William H. Rehnquist: We'll hear argument next in No. 91-8674, John Angus Smith v. the United States. Mr. Kollin, you may proceed whenever you're ready.
Gary Kollin: Mr. Chief Justice, and may it please the Court: John Angus Smith was convicted of a violation of title 18, United States Code, 924(c), when he possessed a firearm and offered it as an item in trade for barter for a small quantity of drugs. As a result of his conviction, he received 30 years minimum sentence, consecutive to the terms he received on his other counts. The issue today is whether the offering of a firearm solely as an item of barter violates 18 United States Code 924(c) for the use of a firearm during and in relation to a Federal drug trafficking crime. At the outset, it is important to realize that this statute provides two different methods by which it could be violated: first, by the use of a firearm during and in relation to the Federal drug trafficking crime; and the second way is by carrying the firearm during and in relation to the Federal drug trafficking crime. John Angus Smith was only charged with the use prong of the statute. We submit that--
Sandra Day O'Connor: I guess he could have been charged with carrying it.
Gary Kollin: --That is correct, Justice. However, the Government elected, for whatever reasons they chose, to only charge him with the use prong. In fact, this was the third superseding indictment in regard to this matter, and in each one he was only charged with the use prong. So, they had three times to change that election.
Byron R. White: If you had been charged with carrying, I don't suppose... and you had been... your client had been convicted, I don't suppose you would be here.
Gary Kollin: That is probably correct, Justice.
Byron R. White: You wouldn't have much of a case about coverage, would you?
Gary Kollin: That is probably true, but the Government did choose to and elected to charge him with use, and that is the reason why we're here today and what he is charged with.
Antonin Scalia: You wouldn't argue that use or carry means carry for the purpose of using?
Gary Kollin: Well--
Antonin Scalia: Really? I'm surprised.
Gary Kollin: --Justice Scalia--
Antonin Scalia: Well, that's all right.
Gary Kollin: --I'm prepared to argue that, and--
Antonin Scalia: Yes, I think you would.
Gary Kollin: --Because what I want to say here is that if we accept the Government's suggestion of the definition of use, this all-encompassing definition, or the lower courts', then the word use would always swallow up and encompass the word carry. There could never be a situation where someone could use a firearm under their definition or under the definition of the majority of the lower courts where one would not be also carrying. I mean, if you would carry it, you always would use it. And the principles... I cannot think of a situation under their definition where it could not occur.
Antonin Scalia: Anything you're carrying, you're using? I don't know.
Gary Kollin: Under their definition, it's to possess with the intent to facilitate the crime, to possess and the presumption of intention. So, under their definition, any time that one is carrying the firearm, one is always using it in regard to the statute. And the basic axiomatic rules of construction of this Court is that we should never render a term in a statute to be superfluous and that each word should be given effect. And if we don't narrow the definition of the word use to the definition that we have suggested here, that is, to define that use means the actual use in the active connotation... according to the active connotation of the word use, then the word carry would have no definition.
Antonin Scalia: I mean, we really haven't accomplished a whole lot if carry means what you say it means. Really, I mean, it may be important to this case, but use and carry covers everything in the world then. The dispute between you and the Government is that the Government says use carries everything in the world, and you say, no, it's only use or carry that covers everything in the world. So, for later cases, this dispute is really not very important I suppose. With due respect, Justice, I disagree. And the reason I would disagree is because the decisions that are cited by the Government in its brief and some of the decisions that I cite in our brief is that there are situations that... where somebody has a firearm that is located proximally to where drugs are being held, and those people have been convicted of use, people who have been convicted of use who have firearms that are totally inoperable, that do not have firing pins, do not have ammunition, that are located in remote locations. Those people have also been convicted of use under their definition and the majority of the lower courts'. In fact, in Justice White's... in Justice Thomas' dissent in Mewks v. United States, that was their concern that this definition of the word use is... becomes an all-encompassing definition and it means possession and presumes the intent to use. So, not only is this important to the case of John Angus Smith, but it is important to countless others who may possess firearms and not have a use. Moreover, with this definition that the Government encourages here, both in the lower courts and from this Court, it also encourages the lower courts to engage in psycho journeys into the defendants' minds to try and determine their intent, and it requires situation-by-situation, case-by-case analyses-- --What do you say use means in the statute?
Gary Kollin: It means actual use.
William H. Rehnquist: Okay, but to say use means actual use doesn't help at all.
Gary Kollin: Okay. Well, it means to use it, to brandish it, to fire it as an offensive weapon.
William H. Rehnquist: Well, then you're saying that... you're really putting quite a narrow construction on the phrase. One doesn't ordinarily think of the kind of drug transactions that the statute is... don't you think of them as being more consensual than involving somebody sticking somebody up and getting drugs from them?
Gary Kollin: Well, also but it's an offensive weapon to protect themselves or... as a weapon in the normal connotation of the way the item is used. As an example, Mr. Chief Justice, let's say a carpenter is carrying a hammer on his side, on his belt. And an individual would go up to the carpenter and say may I borrow the hammer. Am I... are you using it? The carpenter, while he would be carrying the hammer, would say no, I'm not using it now. You may borrow it. Secondly, if the carpenter goes ahead and trades that hammer for a board, similar to John Angus Smith trading the gun for drugs, we would not say the carpenter used the hammer under a normal way of speaking or normal connotation. We would say the carpenter traded the hammer. And so, in regard to this statute, I believe that--
William H. Rehnquist: You could say the carpenter used the hammer to obtain what he traded it for.
Gary Kollin: --Yes, but I don't think that's the normal connotation of the word use. I think similarly to this situation is the problem this Court faced in Public Citizen v. Department of Justice. In that case, the Court said that the word utilized... it's a very similar word I think to the word uses... is a wooly verb, its contours left undefined by the statute itself, and went through its analysis. And I think similarly the word use here has a certain manner of uncertainty to it, and when it has this manner of uncertainty and ambiguity to it, then we must resort... well, then we have the... we look to the legislative history and also we can look to the rule of lenity. And in looking to the legislative history in regard to this statute, I think that the legislative history supports the position of the petitioner in regard to this matter. The original statute... well, the... as this Court has noted in the cases of Simpson and Busic, the legislative history in regard to the statute was rather sparse. And in this particular case, as presented in our brief, the original bill in regard to adding this... these provisions of 924(c) was added on the floor by Representative Casey, and in his words, he said that without the words... word carry in it, that it would apply to the actual use of the firearm. And then Representative Poff later proposed an amendment, also on the floor... and I noted in both situations there was a quorum present... that Representative Poff said that his amendment to the Casey proposal was not in derogation of that. And so, therefore, in conjunction with the fact that the Senate proposal of Senator Dominick was not accepted, which was instead of using... instead of having the words use or carry, they had the word armed, that we must distinguish between use or carry, and in that situation looking at this legislative history, we see that the meaning of the word would not encompass the word... would go to its actual use in its normal capacity. In our brief, we also present what I presented as the pawn ticket hypothetical... and that's at page 15... in which we have an individual who takes a gun and several weeks before he decides to engage in any type of drug activity, takes the gun and pawns it at a pawn shop. Later on, he decides to become involved in... excuse me... a drug trafficking event, and then trades the pawn ticket for the drugs. The Government acknowledges at footnote 20 that perhaps this does not fall within the normal understanding of the word use, and I could submit to you that there could be countless other situations like that, for instance, a bill of lading for gun parts that could be assembled into guns that could be traded, or for instance, other situations where an individual brings... is bringing home a quantity of drugs in a large box, and for some reason, the door keeps swinging shut, and there is a gun lying there that had no part in the transaction. There was no intent of being used in regard to the case, and takes that gun and places it as a door stop. And technically under the wording of this statute, that is being used during and in relation to the Federal drug trafficking crime. So, the statute itself presents an ambiguity and uncertainty as to the meaning of the word use. And accordingly, we have the right to look at the legislative history, which I presented, and also to the rule of lenity.
Anthony M. Kennedy: Section 924(g) prohibits the transfer of a firearm that's going to be used in drug transfer... in drug trafficking. I take it that under your view if someone transfers a firearm to a person, knowing that the transferee is going to use it to trade drugs... to trade for drugs, there's no liability under (g).
Gary Kollin: To be quite truthful, Justice, I have not explored the... those aspects of section (g).
Anthony M. Kennedy: Well, your word... definition of the word use is such that it has to be somehow used in order to protect the person and not for a trade. So, I take it under your interpretation, the word use has to be given the same definition so that if people trade firearms, knowing that the firearms will be used by the transferees to be traded for drugs, there's no violation of under (g). It has to be.
Gary Kollin: I don't know the exact wording of section (g)--
Anthony M. Kennedy: It says whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of drug trafficking.
Gary Kollin: --Well, I think that the issue there is transfer, and the later aspect is used--
Anthony M. Kennedy: No. Let's assume that the transfer element of my hypothetical is satisfied. Under your definition, there is no use of the firearm even though he is... the transferor knows that it's going to be used to trade for drugs. It's not being used under your theory.
Gary Kollin: --That is correct, but it could be the person could possibly charge with carrying the firearm under the other prong of the statute.
David H. Souter: Well, doesn't the word carrying carry... strike that. [Laughter] Doesn't the word carrying suggest even more strongly than the word use in this context an offensive or protective purpose? I mean, carrying is not a broader term than use, which is what your answer to Justice Kennedy seemed to assume.
Gary Kollin: Well, I think that one of the courts have held that carrying is a very narrow... the lower courts have held that carry is a very narrow definition and use has a very... has lost its active connotation. But I think carry means to possess in transit or possess and transport.
