(concurring in part and dissenting in part):
I agree with the result reached by the Court with respect to costs, but I would place the decision on an additional, broader ground. I dissent from the result reached by the Court with regard to fines;- I would hold Article 38, §§ 1 and 4, unconstitutional on their face as denying due process of law, and would enjoin their enforcement. I state my reasons, therefore, in concurrence and in dissent.
I
In Kelly we found a denial of equal protection in the manner in which the statutes were applied with regard to costs. It was unnecessary for us to resort to any broader basis of decision. In the instant case there is another, although different, form of unlawful discrimination in the manner in which the statutes are being applied. One form of unlawful discrimination, once struck down, immediately followed by another form of unlawful discrimination, leads me to prefer to rest my decision on the broader basis that imprisonment for nonpayment of costs is constitutionally impermissible under the due process clause, and not to rest content solely in invoking the equal protection clause.
In Maryland, costs in a civil action “are ‘a pecuniary allowance made to the successful party (and recoverable from the losing party) for his expenses in prosecuting or defending a suit’ * * *. [Cjosts (which generally do not include attorney’s fees) are given by law as an indemnity and are not imposed as a punishment upon one who pays them or as bonus to the one who receives them * * * [and] costs ‘are not awarded as a gratuity or emolument for inconvenience sustained, but constitute compensation for expense * * *.’ ” Weiner v. Swales, 217 Md. 123, 141 A.2d 749, 750 (1958).
To my mind,,costs, in a criminal action, are no different, except that they are recoverable by the State rather than a private litigant. Traditionally, they depend upon such considerations as whether the convicted defendant pleaded guilty or insisted upon trial, and, if the latter, whether a jury trial was demanded or waived, what subpoenas for the production of witnesses were issued and like considerations. Whether denominated punishment or not, the amount of *561costs is determined not by the gravity of the offense or conditions peculiar to a defendant’s criminal culpability, but | solely to reimburse the State for sue- , cessful criminal prosecution. “Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute.” Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 520, 15 L.Ed.2d 447 (1966) (emphasis supplied).
Granted the objective of reimbursement of the State’s costs, if Maryland would not hold imprisonment for nonpayment of costs in violation of its Constitution, Article III, § 38,1 banning imprisonment for debt, I would hold such imprisonment invalid under the due process clause of the Federal Constitution for the reasons discussed in Part II of this opinion.2
II
This Court held in Kelly that the confinement of indigents, as well as others, for a limited period because of nonpayment of fines does not deny them the equal protection of the laws and does not constitute, in the abstract, cruel and unusual punishment. “The commitment of convicted defendants who default in the payment of their fines, whether from inability or unwillingness to pay, imposes a burden upon a defined class to achieve a permissible end in which the State has a. vital interest; i. e., that persons who are found guilty of breaking the laws shall receive some appropriate •punishment, to impress on the offender the importance of observing the law, in the hope of reforming him, and to deter other potential offenders from committing such offenses in the future. * * * Article 38, see. 4 is a constitutionally permissible way of accomplishing the desired results; the class established thereby and the distinction drawn therein have ‘some relevance to the purpose for which the classification is made’, and are not illegally discriminatory.” Kelly v. Schoonfield, supra, 285 F.Supp., at 737. Generally, I still adhere to these views. On further reflection, however, I think that Article 38, §§ 1 and 4, must be declared invalid on their face as denying due process of law.
As the majority states, counsel for plaintiffs argued at the hearing that when the judges of the Municipal Court of Baltimore City impose fines, they do not consider whether the defendant is indigent and whether the period of confinement prescribed in Article 38, § 4, would be a reasonable period for that defendant under all the circumstances. Counsel for plaintiffs suggested that the entire matter of calculating the requisite period of imprisonment is handled by the clerk and by the jailer. Counsel for defendants denied this, but counsel for neither party offered any evidence to support his contention. Although Article 38, § 4, does not require municipal court judges to learn whether a defendant is financially able to pay his fine, Article 26, § 113(c), and Article 27, § 139, enable municipal court judges to make appropriate arrangements and conditions, including installment payments, in the case of a defendant who is financially unable to pay any or all of his fine at the time of sentencing. While *562I am loathe to believe that municipal court judges do not consider whether the defendant is indigent, and whether the period of confinement prescribed in Article 38, § 4, would be a reasonable period for that defendant under all the circumstances, the fact is that, on their face, the statutes do not require that a judge make any such determination or to give that consideration, and therein lies the basis for constitutional objection.
