JUSTICE POWELL delivered the opinion of the Court.
Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines. Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the record in this case
Petitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga. Code § 26-2101 (1978). About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore. There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities.
Tante and Allen were tried together and found guilty on both counts by a jury. A separate jury convicted Wood on both counts. All three were then sentenced by the same judge. Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation. Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately.
After these convictions were affirmed on appeal,
After this revocation decision was affirmed by the Georgia Court of Appeals,
Petitioners have been represented since the time of their arrests by a single lawyer. The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid—or was expected to pay—the lawyer for his services.
Although we cannot be sure that the employer and petitioners' attorney were seeking to create a test case, there is a clear possibility of conflict of interest on these facts. Indications of this apparent conflict of interest may be found at various stages of the proceedings below. It was conceded at oral argument here that petitioners raised no protest about the
Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a
We have held that due process protections apply to parole and probation revocations. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). In Scarpelli we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings. Recognizing that the "need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases," 411 U. S., at 789, we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel.
In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga. Code § 27-2713 (1978). But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but "there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present." 411 U. S., at 790. This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category.
Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E. g., Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481 (1978). Here, petitioners were represented by their employer's lawyer, who may not have pursued
It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.
For these reasons, we base our decision in this case on due process grounds. The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there
Vacated and remanded.
JUSTICE STEVENS, concurring.
Although I join the Court's opinion, my view that the potential conflict of interest disclosed by the record requires that the judgment be vacated does not rest on the hypothesis that the petitioners' employer may have contrived a test case. See ante, at 267-268, 269-270. It rests instead on the likelihood that the state trial court would have imposed a significantly different sentence if it had not been led to believe that the employer would pay the fines.
Independent counsel for these individuals surely would not have permitted the trial judge to impose fines that were manifestly beyond their ability to pay without obtaining an enforceable commitment from the employer. But a lawyer faithfully representing the interest of the employer surely would not make any such commitment gratuitously. The net result of the conflicting interests represented by one lawyer is a manifestly unfair prison sentence imposed on employees of the person who is probably the principal wrongdoer.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.
While I agree with the Court that "there is a clear possibility of conflict of interest" shown on this record, ante, at 267,
JUSTICE STEWART, concurring in part and dissenting in part.
In my view the Court is correct in remanding because of the "clear possibility of conflict of interest" shown on the record in this case. I would, however, go further and reverse the convictions themselves, which were for violations of an obscenity statute. I believe that that statute, Ga. Code § 26-2101 (1978), is facially unconstitutional.
JUSTICE WHITE, dissenting.
The Court's disposition of this case is twice flawed: first, there is no jurisdiction to vacate the judgment on the federal constitutional ground upon which the Court rests; second, the record does not sustain the factual inferences required to support the Court's judgment.
The petition for certiorari presented a single federal question: Does the Equal Protection Clause of the Fourteenth Amendment permit a State to revoke an indigent's probation because he has failed to make regular payments toward the satisfaction of a fine? This issue was properly presented to and ruled upon by the Georgia courts. No other federal constitutional
The Court, ante, at 273, n. 20, suggests that the conflict-of-interest issue was presented here by respondent, the State of Georgia. But the State merely argued that petitioners' attorney was also the attorney for petitioners' employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners' indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision below—hardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel. Moreover, nowhere in the passage of the response cited by the Court are the terms "conflict of interest" used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent's probation cannot be revoked for failure to pay a fine.
However the State's argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction, therefore, arises under 28 U. S. C. § 1257 (3) and is limited here to federal rights and privileges that have been "specially set up or claimed," and upon which there has been a final decision by the highest state court in which a
It is as clear as could be that no federal constitutional claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners' counsel. At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State's attorney then asserted several times that there was a conflict of interest because petitioners' counsel also represented petitioners' corporate employer and was being paid by that concern to represent petitioners.
Petitioners' attorney in turn responded that although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines. He urged that jailing them would violate the Equal Protection Clause.
The judge, apparently rejecting the equal protection claim, revoked petitioners' probation, although petitioners have remained free on bond pending appeal. The sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here.
The Court asserts that "it is appropriate to treat the due process issue as one `raised' below, and proceed to consider it here." Ante, at 265, n. 5. However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U. S. C. § 2106,
Petitioners have done neither; nor has respondent done it for them.
The Court apparently believes that under Cuyler v. Sullivan, 446 U.S. 335 (1980), the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court "reasonably should know that a particular conflict exists," id., at 347, then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts.
As I see it, the Court's disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners' counsel was paid by their employer does not in itself constitute a conflict of interest of constitutional dimension.
I recognize that the Court's conclusion relies only upon the "possibility" of this scenario, but I find these assumptions implausible and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis.
If the employer was simply unwilling to pay the fines, then the arguments advanced by the attorney may very well have been the best and only arguments available to petitioners.