David H. Souter: But doesn't it also, for purposes of this statute in your judgment at least, require a... an offensive or protective purpose when it is carried--
Gary Kollin: Not under the definition that I've suggested.
David H. Souter: --Well, how about the definition that you would like us to assume in deciding this case? Do you think carrying has no protective or offensive purpose?
Gary Kollin: I think generally yes, Justice. I think generally carry does have that offensive type purpose.
David H. Souter: Should we construe the statute to import that requirement of an offensive or protective purpose when we use... when the statute uses the word carry?
Gary Kollin: I don't think that is necessary in regard to reaching the decision in regards... in this case.
David H. Souter: Well, if we don't do that, didn't your client carry the weapon in relation to the barter that he later engaged in? If we don't adopt that particular construction in this case, don't you lose under the word carry?
Gary Kollin: No, Justice, because--
David H. Souter: Oh, he was discharged. I see.
Gary Kollin: --He was discharged under the use prong.
David H. Souter: But you would lose if he had been charged with carry if you adopt the broad definition that you're considering.
Gary Kollin: I think that was the same question Justice White asked earlier which I agreed with, but for whatever reasons, in three superseding indictments the Government chose to only charge John Angus Smith with the use of the firearm during and in relation to the Federal drug trafficking crime.
Antonin Scalia: Mr. Kollin, surely a court that's going to use language reasonably enough so that it interprets using a gun to mean what you say it means, using it in a crime, would also not be so unreasonable as to interpret the phrase carry a gun to mean a longshoreman who's... who has on his shoulder a crate full of weapons that he's taking off the ship. I mean, if we're reasonable for the one, don't you think we should be reasonable for the other too?
Gary Kollin: I agree, Justice, that that requires that reasonableness. In fact, that was suggested in the footnote in the 1984 passage of the bill in which they talked about a firearm merely carried during a pugilistic barroom fight.
Antonin Scalia: You can say in some sense, of course, that the longshoreman carrying this crate is carrying a gun, but that's not what you mean when you say are you carrying a gun. Or when the policeman in... you know, arrests the person and searches and says are you carrying, I mean, he's not saying are you lifting. He's talking about whether you have a gun on your person with the intent of using it. Of course, I suppose the longshoreman also has to be also be carrying some drugs, or the statute doesn't apply. [Laughter]
Gary Kollin: That's true, Justice.
John Paul Stevens: I was just curious about your legislative history point. The ambiguity in using is does the use by means for barter purposes constitute use, and the... you turn us to the legislative history, and Congressman Casey said I mean actually use a gun. Well, actually use really isn't any different from use. I'm not sure why that clears up the ambiguity that gets you to look at that.
Gary Kollin: Well, if there is an ambiguity--
Speaker: Yes, and then I look at it and I see actually used. That's got the same ambiguity. I'm actually using it when I hand it to you in exchange for some prohibited substances, am I not?
Gary Kollin: --Well, that goes to my... to the next point is the rule of lenity.
Speaker: Well, I know, but that... I'm just confining on the legislative... my question really is I don't see why your legislative history argument advances us at all. It seems to me it just gets us to where we started, namely, what do you mean by use.
Gary Kollin: Well, I think it goes to... well,... perhaps my interpretation of actual use means use an offensive weapon.
Speaker: Yes, I know, but the Congressman didn't say that. He didn't say anything about offensive weapons or protective purpose. He just says actual use, and it seems to me if a barter is a use, it's also an actual use. I mean, you know, I'm just saying I'm not sure your argument gets us anywhere. Well, if your argument is it's ambiguous... if use is ambiguous, the two words actual use is even more ambiguous. [Laughter] Don't you think?
Gary Kollin: I agree that that is an argument to be made in regards--
Speaker: Mr. Kollin, doesn't the language in the statute, use in relation to a drug trafficking crime, clarify it? It's use in relation to the drug crime.
Gary Kollin: --Well, I think that was--
Speaker: It's not just use per se. It's in relation to the crime, and I suppose bartering it for drugs could be said to be in relation to the drug crime.
Gary Kollin: --That was the argument that was made in the Phelps case that was... the decision the Ninth Circuit turned on, which... but they said that a firearm that is traded in barter is not used in relation to the Federal drug trafficking crime, and that's the decision they ruled upon. We are not abandoning that position, but we feel that with regard to the definition of the word use, it presents the ambiguity. Moreover, if we turn to the next point, which is the rule of lenity, then we have... where's there's ambiguity exists, then you... the decisions are that we adopt a construction most favorable to the accused. And if we adopt that construction most favorable to the accused, then in this situation the... we would find that there is no violation on the part of John Angus Smith for bartering the firearm for the drugs.
Speaker: Well, in our Moskal opinion, Mr. Kollin, we said that a statute isn't ambiguous for purposes of the rule of lenity just because it's possible to articulate a more narrow construction.
Gary Kollin: I understand that, but I think that in this particular case it is ambiguous, and I think that--
Speaker: But aren't you saying it's ambiguous simply because it's possible to articulate a more narrow construction?
Gary Kollin: --No. I'm saying it's ambiguous because without narrowing the construction, we nullify the word carry, and that the decisions of this Court have held that we should never make a word superfluous in a statute, and we should give each word effect. There is a minority opinion in regard to the Moskal situation. Judge Scalia's position is once there is an ambiguity, you don't--
Speaker: Yes. That didn't prevail.
Gary Kollin: --I understand that. [Laughter]
Speaker: You could just... you can say that... you can accept the fact that carrying doesn't mean use, but that doesn't mean that bartering it for drugs is not using it.
Gary Kollin: Well, it's our position--
Speaker: You're doing more than carrying a gun if you take it out of your pocket and trade it off for some drugs.
Gary Kollin: --Well, in the situation of our hypothetical, Justice White, in which somebody trades the pawn ticket--
Speaker: Would they... would the Government really have been describing what happened if it said this fellow was carrying a gun in connection with a drug thing? What happened was that he was... he bartered, he traded the gun off.
Gary Kollin: --Yes.
Speaker: Well, that's more than carrying it, isn't it?
Gary Kollin: But... well--
Speaker: That's actually using it. [Laughter]
Gary Kollin: --Well, I think it's different than... I think that's different than carrying. I don't think it's actual use because I think we think of the word use in the normal connotation of that item's utilization.
Speaker: Well, it's different from shooting somebody. That's right. But he has certainly got his money's worth out of that gun. [Laughter]
Gary Kollin: Well, never ever traded it. So, he didn't get to the situation. Not only does this definition establish the ruling for John Angus Smith, but it established a bright line for the lower courts because as we... as I talked about, that the lower courts have been going through this case-by-case, situation-by-situation analysis to try and determine the intent of the person who possesses that firearm, has gone to situations with... endeavoring to presume an intent in the person's mind in regard to that possession. And it avoids that case-by-case situation analysis, and it reduces the burdens to the lower court by not having to go through those things, but determines a bright line which somebody either uses it or not uses it and what carry means under these situations. I also submit that it's consistent with the congressional history with regard to this matter.
Speaker: I'm not sure you're... let me just challenge you on your bright line argument. It seems to me one... if we hold that bartering a gun for a... drugs is use, that's... there's nothing fuzzy about that holding. There may be some fuzziness out in other cases about intent, but there's no doubt about intent in the facts of this case if barter constitutes use.
Gary Kollin: If barter constitutes use--
Speaker: That's a very clear... that's at least one area of... that the statute covers that everybody would understand. You can't trade a gun for drugs--
Gary Kollin: --That's correct.
Speaker: --without getting an enhanced penalty.
Gary Kollin: But it still... as you said, Justice Stevens, it still creates a fuzziness that was mentioned in the dissent... the denial of certiorari in Mewks and the volume of cases that keep on reaching this Court about... in petitions for certiorari in regard to what use is and whether--
Speaker: You think we can fashion a definition of use that won't have any borderline gray areas that will produce litigation?
Gary Kollin: --I don't think that's true with regard to anything in the law.
Speaker: You would suggest that the fuzziness would be in the reasoning, not in the holding I take it.
Gary Kollin: I'm sorry. I didn't hear.
Speaker: I shouldn't have said that. I said you would suggest that the fuzziness would have been in the reasoning, not in the holding. That's the one bright line rule. Strike the question. [Laughter]
Gary Kollin: Well, I think that the holding would establish the bright line, and I think... I do submit that I think that the congressional history is consistent with the point that we make that actual use refers to something more than just bartering or trading. In the instant case, John Angus Smith did not actually use a firearm in the context intended by Congress as an offensive weapon. This Court should determine that his conduct of trying to trade the firearm for drugs did not violate the use prong of the statute because he did not actually use the firearm in its normal capacity as an offensive weapon. I'd like to reserve the remainder--
Speaker: Mr. Kollin, could I ask you just one question? Let's assume that your client was successful and was not arrested, and a friend approached him the next day and asked him what happened to his Mack 10. Could he reasonably respond I used it to obtain cocaine?
Gary Kollin: --Not in the context that the statute prescribes. I think that--
Speaker: But could he respond to his friend I used it to obtain cocaine, and would that be a reasonably understandable response?
Gary Kollin: --I do not believe that's how someone would normally say it. I think they would say I traded the firearm for the drugs.
Speaker: If he did say that, might not somebody... if he did say that to you, wouldn't you think that what he meant was he stuck it in somebody's face in order to compel the person to give him the cocaine? He said I used the gun to get some cocaine.
Gary Kollin: I think that would be a very reasonable interpretation.
Speaker: Thank you, Mr. Kollin. With your carpenter, if he traded his hammer for the board, and he was asked what happened to his hammer, and he reasonably... he said I used it to obtain this board, would one reasonably think that he used it to hammer someone's head to obtain the board? [Laughter]
Gary Kollin: No. I think he... somebody could reasonably interpret that he pulled the board off a wall by pulling out the nails.
