Kelly v. Schoonfield

• Decision Date: 28 May 1968
• Docket Number: Civ. No. 19482.
• Citation: 285 F. Supp. 732
• Parties: Herbert KELLY, Willie Lee Lloyd, Charles Lynwood Mitchell, Calvin Jacobs, Reginald Johnson and Marvin Jordan v. Hiram SCHOONFIELD, Warden, Baltimore City Jail.
• Court: U.S. District Court — District of Maryland

285 F. Supp. 732

Herbert KELLY, Willie Lee Lloyd, Charles Lynwood Mitchell, Calvin Jacobs, Reginald Johnson and Marvin Jordan v. Hiram SCHOONFIELD, Warden, Baltimore City Jail.

Civ. No. 19482.

United States District Court D. Maryland.

May 28, 1968.

Robert G. Fisher, Elsbeth Levy Bothe, William H. Zinman and Stuart H. Rome, Baltimore, Md., for plaintiffs.

George L. Russell, Jr., City Sol., James B. Murphy and Roger C. Duncan, Asst. City Sols., of Baltimore, Md., for defendant Warden.

Francis B. Burch, Atty. Gen. of Maryland, Thomas A. Garland and Morton A. Sacks, Asst. Attys. Gen., Baltimore, Md., for State of Maryland, intervening defendant.

Before WINTER, Circuit Judge, THOMSEN and HARVEY, District Judges.

THOMSEN, District Judge.

Plaintiffs in this action brought under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 were convicted on various dates between April 8 and April 10, 1968, in the Municipal Court of Baltimore City, of violating Chapter 70 of the Acts of 1968, which became effective April 5, 1968, and is now codified as Article 41, section 15b of the Annotated Code of Maryland. Inter alia, that statute granted to the Governor power under certain conditions to declare a state of emergency in specified areas and to promulgate executive orders, including the power to establish curfews. The statute further provided:

"(f) Penalties. Any violation of the provisions of this subtitle or any orders, rules or regulations promulgated hereunder shall be punishable as a misdemeanor and shall subject the offender to a fine of not more than one hundred dollars ($100.00) or not more than sixty (60) days incarceration, or both, upon conviction thereof."

During the riots which occurred in Baltimore in early April of this year, the Governor promulgated curfews on several days, and each plaintiff was found guilty of having violated such a curfew. Four of the plaintiffs were sentenced to pay fines of $50 and $4 court costs. Two of them were sentenced to pay fines of $100 and $4 court costs.

Article 38 of the Annotated Code of Maryland deals with Fines and Forfeitures. Sections 1 and 4 of that Article provide in pertinent part:

"§ 1. Mode of recovering; exception as to Baltimore City.

"When any fine or penalty is imposed by any act of Assembly of this State or by any ordinance of any incorporated city or town in this State enacted in pursuance of sufficient authority, for the doing of any act forbidden to be done by such act of Assembly or ordinance, or for omitting to do any act required to be done by such act or Assembly or ordinance, the doing of such act or the omission to do such act shall be deemed to be a criminal offense; * * * If any person shall be adjudged guilty of any such offense by any court having jurisdiction in the premises, he shall be sentenced to the fine or penalty prescribed by such act of Assembly or ordinance and to the costs of his prosecution; and in default of payment thereof he shall be committed to jail until thence discharged by due course of law. * *."

"§ 4. Confinement for nonpayment.

"Any person who shall or may hereafter be committed to jail on any charge, including contempt of court, by the judgment of any court or by any justice of the peace of this State, for nonpayment of any fine and costs, shall be confined one day for each dollar of fine and costs but in no event shall be confined more than thirty days for fine and costs amounting to one hundred dollars, nor more than sixty days for fine and costs exceeding one hundred dollars but not more than five hundred dollars nor more than ninety days for fine and costs exceeding five hundred dollars. All periods of confinement imposed under the provisions of this section because of nonpayment of two or more fines and costs shall run concurrently unless it shall be specified by the court or justice of the peace that said periods shall run consecutively."

Pursuant to section 4, quoted above, the four plaintiffs who were fined $50 and costs were confined in the Baltimore City Jail for 30 days, being released at or about the time this action was filed. Of the other two, who were fined $100 and costs; one has paid his fine and costs and been released; the other is still in the Baltimore City Jail.

