a bill of report or at exceptions proceedings by the trial certified judge.2 the trial As Illinois concedes, it sometimes 1 Stat., 1955, 38, Rev. Ill. e. 769.1. § 1953, 110, Stat., (Supreme 70A), Rev. Ill. c. 259.70A Court Rule § Stat., 110, 65). 1955, (Supreme now Ill. Rev. c. 101.65 Court Rule § prosecuted “mandatory A writ error also be on a record” kept by clerk, consisting plea, indictment, arraignment, of the “mandatory verdict and sentence. The record” free can obtained charge indigent defendant. In such instances review is reports or exceptions3 prepare such bills impossible transcript proceedings.4 of the trial stenographic without a provided to death are with sentenced Indigent defendants county where con- expense of the a free at the needing defendants In all other criminal cases victed.5 not, must themselves a transcript, whether in their motion before petitioners contended buy it. mandatory record, there is limited to errors on face ruling on the admission trial as an erroneous no review of errors such People 495. See Loftus, 400 Ill. 81 N. E. 2d See evidence. 456; Study of Stevens, N. E. 2d A also Cullen v. 389 Ill. Court, L. Supreme Rev. 15 U. Chi. in the complete proceedings of all “A bill of consists *3 convening the termination from the time court until case rulings the trial It of the motions and of the trial. includes all heard, do court, instructions and other matters which evidence People mandatory ex Iasello v. rel. come within clerk’s record.” 124-125, 728, McKinlay, 120, N. E. 2d 409 Ill. 98 argument 4 In counsel for Illinois stated: oral exceptions bystanders’ or the respect bill of “With so-called memory and exceptions prepared in condensed bill of from someone’s judge whether the trial narrative form and certified —as say everybody under- I that out there that’s available in Illinois can actually being nobody has of its ever used stands that it is but heard years. you I if went think in a criminal case Illinois recent days you find them but reporting before the would back court suggested in today. say has not And I will that Illinois none gen- necessarily transcript or even brief that such a narrative would equivalent erally transcript all the trial. be the of a verbatim way person any convicted in a non- “There isn’t that Illinois paying capital a bill of without for it.” case can obtain People Yetter, 532; Johns, People 594, 2d v. v. 386 Ill. 54 N. E. See Jennings Illinois, 104, 212, 895; v. 109- Ill. 57 N. E. 2d 342 U. S. 388 23, 27, 825-827; remand, 21, 25, 824, N. 110, on 411 Ill. 102 E. 2d People 230, 262, 264-265; People Joyce, 225, 1 2d 115 N. E. 2d v. Ill. 261, 583, 585-586; People Frana, 266, 122 N. E. ex La Ill. 2d 2d v. McKinlay, 728; People 120, E. v. rel. 409 Ill. 98 N. 2d Iasello O’Connell, 411 E. 2d 825. Ill. N. Stat., Ill. 769a. Rev. c. § trial provide court them failure with the transcript needed would violate the Due Process Equal Protection Clauses of Fourteenth Amendment. trial hearing. court motion denied the without Griffin and Crenshaw then filed petition under the Hearing Only questions Post-Conviction Act.6 arising under may the Illinois or Federal Constitution raised proceedings companion under this A state Act. provides petitioners act under the Post- Conviction may, Act under some circumstances, obtain transcript.7 indigents free The effect is obtain appellate a free to obtain review of constitu- questions tional but alleged not of other trial errors such sufficiency In admissibility of evidence. their Post- proceeding Conviction petitioners alleged that there were en- manifest nonconstitutional errors in the trial which titled them their aside on to have convictions set only impediment appellate and that review full buy allega- was their lack of funds to These transcript. repeated tions have not their been denied. Petitioners solely full charge refusal to afford review poverty equal because of was a process denial due petition was protection. This like the first dismissed hearing any without evidence. The Illinois Supreme solely ground Court affirmed the dismissal on the *4 charges the raised no or federal substantial state consti- questions only questions tutional kind of which —the 6 Stat., 1955, Ill. Rev. c. 826-832. §§ 7 Stat., 1955, part Rev. provides Ill. c. 163f. This section in § any arising Hearing that “In case under Post-Conviction Act] [the presiding judge post-conviction in which the has determined that the petition require answer, duty is sufficient it shall the reporter transcribe, part, official court in in his steno whole or graphic notes of the introduced the trial in the evidence at which petitioner convicted, Attorney was if so the instructed to do State’s byor the court.” granted We proceedings. raised Post-Conviction S. 937. 349 U.
