Respondents Brief — Scott v. Illinois

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IN THE

Supreme Court of the United States "°°

QcroBper Term, 1977

No. 77-1177

AUBREY SCOTT

L\UBREY y Petitioner.

PRLOPLE OF Til STATE OF ILLINOIS,

Respondent,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR THE RESPONDENT

WILLIAM J. SCOTT,

Attorney General,

State of Lllinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR..

GERRI PAPUSHKEWYCH.,

Assistant Attorneys General,

500 South Second Street,

Springfield, Illinois 62706,

(217) 782-1090,

Attorne YS fo) Respond yl.

James B. Davipsox,

Assistant State’s Attorney,

Cook County, Illinois,

Of Counsel.

LL LS DSSS SE LS OS TT EE LOE TS ONS TS ST TE IT

Printed by Authority of the State of Ilinois“@23F*

TABLE OF CONTENTS

Pace

rr 2

CONSTITUTIONAL AND STATUTORY PROVI-

TOT TT CET TC CRT ET Te POTE TE 3

7 vy | 4 4 2 i iy | 9b) \ | SRR 5

ede ee i se ean dgueees 8

I, The Sixth Amendment Does Not Require Ap-

pointment Of Counsel At State Expense In

Criminal Proceedings In Which The Sole Penal-

tv Imposed Is A Small Fine .................. 8

I OR CE an ree 8

B. Actual Loss Of Liberty Should Define The

Boundaries Of The Right To Counsel In Non-

ag oe edie dehieweeceus 9

1. Not All Criminal Actions Are Subject To

The Sixth Amendment Right To Counsel

a ENS EREEES, ote gras 9 BAe 9

2. The Sanction Of Imprisonment, Tradi-

tionally Subject To Special Scrutiny, Is

Inherently Distinguishable From Other

Potential! Consequences And Is A Ration-

al Boundary For Drawing The Right To

Counsel In Non-Felony Cases .......... 14

C. The Right To Appointed Counsel Should Not

Be Applied To All Offenses Punishable By

Imprisonment Because The Costs Of Such

Extension Would Far Exeeed The Benefits

Which Attorneys Could Provide In Those

ee oe es ae keh ees 20

ii.

1. The Benefits Derived From Assistance Of

Counsel Is Minimized By The Nature Of

Proceedings In Non-Felony Courts ..... 20

2. The Costs Of Providing Counsel For In-

digents In All Non-Felony Cases Would

Impose A Tremendous Burden On Society 25

D. Effectuation Of The ** Actual Imprisonment’’

Standard By Use Of Predictive Pre-Trial

Evaluation Comports With The Require-

muemte CF. Dee FUGUES o.oo s cccsesescccvecs 37

II. Petitioner’s Argument That There Is A Four-

teenth Amendment Right To Counsel Apart

From The Sixth Amendment Right Should Not

Be Considered Because It Has Been Waived;

Alternatively, It Should Be Rejected .......... 41

A. This Court Should Not Consider Petitioner’s

Claims That Failure To Appoint Counsel

Violated Due Process And Equal Protection,

Or His Contention That He Was Not Afford-

ed A Fair Trial Because Petitioner Has

i... fb, 8 rey re one ree 41

B. Due Process Does Not Require Appointment

Of Counsel For Non-Felony Cases Where No

Imprisonment Is Imposed ...............-. 42

CED 5 ch ka Sd cked inn Oeanetbaveneccbeeeses 46

TABLE OF AUTHORITIES

Cases Pace

Argersinger v. Hamlin, 407 U.S. 25 (1972) ........ Passim

Baldwin v. New York, 399 U.S. 66 (1970) ........ 10, 11, 25

Beck v. Washington, 369 U.S. 541 (1962) ............ 42

Dorszynski v. United States, 418 U.S. 428 (1974) ...... 42

Duncan v. Louisiana, 391 U.S. 145 (1968) ..... 11, 18, 24, 25

Faretta v. California, 422 U.S. 806 (1975) .......... 24, 25

Frank v. United States, 395 U.S. 147 (1968) ......... 17

Gideon v. Wainwright, 372 U.S. 335 (1963) ....... 8, 15, 20

Henkel v. Bradshaw, 483 F. 2d 1386 (9th Cir. 1973) ... 42

Irvine v. California, 347 U.S. 128 (1954) ............. 42

In re Di Bella, 518 F. 2d 955 (2nd Cir. 1975) ......... 14

In re Wright, 189 N.W. 2d 447 (1971), vacated by 407

U.S. 918; on remand, 199 N.W. 2d 600 (1972) ....... 27

J. I. Case Co. v. Borak, 377 U.S. 426 (1963) .......... 42

Johnson v. Zerbst, 304 U.S. 458 (1938) ............. 15, 2

John v. Paullin, 231 U.S. 583 (1913) ................. 41

Konigsberg v. State Bar of California, 366 U.S. 36

DE ithidednacdudunekcndekiobereiaarundeeredes 10

Lawn v. United States, 355 U.S. 339 (1957) .......... 42

McMann vy. Richardson, 397 U.S. 759 (1970) ......... 12

Marston v. Oliver, 485 F. 2d 705 (4th Cir. 1973) ...... 14

Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 45

iv.

Mayer v. City of Chicago, 404 U.S. 189 (1971) ........ 16

Mempa v. Rhay, 389 U.S. 128 (1967) ........-- eee ees 8

Muniz v. Hoffman, 422 U.S. 454 (1975) .............. 16

Neely v. Eby Construction Co., 386 U.S. 317 (1966) ... 42

New York Times Co. v. United States, 403 U.S. 713

eT Er rrr yr rere eT yy ree 10

Partain v. Oakley, 227 S.B. 2d 314 (W.Va. 1976) ...... 35

People v. Cross, 30 Tl. App. 3d 199, 331 N.E. 2d 643

Eee eee rere er re eer ry Te 28

Poe v. Ullman, 367 U.S. 497 (1967) ...........eceeee: 14

Powell v. Alabama, 287 U.S. 45 (1932) ............... 15

Rollins v. State, 299 So. 2d 586 (Fla. 1974) ........... 19

Ross v. Moffitt, 417 U.S. 600 (1974) ............ 22, 34, 43

Sweeten v. Sneddon, 463 F. 2d 713 (10th Cir. 1972) .... 14

Tate v. Short, 399 U.S. 235 (1970) ........ ce seveces 19

Thomas v. Savage, 513 F. 24 536 (Sth Cir. 1975) ...... 14

United States v. Sawaya, 486 F. 2d 890 (1st Cir. 1973). 14

United States v. White, 529 F. 2d 1390 (8th Cir. 1976). 14

Williams v. Illinois, 399 U.S. 235 (1969) ............ 15,18

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES

Sixth Amendment, U.S. Constitution ............. Passim

Fourteenth Amendment, U.S. Constitution ........ Passim

Ill. Rev. Stat., Ch. 38, § 1-7, (1969) ..........0ee eee. 9

Ill. Rev. Stat., Ch. 38, § 2-11 (1969) .................. 8

Ill. Rev. Stat., Ch. 38, § 16-1 (1969) .................. 5

Ill. Rev. Stat., Ch. 38, § 16-1 (1977) .................. 9

Ill. Rev. Stat., Ch. 38, § 103-6 (1969) ................. 24

Ill. Rev. Stat., Ch. 38, § 113-3(b) (1969) .............. 7

Ill. Rev. Stat., Ch. 38, § 1005-1-4, 17, 18, 21 (1977) ...17, 32

Ill. Rev. Stat., Ch. 38, § 1005-5-1, 2 (1977) ........... 9

Ill. Rev. Stat., Ch. 38, § 1005-6-2, 3.1 (1977) .......... 17

Ill. Rev. Stat., Ch. 38, § 1005-9-3 (1977) ............. 9,19

Ill. Rev. Stat., Ch. 9514, § 1 et seq., § 1-300, § 11-204,

§ 11-403, § 11-409, § 11-501, § 11-503, § 11-504,

GE CN ho ce cucdcsedeveanivariedcciouwe 31, 32

Ill, Rev. Stat., Ch. 110A, § 341, § 612(1971) .......... 3, 41

Ill. Rev. Stat., Ch. 110A, § 711(1977) ................ 36

NS OD RD TP 5-0 nbd bi ddevicnsshesbavaces 4, 42

gS RO eer a he Ee 4,42

ARTICLES AND OTHER AUTHORITIES

Administrative Office of the Illinois Courts, 1976 An-

nual Report to the Supreme Court of Illinois ...... 28, 36

Beaney, The Right to Counsel in American Courts

SE. SueUsedkeseladeondds thekbeshéeeecudssuanr 12

Duke, Steven, ‘‘The Right te Appointed Counsel; Ar-

gersinger and Beyond,’’ 12 Am. Cr. L. R. 601

DE ohawitsdeecuncdsesensetuawneeucet 12, 28, 32, 39

vi.