Speaker: I pass on this round, Mr.-- [Laughter] Mr. Hungar, we'll hear from you.
Thomas G. Hungar: Thank you, Mr. Chief Justice, and may it please the Court: On its face, the language of section 924(c) encompasses the use of a firearm as a medium of exchange to buy illegal drugs. If I purchase illegal drugs with a $100 bill, I have used that $100 bill to buy drugs. By the same token, if I--
Speaker: Yes, but there is this difference. The purpose of manufacturing and printing $100 bills is to use them as a medium of exchange. The purpose of manufacturing and selling guns is not to use them as a medium of exchange. Couldn't one define use to be use for the purpose that the item was created for?
Thomas G. Hungar: --No, Your Honor. The word use does not imply use for a... for the particular purpose the item was created for. It implies any use.
Speaker: Well, that's the question in the case, of course.
Thomas G. Hungar: Well, the definition of the word use encompasses all uses. If I use a gun to pound a nail into the wall, that's not the purpose for which guns are designed, but I would say in common parlance I used the gun to pound the nail into the wall.
Speaker: But, Mr. Hungar, maybe our problem is that we're focusing on the word use, and words are not used one at a time. They're used in phrases. Hence, there... you know, there is a maxim of construction, notiatur ex sociates. You know the word from the company of words in which it's used. And here we say it says use a gun. If you had to answer a questionnaire as to whether you used drugs and you were a pharmacist... that was your profession... would you have to answer yes? Of course, you wouldn't, would you?
Thomas G. Hungar: Well, it would depend on the purpose of the questionnaire.
Speaker: Well, because the phrase use drugs means something even though the word use by itself can mean a lot of things. And when you say use a gun, did he use a gun, I don't think it means did he use it to scratch his head. [Laughter] Or did he use it to pry the door open? It means he used a gun as a gun. Gee, I--
Thomas G. Hungar: With respect, Your Honor--
Speaker: --At least if you're working with the doctrine of the rule of lenity, it seems to me you have to take that into consideration.
Thomas G. Hungar: --To the contrary, Your Honor. The rule of lenity is particularly inappropriate I think to apply in this case because the conduct at issue here falls within the literal definition of the words use, within the literal meaning of the words use. This isn't a case in which we're arguing for something other than the actual definition of the words use. Petitioner had fair notice that if he used a gun in relation to a crime, he was running risks of being incarcerated for a very long time, and that's exactly what he did. This isn't the case for the rule of lenity at all. The definition of the word use is very broad. It means to employ, to carry out a purpose or action by means of, to make instrumental to an end. Congress chose not to use specific narrow words like fire, shoot, or brandish in order to limit the types of uses that would be covered by the statute. Instead, Congress used sweeping language which suggests that it didn't intend the courts to draw fine distinctions among the various ways in which criminals can employ firearms in furtherance of their criminal conduct.
Speaker: Why didn't the Government avoid all this ambiguity and cause this split in the circuits? Why didn't you just indict him for carrying the gun in connection with a drug crime?
Thomas G. Hungar: I don't know why he wasn't indicted for carrying in this case, Your Honor, but I would point out that that would not have alleviated the split in the circuits because what the Ninth Circuit held in the Phelps case is that... they conceded in the Phelps case that the defendant there had used the gun by trying to trade it for drugs, but what they said was that that use was not in relation to the drug trafficking crime. So, they went off on the in relation to prong which, of course, applies to the carrying of the firearm.
Speaker: Well, but you wouldn't have had much problem indicting... convicting this person for carrying, would you?
Thomas G. Hungar: Well, again, Your Honor, in the Ninth Circuit--
Speaker: Well, would or not?
Thomas G. Hungar: --we would. In the Ninth Circuit, under the rule of the Phelps case we could not convict him for carrying in relation to an offense because what the Ninth Circuit in Phelps said was that trading of a firearm--
Speaker: Well, I know, but--
Thomas G. Hungar: --for drugs is not in relation to.
Speaker: --I know, but it didn't help you any to use "use" either, did it?
Thomas G. Hungar: Well, it did until the Court granted cert, Your Honor. [Laughter]
Speaker: Yes, but it shouldn't have. But if you won in the Eleventh Circuit on the "use" theory, you certainly could have won it on the "carrying" theory.
Thomas G. Hungar: Yes, Your Honor.
Speaker: And we wouldn't... you wouldn't be here.
Thomas G. Hungar: Well, I think we might well be here because petitioner could have argued that by holding that the carrying of a firearm for the purpose of trading it for drugs is in relation to a drug offense, that would have created a direct, square conflict with what the Phelps case said in the Ninth Circuit, which is that the trading of a gun for drugs is not in relation to a drug offense. We think that--
Speaker: But the issue would certainly be different here.
Thomas G. Hungar: --It would be different, yes, Your Honor.
Speaker: Yes. Mr. Hungar, in subsection (d), the statute refers to any firearm or ammunition involved in or used in any knowing violation. Under your definition in your interpretation of the statute, is there a difference in involved in and use?
Thomas G. Hungar: I'm not sure, Your Honor. If that statute doesn't have an in relation to requirement, there might be... involved in might be broader than in relation to, although I wouldn't think it would be.
Speaker: I cannot offhand think of a difference of involved and use under your interpretation, and it seems to me that under your interpretation, at least it renders involved in in (d) superfluous.
Thomas G. Hungar: Well, use implies some active... I mean, some active use, not to be redundant, but something could be involved in an offense without having been used by the particular defendant. Use implies, on the part of the defendant charged, some ability to guide the destiny of the gun, if you will, to control the gun, at least in the sense of constructive possession as Justice Thomas' opinion for the D.C. circuit in the Long case said. "Involved in" would not necessarily imply that. In any event, it may be that in that statute Congress was simply... again, similarly to what it was trying to do here, was using multiple words to ensure that the statute would given its full scope and construed broadly in order to get at the full range of conduct that Congress wanted to proscribe. Petitioner argues that our interpretation of the word "uses" renders the word "carries" superfluous. We disagree with that. There are certainly cases in which a defendant could carry a gun without using it in relation to the crime. For example, a member of a bank robbery conspiracy who goes to the store and buys a gun and brings it back and then turns it over to the member of the conspiracy who's actually going to rob the bank. That individual has not used the gun in any way, but he has certainly carried it during and in relation to the bank robbery conspiracy.
Speaker: Well, why hasn't he used it to facilitate the bank robbery?
Thomas G. Hungar: Because he hasn't used it in any way.
Speaker: Sure, he has. He handed it over to somebody and said, here, you can use this in the robbery. He's using it to perform his act of facilitation.
Thomas G. Hungar: Well, I don't think that we would say that the mere carrying of a gun without more is the use of a gun. The use implies--
Speaker: Because it would just be absurdly broad, wouldn't it?
Thomas G. Hungar: --Because I don't think that's how we would use the word use in common parlance. If you were using--
Speaker: If you want to start referring to common parlance, it seems to me you're getting into... onto pretty thin ice because a minute ago you were saying, no, look, we're going to use use in the literal dictionary definition. That's not common parlance.
Thomas G. Hungar: --Well, I think when we speak of common parlance, we speak of the way words are ordinarily used which is I think the way the dictionary defines them.
Speaker: And doesn't the dictionary frequently contain definitions which are at least possible uses of the word, but which do not reflect common, everyday usage?
Thomas G. Hungar: Yes, but the dictionary definition of the word use and the common parlance use of the word use means to employ something, to carry out some purpose. It doesn't mean to employ something only in a manner for which it is designed.
Speaker: Yes, but as Justice Scalia suggested to you, when you say use a gun, in common parlance it doesn't mean trading a gun, does it?
Thomas G. Hungar: Not necessarily, Your Honor, but it can mean that. It depends on the circumstances.
Speaker: Not necessarily or even commonly.
Thomas G. Hungar: Again, if I... if a burglar uses a gun to break open a window in order to gain access to a house, or if he uses the butt of his shotgun to smash open a closet door in order to ransack its contents, he is--
Speaker: But that isn't what... you say using a gun in common parlance means opening a door with it.
Thomas G. Hungar: --It can. I can certainly say I... if I were the burglar who smashed open the closet door with the gun and someone asked me how I smashed open the closet door, I would say I used my gun. That's common parlance. That's the way the word is ordinarily used in that context, and there's nothing to suggest that Congress intended a narrower definition. The literal--
Speaker: So that in this case, if you used the gun at home in order to grind the powder, you used the butt of the gun, and then left the gun at home, that would be the use of a gun in connection with a drug transaction?
Thomas G. Hungar: --Well, it depends on the crime being charged.
Speaker: This charge... this statute.
Thomas G. Hungar: The... it depends on the predicate offense that's being charged, whether it's a use in relation to the predicate offense. Certainly there's no question--
Speaker: Under your interpretation of the statute and under my hypothetical, would there be a violation under this statute?
Thomas G. Hungar: --Well--
Speaker: Would he be using the gun in a drug... for drug trafficking?
Thomas G. Hungar: --Well, there has to be a use in relation to a specific drug trafficking crime. Certainly the defendant has used the gun--
Speaker: Well, at 10 o'clock in the morning, he grinds the cocaine powder using the butt of the gun, and at 11 o'clock in the morning, he takes the powder that's so created and goes out and sells it. A violation of this statute?
Thomas G. Hungar: --Well, again, Your Honor, it might not be a violation of the statute depending on how you construe the limitation of during.