certiorari. petitioners that these for Illinois concedes Counsel get adequate appellate transcript in order to needed a is There no con- alleged trial errors.8 their review of efforts to dilatory were their petitioners tention Supreme Court review, or that the get trial the allegations ground review on denied for assume must therefore insufficient. We error were errors were committed this decision that purposes of peti- reversal, merit but that trial which would errors appellate review those get tioners could buy they poor stenographic too solely because were this violates Illinois denies that transcript. Counsel for Equal Clause, Process or the Protection the Due either if it Illinois Post-Conviction does, but states transcript. free The sole petitioners to a statute entitles therefore, process whether due decide, us to is question has been violated.9 equal protection or justice poor rich, weak Providing equal never problem.10 People alike is an have powerful age-old goal. closer to that hope and strive to move ceased to brought part, at least in about 1215 the hope, This “To no one will we royal Magna concessions Charta: delay, right jus- or or sell, refuse, to no one will we imprisoned, . . No man taken or tice. . free shall be 4, supra, See note there cited. cases dissenting question argues opinion A constitutional alleged petitioners because was needed narrower required. all the rather than The State made no such claim and together arguments opinion on with the briefs and both sides question being Supreme as treated the sole the Illinois have it. we stated judgment: unrighteousness “Ye do thou shalt not shall person mighty: respect person poor, nor honour the thy neighbor.” Leviticus, righteousness judge c. but in shalt thou
17 disseised, or outlawed, exiled, anywise or or destroyed; nor go upon by shall we him nor upon him, send but judgment peers lawful of his or by the law of the land.” These pledges unquestionably were steps toward a fairer nearly equal application more justice. of criminal In this our tradition, own guaranties constitutional due process protection and equal both for procedures call in criminal trials which allow invidious discriminations persons between groups persons. different Both equal protection process due central emphasize the aim of judicial system our entire people charged with —all must, crime so far on concerned, law “stand equality justice before the bar every American Florida, court.” v. 309 Chambers S. 241. also U. See Yick v. Hopkins, Wo S. 369.11 U.
Surely no one either a or would contend that constitutionally provide Federal Government could pay defendants unable to court costs in advance right should be denied the defend plead guilty themselves court.12 Such law make the con- would promise of a trial thing. stitutional fair a worthless be Notice, heard, right and the to counsel would under such meaningless promises circumstances be to the In poor. criminal trials State can no dis- more on poverty criminate account of than of reli- on account gion, race, or color. Plainly ability pay costs advance bears no rational to a relationship defendant’s
11Dissenting opinions
argue
here
the Illinois law should
upheld
by
applies
poor
since
its terms it
But
rich and
alike.
nondiscriminatory
grossly discriminatory
law
on its
face
operation.
example,
its
For
this Court
down the
struck
so-called
“grandfather
discriminatory
clause” of
Oklahoma Constitution as
against Negroes although
that clause was
its terms nondiscrimina
tory.
States,
Wilson,
Guinn v. United
S. 347.
also Lane v.
U.
See
18 as an excuse to used and could or innocence guilt a Indeed, provision a fair of trial. defendant deprive every provided 1818 of Illinois of the Constitution justice right obtain “ought to person in Illinois it, com- obliged purchase to being and without freely, delay, denial, and without promptly pletely and without 13 the laws.” conformably to a rule meaningful distinction between is no There right to defend them- deny poor the would which effectively denies and one which in a trial court selves all accorded to who adequate appellate review poor in advance. It is enough pay the costs money have by required the Federal Consti- that a is not true appellate or a provide appellate tution to courts Durston, 153 U. See, g., at all. e. McKane v. S. review say But is not to that a State 684, 687-688. way do in a that dis- grant appellate does review can so criminates defendants on account against some convicted poverty. Appellate review has now become an their system finally integral part of the Illinois trial ad- judicating guilt or innocence a defendant. Con- all sequently stages proceedings at the Due Process Equal protect peti- Protection like persons Clauses tioners from invidious discriminations. See Cole v. Arkansas, 333 U. S. Dowd v. States ex 201; United Cook, Kansas, 206, 208; rel. 340 U. Cochran v. S. Frank v. 255, 257; Mangum, U. S. S. 327. U. provide All of the States now some method of convictions, criminal recognizing importance from adjudication appellate guilt review to a correct innocence. show proportion Statistics substantial appellate criminal convictions are state reversed VIII, Substantially Art. Ill. Constitution the same § provision present Constitution, has been carried over into the II, Art. 19.§ deny adequate Thus to poor
courts.14 review to the means liberty many life, of them lose their or property unjust because of convictions which courts Many would set aside. States have recognized this provided aid for have a right convicted defendants who appeal and need a pay but are unable A it.15 have few not. Such a denial is misfit in country dedicated affording equal justice to all and *7 special privileges none in the administration its equal criminal law.16 There can be justice where kind depends of trial a man gets money on the amount of has. he Destitute must be afforded defendants as ade quate appellate money as have review defendants who enough to buy transcripts.