[linois Criminal Defense of Indigents in lilinois, Re-

port to the Illinois Law Enforcement Commission,

Illinois Defender Project Defender Survey (1974). .27, 29

Junker, John M., ‘‘The Right to Counsel in Misde-

meanor Cases,”’ 43 Wash. 1. Rev. 685 (1968) .. .12, 13, 39

Krantz et al., Right to Counsel in Criminal Cases: The

Mandate of Argersinger y. Hamlin | aes

RONG tea aH La! 20, 23, 26, 29, 30, 31, 32, 33, 35, 36, 39

National Legal Aid and Defender Association, L. Ben-

ner and B. Lynch-Neary, The Other Face of Justice:

A Report of the National Defender Survey (1973)..

Pere PN Ata ve Bi er ta hl A 26, 28, 29, 31, 35

D. Oaks, The Criminal Justice Act in the Federal Dis.

Pe THEO GIN a oie coo os vo ovkwcvvbaneicc nce 21

Rossman, ‘The Scope of the Sixth Amendment: Who Is

A Criminal Defendant,’? 12 Am. Crim. L. Rev. 663

PE Scat ebuchean ss nGeaundredkecceie tee, 28

U.S. President’s Commission on Law Enforcement and

the Administration of Justice, The Challenge of

Crime in a Free Society (1967) ................ 23, 24

IN THE

Supreme Court of the United States

Octoser Term, 1977

No. 77-1177

AUBREY SCOTT, oa

Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR THE RESPONDENT

CONSTITUTIONAL AND STATUTORY

QUESTION PRESENT PROVISIONS INVOLVED

s the Sixth Amendment as applied to the states by the _ ere ;

Does the Sixt F PI United States Constitution, Amendment VI:

Fourteenth require appointment of counsel in criminal pro- sg

ceedings where the sole penalty imposed is a small fine? a all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining his defense.’’

United States Constitution, Amendment XIV, Section 1:

‘‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; or shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any persons within its jurisdiction

the equal! protection of the laws.’’

—o cotangent? Ill. Rev. Stat. ch. 110A, § 612(j) (1971):

‘*The following civil appeals rules apply to criminal

appeals insofar as appropriate:

(j) Contents of briefs: Rule 341.’’

Ill. Rev. Stat. ch. 110A, § 341(e)(7) (1971):

‘The appellant’s brief shall contain the following

parts in the order named:

Argument, which shall contain the contentions of

the appellant and the reasous thereof, with citation

of the authorities and the pages of the record relied

on. ... Points not argued are waived and shall not

be raised in the reply brief, in oral argument, or on

petition for rehearing.’’

Supreme Court Rule 23, in pertinent part:

The petition for writ of certiorari shall contain:

statement of a question presented will be deemed

to include every subsidiary question fairly com-

prised therein. Only the questions set forth in the

petition or fairly comprised therein will be con-

sidered by the court.’”’

Supreme Court Rule 40, in pertinent part:

Briefs . .. shall contain...

(d)(1) ... The statement of a question pre-

sented will be deemed to include every subsidiary

question fairly comprised therein.

(2) The phrasing of the question presented need

not be identical with that set forth in the jurisdic-

tional statement or the petition for certiorari, but

the brief may not raise additional questions or

change the substance of the questions already pre-

sented in those documents. Questions not presented

according to this paragraph will be disregarded,

save as the court, at its option, may notice a plain

error not presented.

STATEMENT OF THE CASE

Cn January 19, 1971,‘ petitioner Aubrey Scott was ap-

prehended for shoplifting and was charged, pursuant to

Illinois Revised Statutes, chapter 38, § 16-1(A)(1), with

the theft of an address book and sample case worth $13.68."

On the scheduled day, petitioner appeared in the First

Municipal District of the Cireuit Court of Cook County

for his first court appearance without an attorney. After

being informed that he was charged with the offense of

theft, petitioner indicated to the Court that he was ready

for trial. At the Court’s direction, petitioner was then ar-

raigned; after being told that he was charged with theft,

petitioner pleaded not guilty, again indicated that he was

ready for trial, and waived his right to a jury trial. (A. 6-7].

The People called only one witness to testify, William

Bray, the security guard at the Woolworth Store. Bray

testified that on January 19, 1971, at approximately 6:00

P.M. he was on duty at the store when he saw petitioner

1. Although the date of the offense as charged in the

complaint and as testified to at trial was January 19, 1971, it

is likely that the date of tne offense was actually January

19, 1972, since the complaint was filed January 21, 1972 (A.

2) and the first court appearance was scheduled ten days

later (A. 3).

2. Illinois Revised Statutes, chapter 38, § 16-1 (1969)

contained the following penalty prevision: ‘‘A person first

convicted of theft of property not from the person and not

exceeding $150 in value shall be fined not to exceed $500 or

imprisoned in a penal institution other than the peniten-

tiary not to exceed one year, or both. A person convicted

of such theft a second or subsequent time, or after a prior

conviction of any type of theft, shall be imprisoned in the

penitentiary from 1 to 5 years.’’

approach a sales girl and ask her to unlock an attache case.

Bray further testified that he saw petitioner walk around

the store with the briefcase for fifteen to twenty minutes,

back and forth by the sales girls. During this time, Bray

testified that Scott had a $10.00 bill in his hand and had

picked up an address book and put it in his pocket. Bray

then watched Scott another five minutes, walked out onto

the street and observed Scott walk outside of the store with

the attache case several moments later. When Scott was

stopped, Bray testified that Scott said the attache case be-

longed to him. Bray testified that the attache case which

Scott was apprehended carrying was the property of

F. W. Woolworth and had a value of $12.95. [ A. 7-8].

Petitioner then testified on his own behalf. He stated that

after he had placed his articles in the attache case to see

if it was the proper size he walked around the store look-

ing for the salesgirl, but could not find her because of par-

tial blindness. He testified that he was suddenly grabbed

by the wrist and accused of shoplifting. He testified that he

had money to pay for the briefcase but would not do so

after he was accused of theft. [A. 8-9].

After the defendant testified, the People rested their case.

(A. 9). The judge indicated that he had a lot of questions,

and when the prosecutor stated he felt he had proved his

ease the judge asked Seott several questions. In response,

petitioner testified that he had almost $300.00 in his pocket

and was looking for the salesgirl when he was arrested. He

further stated that he was arrested inside the store and

did not go out on the street. The Court then stated, ‘‘T don’t

believe vou, sir. Finding of guilty.’’ [A. 10].

The judge then asked the court sergeant what evidence

there was in aggravation, to which the sergeant replied

that Scott had heen sentenced to the House of Corrections

in 1957 for thirty days for petty larceny. The Court then

_—

sentenced petitioner to pay a fine of fifty dollars and no

costs. The fine was promptly paid out of the bond deposit.

[A. 5].

On February 29, 1972, petitioner filed a timely notice of

appeal to the Illionis Appellate Court. On April 27, 1972,

petitioner moved in the trial court for the appointment of

an attorney as appellate counsel and for a free transcript

on the grounds of indigency. Petitioner was thereafter

treated as indigent for purposes of review of the trial

court proceedings.

In the appellate court petitioner argued that his eon-

stitutional and statutory rights to appointed counsel were

violated and that the predictive evaluation procedures de-

scribed in Argersinger v. Hamlin, 407 U.S. 25, 42 (1972)

were unconstitutional. The First District Appellate Court

affirmed petitioner’s conviction, specifically refusing to

extend the rule of Argersinger to cases where only a small

fine is imposed. (Appendix to petition for certiorari, 13a).

The Court also held that Illinois Revised Statutes, chapter

38, § 113-3(b) (1969) did not require appointment of

counsel in cases in which only a fine was imposed, and

rejected petitioner’s claims that predictive pre-trial evalu-

ation was arbitrary and unconstitutional. [Appendix to

petition for certiorari, 19a, 15a].

Petitioner then filed for leave to appeal to the Illinois

Supreme Court, which granted petitioner leave to appeal.

In that court petitioner argued that he had a constitutional

and statutory right to appointed counsel. The Tlinois

Supreme Court found that petitioner was not entitled

to appointed counsel under the applicable Ilinois statutes

or under the rule of Argersinger, and refused to extend

Argersinger to a situation where a conviction resulted in

the levying of a fine. [Appendix to petition for certiorari,

3a, 4a].

ARGUMENT

THE SIXTH AMENDMENT DOES NOT REQUIRE AP-

POINTMENT OF COUNSEL AT STATE EXPENSE IN

CRIMINAL PROCEEDINGS IN WHICH THE SOLE

PENALTY IMPOSED IS A SMALL FINE.