Speaker: Well, how--
Thomas G. Hungar: It has to be during the commission of the crime, and it depends on what the crime charged is. If the crime is distribution of cocaine, which occurs at 11 o'clock, I don't think he has violated the statute. But even if he has... if the charge is possession of cocaine with intent to distribute it, the presence of the gun at the scene of the cocaine would permit a jury to infer that he is, indeed, using it in relation to the crime and is, therefore, guilty of the crime. But it depends on the predicate drug crime being charged.
Speaker: --What if the barter arrangement was I will mail you the gun in exchange for the drugs? Has he used the gun within the meaning of the statute here?
Thomas G. Hungar: Well, that's a more difficult question, Your Honor, because many courts of appeals have construed the use in relation to requirement to require some proximity, some availability of the gun, and it's unclear how that requirement would apply in this context, but--
Speaker: Well, what's your position on--
Thomas G. Hungar: --I think that you could certainly have--
Speaker: --the meaning of the word in relation to, and... the words, rather?
Thomas G. Hungar: --I think that that would be a use in relation to the crime, Your Honor. And again, there's nothing surprising or absurd about that result. Congress was concerned about the involvement of firearms in criminal activity. And in particular, when it amended the statute in 1986 to extend the statute to drug trafficking crimes, the legislative history indicates that Congress did so because of the increasing proliferation of machine guns and other dangerous weapons among drug trafficking criminals and other criminals and the dangers that posed to law enforcement officials and other members of society. And it's entirely in keeping with that purpose to construe the statute as we would.
Speaker: I suppose if there was a drug dealer who wasn't so much interested in money as collecting guns to defend himself and his colleagues, he let it be known that I am trading cocaine for guns. That certainly would be using a gun?
Thomas G. Hungar: If he were trading cocaine for guns?
Speaker: Yes.
Thomas G. Hungar: And he were intending to... he were letting it be known to people--
Speaker: Could you indict him who is... who... the cocaine dealer. Could you indict him under this statute?
Thomas G. Hungar: --It depends. It's a more difficult question because we might not... depending on the circumstances of the case, we might not say that the drug seller--
Speaker: He wants the gun and the gun... and he never would have entered into this drug transaction unless he got the gun.
Thomas G. Hungar: --In that case, it probably would be a violation of the statute. If the drug dealer had no actual interest in obtaining the gun and the person with the gun who was trying to buy the drugs volunteered this, the drug dealer might not be using the gun in any sense of the word, and therefore, the drug dealer might not be himself liable, although he would probably be liable as an aider and abetter even under that statute. But again, that's not this case because in this case it's perfectly clear that, as you said, the defendant was actually using the gun in order to get drugs and, therefore, was actually violating the statute.
Speaker: Your answer to Justice O'Connor suggests, I believe, that you would answer their hypothetical about the pawn ticket by saying that's use of a gun too.
Thomas G. Hungar: I think that's right, Your Honor. The pawn ticket is a particularly difficult one because a pawn ticket, at least normally, does not in itself entail the right to obtain a gun. So, you have to go pay money for it. In a sense it's sort of like saying if you give me the drugs, you can go to the store and buy a gun, and I'm not sure that's that the use of a gun.
Speaker: Maybe change the example to one where he gave him a bill of sale to the gun.
Thomas G. Hungar: Yes.
Speaker: That would clearly be--
Thomas G. Hungar: I think that would be. Again, that's further from... that's quite a distance from this case because there's no question about constructive or actual possession, as some of the courts of appeals have acquired. The gun here was actually in the possession.
Speaker: --But it really would be use in the same sense, consideration in an exchange for guns--
Thomas G. Hungar: I think that's right, Your Honor.
Speaker: --for drugs.
Thomas G. Hungar: And again, there's nothing absurd--
Speaker: That's not absurd. I'm not suggesting that it's absurd, but that is the scope of your position.
Thomas G. Hungar: --That's correct.
Speaker: Yes.
Thomas G. Hungar: Given the literal language that Congress has used, we think that the statute should be construed in accordance with that literal language, as the original sponsor of the statute indicated, Congressman Poff. The purpose of the statute was broader than what petitioner has suggested. The purpose of the statute was to persuade the man who was tempted to commit a Federal felony to leave his gun at home. Congress didn't want guns involved in the commission of felonies.
Speaker: You see, the point of my hypothetical was he could do that and leave his gun at home.
Thomas G. Hungar: That's true, Your Honor, and again, that might be a reason for a court concluding... we don't think it would be, but it might be a reason for a court concluding in that hypothetical that it's absurd to construe the statute that way. But this case doesn't present that question. This case falls squarely at the core of Congress' concern in adopting the statute. Petitioner appears to concede that the use of a firearm... that the involvement of the firearm in this case was in relation to the predicate drug offense, and we agree that under any reasonable construction of the in relation to requirement, it has been satisfied in this case, despite the fact, as I said, that the Phelps court in the Ninth Circuit reached the opposite conclusion.
Speaker: So, did you think we're... be authorized in this case to say that it is in relation to? That isn't the issue we took it on, is it?
Thomas G. Hungar: Well, I believe the Court granted certiorari to decide whether this constitutes a use in relation to a drug trafficking crime, and we submit that it is. But in order to uphold the conviction, the use has... in order for the conviction to be valid, the use has to have been in relation to--
Speaker: Well, the question presented is whether the act of offering a firearm solely as an item of barter in trade for drugs violates 1924(c) for use of a firearm during and in relation to a drug trafficking felony. So, you can say that certainly that question is subsumed. But you would like us to... if you win the case, you would like us also to overrule the Ninth Circuit.
Thomas G. Hungar: --That would be nice, Your Honor, but... and I think, as the Chief Justice pointed out, in order to answer the question presented as we would, necessarily the Phelps decision has to be overruled. In urging a narrower interpretation of section 924(c), petitioner in effect is asking this Court to rewrite the plain language of the statute to construe the term uses a firearm as if it read uses a firearm as a weapon. In our view, the statutory text forecloses that approach. Congress specified the limitations it wanted to impose on the scope of the statute. The use or carrying of a firearm must be during the commission of the predicate offense, and it must be in relation to the predicate offense. Those two limitations do not include the ones sought by petitioner. So, the obvious inference is that Congress did not intend to adopt petitioner's version of the statute. As I was discussing earlier, petitioner argues that our interpretation of the statute would render the word carries as superfluous, but in fact, that's not correct. If anything, it's petitioner's interpretation of the statute that would render a word superfluous because if petitioner is correct that the statute applies only to actual physical uses of firearms as an offensive weapon, it's difficult to see how one can actually use a firearm as an offensive weapon without also carrying it. And so, it's petitioner's interpretation of the statute that runs afoul of the rule that statutes should not be construed in order to render words superfluous. If there are no further questions, I thank the Court.
Speaker: Thank you, Mr. Hungar. Mr. Kollin, you have 2 minutes remaining.
Gary Kollin: As express words are placed in statutes and have to be read in their context, like use or carry, involved in, or used in, and not to make other words superfluous, in these cases with use or carry or involved in or used in, they are not mere iterations of spanning out of different methods of commission of the crimes, and we look at them in the normal parlance. The bank robbery conspiracy. Yes, I would agree that that is the facilitation of the commission of the crime and the person... other persons would be guilty under the concept of 18 United States Code, subsection... section 2 for aiding and abetting, just as the theory was tried to be made in the Busic case. I do not believe that the Government has been able to establish any example where someone can carry without using under its definition or the definitions accepted by the majority of the lower courts. The problem with regard to this definition is that it criminalizes the fact that somebody may have drugs that are proximate to a gun even where the guns are inoperable. There are situations where guns were at remote locations where the drug transactions weren't being committed. This also... this same definition of use in this statute also accomplishes the law enforcement goal because it still allows law enforcement to encourage the person to leave the gun at home because if he is carrying the gun on his way to committing the crime, he is still guilty under the statute, and therefore is the same goal and same purpose of the statute. And the examples in the later 1984 statute... the versions talk about the methods of using it and they give examples by pointing it out in regard to the bank teller and individuals of that nature.
William H. Rehnquist: Okay, Mr. Kollin. The case is submitted.


Warren E. Burger: We'll hear arguments next in Hunter against Dean. Mr. Bonner, you may proceed whenever you're ready.
James C. Bonner, Jr.: Yes sir. Thank you Mr. Chief Justice, may it please the Court. The facts in this case are relatively simple and pretty much undisputed. I'll go over them briefly and we will launch into, all the multi-faceted issues that this case ultimately presents. Jacque Hunter and a codefendant were convicted on guilty pleas -- a burglary charge then in Terrell Superior Court then in South Georgia near Albany. They were each sentenced of the two years probated, provided that they each paid fines and costs and attorney's fees that amounted to some $250.00. Codefendant's family was there in court. He paid the fine reasonable promptly or they paid the fine, it's not clear or even relevant I guess who. But in any event, he was released. Jacque Hunter, when the court -- the trial judge inquired of her whether she could pay a fine, had indicated to her that she thought to him, that she thought so, and named two cousins --
Warren E. Burger: Did she say, “She think so,” that she thought so, or did she what?
James C. Bonner, Jr.: Well, she said, “Yes, sir,” but I don't think I'm mischaracterizing it to put it that way, I think that this is a -- I think this whole episode has to be viewed as a typical one and that is when a defendant is appearing for pronouncement of sentence. I think always, his hopes outrun his --
Byron R. White: Well she certainly didn't use those words?
James C. Bonner, Jr.: No sir, she didn't. But, I think the gist of them are that, I'm not sure that that's important either. But, in any event, she did indicate that she could pay a fine. When the judge inquired further, she named two cousins that she was going to look to, to pay the fine.