On their own behalf, and on behalf of others similarly situated,¹ plaintiffs allege that they are indigent and therefor unable to pay their fines, and seek: (A) a declaratory judgment that Article 38, sections 1 and 4, quoted above, violate the Constitution of the United States when those sections are applied to effect the confinement of plaintiffs and all others similarly situated "solely as the result of their indigency and inability to pay fines"; (B) an order enjoining the defendant Warden from confining plaintiffs, and others similarly situated, pursuant to those sections; and (C) other relief. The prayer for other relief is not before this statutory three-judge court, which was convened because of the attack on the validity of a state-wide statute as applied to indigent persons as a class. Chester v. Kinnamon, 276 F.Supp. 717 (D.Md.1967). At the same time they filed this action some of these plaintiffs filed a petition for a writ of habeas corpus, which was denied by Judge Harvey on May 16, 1968, Mitchell et al. v. Schoonfield, 285 F.Supp. 728 (D.Md.).

The State of Maryland was given leave to intervene in the instant case as a party defendant, and the defendants filed a motion to dismiss. The parties have agreed that the validity of the statute as applied to plaintiffs and others similarly situated is the only question to be decided by this three-judge court. Defendants raise no question about plaintiffs' right to maintain a class action for this specific purpose. Defendants do not deny the indigency of the plaintiffs, but deny vehemently the many sweeping allegations in the complaint attacking on due process grounds the trials of thousands of persons arrested during the riots.

Plaintiffs claim that Article 38, sections 1 and 4, when applied to indigents, deny them equal protection of the laws, and that a fine in excess of the ability of a defendant to pay, with imprisonment for nonpayment, violates the Eighth Amendment proscription against excessive fines and amounts to cruel and unusual punishment. A narrower issue is whether the sections in question violate the equal protection requirement because they include the amount of the costs as well as of the fine in determining the length of time which must be served under the provisions of section 4. The plaintiff still in jail would have been released after 30 days if the fine alone had been determinative; it was the addition of the $4 costs to the $100 fine which increased the time to 60 days.

There is no merit in the Eighth Amendment point. The trial courts could have imposed sentences of 60 days, and plaintiffs are not being required to serve any longer period than that.² See United States ex rel. Privitera v. Kross, 239 F. Supp. 118 (S.D.N.Y.1965), aff'd, 345 F. 2d 533 (2 Cir. 1965), cert. denied, 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163 (1965); Cohen v. State, 173 Md. 216, 232, 195 A. 532, 196 A. 819 (1937). The cases of Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and Driver v. Hinnant, 356 F.2d 761 (4 Cir. 1966), relied on by plaintiffs, are clearly distinguishable. Robinson was convicted of being a drug addict and Driver was convicted of public drunkenness, both resulting from disease. In the present case, however, each plaintiff had committed what is indisputably a crime.

Nor do we find that the statute violates the Equal Protection Clause of the Fourteenth Amendment simply because it requires the commitment of an indigent, like any other person, who is in default of payment of a fine.

Counsel agree that the practice of jailing a convicted defendant for nonpayment of a fine is of long standing, in England, in most states, including Maryland, and in the federal system. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877); Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936); United States v. Wampler, 10 F.Supp. 609 (D.Md.1935, Chesnut, J.); Panno v. United States, 203 F.2d 504 (9 Cir. 1953); Dean v. State, 98 Md. 80, 56 A. 481 (1903); 18 U.S.C. §§ 3565, 3569. Committing the defendant to jail is no part of the punishment; the penalty or the punishment adjudged is the fine, and the custody adjudged is the mode of executing the sentence. 21 Am.Jur.2d (Criminal Law § 603) p. 557. It has been generally held that commitment under such circumstances is not an unconstitutional imprisonment for debt, and that it does not violate any other constitutional provision, although doubt has been expressed where it results in a total imprisonment longer than the maximum imprisonment which could have been imposed for the offense.

The question whether a different result should be reached when the default in the payment of the fine is the result of indigency rather than stubbornness has seldom been raised, although it cannot be doubted that most persons who have defaulted in the payment of fines have done so because they were unable rather than unwilling to pay. The question was decided adversely to plaintiffs in United States ex rel. Privitera v. Kross, 239 F. Supp. 118, supra, (S.D.N.Y.1965), aff'd 345 F.2d 533 (2 Cir. 1965), cert. denied, 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163 (1965).³ Chief Judge Foster of the Supreme Bench of Baltimore City so held in denying habeas corpus relief to these plaintiffs in their prior State court proceeding in April 1968. Cf. People v. McMillan, 53 Misc.2d 685, 279 N.Y.S.2d 941 (Sup.Ct. Orange County 1967). And see People v. Saffore, 18 N.Y.2d 101, 271 N.Y.S.2d 972, 218 N.E.2d 686, where the Court concluded: "We do not hold illegal every judgment which condemns a defendant to confinement if he does not pay his fine. We do hold that, when payment of a fine is impossible and known by the...