INTRODUCTION

In Gideon v. Wainwright, 372 U.S. 335 (1963) this Court

held that the right to counsel provision of the Sixth

Amendment was obligatory on the States under the due

process requirement of the Fourteenth Amendment. Later,

in Mempa v. Rhay, 389 U.S. 128 at 134 (1967) the Court

characterized Gideon as establishing ‘tan absolute right

to appointment of counsel in felony cases.’’ Nine years after

establishing the rule of Gideon, however, this Court in

Argersinger v. Hamlin, 4°" U.S. 25 (1972) refused to apply

the same absolute rule to non-felony cases.* Instead, it

3. The term “non-felony” cases as used herein includes

all misdemeanors and petty offenses punishable by im-

prisonment of any duration. Argersinger v. Hamlin, 407 at

37, made it clear that imprisonment without counsel was

impermissible regardless of the classification of the of-

fense. In reality, however, actual loss of liberty triggers

the requirement of counsel only in non-felony cases, since

appointment of counsel is required in all offenses classified

as ‘‘felonies.” Mempa v. Rhay, supra.

In Argersinger, the offense involved was characterized

as ‘‘petty,” i.c. punishable by imprisonment of less than six

months. In January, 1972, all criminal offenses in fMlinois

were classified as felonies or misdemeanors. A misde-

meanor was defined as “any offense other than a felony”’,

Ill. Rev. Stats., ch. 38, § 2-11 (1969) and was punishable

(Footnote continued on next page)

focused on the consequences of non-felony convictions and

prohibited the imposition of any sentence of imprisonment

after conviction of an indigent defendant who did not have

counsel. In this case since no imprisonment was actually

imposed, appointment of counsel was not required by the

rule of Argersinger. Petitioner argues, however, that the

Sixth Amendment should be read to require appointment

of counsel in all criminal proceedings in which a jail sen-

tence is an authorized penalty regardless of whether jail

time is in fact imposed. Respondent submits that impo-

sition of a small fine is not a deprivation of sufficient

magnitude to require appointment of counsel in light of the

tremendous burden which such a requirement would im-

pose on the States.

Actual Loss Of Liberty Should Define The Boundaries

Of The Right To Counsel In Non-Felony Cases.

1. Not All Crimial Actions Are Subject To The Sixth

Amendment Right To Counsel Provision.

The right to counsel enunciated in the Sixth Amendment

applies, as do the other rights enumerated therein, to ‘all

(Footnote continued from preceding page)

by a term of imprisonment of up to one year and/or a fine

of $1,000. Ill. Rev. Stats., ch. 38, § 1-7 (1969). The present

statutory scheme consists of a more elaborate classifica-

tion. There are three classes of misdemeanors. Class <A,

providing for a maximum penalty of one year imprisonment

and/or $1,000 fine; Class B, providing for a maximum pen-

alty of six months imprisonment and/or $500 fine; Class C,

providing for a maximum of thirty days imprisonment

and/or $500 fine. Ill. Rev. Stats., ch. 38, § 1005-5-1, § 1005-5-2,

§ 1005-9-3 (1977). Theft under $150 under the revised elas-

sification system is a Class A misdemeanor. Ill. Rev. Stats.,

ch. 38, $ 16-1(e)(1) (1977).

criminal prosecution.” To argue, as does petitioner, that

this language creates an absolute right to appoinment of

counsel once a proceeding is denominated ‘‘criminal’’ ig-

nores the consistent refusal of this Court to impose a literal

meaning upon the words of the Constitution. This ‘‘absolut-

est’’ position, most consistently articulated and rejected in

eases involving the rights of freedom of speech and asso-

ciation,‘ would prohibit placing any limitations on enum-

erated rights. Neither the history of the Sixth Amendment

nor the precedents of this Court support the view that

the burden imposed on the State cannot be considered

in defining the scope of a right.

It has never been held that every action classified as

criminal must be deemed a ‘‘criniinal prosecution’’ for

purposes of the rights enumerated in the Sixth Amend-

ment. Indeed, the Court has expressly recognized that

the right to jury trial is not constitutionally required in all

criminal cases. In Baldwin v. New York, 399 U.S, 66, 75

(1970) Mr. Justice Black in his concurring opiwion argued

that the phrase ‘‘‘n all criminal prosecutions’? could not be

read to limit the right to jury trials to only serious prose-

cutions. Rejecting this literal reading, the Cowrt balanced

the advantages to the defendant agaimst the administrative

burden it placed upon the State and concluded that the

right to a jury trial was guaranteed in all “serious of-

4. Justices Black and Douglas consistently opposed ap-

plication of the balancing tect in the context of the First

Amendment rights, espousing the view that there could be

no limitation imposed on those rights. Konigsberg v. State

Bar of California, 366 U.S. 36, 56 (1961) (dissenting opin-

ion of Mr. Justice Black). See also, New York Times Co.

v. United States, 403 U.S. 713, 720 (1970) (dissenting

opinion of Mr. Justice Douglas) and citations contained

at 720, n. 1.

fenses” but did not extend to ‘petty offenses”, i.e. those

punishable by less than six months imprisonment. Duncan

v. Lowisiana, 391 U.S. 145 (1968); Baldwin v. New York,

supra. The Court explained the considerations relevant to

its determination as follows:

‘*. . . [T]he possible consequences to defendants

from convictions for petty offenses have been thought

insufficient to outweigh the benefits to efficient law

enforcement and simplified judicial administration

resulting from the availability of speedy and inex-

pensive nonjury adjudications.” Duncan v. Louisiana,

391 U.S. at 161.

Although this Court in Argersinger refused to place ex-

actly the same limitation on the right to counsel as on the

right to jury trial, it did not thereby forbid placing any

limitation on the right to counsel. Rejecting the argument

that the right to appointed counsel should be limited to

serious offenses as defined by Baldwin, supra, the Court

nevertheless limited the right to counsel according to a

standard focusing on the actual loss of liberty to the

accused. The adoption of this approach exemplifies the

use of the balancing test. Faced with the alternatives of

allowing an accused to be deprived of his liberty without

counsel or requiring the States to provide counsel for all

indigents accused of any criminal offense, the Court im-

posed a standard accommodating both the rights of the

accused and needs of society. By so doing, it reaffirmed

both the constitutional validity and practical necessity of

developing the “evolving concept’’ (407 U.S. at 44) of the

right to counsel in light of the burden it would impose on

society.

Neither the historical background of the Sixth Amend-

ment nor the fact that many of the other Sixth Amendment

rights have not been limited lend weight to petitioner’s

assertion that the right to counsel must extend to all crimi-

nal actions. The fact that at common law there was a right

to counsel for petty offenses but not for serious ones is not

determinative of the present constitutional scope of the

right to counsel. It has been suggested that the reasons

behind this seemingly illogical distinction stemmed from

the fact that the State had only a slight interest in con-

victing petty offenders and could therefore afford to be

generous!® This is hardly an acceptable rationale within

the present constitutional framework where right to coun-

sel has been interpreted as requiring ‘‘effective assistance

of counsel.’’? McMann v. Richardson, 397 U.S. 759, 771 n. 14,

and cases cited (1970). Furthermore this Court has extend-

ed the right to appointed counsel to felonies despite evi-

dence that the framers of the Sixth Amendment did not

intend to provide appointed counsel in any cases.°

It is true that the Sixth Amendment rights other than

the right to jury trial have never been defined on the basis

of seriousness of the offense or of the penalty. Thus, the

rights to a public and speedy trial, to compulsory process,

to confront witnesses and to be informed of the nature of

the accusation do not depend on the seriousness of the of-

fense charged. (Argersinger v. Hamlin, 407 U.S. 27-29).

The State, however, has no compelling pecuniary interest

in a narrow definition of those rights, since the cost of

their implementation is negligible. As has been pointed out

5. Beaney, The Right to Counsel in American Courts 8

(1955).

6. Beaney, pp. 27-30.

7. Junker, John M. ‘*The Right to Counsel in Misde-

meanor Cases,” 43 Wash. L. Rev. 685, 707 (1968); Duke,

Steven, “The Right to Appointed Counsel; Argersinger

and Beyond’’, 12 Am. Cr. L.R. 601, 608 (1975).

oe ee

by commentators,’ it costs no more to provide a speedy

and public trial in which the accused is given public notice

of the charges than a delayed, secret trial without such

notice. Similarly, limiting the right to confrontation and

cross-examination has been found not to result in a sub-

stantial savings to the State.*

{t is obvious that what the right to jury trial and the

right to counsel have in common is their cost. Because

they require considerable State expenditures, courts are

asked to consider the burden these costs impose in develop-

ing the scope of these rights; no similar balancing is needed

when considering the other Sixth Amendment rights.

Although petitioner urges that the right to counsel be

extended to all criminal proceedings coextensively with the

other Sixth Ameudment rights excepting that of jury trial,

there is no doctrinal prohibition against development of the

right to counsel along lines completely different from

either the Sixth Amendment rights which had been ap-

plied to all offenses or those applied to non-petty offenses

only. The limitations already developed on the right to

jury and to counsel show that each of the enumerated Sixth

Amendment rights need not be uniforraly treated and that

“criminal prosecutions’? need not have a fixed meaning

independent of the particular right being asserted.

It is thus consistent with the prior decisions of this Court

and with the development of the right to counsel for this

Court to determine the boundaries of the cases to which that

right applies on the basis of appraisal of the prerequisites

of a fair trial in light ef effective administration of crim-

inal justice.