Warren E. Burger: Has any explanation ever been tendered to the court why this was not done why this (Voice Overlap) --
James C. Bonner, Jr.: No, sir, there was no explanation was ever tendered but I don't believe that -- but of course, it's not a dispute that they did not pay the fine or --
Warren E. Burger: No, but, has there ever been any explanation from her about her representation to the court.
James C. Bonner, Jr.: No sir, they had -- subsequently, ten months after this sentence was -- I mean ten weeks after the sentence was passed and it became apparent that her hopes or expectation of whatever they were, were not going to come to pass. She sued out writ of habeas corpus in the Terrell Superior Court with volunteer counsel. Ironically, the hearing occurred before the same – before the trial judge which is not normally -- it would simply be a coincidence on Georgia law. Also coincidentally, it occurred within the term of court when he still had plenary power over the sentence in all respects. But in any event at that particular hearing, which I don't believe is part of the record before this Court, there was no testimony taken. The parties just simply proceeded on the basis that she was in jail because she had no money. There was no detailed explanation made at that time. No inquiry even made at that time as to why the cousins hadn't paid or even what basis she had had for making that original statement.
John Paul Stevens: Mr. Bonner.
James C. Bonner, Jr.: But in --
John Paul Stevens: Mr. Bonner may I ask you a question about the fines. I notice the statute provides, as a proviso in it that provided such defendant shall not be entitled to any rebate or refund of any part of such fine so paid in case such probation shall be revoked by law.
James C. Bonner, Jr.: Yes sir.
John Paul Stevens: Is it fair to infer from that that if the defendant had paid the fine, had been put on probation and served it without any wrong doing, that the expiration, the period of probation, the fine would have been repaid to her?
James C. Bonner, Jr.: No sir, that's not correct. I think that this might be a misimpression that inadvertently arouse from one of the state's arguments, that is the fine is somehow stake. It's not a stake in a positive sense because the fine once paid is lost, even successful completion of probation, even if she had been discharged as a model citizen after one year wouldn't have resulted in that money being refunded. To this degree, it does represent -- there is an added risk. I might add here that an affluent defendant faces, when he pays the fine immediately and hits the street. If Jacque Hunter for example, had been given leave to pay in installments and had validated her probation after two weeks, the relative amount of money she would lose would be -- she would have lost the $250.00, probably just only a small part out of it. But --
William H. Rehnquist: What if she had been sentenced to pay the fine in installments which she was concededly able to pay at the time and she with the sentence was imposed. And then four months later, she defaulted on an installment and offered testimony on habeas that she is simply wasn't able to financially pay that installment?
James C. Bonner, Jr.: Your Honor, that obviously is a question that arises out of this but it's not our case.
William H. Rehnquist: What's your answer to that?
James C. Bonner, Jr.: It's not our case.
William H. Rehnquist: No, what's your answer to that.
James C. Bonner, Jr.: Well, I think -- I don't think there's any doubt that having been afforded a fair opportunity to pay the fine in installments that her probation could be revoked if she failed to do it. Now, obviously we're talking about a gray area. There's very large gray area here because it's obviously a very easy question if she willfully fails to pay the fine if she had squandered a fair opportunity to make installment payments. It's quite another -- it's quite at the other end of the spectrum if she goes out and pounce every door in the county looking for a job and she can't get one. But, I think that particular kind of question is probably going to be buried in the proper use of the Court's discretion when it's faced with ratification petition if one has ever filed on that particular ground. And indeed, Your Honor, one may not ever be filed on that particular ground because our probation officer may understand what effort she is making and simply not prefer those kind of charges.
William H. Rehnquist: But doesn't that suggest that there is a point in time at which the court has to make it's decision and the factors that go into the constitutionality of it's decision, it has to be judge as of that point in time rather than four months later or six months later?
James C. Bonner, Jr.: I'm not sure if I fully understand what you mean Your Honor, if you --
William H. Rehnquist: Well, suppose -- supposing in this case that the trial judge was assured by her. Now, if the record is apparently muddy and you claim otherwise, that she was able to pay the fine or someone would pay it on her behalf, and he therefore quite consciously decided, “I will suspend the imposition of sentence and impose a fine on you.” Now, can she come in four months later and say, “Well, I know that the representation was made at the sentencing, I could pay the fine. But in fact, I couldn't have paid it then.” Is that grounds for relief?
James C. Bonner, Jr.: Yes sir, I think. And I think that's fair characterization of what happened here according to the view of the state takes. But, yes, I think that would be grounds -- I think she'd have the same kind of claim. The question, which would be before the Court on writ of habeas corpus is whether she is being confined essentially for failure to pay money. And I think once you've got that, you enter into an equal -- the full panoply of equal protection considerations arises. But let me run back just a minute to a question that you asked. We were talking about the gray area. There -- what I want to avoid is the impression. There's no part of my argument that says that Jacque Hunter can't be locked up if she can't pay the fine. Obviously if it --
William H. Rehnquist: Right at the time of the sentence.
James C. Bonner, Jr.: I'm sorry.
William H. Rehnquist: Right at the time sentence is imposed. A judge can look at a wealthy defendant and say, “I fine you a thousand dollars,” he can look an indigent defendant convicted at the same offense pleading guilty with the same offense and say, “I know you can't pay any fine, so I'm going to sentence you to 10 days in jail.”
James C. Bonner, Jr.: Yes sir, that would be perfectly appropriate because obviously, if we did anything else, we would immunize Jacque Hunter possibly from any punishment and that's not our claim. We don't --
Byron R. White: But then the record would have to show some -- also some finding or some consideration of whether she could pay in installments.
James C. Bonner, Jr.: Well, I suppose a proper inquiry would involve that Your Honor. That certainly -- if the judge is thinking in terms of a fine at all, as a precondition or a condition or probation or anything, in common sense says --
Byron R. White: What if he says, “I'm thinking that $500.00 fine, can you pay it?” She says, “No, I haven't got $500.00, but I'm quite willing to try to work it out.” And he says, “Well, if you can't pay it, go to jail.”
James C. Bonner, Jr.: I think you've got the same case we got here, we've got an equal protection problem. Now Your Honor, we got that particular kind of case here. I mean, we got -- we would have that particular kind of case in the hypothetical you gave. Simply because in that case, as in this case, based on that colloquy, we would have the poverty factor, the precondition payment isolated and highlighted as the sole feature on which liberty or not turns. That's a unique feature of this case. It's not going to exist in a normal case. In a normal case, when a judge is passing sentence, and incidentally, I want to stress too that we're not making any suggestion at all that the judge should not consider or should not be aware of economic status. It's our position that the more he knows about that infinite, the wiser and the better his judgment can be. But he's got to treat that factor like raise as Justice Jackson said in Edwards versus California as a neutral fact, one that is neither the source of rights nor a basis for denying them.
John Paul Stevens: Mr. Bonner, I don't understand on how you can give us the answer you did to both Mr. Justice White and Mr. Justice Rehnquist. With respect to Mr. Justice White, I though you said that if she came in and said that it would be $500.00 and she said, “I think, I can pay up,” and then she turns out she can't. He cannot put her in prison. Is that what you're saying?
James C. Bonner, Jr.: She would have the same equal protection claim, yes sir.
John Paul Stevens: But then, to Mr. Justice Rehnquist, you said that if he had one that's a rich defendant who can pay a thousand dollars and a poor defendant who can't pay anything, he can't put –-
James C. Bonner, Jr.: Well now --
John Paul Stevens: Lets -- I don't understand the difference that is.
James C. Bonner, Jr.: Well, you're hitting what -- I suppose we're talking about -- were are not -- if you've got a -- if a judge is faced with two comparably situated codefendants, one is rich and one is poor, there's no requirement that he impose the same sentences. As a matter of fact, in all probability, the sentence is --
John Paul Stevens: But the only reason the poor one goes to jail is she can't raise any money.
James C. Bonner, Jr.: Well, it's a question. Here we're getting into a question of -- it's a different question here. The judge may very well decide that a thousand dollar fine would be sufficient to punish the relatively affluent defendant. He may decide that a fine, you know, that -- the poor codefendant who can pay no fine should also be punished but obviously, perhaps there are difficulties in punishing though a fine or him through a fine. And therefore, he could impose a term, you know, obviously, if it's ten days, it's a very simple question. If we got this case here --
John Paul Stevens: Why is it very simple if the only reason the person goes to prison is because the person is an indigent?
James C. Bonner, Jr.: Well, the --
John Paul Stevens: Would you say that's an (Voice Overlap) --
James C. Bonner, Jr.: I think that illustrates, I think that illustrates how poverty has to be -- how it can be considered, how it has to be considered in molding whatever the appropriate punishment is.
John Paul Stevens: Well, isn't not just what the judge did here. He said, “If you can raise a $165.00, you get probation. If you can't, you go to jail.”
James C. Bonner, Jr.: Well --
Thurgood Marshall: Suppose the judge says to both parties a thousand dollars or a thousand days and one of them is a Mr. Onasis who just died, and others are sharecropper, you don't have any problem?
James C. Bonner, Jr.: No sir, obviously, you've got a problem.
Thurgood Marshall: You don't have any problem?
James C. Bonner, Jr.: You've got the same problem that we've got here, I think in that situation.
Thurgood Marshall: Well, you do have a problem.
James C. Bonner, Jr.: But what -- you were talking --
Thurgood Marshall: Why didn't you bring that case, the one that my Brother Steven is talking about.
James C. Bonner, Jr.: Well, we're talking about the question of degrees, I think in the hypothetical that you post, we've got a judge who's looking to a codefendants, he wants to punish him, say comparably, and I don't think anybody can come in and claim, “Hey, wait a minute now. A real comparable punishment would have been to lock him up for one day, not ten, or for two years not." You know, I mean you get into a question where you're quibbling with considerations that only a trial judge can make. Now, again, anytime the problem with posing hypothetical is that any hypothetical you give, it's easy to isolate economic factor in a way that's similar, to the way it's isolated here.
