Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
two years after sentencing) and the judge knew that the lawyer was relying heavily on equal protection instead of arguments for leniency to help the defendants. The Court noted that counsel stated he had sent a letter to the trial court after sentencing, saying the fines were more than the defendants could afford, id., at 268, n. 13, a move obviously in the defendants' interest. On the other hand, a reference to "equal protection," which the Court could have taken as a reflection of the employer's interest, did not occur until the very end of the revocation hearing. See App. A to Brief in Opposition in Wood v. Georgia, O. T. 1979, No. 79-6027, at 72 (transcript of Jan. 26, 1979, probation revocation hearing).6 The Wood Court also knew that a motion stressing equal protection was not filed by defense counsel until two weeks after the revocation hearing, on the day before probation was to be revoked and the defendants locked up, App. 35-36 in Wood v. Georgia, O. T. 1979, No. 79-6027 (Joint Motions to Modify Conditions of Probation Order—Filed Feb. 12, 1979). 450 U. S., at 268. Since, in the Court's view, counsel's emphasis on the equal protection claim was one of the facts that
6 At one point, about a quarter of the way into the hearing, defense counsel said: "And I think the universal rule is in the United States, because of the Fourteenth Amendment of the United States Constitution, legal protection, you cannot, or should not, lock up an accused for failure to pay a fine; because of his inability or her inability to pay the fine, if that person, and this is a crucial point, Your Honor, if that person, like to quote from Bennett versus Harper, was incapable of paying the fine, rather than refusing and neglecting to do so." App. A to Brief in Opposition in Wood v. Georgia, O. T. 1979, No. 79-6027, at 19. Defense counsel also cited two equal protection decisions of this Court, Tate v. Short, 401 U. S. 395 (1971), and Williams v. Illinois, 399 U. S. 235 (1970); it may very well be that he meant to say "equal protection" rather than "legal protection" or the latter was in fact a garbled transcription, but it seems unlikely that the Wood Court was referring to this statement when it said counsel "was pressing a constitutional attack rather than making the arguments for leniency," 450 U. S., at 272, because it was made to supplement, not replace, appeals to leniency based on the specific financial situations of the individual defendants.
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