The Supreme petitioners Illinois Court denied these relief under holding the Post-Conviction Act because of its that no In rights constitutional were violated. view holding contrary our to the Supreme may the State Court petitioners decide that are transcript, now entitled to a Stat., 37, the State’s brief Ill. suggests. 1955, See Rev. c. Cook, 163f. Cf. Dowd v. United States ex rel. 340 § 14 Note, See Cases, Reversals in Illinois 42 Rev. Criminal Harv. L. 566. 15See, g., e. Ann., 1939, Stat., 1947, Ariz. §44-2525; Code Ark. §22-357; Page’s Code, Ann., 1954, §2301.24; Ohio Code Rev. S. C. 1952, 15-1903; Laws, Code, McKinney’s (Supp. N. Y. Crim. § 1955), Note, See also 100 A. L. R. 321. §456. Appeals The spoke Criminal Court of in 1913 in Oklahoma equal country’s process the tradition of this dedication to due protection respecter persons it when declared the law is no said: people understand, all,
“We want the of Oklahoma to one and person poorest unpopular depend . . and most state . can justice Oklahoma, it that is not for sale in and that no one can deprived simply pay of his because he is unable to stenographer testimony.” the notes of the extend Jeffries State, Okla. Cr. 132 P. however, Illinois hold, do not at 209-210. We S., U. every case stenographer’s purchase must Supreme Court buy it. The cannot where defendant effective affording adequate and means of may find other example, For defendants. review to other bystanders’ bills of be that be used proceedings trial could reporting methods appears to have Supreme Court The Illinois some cases.17 procedure appel- rules promulgate power broad the State will are confident practice.18 late We this problem to meet which corrective rules provide bare. lays case Supreme judgment court for cause is remanded to that and the
vacated para- foregoing inconsistent with the further action not joins in disposi- graph. Mr. Justice Frankfurter tion of the case. and remanded.
Vacated
judgment.
in the
concurring
Frankfurter,
Mr. Justice
*8
Tocqueville
The
not to confuse the
admonition
de
application
familiar
the
has
necessary
with
vivid
appeals in
from
right
appeal
criminal cases. The
to an
a
today
conviction for crime is
so established that
easy assumption
to the
is fundamental
leads
liberty
the protection of life and
and therefore a neces-
sary ingredient
is,
“Due
process
process”
of due
of law.
perhaps,
concept
the least frozen
of our law—the least
17
(2 Scam.)
(1840); People
Wilson,
See
v.
3 Ill.
253
Weatherford
Williams,
(1878); People
v.
ex rel. Maher v.
ex rel. Hall
confined to and the most neither the society. social standards of But progressive a particular- process” content of “due nor the unfolding procedural Bill safeguards Rights disregard ized of the sig- national It ways policy. reflect a historic nificant from in federal appeals convictions (with exceptions neg- courts were afforded roundabout present nearly years; a ligible purposes) hundred justice standards of criminal and, despite civilized was no from convictions England, modern there until (again pertinent) not now with not Thus, process it is now settled that due of law does require judgments. to afford criminal State review of deny
Nor equal protection does of the laws State right to make classifications law when such classifi- cations equality are rooted reason. “The at which the ‘equal protection’ equal- clause aims is not disembodied ity. ‘the enjoins equal The Fourteenth Amendment protection of laws,’ are not prop- laws abstract Texas, Tigner ositions.” 310 U. S. 147. Since capital generis, offenses are sui may State take account irrevocability by appeals death allowing capital cases and Again, others. “the appeal may by be accorded to the State accused as in such terms its wisdom may proper.” deemed Durston, McKane v. 153 U. S. The 684, 687-688. States power. have exercised this discriminating different States and same from time to have time condi- by tioned criminal appeals fixing the time within which an appeal may be taken, by delimiting scope by review, shaping the mechanism alleged which errors brought before the tribunal, and so forth.