I start with the proposition that incarceration is generally regarded as a harsher sentence than the mere payment of a fine. Castle v. United States, 399 F.2d 642, 651 (5 Cir. 1968). See also, Wildeblood v. United States, 109 U.S. App.D.C. 163, 284 F.2d 592 (1960) (dissenting opinion). Judicial experience amply demonstrates that, assuming financial ability to pay, it is the extremely rare defendant who will not pay any reasonable fine rather than to risk loss of his liberty for one day.
When, in the case of defendants unable to pay, it becomes necessary to convert the deterrence and rehabilitation to be achieved by imposition of a fine into an appropriate period of incarceration to reach the same objectives, there is little logic or reason to assume that a day’s loss of liberty has a monetary value of $2.00.3 The minimum wage under the Fair Labor Standards Act for a normal working day is far in excess of this amount. 29 U.S.C.A. § 206(a). Even with regard to employment not covered by that Act, I am not so blind as to say that $2.00 represents a fair day’s wages under current conditions. Cf., People v. Saffore, 18 N.Y.2d 101, 104, 271 N.Y.S.2d 972, 218 N.E.2d 686 (1966).
Yet Article 38, § 4, prescribes as equivalents a day’s loss of liberty and $2.00. The result is that if the statute’s table of equivalents is applied blindly, as, for example, when the sentencing judge is not aware of indigency and thus not aware of the full rigors of the statute’s operation, punishment considerably harsher than may be warranted by the gravity of the offense and due regard to the circumstances peculiar to a given defendant may result. The magnitude of this potential invidious effect is aggravated when we consider that the imposition of a fine in the first instance constitutes an adjudication that the circumstances of the offense and the factors peculiar to the defendant do not call for the harsher penalty of incarceration.
The trend of modern attitudes toward sentencing is that the punishment ought to be devised to fit the defendant as well as the crime. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), amply demonstrates the point. The issue in the case was whether due process restricts as sentencing judge only to that evidence which would be admissible at the trial or whether he may also consider other factors presented in a form not constituting admissible evidence. In holding that the due process clause did not restrict consideration of all relevant truthful information in whatever form presented, the Court, inter alia, said: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. * * * Today’s philosophy of individualizing sentences makes sharp distinctions, for example, between first and repeated offenders. Indeterminate sentences, the ultimate termination of which are sometimes decided by non-judicial agencies have to a large extent taken the place of the old rigidly fixed punishments. The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy. * * * Retri*563bution is no longer the dominant objective of the criminal law. Reformation and rehabilitation have become important goals of criminal jurisprudence.” 337 U.S., at 248-249, 69 S.Ct., at 1083-1084 (footnotes eliminated) (emphasis supplied).
It is true that Williams considered only what due process does not prevent and the issue before us is what due process requires. Other authorities point to the answer. In Stevens v. Warden, Maryland Penitentiary, 238 F.Supp. 334, 338 (D.Md.1965), aff’d, 382 F.2d 429 (4 Cir. 1967), cert. den., 390 U.S. 1031, 88 S.Ct. 1423, 20 L.Ed.2d 288 (1968), this Court remarked: “the failure of a judge to give the defendant or his counsel a reasonable opportunity to present matters in mitigation of sentence, coupled with other circumstances, such as the failure of defendant’s counsel to seek such an opportunity, may amount to a deprivation of due process.” In the same case, the Court of Appeals termed the imposition of standard sentences by a sentencing judge “a negation of judicial responsibility.” 382 F.2d, at 432. How much more aggravated is the ease under the statute in question when the transformation from monetary penalty to loss of liberty may occur without judicial intervention.