Although I think that there are circumstances in which a State may impose a suitable jail term in lieu of a fine when the defendant cannot or will not pay the fine, there are constitutional limits on those circumstances, and the State of Georgia has exceeded the limits in this case.
In Williams v. Illinois, 399 U.S. 235 (1970), Williams, convicted of petty theft, received the maximum sentence of one year's imprisonment and a $500 fine (plus $5 in court costs). As permitted by Illinois statute, the judgment provided that if, when the one-year sentence expired, Williams did not immediately pay the fine and court costs, he was to remain in jail a length of time sufficient to satisfy the total debt, calculated at the rate of $5 per day. We held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Id., at 244. Therefore, the Illinois statute as applied to Williams, who was too poor to pay the fine, violated the Equal Protection Clause.
Tate v. Short, 401 U.S. 395 (1971), involved an indigent defendant incarcerated for nonpayment of fines imposed for
In Williams v. Illinois, supra, at 243, the Court emphasized that its holding "does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of $30 or 30 days." In neither Williams nor Tate did it appear that "jail [was] a rational and necessary trade-off to punish the individual who possesses no accumulated assets . . . since the substitute sentence provision, phrased in terms of a judgment collection statute, [did] not impose a discretionary jail term as an alternative sentence, but rather equate[d] days in jail with a fixed sum." Williams v. Illinois, supra, at 265 (Harlan, J., concurring in result). As both the Court and Justice Harlan implied, if the Court had confronted a legislative scheme that imposed alternative sentences, the analysis would have been different.
Indigency does not insulate those who have violated the criminal law from any punishment whatsoever. As I see it, if an indigent cannot pay a fine, even in installments, the
The incarceration of the petitioners in this case cannot be distinguished from that which we found to be unconstitutional in Williams and Tate. Here, the State imposed probated prison terms and fines, but made installment payment of the fines a condition of probation: Had the fines been paid in full and other conditions of probation satisfied, there would have been no time in jail at all. Thus, the ends of the State's criminal justice system did not call for any loss of liberty except that incident to probation.
Under these circumstances, the State's only interest in incarcerating these petitioners for not paying their fines was to impose a loss of liberty that would be as efficacious as the fines in satisfying the State's interests in enforcing the criminal law involved. However, no calculation like that was made here. Upon nonpayment, probation was automatically revoked and petitioners were sentenced to their full prison
This case falls well within the limits of what we meant to prohibit when we announced in Tate v. Short, supra, at 398, quoting Morris v. Schoonfield, 399 U.S. 508, 509 (1970), that the "`Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent.'"
Accordingly, I would reverse the judgment.
As indicated, post, at 277-278, n. 1; see also n. 20, infra, it is abundantly clear that the possibility of a conflict of interest was pointed out to the trial court at the revocation hearing. The State's Solicitor raised the issue repeatedly. The State's Brief in Opposition 4, n. 2, again identified the apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners cannot be heard to complain of any lack of notice.
In this context, it is appropriate to treat the due process issue as one "raised" below, and proceed to consider it here. See Boynton v. Virginia, 364 U.S. 454, 457 (1960) (deciding a case on a statutory issue raised below but not raised in this Court). Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U. S. C. § 2106 (authorizing this Court to "require such further proceedings to be had as may be just under the circumstances"); R. Stern & E. Gressman, Supreme Court Practice § 6.27, p. 460 (5th ed. 1978) (in review of state cases, "the Court doubtless limits its power to notice plain error to those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings"). See also Vachon v. New Hampshire, 414 U.S. 478 (1974).
"A conflict of interest inheres in every such situation. . . . It is inherently wrong to represent both the employer and the employee if the employee's interest may, and the public interest will, be advanced by the employee's disclosure of his employer's criminal conduct. For the same reasons, it is also inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee's testimony." In re Abrams, 56 N.J. 271, 276, 266 A.2d 275, 278 (1970).
See also In re Investigation Before April 1975 Grand Jury, 174 U. S. App. D. C. 268, 274, n. 11, 531 F.2d 600, 606, n. 11 (1976); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), appeal dism'd and cert. denied, 423 U.S. 1083 (1976); ABA Model Code of Professional Responsibility DR 5-107 (A), (B) (1980); ABA Standards for Criminal Justice 4-3.5 (c) (2d ed. 1980); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 960-961 (1978).
"Q Mr. Tante, who did you call when you said you called and told them to get someone else out there?
"A I called the secretary of the union first.
"Q And what about the company? Did you call them?
"A And the company, I gave notice to—whatever his name was. Mister—what was his name?
"MR. ZELL [petitioners' attorney] I'm sorry, I wasn't listening.
"A The manager of the theatre, Mister—I think it was you I told first. I said, `I want to get out of the theatre as soon as possible. In fact, I'd like to leave now.' And I said, `As far as I'm concerned, I'm out, and that's it.'
"Q You called Mr. Zell to tell him to get someone else out there to operate the theatre?