8. Junker, at 707 and n. 128.

2. The Sanction Of Imprisonment, Traditionally Subject

To Special Scrutiny, Is Inherently Distinguishable From

Other Potential Consequences And Is A Rational Bound-

ary For Drawing The Right To Counsel In Non-Felony

Cases.

Actual loss of liberty was defined in Argersinger as

providing the outer parameters for applying the right to

counsel in non-felony cases. Since Argersinger, all of the

federal circuit courts which have considered the issue have

recognized that the Constitution does not require appoint-

ment of counsel in non-felony cases that do not result

in actual deprivation of liberty.° More importantly, none

of the circuit, except for the United States Court of Ap-

peals for the Fifth Circuit," have extended the right to

counsel beyond that stated in Argersinger, thereby ree-

ognizing the soundness inherent in that rule.

A standard for right to counsel which distinguishes

actual imprisonment from other sanctions comports with

societal and judicial recognition that imprisonment is a

unique sanction. Respect for liberty of an individual is the

basic postulate upon which this nation was built. Foe v.

Ullman, 367 U.S. 497, 542 (1967). Loss of that Kberty

has traditionally been viewed as a penalty which is inherent-

ly degrading, which stigmatizes an individual by its very

imposition and which is almost exclusively imposed as a

result of the criminal process. Because of these characteris-

9. United States v. Sawaya, 486 F. 2d 890, 892 (1st Cir.

1973); In Re Di Bella, 518 F. 2d 955, 957 (2nd Cir. 1975);

Marston v. Oliver, 485 F. 2d 705 (4th Cir. 1973); United

States v. White, 529 F. 2d 1390 (Sth Cir. 1976); Henkel v.

Bradshaw, 483 F. 2d 1386 (9th Cir. 1973); Sweeten v.

Sneddon, 463 F. 2d 713 (10th Cir. 1972).

10. Thomas v. Savage, 513 F. 2d 536 (5th Cir. 1975).

tics, the imposition of imprisonment has always been sub-

ject to special scrutiny: ‘*... [TJhis Court will squint hard

at any legislation that deprives an individual of his liberty

—-his right to remain free.’’ Williams v. Illinois, 339 U.S.

235, 263 (1969).

Focus on loss of life and liberty has also been the

bencbmark of this Court’s decisions regarding the right

to counsel. In Powell v. Alabama, 287 U.S. 45 (1952), a

capital case in which the court reversed convictions of de-

fendants under sentence of death for failure to appoint

counsel, the Court enumerated circumstances requiring ap-

pointment of counsel and focused ‘‘above all” on the fact

that the defendants “stood in deadly peril of their lives.’’

287 U.S. at 71. Similarly in Johnson vy. Zerbst, 304 U.S.

458 (1938), the Court in holding that counsel must be ap-

pointed for indigents in the federal courts repeatedly

stressed that an accused could not be deprived of his ‘‘life

or liberty’’ without the assistance of counsel. 304 U.S. at

462, 463, 468.

Argersinger elevated loss of liberty to the level of a con-

stitutional standard. Although noting that Powell v. Ala-

bama, supra, and Gideon v. Wainwright, supra, were felo-

nies, the Court found their rationale applicable ‘‘to any

criminal trial, where an accused is deprived of his liberty.”

407 U.S. at 32. The special status of penalties resulting

in actual imprisonment was most clearly shown by the Chief

Justice, who would have applied the six month potential

imprisonment rule defining the right to jury trial to the

right to counsel as well, except for the fact that ‘‘any de-

privation of liberty is a serious matter.’’ 407 U.S. at 40.

When compared with the grave concern with which

courts have traditionally viewed loss of iiberty, the im-

position of a small monetary exactment is inherently distin-

guishable, This Court gave explicit recognition \o that dif-

ference in Muniz vy. Hoffman, 422 U.S, 454, 477 (1975) where

it held that imposition of a $10,000 fine did not require that

defendants be afforded a jury trial;

‘It is one thing to hold that deprivation ot an in-

dividual’s liberty beyond a six-month term should not

be imposed without the protections of a jury trial, but

it is quite another to suggest that, regardless of the eir-

cumstances, a jury is required where any fine greater

than $500 is contemplated, From the standpoint of

determining the seriousness of the risk and the extent

of the possible deprivation faced hy a contemnor, im-

prisonment and fines are intrinsically different,’’ (am.

phasis added),

Petitioner does not contend that imposition of a fine

is equivalent to a loss of liberty; clearly it is not, Citing

Mayer vy, City of Chicago, 404 U.S. 189 (1971), however,

he does argue that the de minimus nature of the fine ean-

not be used as a basis for not assigning counsel, (Pet. Br,

43-44). The inapplicability of petitioner's analogy is demon-

strated by focusing on the result of each alleged deprivation,

In Mayer the Court prohibited the denial of free tran-

seripts to indigents on the basis that the offenses were non-

felony or punished by fine only. The denial of transcripts

to an indigent, where the burden is on the defendant to

procure transcripts and demonstrate error, is a denial of

all access to the appellate review process based on an in-

dividual’s poverty. If counsel is not appointed in a non-

felony case, however, defendant nevertheless has access

to a trial in which he is presumed to be‘innocent, in which

the State must prove him guilty beyond a reasonable

doubt and which cannot, upon conviction, result in his im-

prisonment.

In Illinois, as in most States, conviction of a misdemeanor

can, although it infrequently does, result in a sentence of

probation." Although the question of whether probation

imposes a deprivation of sufficient magnitude to require

counsel is not before this Court in this case, the significant

distinction between sentences of imprisonment and proba-

tion should be noted when advocating a rule requiring ap-

pointment of counsel only when a jail sentence is imposed.

As this Court has noted, although probation infringes

on personal freedom, it does so considerably less than does

imprisonment. Frank v, United States, 395 U.S. 147, 151

(1968), This is especially true in non-felony cases, where

the terms of probation imposed will most likely be of the

least restrictive variety, usually requiring only monthly

reports to a probation officer, More importantly, as a

practical matter, the goals of the sentence of probation,

together with the costs of such services, dictate that pro-

bation be imposed as a sentence in only the more serious

misdemeanors. By virtue of their seriousness, however,

these cases will already he screened out under the pre-trial

evaluation system as cases in which the imprisonment op-

tion must remain an available alternative.

In addition to the actual sentence imposed, there may

also be collateral consequences to a defendant as a result

of a conviction, Thus, as petitioner points out, besides

11. There are three variants of probationary status

provided: *‘probation”, Ill. Rev. Stats., ch. 38, § 1005-1-18,

1005-6-2 (1977); “conditional discharge”, Il. Rev. Stats.,

ch, 38, § 1005-1-4, 1005-6-2 (1977); and ‘‘supervision’’, Il.

Rev. Stats., ch. 38, § 1005-1-21, 1005-6-3.1 (1977). Sue-

cessful completion of conditions of ‘*supervision’’ results

in dismissal of charges. Ill. Rev. Stats., ch. 38, § 1005-6-3.1

(e)(f) (1977).

the stigma attached to a conviction, a non-felony convic-

tion could also affect his eligibility for certain jobs or be

used for impeachment purposes. (Pet. Br, 44), Petitioner

argues that these consequences may be more severe than

imprisonment and therefore require appointment of coun-

sel. To determine the necessity for counsel, however, on the

basis of the actual consequences of the deprivation to that

individual would be an unworkable standard, As has pre-

viously been recognized by this Court, there are frequently

difficw'ties attendant upon drawing boundaries because “it

requires attaching different consequences to events which,

when they lie near the line, actually differ very little’

Duncan vy. Louisiana, 391 U.S. at 161, The characteristics

inherent in the sanction of imprisonment provide a recog-

nized, rational and distinguishable boundary, That the

consequences of revoking a driver's license may be more

significant to one individual than another cannot be deter-

minative of the constitutionality of drawing boundaries.

If it were required that the consequences of punishment

be comparable for all individuals,

*.. [The State would be forced to embark on the

impossible task of developing a system of individualized

fines, so that the total disutility of the entire fine, or

the marginal disutility of the last taken, would be the

same for all individuals.’’ Williams vy. Illinois, 399

U.S, 235, 261 (1970) (Harlan, J., concurring).

Lastly, the collateral consequences which accrue to the

individual as a result of a conviction of a misdemeanor do

so only after that individual has had a hearing in which he

was found guilty beyon? a reasonable doubt. To subject

an individual to collateral consequences after a judicial

determination as to credibility of witness and evidence has

been made and after a finding of guilty beyond a reasonable

doubt is consistent with the constitutional mandate. Had

there been any question of sufficiency of evidence, or un-

fairness at the trial, petitioner in this case would have

raised those issues in the Illinois Courts. The fairness of

the trial would then have been reviewed, thus providing

safeguards against collateral consequences of a convietion

of which he was innocent. That he did not do so shows the

fairness of the proceedings.