John Paul Stevens: But here, he obviously tried to treat these two people equally? I don't know how it could be more plain?
James C. Bonner, Jr.: Well, in a way he did, but again, the thousand dollar fine for Onasis and --
John Paul Stevens: Well, but let's keep it to the 165 then. Why -- if you can ever put person in jail for because of indigence and that's the only reason, for me it's a critical reason, why can't you do it here? That's really the heart of the case, I quite understand it right.
James C. Bonner, Jr.: Well, no, Your Honor. I'm not saying -- I didn't mean to suggest that you can ever put her --
John Paul Stevens: But you said he did --
James C. Bonner, Jr.: Well, I suppose we get back to Mr. Justice Rehnquist's question.
John Paul Stevens: Yes, you do.
James C. Bonner, Jr.: There may be a point when she is exposed to jail because for indigence, you know, talking about, not the gray area, the black or white where she willfully fails to get a job and the make the payments.
John Paul Stevens: Well, let's assume its all was non-willful, let's leave willful cases, put them all on one side, just the inability to pay, can that ever justify a jail sentence? And I think you said yes.
James C. Bonner, Jr.: Yes sir, it can, if it's treated as a neutral fact, if it goes --
John Paul Stevens: Wasn't it treated as a neutral here?
James C. Bonner, Jr.: No sir, it wasn't. Indigency was made the sole condition on which your going to jail and staying free a turn or --
Potter Stewart: Well, if it can be in ingredient, then inevitably, it can sometimes be the controlling condition.
James C. Bonner, Jr.: Yes sir, I think sometimes it can be. But it the normal case, we'll never know. Because in a normal case of whatever judgment is passed, it's going to be weighed and balanced against the multitude of factors and we'll never be able to go into that even a question of proof aside. We would never be able to go into that and say, “This man got this particular sentence because he was black or poor or rich or had blue eyes,” or something like that.
Warren E. Burger: Well, since, we're dealing with hypotheticals and you've just mention the rich. Suppose a judge has a man before him who's a multi-millionaire and that the end of the evidence, he finds him guilty and says, “I observed that you've been found guilty. Now, for the third time, driving while intoxicated, endangering people's lives and each time we've increased the fine, very clearly fines are no deterrent to you. You can't be punished by fines because you've got so much money.” And he puts all this on the record. If I'm going to send you to jail for 30 days. Now, the decision there, the fulcrum of that decision has been because he is so rich.
James C. Bonner, Jr.: Yes.
Warren E. Burger: Do you find something wrong with that?
James C. Bonner, Jr.: No sir, that obviously is a common situation, there is something quite right with that. What is right with that is that the judge has used that economic factor rationally, obviously, it's very rational and hypothetical you gave. That's the problem essentially with the use of it here. The state justifies the use of this exclusion for poverty. For one, well, basically, for a multitude of reasons. They say, this reflects the family support and reflects their control. It reflects an ability to live without, you know, without creating further offenses. That's where their argument I think basically fails against the traditional test of showing a rational connection. They have used, they've taken a fine and they've used it here as a blunderbuss. Instead of making the specific inquiries in what control is the family going to offer, what kind of support are they're going to give. Is she going to be able to live alike without crime? They've taken one factor, whether she can pay a certain fine, period. And they've used it as a substitute, as a very crude and clumsy substitute for these things that ought to be precise, careful evaluations.
Byron R. White: Well, what if the judge had determined that this person couldn't have paid any fine and installments or otherwise and faced by debt to it. That first, is really indigent and couldn't pay as hard as she tried. She is just disabled for example. And said, “Therefore, two years in jail.” You would still be here, wouldn't you?
James C. Bonner, Jr.: No sir, we wouldn't be here.
Byron R. White: Well, why wouldn't you?
James C. Bonner, Jr.: Well --
Byron R. White: Why wouldn't you require --
James C. Bonner, Jr.: The problem --
Byron R. White: -- to say instead of an automatic two years --
James C. Bonner, Jr.: We would have not no way of saying that two-year sentence wasn't inappropriate punishment, we'd have no launching pad here, you know, to bring us here. I think in this particular case, in what you outlined, we would have a case where the judge would properly exercise this discretion. Now again, maybe fundamentally, we have somebody who is in jail because of the neutral fact that they can't pay or they can't be punished any other way. But, we can't -- you know, we can't launch ourselves into this. We shouldn't launch ourselves into this inquiry into what role all of this play and how it's going to fit in with, say your prior record in this kind of thing. On the face of it that would look like an appropriate sentence. We'd have no claim. Now again, this is -- that illustrates the problem with hypothetical. When you give a hypothetical, it's very neat and simple to say, to isolate that economic factor on through. And I think any time, you got that, then the position I'm taking is somewhat kind of --
Byron R. White: Well, no part of your argument is that there's hardly any relationship between two years of jail and a $165.00 in terms of serving the state's penological interest?
James C. Bonner, Jr.: Well -- Yeah, I think here, what we've got --
Byron R. White: Well, is there anything -- are you arguing that or not?
James C. Bonner, Jr.: I'm sorry, that -- no, it's not a relativity argument. I admit we would have difficulties on our habeas hearing. A judge can come back and said, “Okay, well you can't pay a fine, then I sentence you to one year, 12 -- you know, and 11 months.” Or something like that. We could run into some problems at that particular extreme. But neither then, as I say, the critical thing here, what were talking about, you know, it's a very modest modification of that particular requirement in order to give this defendant the choice that is open to affluent codefendant under the same sort of sentence. And again, I want to stress that we're not saying that the judge be blind to economic condition anymore that he should be blind to the call of the man who stands in front of him or the sex of the person who stands in front of him. These are things that the judge is going to know. But --
John Paul Stevens: Mr. Bonner, can I go back for one second.
James C. Bonner, Jr.: Yes sir.
John Paul Stevens: To the question I started with about the proviso on the statute about money being paid back, you said it's not normally the case that the fined is refundable, is it ever the case under your --
James C. Bonner, Jr.: As far as I know Your Honor, that statute controls and it's never refundable.
John Paul Stevens: Its never -- the proviso just is -- it's just really meaningless, isn't it?
James C. Bonner, Jr.: Well, it means that once the money is paid in it sticks. I think --
Potter Stewart: Even though you end up getting imprisoned for imposition?
James C. Bonner, Jr.: Even though you end up -- Yeah, you could serve --
Potter Stewart: You don't get the fine back, that's all.
James C. Bonner, Jr.: One year -- I mean, two years less one day, and if you paid the whole fine and put the --
John Paul Stevens: But the proviso is that it won't be revoked if probation is revoked -- I mean, it won't be refunded if probation is revoked.
Potter Stewart: Right.
John Paul Stevens: Which gives rise to the suggestion that it would be refunded if probation was not revoked?
James C. Bonner, Jr.: That's not – that's just simply our attempt --
John Paul Stevens: But they -- That just never happened?
Potter Stewart: That inference is just not fact as otherwise.
James C. Bonner, Jr.: If you browse through the Georgia Code, you can come up --
Byron R. White: Well, the other possibility is that they were just saying that we can punish you not only by a fine but by imprisonment? Because that it might be -- that the inference might be that you can be only fined or imprisoned. If I break probation and sent to jail I should get my money back.
Potter Stewart: Right. That's should be the --
James C. Bonner, Jr.: Yeah, I think it's the head off that argument exactly. But as far as I know, none of that money has ever refunded. If the State of Georgia gets it, it's got it. Now, this does point out a disparity I suppose between the affluent man who pays his money right away and then stands two years of risking and losing it all and somebody who's on an installment payment who plan who might only lose part of it. But I think once you talk -- I think that de minimis disparity. And I think that, you know, to countervail against it, the man who is able to pay all of the fine at one point has that one condition that he doesn't have to worry about throughout his probation. The indigent on an installment program, although he may end up saving money that he doesn't have, you know, by not paying it, because he's locked up, nonetheless has to suffer under that additional condition. As I say, the basic point I just wanted to make is that that we fully agree that any kind of decision to probate is part of this state's argument is necessarily a delicate one and one that should be taken with great care. Our point is that when it's made to turn solely upon poverty, on a financial consideration, then it's simply not rational. That kind of judgement is again a blunderbuss. It's a -- it's no substitute for the kind of evaluations that the state claims that it stand's for. Here, for example, if the judge has decided that Jacque Hunter shouldn't be on probation because her family was going to provide a negative influence on her, you know, and maybe the poverty of the family and so forth, would play some role in all that, and then had to put on probation, we wouldn't have a case. I mean, there again, the judge would have made a specific evaluation, a specific judgement and we couldn't impeach it, and we couldn't get behind it. Even though, you know, poverty may have played some particular role in it, in a non-hypothetical way. Obviously again, once we get in a hypothetical situation, then we're exactly where we are here because we can take that one fact and track it all that way down and we can play with it and see how it may have been used rationally. But in a normal case, we're not going to have that particular opportunity. We're going to have to presume that whatever weight the judge gave to it, was a proper weight. That like race and certainly, any judge who can see is going to be aware of the race of the defendant in front of him, and that might mean something in some context.
William J. Brennan, Jr.: Mr. Bonner, if you prevail here, is it likely that Georgia will enact strictly with legislation, and impose and call for mandatories prison sentence?
James C. Bonner, Jr.: There has been some movement in that direction, Your Honor, but I don't think that's any chance at all. I might say here as a practical matter that not all probated sentences pass this way or enforced this way in a lot -- the great majority of them that have fine conditions, accommodate that particular problem, particularly in the Atlanta Metropolitan Area and some of the other Metropolitan areas. But, I'm not sure what they do this -- you know, I'm not sure, just whether they're operating under that --
William J. Brennan, Jr.: Well, sometimes, one can win a case and loose a lot more in the long run.
