Strattman v. Studt

Corrigan, J.,

concurring in the judgment only. The question we have for determination in this appeal is whether a convicted, indigent accused, after serving the maximum term of imprisonment imposed for the commission of a misdemeanor, can be required to serve out a fine and costs at the rate of three dollars ($3.00) per day, where the sentencing court knows that the accused is without funds or other property.

Petitioner, Walter Strattman, received a sentence of six months in the workhouse and a fine of five hundred dollars ($500) upon conviction of violating Section 901-f3 of the Code of Ordinances of the City of Cincinnati for making a false police report. After serving the six-month sentence, petitioner was unable to pay the fine and filed a pauper’s affidavit with the Municipal Court of Hamilton County, where he was found guilty, but his confinement was continued until the fine was paid at the rate of three dollars ($3.00) per day, as provided for by Section 2947.20, Revised Code.

On April 22, 1969, petitioner filed a petition for writ of habeas corpus in the Court of Appeals for Hamilton County. The writ was denied and the Court of Appeals certified the record to this court as being in conflict with the case of In re Petition of Cole, 17 Ohio App. 2d 207, decided by the Court of Appeals for Cuyahoga County.

*106After the case was docketed, petitioner moved this court to set bond, which was granted and petitioner was released on bond pending the decision in this appeal.

Two propositions of law are advanced in support of petitioner’s position that he is entitled to have the writ of habeas corpus granted. I consider only the first, for the purpose of this concurrence, which is stated in petitioner’s brief as follows:

“A maximum term of imprisonment and a maximum fine imposed by a trial court on a defendant who is indigent and who must necessarily work off the fine by a further term of incarceration deprives him of due process of law and the equal protection of the laws in violation of Section 1 of the Fourteenth Amendment to the United States Constitution.”

The apparent purpose of Section 2947.20, Revised Code, is to enforce the collection of fines and costs. However, when that section is applied in the case of an indigent it serves only to impose additional imprisonment. This additional imprisonment follows solely and automatically as a result of petitioner’s inability to pay. If petitioner had financial means, he would have a choice between paying or serving out the time. Due to his poverty he is denied this chance. His is the poor man’s “Hobson’s choice”; he must serve additional time — at the rate of three dollars per day. Thus, petitioner is not afforded the same treatment as is a person who is financially able to pay or make provision for paying the fine and costs.

Equal protection of the laws comprehends that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. Discrimination which is based upon a man’s financial means is out of keeping with the traditions of fair play and equal justice which we have long sought to maintain. As Justice Black stated in Griffin v. Illinois, 351 U. S. 12, 17:

“* * * Both equal protection and due process emphasize the central aim of our entire judicial system — all people *107charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ * * *.

“* * * In criminal trials a state can no more discriminate on account of poverty than on account of religion, race, or color. * * *”

Therefore, I would hold that the unequal treatment imposed upon appellant in this case constitutes a denial of his right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution. See People v. Saffore, 18 N. Y. 2d 101, 218 N. E. 2d 686.

Comparable instances of discriminatory practices based upon a person’s poverty have been condemned by the Supreme Court of the United States. Griffin v. Illinois, supra (351 U. S. 12); Burns v. Ohio, 360 U. S. 252; Gideon v. Wainwright, 372 U. S. 335.

Thus, in my view, the commitment under Section 2947.20, Revised Code, of a person to jail or workhouse until he pays or serves out his fine and costs, where the person has already served the maximum substantive sentence of days provided by the ordinance under which he was convicted, is a denial of equal protection of the laws in a case where the person so committed is indigent and, because of such indigency, is unable to pay the fine and costs for which the commitment is made.