Petitioner also attacks the use of actual imprisonment

as the basis for requiring counsel on the ground that the

standard will render sentences themselves of dubious ef-

fectiveness, because the indigent uncounseled defendants

will be immune from sanctions for non-payment of fine

or violation of probation, Additionally he argues that the

violations would be unavailable for subsequent enhancement

of penalties under second offender statutes. (Pet. Br.

34-35).

There has been some question as to whether failure to

pay a fine which results from an uncounseled conviction

can result in imprisonment, After Tate v. Short, 399 U.S,

235 (1970), states are prohibited from converting a fine

into a prison term for indigents unable to pay the fine, See,

e.g., lll. Rev. Stats., ch. 38, § 1005-9-3(b)-(e) (1977). For

those financially able but refusing to pay the fine, how-

ever, the subsequent proceeding to enforce the fine has

been held by some courts to be a contempt proceeding,

separate and sufficiently removed from the original con-

viction so as to permit imprisonment for non-payment. Rol-

lins v. State, 299 So, 2d 586 (Fla. 1974),

With respect to the use of an uncounseled conviction

as the basis of a probation revocation proceeding or to

enhance a subsequent offense, the use of such convictions

to incarcerate an individual depends on how direct the first

conviction is to imprisonment. Generally such »se has been

prohibited. Krantz, et al., Right to Counsel in Criminal

Cases: The Mandate of Argersinger v. Hamlin, 35-37, 44

(1976) hereinafter cited as Krantz, This result, however,

is not inconsistent with state purposes but is legitimately

within the realm of prosecutorial discretion, When prose-

cuting an offense the prosecutor knows that by not request-

ing that counsel be appointed for defendant, he will be

precluded from enhancing subsequent offenses, To the

degree that the charging of offenses involves a great deal

of prosecutorial discretion and selection, the decision to

pursue conviction with only limited use comes within proper

scope of that discretion,

Finally, the function of ensuring the effectiveness of

legislative sentences is properly a judicial and legislative

function of local government. If the States find that they

cannot enforce the penalties they are enacting because of

Argersinger prohibitions, appropriate adjustment suitable

to the needs of each particular locality can be made at the

local level. This Court should not engaze in constitutional

rulemaking to ensure what is properly a legislative fune-

tion.

The Right To Appointed Counsel Should Not Be Applied

To All Offenses Punishable By Imprisonment Because The

Costs Of Such Extension Would Far Exceed The Benefits

Which Attorneys Could Provide In Those Cases,

1. The Benefits Derived From Assistance Of Counsel Is

Minimized By The Nature Of Proceedings In Non-

Felony Courts.

Consideration of the nature of the proceedings and the

role of lawyers in non-felony courts provides additional

support for using actual imprisonment to draw the boun-

dary of the right to appointed counsel. In Gideon v. Wain-

wright, 372 U.S. at 335, the Court based it conclusion that

lawyers are necessities in criminal courts on the fact that

the government hires prosecutors and that non-indigents

hire lawyers:

‘Similarly, there are few defendants charged with

crime, few indeed, who fail to hire the best lawyers

they can to prepare and present their defenses,”

While the stakes in felony cases are such that most de-

fendants would not forego assistance of counsel if it were

within their means,” those charged with non-felony viola-

tions frequently do not employ counsel.” The cost of hiring

counsel in minor cases is typically weighed against the po-

tential benefit of the attorney's services, This is especially

true where the possibility of jail seems remote and the

probable fine small (407 U.S, at 49) since attorney costs

would frequently exceed the amount of the fine, To the vast

majority of the population, hiring an attorney to defend

against minor offenses would indeed be a “luxury.’’

12. D. Oaks, The Criminal Justice Act in the Federal

District Courts 111-36 (1967).

13. For example, in a survey conducted by the Tlinois

Law Enforcement Commission of 9,436 misdemeanor cases

tried in the State of Hlinois in 1976, it was found that

49.4% of defendants were not represented by counsel; only

23.8% had retained counsel; the remainder of the defend-

ant population was represented by public defenders or as-

signed counsel. From Defense Services Survey, Illinois Law

Enforcement Commission, Planning Division (1977). See

also Argersinger v. Hamlin, 407 U.S. at 49-50, where Mr.

Justice Powell points out the anomaly created by extending

the right of appointed counsel to cases where non-indigents

would rarely retain counsel,

Moreover, the nature of the proceedings in the non-felony

courts are significantly different from those in felony

courts. In Johuson v. Zerbst, 304 U.S, 458, 462-3 (1938) the

Court stated that:

‘The Sixth amendment . . . embodies a realistic

recognition of the obvious truth that the average de-

fenlant does not have the professional legal skill to

pretect himself when brought before a tribunal with

power to take his life or liberty, wherein the prosecu-

tion is presented by experienced and learned counsel.”’

(Emphasis added),

The reality of misdemeanor courts, however, is that proce-

dures are informal and rules of evidence are not strictly

adhered to. The instant case, typical of those arising in

high volume urban non-felony courts, is indicative of the

relaxing of the ‘‘adversarial” context. The prosecutor

should properly have been expected to ‘‘present evidence

to the court, challenge any witnesses offered by the defen-

dant, argue the rulings of the court and make direet argu-

ments to the court’’ to establish petitioner's guilt. Ross v.

Moffitt, 417 U.S. 600, 610 (1974). The prosecutor here,

however, made neither opening nor closing statements, did

not object to any testimony offered by petitioner, did not

question or cross-examine petitioner, and did not eall re-

buttal witnesses, His role was merely one of eliciting testi-

mony from the State's witness,

Nor is this an unusual situation. As has been pointed out,

new lawyers entering the field of prosecution are tradition-

ally assigned to the misdemeanor and traffic dockets and

view assignment to a felony caseload as a significant pro-

motion."* These inexperienced prosecutors often have an

14. U.S. President’s Commission on Law Enforcement

and the Administration of Justice, The Challenge of Crime

in a Free Society 128 (1967), hereinafter cited as The

Challenge.

excessive caseload, do not see the file or complaint until

actually in the courtroom, and frequently never talk to the

witnesses prior to calling them to testify. That they are

required at all is perhaps recognition that the prosecution

has the burden of proving guilt beyond a reasonable doubt

and that failure to prove an element of the offense, or

identify, or venue can result in dismissal of the case for

technical reasons. In fact, in some non-felony courts, there

are no prosecutors; in such cases the judge asks questions

after police presentation of their case.° In a recent survey

of misdemeanor courts, it was reported that even with ap-

pointed counsel present, the trials which were conducted

were characterized by lack of formal motions, non-existent

cross-examination and quick disposition of cases."* The com-

ment of one observer watching the processing of non-felony

cases in a municipal courtroom was that they seemed to be

processed at the rate of one per minute.”

It is therefore apparent that the adversarial system

characterized by petitioner as being incomprehensible to

the layman and the basis for his need for assistance of coun-

sel is in reality not nearly as adversarial as he suggests.

15. Observation of Belle Glade, Florida, Municipal

Court, where it was noted that non-attorney cases were not

limited to the indigent. Krantz, supra at 210. See also, The

Challenge, supra at 128.

16. Observations of Cleveiand Municipal Court, Krantz,

supra, at 205. Similar observations were made of court sys-

tems in San Jose, Texas, where defense counsel consulted

with newly assigned defendants in the courtroom, often

while proceedings continued. In all of the jurisdictions ob-

served, it was noted that the majority of the cases were im-

mediately plea bargained. Krantz, supra, at 203-210.

17. Krantz, supra, at 205. Observation of Cleveland

Municipal Court.

Indeed, petitioner’s arguments that failure to appoint coun-

sel negated his other Sixth Amendment rights cannot with-

stand serutiny if viewed in the context of the reality of the

overcrowded misdemeanor courts described.

Just as the overriding pressure for plea bargaining is an

undeniable reality in misdemeanor court, so also is the

actual rarity of the jury trial.'* Under Ill. Rev. Stats., ch.

38, § 103-6 (1969) and under Duncan v. Louisiana, supra,

petitioner would have been entitled to a jury trial. Since he

waived that right in response to a question from the court

(A. 7), petitioner’s argument is inapplicable to the instant

ease. It is, however, far from clear that the goals of a trial

as a fact finding mechanism for ascertaining whether an

accused individual committed a crime cannot be achieved by

an unrepresented defendant before a jury.’ This Court has

never held that the right to appointed counsel exists in

every case where there is a right to jury trial.*° To hold

18. Report of the Public Defender of Cook County,

Municipal Districts 2-6 (Suburban districts, excluding City

of Chieago) from 12/1/77 to 6/30/78 shows that the Office

of the Public Defender disposed of 4997 Traffic and Misde-

meanor cases during that period of time. Of the 4997 cases,

there were 8 jury trials. (The remaining cases were dis-

posed of as follows: ‘‘Plea of guilty’’—2003; “Supervi-

sion’’—2339: ‘Plea of Not Guilty-Finding of Guilty’’—276

(bench) ; ‘‘Plea of Not Guilty-Finding of Not Guilty”—371

(bench).