But may neither the fact that a deny right State the of appeal altogether the right nor of a State to make an appropriate classification, based on differences crimes and their nor punishment, the of a lay State to down appeals, for criminal appropriate it deems conditions by that have no rela a State differentiations sanctions criminal authorizes policy appeal rational of or to a tion deepest pre that offend the imposition of conditions need society. Surely of it would not our suppositions not, that a could within argument conclude matters, allow scope of discretion these its wide by im persons punishable convicted of crimes appeal for fee of year only payment on of a prisonment more, or course, nothing done so crude Illinois, of has $500. said, effect, Supreme Illinois has that. But occurring alleged errors Illinois can consider Court of determining if only a criminal trial the basis by brought is before it a bill there were errors whether and not otherwise.* From this follows exceptions only defendants who can that Illinois has decreed that minutes of a trial pay stenographic afford to may by on the Illinois have trial errors reviewed Frana, Ill. Supreme (See People Court. v. La 2d * only mandatory may in the court consist “The record trial record, indictment, arraignment, plea, judgment. . viz., trial . . and every appears .... The record This in the clerk’s record case may exceptions, of the also a bill of which consists all include instructions, heard, rulings court, motions of the trial evidence and directly within the clerk’s other matters which do come and may only part mandatory This of the record on review record. by prayed allowed, exceptions when a is and certified bill Therefore, is the common-law . when the review had court. . . may by the is record, only that be considered court the sole matter record, may not be appearing upon the of the and matters error face expand otherwise, supply by argument, affidavit, or added appearing in the upon the errors The case must stand or fall record. exceptions, course, is bill of which includes record. where there Of instructions, like, rulings evidence, motions, evidence, on record, errors part bill such made People Loftus, remedy . of error. . .” reached writ 432, 433-434, N. 2d 497-498. Ill. E. *10 585-586.) thereby shut E. It has 122 N. 2d indigent for defendants. appellate means of review
off know willfully blind not to have to be This Court would errors prejudicial in the been trial past there have convictions of defend- which called for reversal of those have not had the and that the number of who ants, of a bill of is paying for for the cost means may truth there negligible as to invoke whatever not so in the maxim de minimis. It not face itself to actualities. does Law addresses every convicted actuality suggest that Illinois affords financially opportunity person, competent not, appeal, take an and that it is not Illinois that Of responsible disparity material circumstances. A a equalize course State need not economic conditions. man of the retention of an means be able to afford man’s expensive, poor able counsel not within reach of a hardly purse. contingencies Those are of life which are a power, duty, within the let alone the of State to correct just a it or cushion. But when State deems wise and by court, susceptible appellate convictions be to review force of its exactions draw line which cannot precludes indigent persons, erroneously convicted forsooth convicted, securing merely by from such a review dis- abling bringing them from to the notice of an upset tribunal errors of the trial court which would practical opportunity conviction were review not foreclosed.
To inevitably sanction such ruthless consequence, resulting money from a aby State, hurdle erected would justify latter-day Anatole France to more item add one to his ironic “majestic equality” comments on the “The law, majestic law. its equality, forbids rich poor sleep as well as the under bridges, beg streets, and to steal (John bread.” A Cournos, Modern 27.) p. Plutarch, squalid discrim- produce is not free to such
The State allowing criminal policy a general ination. If it has means an effective bar make lack of it cannot appeals, cannot opportunity. to the exercise *11 illegally con- of to ear of those keep promise the word the But in order avoid hope. victed break it to their and may appropriately a State waste, or minimize abuse wrong. the conviction hedge opportunity prove about appellate not for correction only gives leave When State by its pay of but must for the cost of exercise trial errors appeals the it so that frivolous indigent, may protect itself needlessly public moneys spent. are not subsidized experience procedure growing The of reforms sensible, review still securing economic modes for devised, may to be be drawn the end that the justice equal neither the door nor support will bolt appellate process. abuse wasteful of the petitioners It must follows be accorded by conviction, having from their either the State a transcript furnish them of the in the trial proceedings any court, byor other of which have not means, we been law, be under so that advised, available Illinois they complain the errors of which effectively can brought Supreme for to the review Illinois Court. It is not for to tell Illinois what means open us are to the indigent and must may prescribe any be chosen. Illinois means are within the wide area of its constitutional discretion.