"A No, sir. I called my business secretary at the union, told them I wanted out; to find me another job. If they wanted to put a man in there send them out. And they informed me to get on out of there that they would not send another union man out there.
"Q But you also talked to someone with the company, you said?
"A At the time, I did not, sir. I told Mister—Mrs. Allen, I said—
"MR. ZELL Hold it. Hold it, Mr. Tante. It's now ten-thirty, Your Honor. We're getting into areas that—the only question here is violation or failure to pay as directed." Id., at 45-46.
"A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer's individual client. . . . Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom." (Emphasis added.)
"MR. RHODES: What I'm trying to show is, Your Honor, that she in fact—that Mr. Zell [the attorney] was hired by someone else. She did not make the choice. That they sent Mr. Zell down here to represent her. And she may have acquiesced in it, but that she did not employ Mr. Zell to represent her.
"THE COURT: All right. How is that relevant to this issue?
"MR. RHODES: To what I say, there's a conflict of interest in this case.
"Mr. Zell is representing her employer, and there's two different interests there.
"They had promised this woman that they would pay her fine and they would take care of all these expenses. There's a conflict.
"Mr. Zell's, as I said, his first duty is to the persons that pay him. And that's what he's doing. He's trying to take care of them." Tr. 26-27 (emphasis added).
See also id., at 14-15.
As noted in n. 5, supra, the State raised this problem here as an argument against a grant of certiorari. The State's Brief in Opposition 4, n. 2, stated:
"During the probation revocation hearing there were several discussions between the Court, the Petitioner's [sic] lawyer and the Solicitor concerning the fact that the Petitioner's [sic] lawyer also represents the Plaza Theater, the theater in which Petitioners Allen and Tante were employed. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents . . . ."
There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing.
"MR. RHODES: Your Honor, I submit that actually what we have here is a conflict of interest on Mr. Zell's part. He's representing the company and he's trying to get out of paying this money that these people expect that company to pay that money. Mr. Zell is here purporting to represent her while he legally represents a company that has promised to pay all these expenses and fines for these people. And I would ask the Court to look into that and make a determination of that, and if necessary, see that these people have Counsel to enforce that agreement between that company and these people.
"THE COURT: State that again now.
"MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs. Allen contends that that company promised to pay all this so that she wouldn't have to go through all of this.
"Now they have not done it.
"And I submit that Mr. Zell represents that company. That he is, his first allegiance is to that company, and not to Mrs. Allen.
"And that there's a conflict of interest, and that this ought to be looked into by this court.
"THE COURT: You wish to respond?
"MR. ZELL: I don't think it makes any sense what he's saying but I will if the Court wants me to. I don't think I'm required to.
"THE COURT: I don't know whether there's anything the Court could look into. What specifically do you want the Court to look into?
"MR. RHODES: Mr. Zell is here supposedly representing Mrs. Allen. He at the same time represents the people who promised to take care of these things and to pay these fines.
"Now those people are not doing it. And they apparently have reneged on it at this point. I think if you sent these people out to the jail for a while I think they would pay it because they don't want the other employees to know that they are not taking care of these things when they come up." Transcript of Revocation Hearing (Tr.) 14-15. The transcript is an appendix to the response of respondent.
Other discussions appear in id., at 25-28.
"In fact, Respondent believes that the Petitioners have no intention whatsoever in paying these fines, as their testimony indicates that they are of the opinion that their employers should have paid these fines. The Petitioners are thus holding the enforcement of fines as a recognized sentencing tool a hostage because of their beliefs that others should pay their fines for them. By arguing at this time that they are indigent they are using this as a shield to hide behind their responsibility to pay a fine, which they earlier agreed to pay by virtue of their silence which led the sentencing court to conclude that they were able to pay these fines." Brief in Opposition 10.
Elsewhere, the State suggested "that they be put out there in jail and start serving . . . that's the only way really I know, to enforce this sentence at this point." Tr. 74.
In Vachon v. New Hampshire, 414 U.S. 478 (1974), the Court relied on our "plain error" rule to reach an issue not presented in the jurisdictional statement. However, appellant there had unsuccessfully argued the issue—sufficiency of the evidence—below and the issue had been addressed by the State Supreme Court. The dissent in Vachon did not contend that appellant had failed to raise the issue below; rather, it argued that although raised, the issue had not been presented to the state courts as a "federal constitutional claim." The majority, evidently, thought that it had.
"I told the three defendants I would represent them to the best of my ability, and I've explained this to the defendants, and I would like to make an explanation to the court." Id., at 68.
Interesting also is the following exchange from the cross-examination of one of the petitioners:
"Q Did you select Mr. Zell as your attorney?
"A Yes, sir. I've known him a long time and I trust him. And he's the only lawyer I've ever had to have in my life, and yes, sir, I selected him." Id., at 42.
As far as this record reveals, none of the petitioners to this date has complained about the legal representation.