19. See, e.g. Faretta v. California, 422 U.S. 806 (1975)

where defendant held to have the right of self-representa-

tion in a jury trial involving a felony charge.

20. Argersinger contains some support for both posi-

tions. Chief Justice Burger, by directing the prosecutor in

a jury case to help the judge decide regarding the signifi-

eant likelihood of imprisonment, indicated that the right to

(Footnote continued on next page)

that the right to counsel must be coextensive with the right

to jury trial would require the State of Illinois to either

limit the right to jury trial which presently exists in all

criminal cases, including those punishable by fine only and

traffic offenses, or to extend the right to counsel to all those

offenses. The former result is undesirable in view of the

legislative intent to provide a broad right to jury trial in

this State—broader, in fact, than constitutionally required,

Duncan v. Louisiana, supra.; Baldwin v. Illinois, supra.

The latter result would be prohibitively expensive and prob-

ably not chosen. Under the guise of interpreting the Sixth

Amendment’s broadly worded principle, the State of Dlinois

should not be put to the Hobson’s Choice which petitioner’s

theory creates.

2. The Costs Of Providing Counsel For Indigents In All

Non-Felony Cases Would Impose A Tremendous Burden

On Society.

In determining the scope of the right to counsel which

must be provided to indigents in non-felony cases, this

Court must consider the economic burdens which will be

imposed upon the courts by any extension of the right to

counsel beyond Argersinger. As stated by the Chief Justice

in his dissenting opinion in Faretta v. California, 422 US.

806, 845 (1975) :

‘*Society has the right to expect that, when courts

find new rights implied in the Constitution, their po-

tential effect upon the resources of our criminal justice

system will be considered.’’

(Footnote continued from preceding page)

jury trial is independent of and does not require the right

to appointed counsel. 407 U.S. at 42. Justice Powell, how-

ever, stated that the right to counsel line must be drawn

“so that an indigent has a right to appointed counsel in all

cases in which there is a due process right to a jury trial.’’

407 U.S. at 46.

In Argersinger, Mr. Justice Powell detailed a number of

concerns regarding the costs of implementing the ruie an-

nounced in that case, 407 U.S. at 56-63. If, as petitioner

claims (Pet. Br. 37, n.21), Argersinger did not in fact im-

pose extraordinary burdens on court systems, that may well

be because incarceration is not commonly contemplated or

imposed in non-felony cases.*' Comprehensive post-Arger-

singer studies, however, belie not only petitioner’s asser-

tions regarding the impact of Argersinger, but also his

claim that further extensions will not impose impossible

burdens on a great number of local court systems.

As predicted (407 U.S. at 61), the court systems most

burdened by the Argersinger extension of the right to as-

signed counsel were those of small rural communities. In

its 1973 survey of defender systems, the National Legal

Aid and Defender Association studied 2227 counties with

over one-third of the country’s population which did not

have defender systems but utilized appointed private coun-

sel to defend indigents. NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, L. Benner and B. Lynch-

Neary, The Other Face of Justice: A Report of the Nation-

al Defender Survey 38 (1973) (hereinafter cited as The

Other Face of Justice). These jurisdictions had great diffi-

culties implementing Argersinger, due to both lack of at-

torneys and the incapability of local governmental units to

support such services. Jd., at 38-40, 63. The NLADA study

reported the following assessment of one judge on the im-

pact of Argersinger on their system in South Dakota:

. [A] lmost the straw that broke the camel’s back.’’ Id.,

at 38.

21. Krantz, supra at 366, 417. Additionaily, the survey

suggests that at least in one community there was a size-

able decrease in the frequency of imposed jail sentences

after Argersinger.

More ominously, however, the results of the survey

showed in many jurisdictions judges were simply not incar-

cerating misdemeanor defendants because of the inability to

provide counsel for them. Jd., at 40, 64. Thus, an extension

of Argersinger to prohibit any conviction without counsel

would fulfill the prediction of Mr. Justice Powell: that those

2227 counties “simply could not enforce [their] own laws’’,

407 U.S. at 61.”

22. The problems experienced by one town in the small

predominantly rural State of South Dakota due to searcity

of lawyers was described in Argersinger, 407 U.S. at 61

(Powell, J. concurring). The problems of the 253 towns in

South Dakota with no resident attorneys and of the eoun-

ties with only one lawyer (usually the State’s Attorney)

are described in Application of Ww right, 189 N.W. 2d 447

(1971), vacated by 407 U.S. 918; on remand 199 N.W. 2d

600 (1972).

The same problems are faced by rural areas in larger in-

dustrial states such as Illinois. Out of a total number of

102 counties in [linois, 13 counties have fewer than 10 at-

torneys, and another 34 have fewer than 20. See ‘‘Report of

Attorney Registration and Disciplinary Commission of the

Supreme Court of Ilinois, April, 1978.’

The difficulties which rural counties will encounter if re-

quired to appoint counsel for indigents in all non-felony

cases punishable by imprisonment are illustrated by the

attorney population and caseload of Brown County, Illinois.

That county is one of the smallest in Illinois, with a popu-

lation of 5,586; there is no public defender system, and pri-

vate counsel is assigned to indigents when required. Il.

CRIMINAL DEFENSE OF INDIGENTS IN ILLINOIS,

REPORT TO THE ILLINOIS LAW ENFORCEMENT

COMMSSION, ILLINOIS DEFENDER PROJECT DE-

FENDER SURVEY 21 (1974) (hereinafter cited as ILLI-

NOIS DEFENDER SURVEY).

(Footnote continued on next page)

Nor are the problems of requiring increased representa-

tion limited to rural areas. There are approximately 1,250,-

000 to 2,710,820 indigent non-traffic misdemeanor defend-

ants arrested annually.” The increase in attorneys needed

(Footnote continued from preceding page)

In 1976 the number of new charges filed in Brown County

were as follows: 15 felonies, 46 misdemeanors, 853 traffic

and 34 conservation violations. ADMINISTRATIVE OF-

FICE OF THE ILLINOIS COURTS, 1976 ANNUAL RE-

PORT TO THE SUPREME COURT OF ILLINOIS 125.

Applying the national 65% indigency rate for felonies (in-

fra, n.23), to the 1976 figures under the Argersinger stand-

ards, appointed counsel was required for 10 felony cases and

for any other offense in which imprisonment was imposed

as the sentence. If the ‘‘authorized imprisonment’’ standard

had been in effect in 1976, applying the 47° national in-

digency rate for non-felonies (infra, n.23) to the total num-

ber of non-felony offenses shows that appointed counsel

would have been required in approximately 420 non-felony

cases.

There are seven attorneys in Brown County, including

the county judge and the state’s attorney. The difficulty of

attempting to obtain representation for 420 additional cases

from the other five attorneys in the county is obvious. This

difficulty is highlighted by consideration of the legal dis-

abilities which preclude a number of these attorneys from

accepting appointments to represent indigent defendants

(e.g. partnership association with part-time state’s attor-

ney; position as City Attorney; part-time position as As-

sistant Attorney General, see People v. Cross, 30 Ill. App.

3d 199, 331 N.E. 2d 643 (4th Dist. App. 1975).

23. The Other Face of Justice, supra at 72 reports an

annual figure of 2,710,821. Other estimates are as low as

1,250,000. See generally Duke, supra; Rossman, ‘‘ The Scope

of the Sixth Amendment: Who Is A Criminal Defendant, 12

Am. Crim. L, Rev. 663 (1975). The large differences in

(Footnote continued on next page)

to represent indigent defendants charged with non-traffic

misdemeanors if the Argersinger rule is expanded to re-

quire representation whereever imprisonment is authorized

would be overwhelming.** For example, it was estimated

that adoption of the authorized imprisonment standard in

Birmingham, Alabama would require expenditures of

amounts ten times the existing spending level. Krantz,

(Footnote continued from preceding page)

numbers can be partially explained by differences in esti-

mates of how many non-felony defendants would meet nec-

essary indigency standards. Thus, although petitioner cites

10% as the percentage of misdemeanor defendants qualify-

ing for appointed counsel (Pet. Br. 39), more realistic

studies have found that 47% of the total misdemeanor popu-

lation is indigent (compare, 65% indigency rate for felon-

ies). The Other Face of Justice, supra at 82-83.

Confirming the above, a similar study in Ilinois showed

indigency rates for misdemeanors ranging from 31% to

68.39%. The average for all areas was substantially similar

to the 47% rate found by the NLADA. ILLINOIS DE-

FENDER SURVEY, supra at 53.

24. The NLADA in 1973 found that there were fewer

than 3,000 full time public defenders handling all the rep-

resentation of indigents—both felony and misdemeanor—

in the nation. It is estimated that under an ‘‘authorized

imprisonment”’ standard, 4,794 full time defenders would

be required to represent the non-traffic misdemeanor in-

digents alone. (In arriving at this figure, the NLADA as-

sumed that approximately one-fourth of the representation

required by indigent misdemeanants would be handled by

appointed counsel).