The petitioners only case these adequate means bringing allegedly for review fatal trial defects in a resulting potentially reversible conviction was a bill of exceptions poverty precluded which their them from securing. Supreme order Illinois Court and argument Attorney General Illinois sup- port of judgment that court’s apparently assumed that was case. Considering nature of issue themselves, appearing for by petitioners
thus raised of Illinois Supreme to the disrespect savor of would rejection implication unqualified us to find an its that an effective review petitioners of the claims of the present be had in the other bill of could than Gonzalez, 105-106. situation. Diaz v. 261 U. S. Cf. Supreme Court, again When the case reaches the Illinois may, existing that court find within the course, petitioners according resources Illinois law means of effective satisfaction of their constitutional not to equal protection denied the laws. We be mindful of the fact that there are un- must doubtedly prisons, convicts under confinement in numbers to us unappealed unknown and under sen- imposed years justification tences who will find ago, opinion, properly qualified, proceedings unless both in *12 upon they state the federal are courts claims that they in a illegal under detention have been denied under the Federal It an Constitution. would be easy duly answer that a claim that was not asserted —as the timely petitioners was claim these —cannot easy. asserted The too compels now. answer is Candor acknowledgement today the decision rendered is a ruling. compels new Candor the further acknowledge- ment that would not be unreasonable for all defendants, now incarcerated, who at the time were unable pay to for transcripts of in trial proceedings courts, urge they justified assuming were a such restriction appeals criminal presumably Illinois was valid exercise of the power they State’s at when time suffered consequences. its Therefore it well be could thereby claimed that any conscious waiver of a consti- tutional right negatived. is ought rely neither to on arguments casuistic
in denying
claims,
constitutional
nor deem itself impris-
oned
a formal,
within
dilemma. The judicial
abstract
necessarily retrospec-
ruling
a new
not limited
choice is
equal pro-
requirements
rejection of what the
tive, or to
For sound
perceived, require.
as now
laws,
tection of
More than
generally speaks prospectively.
reasons, law
Court of
instance,
Supreme
years ago,
hundred
one before
problem
not unlike the
Ohio,
with
confronted
it concluded that
difficulty
doing
so when
us, found
Bingham v.
legislative divorces were unconstitutional.
In
at a
Miller,
arriving
principle,
Mr. Minton, Justice Burton Mr. Justice whom Mr. Reed and join, Justice Mr. Justice Harlan dissenting. disagree desirability
While we do not with the policy of an supplying indigent defendant a free with in a transcript testimony like this, agree case we do not each compels of the United States the Constitution consequence that, regardless State to do so with the this contrary, to the legislation practice the State’s and appellate proceedings must hold invalid state Court not been required provided wherever has requested litigant without cost to an who has be so is one provided. thing Congress it It procedure this for the federal prescribe Court such It quite courts. another for this to hold that prescribed the Constitution of the has it United States for all state courts.
In the administration of local the Constitution has law interpreted been permitting gen- as the several States erally prac- follow familiar procedure their own recognized widely tice. In so doing Court has differing locally approved procedures but several approving particular procedures States. Whether or not, largely this Court has treated them as matters range reserved and within broad States permissible process” “due constitutional sense.
Illinois, as majority admit, deny could thus an appeal altogether denying criminal case due without Durston, law. McKane process 684. To U. S. an appeal allow at with all, among but some difference persons convicted as to the terms upon which is exercised, does not deny process. may present due It a question of equal protection. petitioners urge that point here.
Whether the Illinois equal protection statute denies depends upon whether, first, arbitrary is an and un- reasonable legislature distinction for to make, between those a capital convicted of offense and those convicted of a lesser offense, to their transcript. free It seems to us practice the whole teaches of criminal law there are ways valid distinctions between which criminal cases be looked treated *14 often we have violating Very without the Constitution. only to avoid death cases where the convicted seek have de- practicing lawyers know, As all who penalty. offenses, often the charged fended with persons capital There only goal penalty. is to avoid the death possible death sentence. something pretty is final about a practice recognizes If this distinction the actual law see no reason capital noncapital cases, we between and full may a extend the why legislature not capital offenses appeal benefit of to those convicted It is it to of lesser offenses. deny those convicted in of criminal experience the administration universal are capital offenses justice charged those with of such will granted special Examples considerations. larger per- readily All number of occur. States allow in challenges jurors capital cases than other emptory changes capital of venue permit cases. Most States cases on terms than other criminal cases. different require jurors for conviction Some States verdict capital jurors in a case but allow less than convict most coin, the other side of the noncapital cases. On provide capital of limitations cases. States statute here Illinois statute We think the distinction made cases is a reasonable capital noncapital between cases one. valid equal Illinois not Secondly, certainly deny protec- does appeal are tion to convicted defendants when the terms of avail open all, may some not be able to them- although full selves of the because of their poverty. economically equal bound make the defendants justice. may before its bar of For a State do so legislative but policy, good desirable social what necessarily required by a State is not the Con- policy for charged stitution of States. Persons with United the law eco- varying degrees crimes stand before with advantage. nomic and social Some can afford better *15 lawyers investigations and better their cases. Some bail, Why any can afford some cannot. fix bail at reason- able sum if poor man can’t make it? requires equal protection
The Constitution law, but it does not require provide equal States to financial means for all defendants avail themselves of such laws. Justice Black’s opinion is not limited to the
Mr. past future. It holds that a as as a well future convic- tion of crime a state court is invalid where the State has transcript failed to furnish a free to an indigent who sought, petitioner defendant has here, did obtain a review of a ruling dependent upon that was evidence his case. This is an interference with state power result, what desirable but which we believe to be within option. the field of local permit
Whether Illinois would appeals adequate pass on alleged errors bills of exception, prepared by approved by counsel and judges, without requiring full stenographic notes be transcribed is not before us. We assume that it would. Harlan,
Mr. Justice dissenting. Much I prefer as would to see free transcripts furnished felony defendants all I cases, myself find join unable to in the Court’s holding that the Fourteenth requires Amendment a State to do so or to furnish indi- gents equivalent with means of exercising appeal. importance of the question decided justifies Court adding to what Mr. Justice Burton Mr. Justice my have written further grounds Minton for dissenting and the Iwhy reasons find the majority opinions unsatisfying.
