dissenting.
In In re Allen, 71 Cal 2d 388, 78 Cal Rptr 207, 455 P2d 143 (1969), as the majority points out, the Supreme Court of California considered, though under a different statute, the basic problem here decided by the majority decision.
After a discussion of United States Supreme Court decisions, the California court said:
“We conclude that the imposition of the condition under attack constitutes an impediment to the free exercise of a right guaranteed by the Sixth Amendment to the Constitution and as with respect to other impediments or forms of compulsion against the exercise of such rights may not be permitted by the courts.
«# #■ * * *
*162' ■ “It .-would appear utterly inconsistent to advise a defendant of his entitlement to the free service of counsel and later to exact repayment through the medium of a condition of probation. Miranda (p. 491 [16 L. Ed.2d p. 733]) made clear that where ‘rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.’ ” 71 Cal 2d at 391, 393.
See also: Opinion of the Justices, 109 NH 508, 256 A2d 500 (1969).
The majority opinion also refers to the. recent United States Supreme Court case of James v. Strange, 407 US 128, 92 S Ct 2027, 32 L Ed 2d 600 (1972). A three-judge federal court had concluded⑦ that a Kansas statute relating to recoupment from indigent defendants was unconstitutional because it found “it to be an impermissible burden upon the right to counsel established in Gideon v. Wainwright.”
The Supreme Court upon review did nob reach that question. Instead, it first pointed out that
“[t]his case presents a. constitutional challenge to a Kansas recoupment statute, whereby the State may recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants. * * *” (Emphasis supplied.) 407 US at 128.
Then in a unanimous opinion it concluded that the statute was unconstitutional on the narrow ground, as the majority points out, that the Kansas statute denied a defendant equal protection because it also denied him exemptions from execution provided for other debtors. Nothing in the challenged statute here *163affords the defendant in a revocation proceeding to the exemptions provided debtors generally under Oregon law. Nothing in ORS 137.550, governing revocation proceedings, supports such a construction. Thus I am unable to distinguish the Oregon law (OES 161.675(2)) from the Kansas statute held void in James. Accordingly, under James v. Strange, supra, I conclude that ORS 161.675(2), when read together with ORS 137.550, denies the defendant here the equal protection of the laws.
Furthermore, concerning the Sixth Amendment right to counsel, the court in James v. Strange, supra, stated:
“* * * Whether the statutory obligations for repayment impermissibly deter the exercise of this right is a question we need not reach, for we find the statute before us constitutionally infirm on other grounds.” 407 US at 134.
In this connection, a crucial distinction, in my view, between our statute and the Kansas recoupment •statute is that the latter is civil in nature. Here we are dealing with a statute which makes the recoupment right a part of the criminal procedure. ORS 161.275(2). Under this holding the court permits the recoupment obligation to be imposed in the judgment as a condition of probation, for violation of which a defendant may be incarcerated. In effect, .therefore, it may reasonably be argued that it allows imprisonment for a debt owed to the state.
It must be remembered that in all cases of court-appointed counsel, at the time of sentence a defendant stands before the court as an indigent. Excerpts from the transcript of the sentencing procedure here are illustrative of how, with.the best intentions, pressures *164obs;ulting from recoupment demands, when viewed from the standpoint of a defendant or his family, might indeed seem, and thus become, inhibiting.⑧
I agree that the term “costs” as used in ORS 161.665 includes items other than attorney fees. ORS *165161.665(2). For example, the law allows an indigent defendant in connection with a plea of insanity to employ at state expense a psychiatrist or psychologist. He is entitled in an appropriate case to the services of a handwriting or ballistics expert. The defendant may, as here, employ an investigator⑨ upon a proper showing. He may subpoena witnesses, either lay or expert, when warranted, to testify at his trial. Under the court’s holding here, if he loses he faces the prospect of finding himself not only heavily indebted to the state for having in good faith utilized *166the adversary system to the best of his ability, but liable to imprisonment for his failure to pay, regardless of any exemptions to which he might otherwise be entitled, even though he has otherwise complied with the conditions of his probation. I believe that possibility could well inhibit a defendant, particularly in matters carrying a lesser penalty, from exercising to the full the rights guaranteed to him not only under the Sixth Amendment but also under concepts of fundamental fairness enshrined in the Fifth and Fourteenth Amendments. In my view it constitutes an invidious discrimination between the indigent defendant and the well-to-do defendant.
Accordingly, I respectfully dissent.
Strange v. James, 323 F Supp 1230 (1971), aff’d 407 US 128, 92 S Ct 2027, 32 L Ed 2d 600 (1972).
Here the 25-year-old defendant’s plea to third degree sodomy was entered following the filing of an information on waiver of indictment. The defendant had been furnished a court-appointed attorney after a finding by the court that he was indigent.
The transcript contains the following relating to the terms of probation:
“[THE COURT:] As a further condition the Court is going to require you to pay your attorney’s fees to Mr. Harnish.
“Now, Mr. Harnish, as I understand you were Court appointed in this case. Is that right?
“MR. HARNISH: Yes, your Honor.
“THE COURT: I would think that the defendant and his family ought to be willing to pay the attorney’s fees and the costs incurred.
“Were there any other costs incurred?
“MR. HARNISH: There was an investigator.
“THE COURT: That is the one that you employed?
“MR. HARNISH: Yes.
“THE COURT: How much money have you got involved in that?
“MR. HARNISH: $375.
“THE COURT: $375.
“I am just wondering, have you discussed this matter with Mr. Fuller, Sr., as to whether he would consider paying these expenses and have his son pay them back to him when he can afford it.
' “MR. HARNISH: I have as to the investigator, and that is all.
“THE COURT: And has he indicated .his willingness to do that?
“MR. HARNISH: •. Yes, your Honor.
“THE COURT: So the expenses would be the investigator’s fee’and the attorney’s fee? ' !
“MR. HARNISH: ' Yes.
“THE COURT: I want him, the defendant, Mr.-Fuller; to pay the .attorney’s, fees, too.. I don’t think the taxpayers of *165Multnomah County should be saddled with this responsibility where there are family resources.
“Is Mr. Fuller in the courtroom, Mr. Fuller, Sr.?
“MR. HARNISH: Yes, he is.
“THE COURT: Do you want to have a minute to talk with him and see if he is willing to advance these funds and have his son pay them back to him as his earnings would justify?
“MR. HARNISH: All right.
“THE COURT: You just take a minute. “(Pause.)
“MR. HARNISH: Your Honor, we have come to an agreement. He will reimburse me for my attorney’s fees.
“THE COURT: All right.
“Then I assume any arrangement for paying back the attorney’s fees can be made between Mr. Fuller and his son here. All right.
“And, then, the order ought to provide, Mr. Ashenfelter [deputy district attorney], that the defendant will pay for the cost of the investigator, which was $375, and pay his own attorney fees to Mr. Harnish.”
Repayment of both by the defendant was then expressly included as conditions two and three in the judgment order. This also, after suspending sentence for five years, imposed as a condition of probation that defendant serve one year in the county jail.
The judgment here also included an order requiring defendant as a condition of probation to pay Multnomah County $375 for investigator’s expenses.