It should be noted that these statistics have been subject

to some criticism, see Krantz, supra at 12, 14. They are in-

dicative, however, of the great increase in the number of

public defenders that would be required by the adoption of

petitioner’s proposed standards.

supra at 361, Similar increases would also be required in

other urban areas,”®

The potential burden of adopting a rule requiring the

appointment of counsel for all cases authorizing imprison-

ment is most extremely illustrated by the prospect that ap-

25. In Cleveland, Ohio, it was estimated that the adop-

tion of an authorized imprisonment standard would require

indigent representation at ten times the level then being

provided. Representation was provided for 700 to 1300 in-

digent misdemeanants under the Argersinger standard; ap-

proximately 7,000 would require representation under the

‘authorized imprisonment’’ standard. Krantz, supra at 417.

An approximate idea of the potential dollar cost of an ex-

panded counsel requirement can be obtained by looking at

the budget of the Cook County Public Defender’s Office. Tn

1977, 72 assistant public defenders handled 61,505 ‘‘ municei-

pal district’? cases (these include misdemeanors, appear-

ances on felonies through preliminary hearings and proba-

tion violation petitions) at a total salary cost of $1,740,540,

The operation of this portion of the office was almost 23%

of the total operational budget of the office ($7,603,923.63),

(The Annual Appropriation Bill for 1977, approved and

adopted February 24, 1977; County Board of Commission-

ers, Cook County, Hlinois, pp. 228-229. Cook County Budget

for Fiseal Year 1978, passed February 14, 1978, Cook Coun-

ty. Report of Proceedings, p, 1275).

In 1977, the number of ‘*municipal district’? cases dis-

posed of in the Cireuit Court of Cook County totaled 309,-

673. The number of traffie eases terminated totaled 1,471,-

336. (Administrative Office of the Illinois Courts, ‘‘Statis.

tical Report on the Cireuit Court of Cook County, [linois

for Calendar Year 1977,’’ April 17, 1978; to be published

in Administrative Office of the Illinois Courts, 1977 Annual

Report to the Supreme Court of Illinois).

Applying a 47% indigency rate (see n.23, supra) to the

total ‘‘municipal district’? caseload results in a total of

(Footnote continued on next page)

pointment of counsel will be necessary in all traffic

offenses.** The potential burden is staggering: an estimated

50 million moving traffic violations are processed annually

throughout the country. It has been estimated that as many”

as 23,500,000 traffic offenders could qualify as indigents and

therefore be entitled to appointment of counsel. The Other

Face of Justice, supra at 76, n.42; 83. Since in the United

States most violations of traffic rules are considered crimi-

nal acts,*’ an adoption of the ‘‘authorized imprisonment”?

(Footnote continued from preceding page)

144,746 cases which would require representation. That fig-

ure would more than double the workload of the public de-

fenders in the ‘‘municipal district’’ section, adding an addi-

tional 83,241 cases to the present 61,505 case workload;

alternatively, hiring additional lawyers to handle the in-

creased workload could potentially more than double the

salary allocation needed for that division, making it close

to $4,000,000.

Applying the same 47° rate of indigency to traffic offenses

(see The Other Face of Justice, supra at 83) there could

be as many as 691,522 indigent traffic offenders requiring

representation, (Statistics describing the number of publie

defenders presently handling indigent traffie eases, or the

costs of such representation were unavailable; no estimate

has therefore been made of the potential costs of requiring

appointment of counsel for indigent traffic offenders).

26. Petitioner advocates a standard requiring the ap-

pointment of counsel for all offenses punishable by im-

prisonment, including traffic violations, taking the position

that exclusion of even minor traffie violations would be ar-

bitrary so long as they carry a possible penalty of impris-

onment. (Pet. Br. 16 and n.4).

27. Krantz, supra at 595, n.75, citing Arthur Young &

Co., A Report of the Status and Potential Implications of

Decriminalization of Moving Traffic Violations 3 (1972).

The Illinois Vehicle Code, Tl. Rev. Stats., ch. 9514, § 1, et

seq. (1977) contains hundreds of possible traffic offenses,

(Footnote continued on next page)

of ‘‘astronomical proportions.’’ Krantz, supra at 599,

The severity of the burden which adoption of petitioner’s

proposed standard would impose has been recognized by

all the post-drgersinger studies. Most of those commenta-

tors, while advocating the extension of the right to counsel

to all imprisonable offenses, have agreed that such an ex-

tension will tremendously over-tax the system. Krantz,

supra at 124; Duke, supra at 618. They therefore accom-

pany their advocacy of the extension of Argersinger, as

does petitioner, with various proposals for reform,

One of the most frequent suggestions advanced is the de-

criminalization of offenses for which imprisonment is rarely

imposed. Despite the fact that only a few states have de-

(Footnote continued from preceding page)

earrving varying penalties depending on their misdemeanor

classification (see n.3, supra deseribing misdemeanor classi-

fications). Thus, for example, ‘‘driving while intoxicated”’

or ‘*failure to give information or render aid’’ are class A

misdemeanors, Tl. Rev, Stat., eh. 9514, § 11-501, § 11-403

(1977); **eluding a police officer’’ or ‘‘ reckless driving’’ are

class B misdemeanors, Ill, Rev. Stats., ch. 9514, § 11-204,

§ 11-503 (1977); ‘drag racing”’’ or ‘providing false infor-

mation’’ are class C misdemeanors, Ill. Rev. Stats., 951%,

§ 11-504, § 11-409 (1977),

Vehicle Code violations that are not specifically classified

are considered ‘‘petty’’ and are therefore not punishable

by imprisonment. Tl, Rev, Stats., ch. 951%, $ 16-104, § 1-300;

Ill. Rev. Stats., eh. 38, § 1005-1-17 (1977). However, convie-

tion of a third or subsequent petty offense within a vear is

a class C misdemeanor, punishable by up to 30 days im-

prisonment, Thus, under the enhancement theory, to pre-

serve the legislatively afforded option of imprisonment for

the third offense, counsel would be required for all three

charges. As a result, in Illinois appointed counsel would be

required for all indigents charged with traffie offenses,

criminalized them, Krantz, supra at 598, this reeommenda-

tion is most frequently made with respect to moving traffic

offenses. Although the deterrent value of the threat of a

jail sentence, even if rarely imposed, has been recognized

as serving a legitimate social function, Argersinger v. Ham-

lin, 407 U.S. at 53-54 (Powell, J. concurring), ihe merits of

the decriminalization suggestions are not properly debated

in this Court. Those recommendations should be addressed

to the legislative bodies of each of the states whose fune-

tion it is to classify offenses and prescribe penalties. To ask

this Court to adopt a rule, which by its effect would accom-

plish by judicial fiat what legislatures have refused to do, is

to advocate judicial usurpation of legislative functions

and a serious violation of the principle of federalismas well,

This Court has in the past recognized that fact and has re-

fused to substitute its judgment for that of state legisla-

tures,

Petitioner further attempts to minimize the burden which

his proposed rule would impose on the state by pointing to

the fact that 22 states have already adopted such a rule.

(Pet. Br. 40). A review of the relevant state statutes shows

the wide range of state approaches to the problem of pro-

viding counsel for indigent defendants, Different jurisdic.

tions have adopted a variety of cutoff points for requiring

counsel: some provide counsel for all non-felony offenses:

others have excepted traffic offenses; still others have used

28. The Appendix to petitioner’s brief lists 22 states

which allegedly have extended the right to counsel to all

offenses punishable by imprisonment. However, the statutes

and caselaw of six of those states—Arizona, Connecticut,

Michigan, Minnesota, Ohio and Texas—need not be read

as requiring appointment of counsel for all imprisonable

cases. While those states may require broader representa-

tion than that required by Argersinger, it is not yet clear

that they require appointment of counsel for indigents in all

eases punishable by imprisonment.

varying dollar limits and potential terms of imprisonment

to delineate the scope of the right. (See Respondent’s Ap-

pendix A).

What all of these boundaries reflect is a sensitive bal-

ancing between the rights of the defendant to be repre-

sented and the capacity of the particular system to pro-

vide representation. Legislatures are in the best position

to decide what allocation should be made of their own

dwindling resources in this era of tax revolt. The fact that

some have chosen to allocate their available resources by

extending the right to counsel beyond what is constitution-

ally required does not reflect on the constitutional necessity

of such expansion. As this Court stated in Ross v. Moffit,

417 U.S. 600, 618 (1974) in describing states which did not

provide counsel to indigent defendants seeking diseretion-

ary review on appeal:

‘*‘Some states which might well choose to do so as a

matter of legislative policy may conceivably find that

other claims for publie funds within or without the

criminal justice system preclude the implementation of

such a policy at the present time.”

That approximately 16-22 states have already expanded

the right to counsel beyond Argersinger is conclusive evi-

dence only of the fact that 28-34 have not. Additionally it

illustrates the already existing sensitivity of the states to a

defendant's right to counsel and the tendency to expand it

when possible.