1. Inadequacy the Record. —I would decline to decide the constitutional question by petitioners tendered be- cause the present record does not it in that “clean-cut,” usually form demanded and “unclouded”
“concrete,” Army issues. Rescue of constitutional a decision In Angeles, Los U. S. Court Municipal to the Illinois should be remanded my case judgment might that we know proceedings further so courts for it. on passing claim before precise petitioners’ nature more than the nothing definite The record contains poor are with allegation persons that “petitioners necessary acquire fees to means paying prosecute Records needed to Transcript I my part For cannot appeal from their convictions.” petitioners’ claim is that a was tell whether *16 Illinois a is a (a) transcript because under law “needed” as a prerequisite errors,1 (b) of trial or appellate review an petitioners prepare adequate matter could factual transcript. bill of a exceptions having short If necessary, a transcript legally the claim that was it is an The based on erroneous view Illinois law. petitioners that by only Illinois cases cited the establish trial in the errors cannot be absence a bill reviewed of exceptions, and not a is essential that the a an preparation contrary, of such bill.2 To the
1 Supreme may plead The interpreted have Court ings petitioners’ manner. It described the “sole contention” they being purchase that were “unable to bill were, therefore, complete by obtain this Court.” unable to review suggests This to be an the state court construed the claim necessarily transcript, precluded by was the lack of not that petitioners’ particular produced result. If circumstances construction, having meant, is what the Illinois its a rea court basis, binding sonable would this Court would on constitute ground adequate any premised state for the denial of claim on particular preventing petitioners existence circumstances pursuing from other available methods of review. g., People Johns, 212, 895; People
2E. v. v. 388 Ill. 57 N. E. 2d Loftus, 432, People 495; O’Connell, 400 Ill. N. E. 2d 411 Ill. 81 v. 591, 104 2d N. E.
31
unbroken line of Illinois cases establishes that a bill
exceptions may
simply
consist
of a narrative account
of the trial proceedings prepared
any
from
available
sources—for example, from the
memory
notes or
trial
judge, counsel, the defendant,
bystanders
or
—and
the trial
judge
certify
must either
such a bill as
point
accurate or
out the corrections to be made.3 Viewed
light
of these cases,
only
constitutional question
3
Wilson,
(2 Scam.)
(1840); People
v.
3 Ill.
253
ex rel.
Weatherford
Williams,
People
Gary,
Maher v.
(1878);
presented Is an be: transcript would to purchase unable to obtain that he is unable has not shown defendant, who narrative bill by a of his conviction appellate review full to the added constitutionally entitled exceptions, of proceedings the trial a free of of advantage hardly pause I need exceptions? for use as a bill no substantial present would that such claim suggest question. constitutional notice that judicial either takes Court, however, pre- alternative methods matter practical
as a inadequate are or finds exceptions paring bill cir- their allegation claims an petitioners’ fact utilizing from prevent as to them cumstances were such read- accepting But the alternative methods. even tendered question constitutional ing pleadings, the circum- knowing should not be decided without conclusory of “need.” underlying allegation stances al- only underlying “fact” indigence, Petitioners’ from necessarily preclude did not in itself them leged, are exceptions, bill of and we preparing narrative pre- nothing told as to the other circumstances which not even doing vented them from so. The record does during incarcerated petitioners disclose whether were exceptions filed, had to be or period which the bill they by counsel at the trial. represented whether were alleged the nature of the speculate are left to on We the bill of needed scope trial errors and the if say them. can that we knew the facts present Who have us a much narrower constitu- might we before today, perhaps than the one decided question tional all. In these I question circumstances, no such at would salutary policy avoiding “of constitutional deci- follow are with presented clarity, precision sions until the issues Army v. certainty,” Municipal Rescue Los *18 576, at and would refuse to decide Angeles, supra, p. question constitutional in the abstract form in which it presented has been here.