As stated by the Supreme Court, the concept of due process “stem[s] from our American idea of fairness,” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954), and is “measured by * * * that whole community sense of ‘decency and fairness’ that has been woven by common experience into the fabric of acceptable conduct,” Breithaupt v. Abram, 352 U.S. 432, 436, 77 S.Ct. 408, 410, 1 L.Ed.2d 448 (1957). As the bulwark against governmental infringement of those personal immunities which are “fundamental” and “implicit in the concept of ordered liberty,” (Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952)), the due process clause bars “enactments that shock the sense of fair play — which is the essence of due process,” Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954). It is well to remember, also, that the concept of due process is not static but is flexible and can accommodate itself to the times and the results of human experience. Familiar examples of this process include the evolutionary development from Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and its progeny, and from Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
Of course, it is perhaps true that not all members of the present Supreme Court fully subscribe to the notion that due process has primary reference to elemental and basic fairness (see, e. g., Griswold v. Connecticut, 381 U.S. 479, 510-526, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (dissenting opinions, Black and Stewart, JJ.). Nevertheless, the fact is that a majority of the Court has on numerous occasions declared invalid State laws or procedures which transgressed that concept. See cases collected in footnote 4, dissenting opinion, supra. Griswold v. Connecticut, 381 U.S., at 511, 85 S.Ct. 1678. See also, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Furthermore, numerous lower federal courts have embraced the notion that the essence of due process is fundamental fairness. See, e. g., Crawford v. Bounds, 395 F.2d 297, 314 (4 Cir. 1968) (Sobeloff, J., concurring), judgment vacated on other grounds, 393 U.S. 76, 89 S.Ct. 234, 21 L.Ed.2d 62 (1968); Howard v. United States, 372 F.2d 294, 301 (9 Cir.), cert. den., 388 U.S. 915, 87 S.Ct. 2129, 18 L.Ed.2d 1356 (1967); Cox v. Burke, 361 F.2d 183, 186 (7 Cir.), cert. den., 385 U.S. 939, 87 S.Ct. 304, 17 L.Ed.2d 218 (1966); Watson v. Patterson, 358 F.2d 297, 298 (10 Cir.), cert. den., 385 U.S. 876, 87 S. Ct. 153, 17 L.Ed.2d 103 (1966); United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 855-856 (2 Cir. 1965) (Mar*564shall, J.), cert. den., Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966); United States ex rel. Mishkin v. Thomas, 282 F.Supp. 729, 737-738 (S.D.N.Y.1968); United States v. American Honda Motor Co., 273 F.Supp. 810, 819 (N.D.Ill.1967).
Viewed in the light of the evolutionary development of our concepts of sentencing practices, I think that there is only one result which can be reached in this .case. Except for life, there is no greater .'personal immunity than liberty. Any j comparison between a deprivation of j liberty and the financial burden imposed I by a fine upon a given individual is at ¡best an equation of inherently dissimilar ; elements. While I would not now pre- ■' scribe what might be an acceptable : equivalent, I have no difficulty in concluding that $2.00 per day is not acceptable.4 If Maryland insists upon a formula which automatically translates fines into imprisonment without judicial intervention, fundamental fairness commands that the factor of translation be formulated on a rational basis so that the burden upon an indigent defendant does not increase dramatically when he is forced, by circumstances beyond his control, to subject himself to the alternative punishment of imprisonment.5
Unlike the statute considered in Privitera v. Kross, 239 F.Supp. 118 (S.D. N.Y.), aff’d., 345 F.2d 533 (2 Cir.), cert. den., 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed. 2d 163 (1965), and the more recent New York enactment which the majority impliedly urges upon the Maryland legislature, the Maryland statutes prescribe no required intervention by a judicial officer in the translation of monetary punishment into confinement so that the inadequacy of the equivalents may be compensated for and the sentence individualized to respond to the factors appropriately to be considered in determining the duration of the loss of liberty. Thus, I would declare the statutes invalid and enjoin their enforcement.
