# Griffin v. Illinois/Dissent Harlan

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Mr. Justice HARLAN, dissenting.
Much as I would prefer to see free transcripts furnished to indigent defendants in all felony cases, I find myself unable to join in the Court's holding that the Fourteenth Amendment requires a State to do so or to furnish indigents with equivalent means of exercising a right to appeal. The importance of the question decided by the Court justifies adding to what Mr. Justice BURTON and Mr. Justice MINTON have written my further grounds for dissenting and the reasons why I find the majority opinions unsatisfying.
1. Inadequacy of the Record.-I would decline to decide the constitutional question tendered by petitioners because the record does not present it in that 'clean-cut,' 'concrete,' and 'unclouded' form usually demanded for a decision of constitutional issues. Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584, 67 S.Ct. 1409, 1427, 91 L.Ed. 1666. In my judgment the case should be remanded to the Illinois courts for further proceedings so that we might know the precise nature of petitioners' claim before passing on it.
The record contains nothing more definite than the allegation that 'petitioners are poor persons with no means of paying the necessary fees to acquire the Transcript and Court Records needed to prosecute an appeal from their convictions.' For my part I cannot tell whether petitioners' claim is that a transcript was 'needed' because (a) under Illinois law a transcript is a prerequisite to appellate review of trial errors, or (b) as a factual matter petitioners could not prepare an adequate bill of exceptions short of having a transcript.
If the claim is that a transcript was legally necessary, it is based on an erroneous view of Illinois law. The Illinois cases cited by the petitioners establish only that trial errors cannot be reviewed in the absence of a bill of exceptions, and not that a transcript is essential to the preparation of such a bill. To the contrary, an unbroken line of Illinois cases establishes that a bill of exceptions may consist simply of a narrative account of the trial proceedings prepared from any available sources-for example, from the notes or memory of the trial judge, counsel, the defendant, or bystanders-and that the trial judge must either certify such a bill as accurate or point out the corrections to be made. Viewed in the light of these cases, the only constitutional question presented by petitioners' bare allegation that they were unable to purchase a transcript would be: Is an indigent defendant, who has not shown that he is unable to obtain full appellate review of his conviction by a narrative bill of exceptions, constitutionally entitled to the added advantage of a free transcript of the trial proceedings for use as a bill of exceptions? I need hardly pause to suggest that such a claim would present no substantial constitutional question.
The Court, however, either takes judicial notice that as a practical matter the alternative methods of preparing a bill of exceptions are inadequate or finds in petitioners' claims an allegation of fact that their circumstances were such as to prevent them from utilizing the alternative methods. But even accepting this reading of the pleadings, the constitutional question tendered should not be decided without knowing the circumstances underlying the conclusory allegation of 'need.' Petitioners' indigence, the only underlying 'fact' alleged, did not in itself necessarily preclude them from preparing a narrative bill of exceptions, and we are told nothing as to the other circumstances which prevented them from doing so. The record does not even disclose whether petitioners were incarcerated during the period in which the bill of exceptions had to be filed, or whether they were represented by counsel at the trial. We are left to speculate on the nature of the alleged trial errors and the scope of the bill of exceptions needed to present them. Who can say that if we knew the facts we might not have before us a much narrower constitutional question than the one decided today, or perhaps no such question at all. In these circumstances, I would follow the salutary policy 'of avoiding constitutional decisions until the issues are presented with clarity, precision and certainty', Rescue Army v. Municipal Court of Los Angeles, supra, 331 U.S. at page 576, 67 S.Ct. at page 1423, and would refuse to decide the constitutional question in the abstract form in which it has been presented here.
According to petitioners' tabulation, no more than 29 States provide free transcripts as of right to indigents convicted of non-capital crimes. Thus the sweeping constitutional pronouncement made by the Court today will touch the laws of at least 19 States and will create a host of problems affecting the status of an unknown multitude of indigent convicts. A decision having such wide impact should not be made upon a record as obscure as this, especially where there are means ready at hand to have clarified the issue sought to be presented.