James C. Bonner, Jr.: I don't believe here, Your Honor, that there is some risk of that. What we're asking for is a slight accommodation of that sentence, a very modest accommodation of that sentence, modification of that sentence, and one that in practical matter is quite commonly --
Byron R. White: What are you asking for --
James C. Bonner, Jr.: We're asking basically Your Honor, that she'd be given an opportunity to pay that fine in installments, in reasonable installments. And we would have no objection to it if the state wanted to -- there is no reason why the installments should stretch over the entire 24-month period either. It's all a question of what's reasonable but we have no objection if she is required to pay them all relatively early in the probation.
Warren E. Burger: Do you suggest that we can, at this stage, determine the terms of the --
James C. Bonner, Jr.: No sir, this is a -- this again is something that a trial judge is going -- you know, would have to look at. Obviously, he's going to have to evaluate her employment potential, the job market possibly in the area, a variety of things like this and determine what's reasonable.
William J. Brennan, Jr.: Is there any theoretical difference between paying it at once or paying it in installments as far as the legal theory is concerned?
James C. Bonner, Jr.: You mean, this penological theory or something?
William J. Brennan, Jr.: Well, the legal theory --
James C. Bonner, Jr.: I see no problem with the fine and all as a penalty. You know, I think the only problem here is the indigency has to be accommodated when a judge in the name of the state decides that a money payment and probation will satisfy penological interest of the state. But I don't see -- I think Justice Harlan's concurring opinion in Williams, made the point that the effect of a fine is liable to be it's pinch on the purse rather than the manner in which it collected. And I don't think there's any -- I don't see any problem with that. If I have any time left, I would try to save them.
John Paul Stevens: Let me ask one more question, I'm sorry. But in your habeas corpus petition, did you ask, did you tender an amount that you said your client could pay or did you ask fore release?
James C. Bonner, Jr.: Your Honor, I didn't draft that petition, but I think the prayer was for release out right.
John Paul Stevens: Is there anything in the record to indicate that your client could pay $25.00 immediately even?
James C. Bonner, Jr.: No sir. The inquiry never got into that fine of stage because what it happened in this particular case is that the court, basically, adjudicated on the basis of the prior decisions in the state's Supreme Court, on just the naked legal issue, and that what the Calhon and the Barnet case. The hearing was really, you know, if you call them hearing, it's sort of in quotations marks, because there's no evidence taken. There was no proffer of anything like that. It was a rather summary type of thing, more legal argument. Let me save the balance of my time if I have any.
Warren E. Burger: Mr. Parker.
G. Stephen Parker: Mr. Chief Justice, may it please the Court. The overwriting issue in this case is whether or not it is constitutional for a state trial judge to condition probation upon prepayment of a fine where the defendant represents to the court that he or she is able to pay a fine but subsequently is unable to pay the fine. And for that reason, is not allowed to serve the sentence on probation but rather is incarcerated. An underlying issue is whether or not a trial judge is should be able in the exercise of their vast although not unlimited discretion to consider the financial resources available to a defendant in determining whether or not he is at good risk for probation. The petitioner in this case appeared, in the Superior Court of Carol County in December 1976 after having been indicted with one other person for a residential burglary. As Mr. Bonner has recited the plea of guilty entered at that point, the trial judge has turned his attention to the question of what an appropriate sentence would be. The -- upon inquiry, the petitioner responded affirmatively that she would be able to pay a fine and that a cousin would be, probably called upon to help her with that. Trial court then imposed a two-year probated sentence or two-year sentence on each defendant to be probated upon the condition that each of them pay a fine of a $165.00 plus court cost. Subsequently, the additional portion of that, the money for the attorney's fees was stricken with Trial court after the habeas corpus hearing. The codefendant was able to pay his fine and was released. Petitioner however did not pay her fine and remained incarcerated. She's had been on a personal recognizance bond for the duration of this habeas corpus proceeding. The petition for habeas corpus, which were file in the Superior Court of Carol County, there was a hearing held at which there was no evidence introduced other than the transcripts of the prior proceedings. Now, at that hearing, and I would like to point out to the Court that the transcript of that hearing only, very recently became available to the parties and the time the briefs were filed in this case, that transcripts was not in fact available. But at that -- what that transcript does reflect is that at that hearing, there was an assertion by her attorney that he believed she could pay the fine in installments. There was, however, no testimony about the petitioner in this regard. That he did not avail himself of the possibility of calling her as a witness in this habeas corpus preceding which of course could've been done to the Georgia habeas corpus statute. I would point out --
Potter Stewart: I missed what you just said? He did not avail himself of?
G. Stephen Parker: In other words, Your Honor, the attorney, a different attorney who represented at the habeas corpus hearing could have there roughly understand and had her testified -–
Potter Stewart: Instead just relied on the record in the trial court?
G. Stephen Parker: Yes sir, he just -- more or less argued the law. He maintained that he believed that she could pay a fine and installment, but there were no specifics and she offered no testimony. Now, I also would point out that at this habeas corpus hearing at the state stipulated that she was an indigent at that point in time. The extent that we do not have that transcript, there is an error in footnote 4 of our brief, which states that the installment issue was not raised until appeal. Our brief was an error on that one point on footnote 4.
Thurgood Marshall: But how did – how does the point get up as she couldn't pay it. You said there were no testimony.
G. Stephen Parker: Well, she remained incarcerated as a result for failure to pay. And then at the hearing, the attorney who represented her at that time advised the court the she couldn't pay and that when he also advised the court of his belief that he though she could pay on the installment payments.
Thurgood Marshall: And under Georgia law at that stage, the judge could have altered the sentence?
G. Stephen Parker: Yes sir, he could have. Under Georgia law, a judge who imposes a probated sentence maintains control over that sentence for the term of probation. Otherwise, he would lose it at the end of the term of court. Now, we have not disputed petitioner's assertions that the equal protection clause applies to judicial action as well as the legislative ones. However, I believe that it is important to point out this distinction and to point out the fact that the basic statutory scheme which authorizes the sentence in this case has not been challenged at any time by the petitioner. This Court, in this case today is not reviewing the application of the statute challenge is unconstitutional, but instead as being after declared unconstitutional an active individual judicial discretion and sentencing. Now we contend that this is --
Potter Stewart: You understand this attack by your brother to be solely under the Equal Protection Clause of the Fourteenth Amendment, not under the Due Process Clause?
G. Stephen Parker: I understand that Your Honor.
Potter Stewart: Perhaps that you should be the one to talk but that's my understanding too.
G. Stephen Parker: Yes sir, I understand this Equal Protection Clause and nothing more.
Byron R. White: Mr. Parker, just taking short of any relevance to the problem.
G. Stephen Parker: Your Honor, it certainly has relevance, but we certainly believe as to the Georgia Supreme Court that the facts of the case distinguish it primarily because that's --
Byron R. White: Well, I think there we had a Texas statute, do we not, that (Voice Overlap)
G. Stephen Parker: There was --
Byron R. White: -- whatever the statute but we had an attack on a statute there I think, isn't it?
G. Stephen Parker: Yes sir, in both -- that case and also Williams versus Illinois, there were statutory provisions and question which authorizes specific sentence in that case. And as I stated in this case, we do not have a challenge to the statute but rather just to the judges action and conditioning probation upon pre-payment of the fine. As we noted in our brief and I will not (Inaudible) with the point. Decisions of this Court have not treated indigents as a suspect class for the purposes of equal protection analysis in each and every case. For this reason, we contend that even though this case arises in the criminal justice system, that pass of strict scrutiny is not the applicable test but rather the rational basis test is the applicable test. The question is whether there is a rational basis for a trial judge to consider a defendant's economic status in determining whether he has a risk for probation. Recent decisions of the Court have underscored this point in cases such as the San Antonio School District case, more recently the abortion case, Meyer versus Roe. These decisions all involve legislative or administrative classifications but they did make clear that the mere fact that the impact of a challenged statute or regulation does fall most heavily upon the indigent is not sufficient to constitute discrimination against the suspect class. Now, the petitioner contends that there's a distinction between cases involving public funding of schools, welfare and related programs and between cases arising under the criminal justice system such as this case. There are some supports for that argument. There is a footnote in the Meyer versus Roe opinion indicating that the principals of Griffin versus Illinois have not been applied to legislative classifications generally. But I will also point out to the court that there are contrary indications such as the language in the San Antonio School District case in which the very cases of Tate versus Short, and Williams versus Illinois were discussed at some length by the Court and of the majority opinion. And the opinion that it flatly stated that all of the judges often do consider a defendant's ability to pay a fine and imposing a fine that in doing so --
Thurgood Marshall: Why do Georgia have legal aid?
G. Stephen Parker: Sir?
Thurgood Marshall: Why does Georgia provide legal aid?
G. Stephen Parker: Well, Your Honor, the Georgia provides legal aid in order to provide the assistance of counsel at trail level with --
Thurgood Marshall: I recognized that there is a group that needs it.