III
The opinion of the majority denies defendants’ motion to dismiss the complaint with regard to imprisonment for nonpayment of a fine, and this notwith*565standing that the parties have submitted the case to us on certain stipulations for final decision and the majority accepts the submission as to costs. The majority appears to contemplate further proceedings. Of what nature and of what scope I cannot surmise. What is before us is sufficient for final judgment; further facts need neither to be assumed nor proved. If the statute is invalid on its face, certainly it cannot be saved by benevolent administration, even assuming that every judicial officer of the State of Maryland appears before this Court and testifies that he always makes a determination of indigency so that he fixes the fine in an amount which, under the rule of $2.00 per day, results in a period of confinement, that, in his discretion, he deems appropriate. If the statute is invalid on its face, as I believe, the Court should speak now and restore those, invalidly restrained, to their liberty.
. See, however, State v. Mace, 5 Md. 337 (1854) ; Ruggles v. State, 120 Md. 553, 87 A. 1080 (1913).
. United States ex rel. Caminito v. Murphy, 222 F.2d 698, 700 (2 Cir.), cert. den., 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955), deems imprisonment “involuntary servitude,” even in the absence of a statute encouraging prison labor such as was condemned in United States v. Reynolds, 235 U.S. 133, 35 S.Ct. 86, 59 L.Ed. 162 (1914), sustainable under the Thirteenth Amendment only where the servitude is “punishment for crime whereof the party shall have been duly convicted.” Whether denominated “penal” or “additional punishment,” or not, where costs are to reimburse the State and are fixed by expenses to the State, the Murphy case suggests that incarceration for nonpayment is in violation of that amendment.
. Of course, by prescribing maximum imprisonment of 30 days for fines not exceeding $100, 60 days for fines exceeding $100 but not exceeding $500, and 90 days for fines exceeding $500, § 4 in reality prescribes a fluctuating scale of equivalents under which the equivalents may be exactly or more than $2.00 per day, depending upon the amount of the fine. This fact suggests an equal protection objection. In any event, I speak only to the announced equivalent of $2.00 per day.
. See, People v. Collins, 47 Misc.2d 210, 261 N.Y.S.2d 970 (Sup.Ct.1965), modifying on appeal a prison sentence for nonpayment of a fine:
“It is only if we equate the payment of the fine with the additional period of detention in prison that both men [the indigent and the non-indigent] can be said to stand equal before the law. An equation of one day of a man’s liberty in jail for every one dollar of the fine, in this enlightened era, should be examined very carefully before this form of equality of treatment is endorsed.” 261 N.Y.S.2d, at 973.
Greenawalt, Constitutional Law, 18 Syracuse L.Rev. 180, 196-7 & n. 109 (1986), (suggesting that equivalence of $10 or $25 per day of imprisonment not be sustained in absence of evidence that sentencing court or legislature considered problem of fairness). See also, Goldberg, Equality and Governmental Action, 39 N.Y.U.L.Rev. 205, 221 (1964).
. While the majority proclaims its open-mindedness as to the constitutional adequacy of the $2.00 equivalent, it brands as “Procrustean” the alleged suggestion that the minimum wage scale is the strict measure of the constitutionality of the statutes. The majority misreads this expression of my views. I am not certain that even an equivalency of fine to incarceration at minimum wage rates would be constitutionally acceptable. The point is that when loss of liberty is to be suffered for inability to respond to pecuniary punishment, how rational and how fair is a measure which automatically requires the loss of a day’s liberty for non-payment of the portion of a fine only slightly more than the rate prescribed by law for one hour’s work? To me it matters not whether the defendant is or is not employed, or is or is not the recipient of social security, unemployment or welfare benefits. Whether he is presently working, whether he is retired for age or disability, or whether he is unemployed or disabled from working without retirement benefits, a measure of the minimum value of his time and efforts in the market has been fixed by Congress. A lesser measure for present purposes is not justifiable when he must forfeit liberty. The majority may require greater proof of what should be obvious, but I am presently persuaded.