However, since I stand alone in my view that the Court should refrain from deciding the broad question urged upon us until the necessity for such a decision becomes manifest, I deem it appropriate also to note my disagreement with the Court's decision of that question. Inasmuch as the Court's decision is not-and on this record cannot be-based on any facts peculiar to this case, I consider that question to be: Is an indigent defendant who 'needs' a transcript in order to appeal constitutionally entitled, regardless of the nature of the circumstances producing that need, to have the State either furnish a free transcript or take some other action to assure that he does in fact obtain full appellate review?
2. Equal Protection.-In finding an answer to that question in the Equal Protection Clause, the Court has painted with a broad brush. It is said that a State cannot discriminate between the 'rich' and the 'poor' in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. Illinois has not imposed any arbitrary conditions upon the exercise of the right of appeal nor any requirements unnecessary to the effective working of its appellate system. Trial errors cannot be reviewed without an appropriate record of the proceedings below; if a transcript is used, it is surely not unreasonable to require the appellant to bear its cost; and Illinois has not foreclosed any other feasible means of preparing such a record. Nor is this a case where the State's own action has prevented a defendant from appealing. Cf. Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.
The Court thus holds that, at least in this area of criminal appeals, the Equal Protection Clause imposes on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the States to treat all persons equally means in this instance that Illinois must give to some what it requires others to pay for. Granting that such a classification would be reasonable, it does not follow that a State's failure to make it can be regarded as discrimination. It may as accurately be said that the real issue in this case is not whether Illinois has discriminated but whether it has a duty to discriminate.
I do not understand the Court to dispute either the necessity for a bill of exceptions or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party. The Court finds in the operation of these requirements, however, an invidious classification between the 'rich' and the 'poor.' But no economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against 'indigents' by name would be unconstitutional. Thus, while the exclusion of 'indigents' from a free state university would deny them equal protection, requiring the payment of tuition fees surely would not, despite the resulting exclusion of those who could not afford to pay the fees. And if imposing a condition of payment is not the equivalent of a classification by the State in one case, I fail to see why it should be so regarded in another. Thus if requiring defendants in felony cases to pay for a transcript constitutes a discriminatory denial to indigents of the right of appeal available to others, why is it not a similar denial in misdemeanor cases or, for that matter, civil cases?
It is no answer to say that equal protection is not an absolute, and that in other than criminal cases the differentiation is 'reasonable.' The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences. Hence it must be that the differences are 'reasonable' in other cases not because the 'classification' is reasonable but simply because it is not unreasonable in those cases for the State to fail to relieve indigents of the economic burden. That is, the issue here is not the typical equal protection question of the reasonableness of a 'classification' on the basis of which the State has imposed legal disabilities, but rather the reasonableness of the State's failure to remove natural disabilities. The Court holds that the failure of the State to do so is constitutionally unreasonable in this case although it might not be in others. I submit that the basis for that holding is simply an unarticulated conclusion that it violates 'fundamental fairness' for a State which provides for appellate review, and thus apparently considers such review necessary to assure justice, not to see to it that such appeals are in fact available to those it would imprison for serious crimes. That of course is the traditional language of due process, see Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, and I see no reason to import new substance into the concept of equal protection to dispose of the case, especially when to do so gives rise to the all-too-easy opportunity to ignore the real issue and solve the problem simply by labeling the Illinois practice as invidious 'discrimination.'
3. Due Process.-Has there been a violation of the Due Process Clause? The majority of the Court concedes that the Fourteenth Amendment does not require the States to provide for any kind of appellate review. Nevertheless, Illinois, in the forefront among the States, established writs of error in criminal cases as early as 1827. In 1887, it provided for official court reporters, thereby relieving defendants of the burden of hiring reporters in order to obtain a transcript. In 1927, it provided that for indigents sentenced to death 'all necessary costs and expenses' incident to a writ of error, including the cost of a transcript, would be paid by the counties. And in 1953, free transcripts were authorized for the presentation of constitutional claims. Thus Illinois has steadily expanded the protection afforded defendants in criminal cases, and in recent years has made substantial strides towards alleviating the natural disadvantages of indigents. Can it be that, while it was not unconstitutional for Illinois to afford no appeals, its steady progress in increasing the safeguards against erroneous convictions has resulted in a constitutional decline?