G. Stephen Parker: Yes sir, there is a recognition to that need. The discussion of the Tate case and of the Williams case which is contained in the San Antonio opinion pointed out or stated, in dicta admittedly, that in imposing fines, judges are guided by sound judicial discretion rather than constitutional mandates. There are in fact a number of cases within the criminal justice system in which this Court has refused to apply strict scrutiny test in an equal protection analysis. For example, in Ross versus Muffet, the court in 1974 decision, in which it was held at the Equal Protection Clause nor the Due Process Clause, neither of them required the state to appoint counsel for indigents on discretionary appeals after direct appeals had been exhausted. There was reference in that case to the other decisions outside of the criminal law area in which indigents have not been considered a suspect class. I would submit that Ross versus Muffet is a recognition by this Court, that is it is not possible to have absolute equality within the criminal justice system. There are other cases. Now, for example, the Court rejected an equal protection challenge in a case involving New York parole. A New York statute said in parole eligibility, that are in clearly favor in those who had been or just clearly discriminated in those who's been unable to make bond prior to their trials. An equal protection argument was summarily rejected in that case, McGinnis versus Roister. Would also point out that an examination of the case as such as Griffin versus Illinois and it's progeny reveals that the Court has in fact invalidates statutes and practices which have placed the indigent at a disadvantage in the criminal justice system for no rational reason. The lack of a rational reason I submit is a compelling factor in all of those cases. Now, for example, in the Griffin case, the courts found and I think very correctly, that there's no rational relationship between the defendant's ability to pay calls for an appeal in advance in its guilt or innocence, there's just couldn't be any relationship. And for that reason, and others, the Illinois requirement was struck then. The irrationality simply being in the fact that the merits of a post trial motion is in nowhere related to a defendant financial status.
Byron R. White: So I take it your submission is that 30 days or $30.00 is always a good sentence and if the indigent -- and if a person is indigent can't pay the $30,00, 30 days is always null.
G. Stephen Parker: No sir, that's is not our position at all. Our --
Byron R. White: What is it? You haven't said yet.
G. Stephen Parker: Well, our position Your Honor is that, it is permissible for a judge to convict, to impose probation and to provide as a condition of that probation that a fine be paid.
Byron R. White: In a lump sum?
G. Stephen Parker: In a lump sum.
Byron R. White: So that you need to pay in lump sum or you have the specified time in jail?
Warren E. Burger: Regardless of the amount?
G. Stephen Parker: Well, Your Honor, there's certainly limitations on what a judge could do and in fact the Georgia Supreme Court's opinion --
Potter Stewart: Well, the statutory limitations in Georgia obviously?
G. Stephen Parker: Yes sir, and due process limitations is set forth by this Court's decision.
Byron R. White: Well here the -- the maximum was the statutory, what was it -- well, it was within the statutory?
G. Stephen Parker: Yes Your Honor.
Byron R. White: Yes.
G. Stephen Parker: The judge could have fined her up to $2000.00.
Byron R. White: And if -- and the jail?
G. Stephen Parker: Well, the statute provides that a fine may be imposed as a condition of probation, provides that the fine can be up to $2000.00.
Byron R. White: Well, it -- yeah, but then how much probation is revoked then what happens?
G. Stephen Parker: Well, if probation is revoked then the defendant would be required, would get credit for the time spent on probation.
Byron R. White: I know but what's the jail sentence?
Potter Stewart: Maximum.
G. Stephen Parker: Well, the max -- well --
Potter Stewart: Under Georgia law for this offense?
Byron R. White: What -- Was it in this case? What was it in this case?
G. Stephen Parker: And this case is (Voice Overlap) --
Byron R. White: Two years, that's what I'm asking.
Byron R. White: The crime for which she was indicted carry the one to 20-year sentence. In this case, she received a two-year probated sentence.
Byron R. White: Right, so as well within the statutory limits of the jail sentence?
G. Stephen Parker: Yes sir.
Byron R. White: And --
G. Stephen Parker: And there you --
Byron R. White: You would say that -- you would say the judge could say to the defendant, either pay the fine, you violated probation, now either pay the fine in a lump sum or go to jail and the defendant says, “I will -- I just cant pay it in a lump sum.”
G. Stephen Parker: Well, at that point Your Honor, I think it is --
Byron R. White: I can pay it in installments.
G. Stephen Parker: At that point, I think it is a matter for the court's discretion.
Byron R. White: But it would not violate the Constitution you say if the judge said “Awfully sorry, but either lump sum or nothing.”
G. Stephen Parker: We contend that it does not violate the constitution for the judge in the exercise of his sentence in discretion to impose a lump sum payment upon an individual in the condition of their probation upon them being able to pay that fine.
Lewis F. Powell, Jr.: Could the judge have sentenced to ask simply the 20-year period?
G. Stephen Parker: Yes Your Honor. The plea of guilty was to the crime of burglary and the crime period sentence -- does carry a sentence from one to 20 years in this case. I would like to use the balance of my time for our basic arguments about sentence in discretion and hopefully cover some of your questions, Justice White, what our position is with regards to what the judge can or should be able to do. Let me just first state three basic propositions, which we are advocating with regard to the judge's sentence in discretion. First of all, we contend that it's not constitutionally required to -- or it should not be required -- the Court should not be prohibited from considering the defendants financial status and all other relevant factors in determining whether he or she is a good risk for probation. Secondly, we contend that the trial judge in assessing the sentence or determining what appropriate terms of probation would be or should be allowed to rely upon the defendant's assertion that he or she would be able to pay a fine. Now, in this case, I would point out that the defendant was represented by appointed counsel and there's no challenge to counsels confidence and no challenge to the voluntariness of the guilty plea.
Thurgood Marshall: He didn't think she could pay?
G. Stephen Parker: No, Your Honor. She said she could pay, he didn't, yes sir.
Thurgood Marshall: Why did she say it?
G. Stephen Parker: What -- she didn't say it in response to the amount that was given but she said she could pay a fine without to the amount and there's no indication that counsel was there looking his duty --
Thurgood Marshall: She had said she thought or couldn't pay?
G. Stephen Parker: Yes sir, she said she could pay --
Thurgood Marshall: That's a lot of difference in saying, “I will pay.”
Warren E. Burger: Well, didn't she --
Thurgood Marshall: Or “I can't pay.”
Warren E. Burger: Didn't she say categorically --
Thurgood Marshall: Unless she got cousins that are different from my cousins.
G. Stephen Parker: Well, yeah.
Warren E. Burger: Didn't she say categorically, yes, she could pay, and then when the judge took a further step, the judge said, “How are you going to pay it?” and then she said, “My cousin will pay it."
G. Stephen Parker: That is right Mr. Chief Justice, she -- the judge did not simply rely upon her assertion that she could pay. He asked her how she could pay.
Thurgood Marshall: You don't know what the judge relied on, do you? If some (Voice Overlap) --
G. Stephen Parker: No sir, I know what's on the record.
Thurgood Marshall: Well quote to me, what did he say in the record?
G. Stephen Parker: That --
Thurgood Marshall: That he relied on that?
G. Stephen Parker: He said -- to be verbatim, he said “Jacquelyn, how can you pay a fine?” And then that point, she responded with the statement.
Thurgood Marshall: No, the statement was you said relying on that.
G. Stephen Parker: Well, I apologize for any presumption.
Thurgood Marshall: (Voice Overlap) -- you can assume that. You can assume you relied on, but you don't know?
G. Stephen Parker: Yes sir, that is true. But we -- the point that I was trying to make was that where a defendant is represented by counsel and indicates to the court, after having been advised with counsel and after having into a plea of guilty, that she can in fact pay a fine. And then I should also point out that there was no effort made to withdraw the guilty plea at that time where there was no, at least the record reflects, no complaint of any type about either the sentence or the fine or any other aspect of the case. Our position is that the -- to allow that the sentencing court to consider all pertinent factors is a very consistent of what this Court has decided in numerous cases, such as William versus New York in 1949 case, in which the Court stated emphatically that under the modern philosophy of penology, the punishment is supposed to fit the offender and not merely the crime. The rational of that decision was recently reiterated by the Court, and the decision handed down on June 26 of this year. I -- after the filing of that brief, United States versus Grayson, in which the majority of this Court held that -- upheld the action of a federal trial judge who had stated on the record that he had given a particular defendant a longer sentence because of his personal belief that the defendant had lied on the stand while he is testifying his own behalf. The Grayson Court concluded that a defendant's truthfulness or mendacity was relevant to his prospects of rehabilitation as a reflection of his attitude towards society. The facts are obviously quite different, but we submit that under the rationale of Grayson and similar cases that to allow sentencing judge to consider along with many other factors, the financial resources available to a defendant in the event he is sentenced to probation is constitutional and is in fact desirable. Now, we do point out in our brief that in probably the majority of cases would not even be a germane factor. In some case, very serious crimes, there would not be any factor at all to consider. But nevertheless, the court should not be deprived of the opportunity to recognize that someone is perhaps a better risk for probation because of their ability to pay a fine into the court under such circumstances as the court dictates. Now, to ignore that factor would in fact, be to ignore reality and I believe that an example of the reality of that is that since 1945, the federal rules of criminal procedure have provided that a pre-sentence investigation shall contain an information about the defendant's financial condition along with many other factors. The decision to grant probation is in fact difficult or perhaps more difficult in the decision of what number of years to give one who is going to be incarcerated, has great consequences for the defendant obviously, and also for society. We submit that the trial judge should not be encumbered in carrying out this very difficult function.
John Paul Stevens: General Parker, did you say earlier that the petitioner here is actually out on her won recognizance during the pendency of the proceeding?
G. Stephen Parker: Yes sir, she was granted a personal recognizance bond of some type but the U.S. District Court from the middle district of Georgia, and I believe that occurred after a federal habeas petition was filed. The petition was held in advance pending exhaustion of state remedies. But she was out on this --
John Paul Stevens: So, she's till out right now then?
G. Stephen Parker: Yes sir, as far as I know, she is.
William J. Brennan, Jr.: How much time had she served before she was released on that first offense.
G. Stephen Parker: The guilty plea was entered on December 13, the habeas corpus hearing was on February --