According petitioners’ tabulation, more than 29 States provide free transcripts as of right to indigents convicted of non-capital crimes. Thus the sweeping con- pronouncement stitutional by made the Court today will touch the laws of at least 19 States4 and will create a host of problems affecting status of an unknown mul- indigent titude of convicts. A having decision such wide impact should not be made upon a record as obscure as this, especially where there ready are means at hand to have clarified the sought issue presented. I
However, since
stand alone in my view that
Court should refrain from deciding the
question
broad
urged upon
necessity
us until the
for such a decision be-
comes
I
manifest,
deem appropriate
also
my
to note
disagreement with the Court’s decision of
question.
Inasmuch
the Court’s
decision
not —and on this
any
record cannot
peculiar
be—based on
facts
to this case,
I
question
consider that
to be: Is an
defendant
have, however,
given
expressly
Of these 19 at least 5
the trial
discretionary power
transcripts
non-capital
courts
to order free
Laws,
278, 33A,
1955,
cases. Mass. Ann.
c.
as amended
Acts
§
(“by
court”);
Code, 1943,
c. 352
order of the
N.
27-
D. Rev.
§
(when
therefor”);
Stat.,
“there is reasonable cause
Ore. Rev.
(if “justice
thereby promoted”);
Code,
21.470
will be
D.
S.
§
(if
protection
34.3903
“essential
of the substantial
§
rights
defendant”);
(if
Code, 1951,
Wash. Rev.
2.32.240
§
“justice
thereby
promoted”).
Supreme
will
The Rhode Island
by interpretation
Court has
reached
similar result
of a statute
authorizing
expenditures
appointed
reimbursement
counsel.
Hudson,
State (1935)
(“sound
55 R. I.
I do not understand either necessity bill of reasonableness if used general requirement transcript, the trial paid party. preparation, appealing its *20 operation The finds in these requirements, Court the of however, an invidious classification between the “rich” and the But no “poor.” economic burden attendant the in privilege upon all, exercise of a bears and equally other circumstances the is not resulting differentiation an State, treated as invidious classification the even though against “indigents” by discrimination name would Thus, unconstitutional. while the exclusion of “indi- gents” a from free state university deny equal would them protection, requiring payment the of tuition surely fees not, despite would resulting the exclusion of who those could pay not afford to the fees. And if imposing con- payment dition of the equivalent is not of a classification by the in I case, why one fail see it should be regarded so in another. Thus if in requiring defendants felony pay cases to for a constitutes dis- criminatory denial indigents of why available it in others, is not similar denial misdemeanor or, cases that matter, civil cases? say
It is no equal protection answer to that is not an and absolute, other than criminal cases the differ- entiation is resulting “reasonable.” The classification would be invidious all an cases, and classifica- invidious tion equal offends protection regardless of the seriousness of consequences. the Hence it must the differ- ences are “reasonable” other not cases because is simply reasonable but it is not because “classification” unreasonable those cases for to fail to the State relieve indigents economic is, burden. That issue here the rea- protection question typical equal
is which on the basis of aof “classification” sonableness but rather the imposed legal disabilities, has the State natural failure to remove of the State’s reasonableness the failure holds disabilities. in this constitutionally unreasonable State to do so is I it not be others. submit although might case con- holding simply is unarticulated the basis for that fairness” for State clusion that it violates “fundamental review, apparently thus provides which necessary to not to justice, considers such review assure fact to it such are in available to those appeals see imprison for crimes. That course would serious Brady, due see Betts v. language process, traditional I import see no reason to new 316 U. S. protection dispose concept equal into the substance especially gives when to do rise to the case, so all-too-easy real opportunity ignore the issue solve simply by labeling the Illinois problem practice *21 invidious “discrimination.” Due a Process. —Has there been violation of Due majority of
Process Clause? The the Court concedes that the Fourteenth Amendment does not require the provide any States to for kind of review. Nev ertheless, Illinois, among in the forefront the States, in early established writs error criminal cases as 1887, In it for provided reporters, 1827.5 official court thereby relieving of the burden hiring- defendants reporters transcript.6 order to obtain In 1927, it provided indigents for that sentenced to death “all necessary expenses” error, costs incident to writ of including cost transcript, of a would paid by be 1827, Code, Ill. Ill. Rev. 187; Stat., Rev. §§186, 1955, L. Crim. c. 769.1. § 1887, p. 159; Ill. Laws Ill. Rev. Stat., 1955, c. 163b. § transcripts And in free counties.7 were author presentation ized for of constitutional claims.8 Thus steadily expanded protection Illinois has afforded years defendants in criminal and in cases, recent has made substantial strides dis alleviating towards natural advantages indigents. that, it be while not Can it was for unconstitutional Illinois to no its appeals, afford steady progress increasing safeguards against erroneous convictions has resulted in constitutional decline?