Of course the fact that appeals are not constitutionally required does not mean that a State is free of constitutional restraints in establishing the terms upon which appeals will be allowed. It does mean, however, that there is no 'right' to an appeal in the same sense that there is a right to a trial. Rather the constitutional right under the Due Process Clause is simply the right not to be denied an appeal for arbitrary or capricious reasons. Nothing of that kind, however, can be found in any of the steps by which Illinois has established its appellate system.
We are all agreed that no objection of substance can be made to the provisions for free transcripts in capital and constitutional cases. The due process challenge must therefore be directed to the basic step of permitting appeals at all without also providing an in forma pauperis procedure. But whatever else may be said of Illinois' reluctance to expend public funds in perfecting appeals for indigents, it can hardly be said to be arbitrary. A policy of economy may be unenlightened, but it is certainly not capricious. And that it has never generally been so regarded is evidenced by the fact that our attention has been called to no State in which in forma pauperis appeals were established contemporaneously with the right of appeal. I can find nothing in the past decisions of this Court justifying a holding that the Fourteenth Amendment confines the States to a choice between allowing no appeals at all or undertaking to bear the cost of appeals for indigents, which is what the Court in effect now holds.
It is argued finally that, even if it cannot be said to be 'arbitrary,' the failure of Illinois to provide petitioners with the means of exercising the right of appeal that others are able to exercise is simply so 'unfair' as to be a denial of due process. I have some question whether the non-arbitrary denial of a right that the State may withhold altogether could ever be so characterized. In any event, however, to so hold it is not enough that we consider free transcripts for indigents to be a desirable policy or that we would weigh the competing social values in favor of such a policy were it our function to distribute Illinois' public funds among alternative uses. Rather the question is whether some method of assuring that an indigent is able to exercise his right of appeal is 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, so that the failure of a State so to provide constitutes a 'denial of fundamental fairness, shocking to the universal sense of justice,' Betts v. Brady, supra (316 U.S. 462, 62 S.Ct. 1256). Such an equivalence between persons in the means with which to exercise a right of appeal has not, however, traditionally been regarded as an essential of 'fundamental fairness,' and the reforms extending such aid to indigents have only recently gained widespread acceptance. Indeed, it was not until an Act of Congress in 1944 that defendants in federal criminal cases became entitled to free transcripts, and to date approximately one-third of the States still have not taken that step. With due regard for the constitutional limitations upon the power of this Court to intervene in State matters, I am unable to bring myself to say that Illinois' failure to furnish free transcripts to indigents in all criminal cases is 'shocking to the universal sense of justice.'
As I view this case, it contains none of the elements hitherto regarded as essential to justify action by this Court under the Fourteenth Amendment. In truth what we have here is but the failure of Illinois to adopt as promptly as other States a desirable reform in its criminal procedure. Whatever might be said were this a question of procedure in the federal courts, regard for our system of federalism requires that matters such as this be left to the States. However strong may be one's inclination to hasten the day when in forma pauperis criminal procedures will be universal among the States, I think it is beyond the province of this Court to tell Illinois that it must provide such procedures.

## Notes

1 The Illinois Supreme Court may have interpreted the pleadings in this manner. It described the petitioners' 'sole contention' as being that they were 'unable to purchase a bill of exceptions and were, therefore, unable to obtain a complete review by this Court.' This suggests that the state court construed the claim to be that an appeal was necessarily precluded by the lack of a transcript, not that the petitioners' particular circumstances produced that result. If that is what the Illinois court meant, its construction, having a reasonable basis, would be binding on this Court and would constitute an adequate state ground for the denial of any claim premised on the existence of particular circumstances preventing the petitioners from pursuing other available methods of review.
2 E.g., People v. Johns, 388 Ill. 212, 57 N.E.2d 895; People v. Loftus, 400 Ill. 432, 81 N.E.2d 495; People v. O'Connell, 411 Ill. 591, 104 N.E.2d 825.
3 Weatherford v. Wilson, 1840, 2 Scam, 253, 3 Ill. 253; People ex rel. Maher v. Williams, 1878, 91 Ill. 87; People ex rel. Munson v. Gary, 1883, 105 Ill. 264; People ex rel. Hall v. Holdom, 1901, 193 Ill. 319, 61 N.E. 1014; 162 East Ohio Street Hotel Corp. v. Lindheimer, 1938, 368 Ill. 294, 13 N.E.2d 970; Weber v. Sneeringer, 1928, 247 Ill.App. 294; Merkle v. Kegerreis, 1953, 350 Ill.App. 103, 112 N.E.2d 175; see also People ex rel. North American Restaurant v. Chetlain, 1906, 219 Ill. 248, 76 N.E. 364; Mayville v. French, 1910, 246 Ill. 434, 92 N.E. 919; People ex rel. Simus v. Donoghue, 1941, 377 Ill. 122, 35 N.E.2d 371. This line of cases was reaffirmed by the Illinois Supreme Court in 1953, just three months before the petitioners were convicted, in People v. Joyce, 1 Ill.2d 225, 230, 115 N.E.2d 262, 264-265, in which the Williams, Gary, Holdom and Lindheimer cases, supra, were cited with approval for the proposition that trial errors may be presented on a writ of error by a 'constructed or 'bystander's' bill of exceptions.' The holding of that case was that a defendant to whom these alternative methods were not available 'as a practical matter' because of his indigence and incarceration did not, by failing to seek direct review of his conviction, 'waive' the right given him by the Illinois Post-Conviction Hearing Act to assert his constitutional claims in a collateral proceeding. Accord: People v. La Frana, 4 Ill.2d 261, 266, 122 N.E.2d 583, 585 586. That holding does not, of course, detract from the court's affirmation that a transcript is not legally required for appellate review of trial errors. It is equally clear that Illinois' recognition of 'practicalities' in not applying a strict doctrine of waiver to the remedial Post-Conviction Hearing Act does not necessarily mean that the alternative methods of obtaining review are not sufficiently 'available' to satisfy any supposed constitutional requirements. That question would depend upon the facts of the particular case-of which we have not been informed here-and upon the evaluation of them for constitutional purposes.
4 Of these 19 at least 5 have, however, expressly given the trial courts discretionary power to order free transcripts in non-capital cases. Mass.Ann.Laws, c. 278, § 33A, as amended by Acts 1955, c. 352 ('by order of the court'); N.D.Rev.Code, 1943, § 27-0606 (when 'there is reasonable cause therefor'); Ore.Rev.Stat., 1953, § 21.470 (if 'justice will be thereby promoted'); S.D.Code, 1939, § 34.3903 (if 'essential to the protection of the substantial rights of the defendant'); Wash.Rev.Code, 1951, § 2.32.240 (if 'justice will be thereby promoted'). The Rhode Island Supreme Court has reached a similar result by interpretation of a statute authorizing reimbursement for expenditures of appointed counsel. State v. Hudson, 1935, 55 R.I. 141, 179 A. 130, 135, 100 A.L.R. 313 ('sound discretion * * * to be exercised with great circumspection and only for serious cause'). In addition, petitioners' brief refers to a letter from the Chief Justice of the Connecticut Supreme Court of Errors which states that free transcripts may be furnished in the discretion of the court in non-capital cases.
5 Ill.Rev.L.1827, Crim.Code, §§ 186, 187; Ill.Rev.Stat., 1955, c. 38, § 769.1.
6 Ill.Laws 1887, p. 159; Ill.Rev.Stat., 1955, c. 37, § 163b.
7 Ill.Laws 1927, p. 400, § 1 1/2; Ill.Rev.Stat., 1955, c. 38, § 769a.
8 Ill.Laws 1953, p. 859; Ill.Rev.Stat., 1955, c. 37, § 163f.
9 This difference makes of dubious validity any analogy between a condition imposed upon the right to defend oneself and a condition imposed upon the right to appeal.
10 58 Stat. 5, 28 U.S.C. §§ 753(f), 1915(a), 28 U.S.C.A. §§ 753(f), 1915(a). On the prior federal practice, see, e.g., Estabrook v. King, 8 Cir., 119 F.2d 607, 610; United States v. Fair, D.C.N.D.Cal., 235 F. 1015.
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