Of appeals constitutionally course the fact that are not required does mean State is free of constitu- establishing tional restraints the terms which appeals mean, will be allowed. does It however, “right” there is no to an the same sense a right there is to a trial.9 Rather the constitutional simply right under the Due Process Clause is be an appeal arbitrary not to denied for or capricious however, Nothing kind, reasons. can be found in any steps by which has its established appellate system. agreed objection are all can
We substance capital be to the free provisions transcripts made process and constitutional cases. The due must challenge permitting step ap- therefore directed to the basic peals all also providing pauperis at without an in forma procedure. But whatever else be said of Illinois’ expend public funds in perfecting appeals reluctance indigents, hardly arbitrary. it can be said to be A policy economy may unenlightened, but is cer- *22 1927, 400, 11/2; 1955, p. Stat., 38, Laws Rev. Ill. Ill. c. 769a. § § 859; 37, p. Stat., 1955,
8 Ill. Laws Ill. Rev. c. 163f. § any validity analogy This difference makes of dubious between right imposed a condition the to defend oneself a right imposed upon appeal. the condition to generally it has never And that tainly capricious. not our by the fact that atten- is evidenced regarded been so to no State which been called tion has forma contemporaneously established appeals were pauperis nothing past I find the can right appeal. with a justifying holding that this Court decisions of to a confines States choice Amendment Fourteenth appeals undertaking at all allowing between is indigents, which what the appeals bear the cost holds. in effect now if that, argued finally It is even cannot said petitioners of Illinois to “arbitrary,” provide the failure right appeal exercising means of with the is a simply able to exercise so “unfair” to be others are I some process. question due have whether denial of non-arbitrary right of a the State denial so In altogether could ever be characterized. withhold enough it is we any event, however, to so hold indigents transcripts consider free to be desirable weigh competing social policy or we would policy in favor of were it our values such function public among distribute funds alternative uses. Illinois’ question assuring Rather the is whether some method of his right appeal is able exercise in the “implicit concept liberty,” ordered Palko Connecticut, S. so that the failure of U. provide State so constitutes “denial of fundamental justice,” fairness, shocking to universal sense of Betts equivalence v. Brady, supra, at 462. Such an between persons in the means with exercise a which to has not, however, traditionally been regarded anas essential of fairness,” “fundamental reforms indigents recently extending only aid to have gained such widespread acceptance. Indeed, it until was not an Act Congress 1944 that defendants federal criminal
39 to transcripts,10 cases to free date became entitled approximately one-third of the still have taken States limi- regard due for the constitutional step. With power tations of this Court to intervene bring myself say I am matters, unable to to transcripts indigents free Illinois’ failure furnish in all cases is to the universal sense “shocking criminal justice.”
As I
this
it
none of the elements
case,
view
contains
regarded
justify
hitherto
as essential
action
this
Court
the Fourteenth Amendment.
In truth what
under
adopt
we have here is but
the failure of Illinois to
other
reform in its
promptly as
States
desirable
criminal
procedure.
might
Whatever
be said were
a question
procedure
regard
system
courts,
federal
our
requires
federalism
such
matters
as this be left
the States. However
strong
one’s inclination
day
hasten the
when
pauperis
pro-
criminal
forma
cedures will be
among
States,
universal
I think it is
beyond
province
of this
to tell Illinois
provide
procedures.
must
such
10
(f),
(a).
58 Stat.
28 U. S. C.
prior
On the
federal
§§
practice,
g.,
see, e.
King,
(C.
v.
Estabrook
F. 2d
A. 8th
Cir.);
Fair,
(D.
States
Calif.).
United