In his attempt to minimize the burdens accompanying the

adoption of an ‘‘authorized imprisonment” standard, peti-

tioner also suggests that the additional costs of providing

representation for non-felony indigents would be offset by

the accompanying savings in court costs due to the more

expeditious completion of cases. (Pet. Br. 41). It is likely,

however, that exactly the opposite will occur. It is, for

example, common to assign inexperienced attorneys to mis-

demeanor courts so they caa ‘‘cut their teeth” in those

courts, Krantz, supra at 105, Mr. Justice Powell in Arger-

singer, 407 U.S, 58-59, aptly summarized the multiple rea-

sons why such inexperienced lawyers are likely to add to

the congestion in the courts. Siwilarly, expediting the eom-

pletion of cases is frequently not the goal of experienced

lawyers, who often help cause delay either by reasons of

necessity or as a matter of sound defense tactics.

Finally, respondent urges that the social cost of the

broad rule advocated by petitioner is simply too great to

permit its adoption, Lack of financial and manpower re-

sources has seriously hampered many defender systems

from providing effective representation for defendants for

whom representation is presently required.”” In rural com-

munities both the cost of services and the seareity of quali-

fied attorneys pose great difliculties in procuring effective

representation for indigents.*’ The problem of providing

mereased services continues to grow even without the im-

position of additional requirements,” and, at the same time,

20. The Other Face of Justice, supra at 77, Results of a

survey conducted by NLADA showed that the most fre-

quent recommendation made by judges and procescutors to

improve defender services was to increase the number of

defender staff attorneys.

30, See Partain v. Oakley, 227 8.1. 2d 314 (W.Va. 1976),

where the Court listed four factors which reduced the num-

ber of attorneys available for criminal representation and

therefore increased stress on available resourees: (1) in-

creased complexity of criminal defense; (2) striet standard

of performance required for criminal defense; (3) ongoing

movement towards specialization; (4) attorneys entering

governmental service or other areas not involving active

practice of law.

31. Thus, for example, statisties for Cook County, Tlli-

nois, show a 258° increase in the pending inventory of

(Footnote continued on next page)

there is no evidence that the number of attorneys qualified

to provide indigent representation has increased.*?

Respondent submits that this Court may take notice that

there is a finite amount of resources available for allocation.

This principle applies with equal force to Sixth Amend-

ment resources, ic. money available to pay lawyers for

indigent defense. It is further not unrealistic to assume

that many communities are already expending the maxi-

mum amount available on defender services, and also to

note that, especially at present, tax rates are not likely to

(Footnote continued from preceding page)

felony cases from 1972-1976, Administrative Office of the

Illinois Courts, 1976 Annual Report to the Supreme Court

of Illinois 85 (hereinafter cited as 1976 Report to the Ill-

-nois Supreme Court), Comparison of felony cases begun

in 1972 and 1976 shows a 103° increase; a similar com-

parison of misdemeanor cases shows a 23° increase. Id

at 35.

32. Suggestions that use of law students may ease the

burden on defense systems have met with criticism on the

grounds that law students do not meet the threshhold con-

cept of counsel and that they are gencrally located in areas

where there are numerous lawyers. Additionally, as a prac-

tical matter, the number of law students available for de-

fense representation is small and cannot be expected to

significantly supplement the existing defense services.

Krantz, supra at 274-6.

In Illinois, senior law students can obtain temporary li-

censes under Illinois Supreme Court Rule 711, Til. Rev.

Stats., ch. 110A, § 711 (1977). This Rule allows law stu-

dents, with the proper supervision, to participate in in-

ternship programs with legal aid offices, public defender

offices and state or loéal agencies. In 1976 there were 530

law students participating in the program; 85 of these were

associated with public defender offices. 1976 Report to the

IUinois Supreme Court 78-79.

be raised to accommodate increased costs of appointing

counsel. It can therefore be expected that in many juris-

dictions the response to an extension of the right to counsel

would be simply to assign more cases to already over-

whelmed public defenders.

Thus, the alternatives are well delineated. The resources

available can be spent by providing attorneys for all de-

fendants or by defining eligible defendants by an ascertain-

able criterion, such as actual imprisonment. To choose the

former is to elect to provide what will amount to only pro

torma representation for all indigent defendants at the

expense of those who could derive the greatest benefit from

@ vigorous defense. Since such broad allocation of Sixth

Amendment resources will necessarily limit the amount of

assistance available to all, those facing the most severe

consequences—loss of life or liberty—will necessarily bear

the costs of such a choice. Neither these individuals nor

society can afford so steep a price.

Effectuation Of The “Actual Imprisonment” Standard

By Use Of Predictive Pre-Trial Evaluation Comports With

The Requirements Of Due Process.

In Argersinger v. Hamlin, 407 U.S. at 40, 41 this Court

mandated that certain procedures be followed in non-felony

trials if imprisonment was to be imposed as a sanction.

Petitioner contends that this predictive evaluation pro-

cedure is inherently arbitrary, violative of due process and

abrogates the intent of state legislatures to allow a trial

court the full range of sentencing options. (Pet. Br. 31-33).

It is inconceivable that this Court would deliberately

mandate a procedure by which trial courts would consistent-

ly violate the Fourteenth Amendment in reliance upon this

Court’s judgment. In Argersinger, this Court specifically

told the judges throughout the country that

will haa measure of the seriousness and gravity of

the offefRe and therefore know when to name a lawyer

to represent the accused before the trial starts.’? 407

U.S. at 40.

od re rule we announce today, every judge...

Mr. Chief Justice Burger went on to explain that this

measure of gravity would be obtained by a ‘‘predictive

evaluation’’ to determine whether there was a “significant

likelihood” that upon conviction incarceration would be im-

posed. The Chief Justice expressed confidence in the abili-

ties of ‘‘an experienced judge, aided ... by the prosecuting

officer’’ to evaluate cases on a rational basis prior to trial.

407 U.S. at 42.

The feasibility of such “ predictive evaluation” is demon-

strated by the facts of this case. While there was no actual

predictive evaluation in this case, which was tied approxi-

mately six months before Argersinger was decided, it is

clear that any judge, sitting day after day in the misde-

meanor courts of Cook County, with hundreds of shoplift-

ing cases before him weekly, could glance at the complaint

and immediately take cognizance of the following: (1) that

worth of the property allegedly stolen was $13.68; (2) that

the victim was a local dimestore; (3) that the offense was

not charged under the enhancement portion of the theft

statute. Those facts, together with a negative answer from

the prosecutor to the question ‘‘do you intend to ask for jail

time ?’’, are sufficient to enable the ‘“‘experienced’’ trial court

judge to gauge with considerable accuracy the likelihood of

a jail sentence, or more precisely, whether he wishes to pre-

serve the option of imprisonment as a sentence.

This approach has the benefit of personalizing what has

been called the ‘‘classes of offense” method of predictive

evaluation,® 1.e. isolating the classes of misdemeanors for

which jail is almost never imposed from those in which a

jail sentence is a real possibility. Such an approach in this

case, for example, would permit recognition of the fact

that shoplifters are generally punished with token fines

only.** Thus, the frequency of shoplifting cases, Krantz,

supra at 589, combined with the rarity of jail sentence, com-

bine to permit a reasonable determination that the likeli-

hood of jail sentence is virtually non-existent and the ap-

pointment of an attorney unnecessary.

Eliminating one potential sentence, unlikely to be imposed

in any event, neither precludes rational individual sen-

tencing of an individual subsequently convicted nor departs

from traditional sentencing methods. Legislatures establish

sentencing alternatives sv that the trial court judges have

a broad range of choices. This range is exemplified by the

instant charge for which petitioner could have been pun-

ished by as little as a $1.00 fine or up to one year imprison-

ment. The [llinois Appellate Court in its opinion (Pet. for

33. Although some commentators have preferred the

‘*class-of-offense’’ standard to that of a case-by-case in-

dividualized predictive evaluation, see e.g. Junker, supra

at 710; Duke, supra at 612, others have criticized it as usurp-

ing the power of the legislature to fix sentences by deter-

mining that for certain classes of cases an authorized pen-

alty will never be used. Krantz, supra at 90-91.

34. Krantz, supra at 590, n.35, cites M. Cameron, The

Booster and the Snitch 108 (1964) as reporting that the

usual sentence for shoplifters in Chicago Municipal Court

was ‘‘one day considered served, and one dollar considered

payed.”

Cert. 15a) stated that “in its predictive evaluation, the trial

court is actually exercising the full range of its legislatively-

afforded sentencing options by discarding some of those

options in its search for the most appropriate sentencing

alternative.’’ Furthermore, the Illinois Supreme Court re-

viewed the predictive evaluation proceeding in light of the

statutory requirements and found that it satisfied the legis-

lative purpose.

Finally, petitioner urges that he was entitled to an on-

the-record hearing and determination on the question of

whether he was entitled to counsel. Failure to afford him

such a hearing, he claims, was a denial of due process. (Pet.

Br. 59).

Under Argersinger, there was no requirement for such a

hearing; any error made in deciding not to appoint counsel

was self-correcting since lack of counse! precluded a penalty

of imprisonment. Nor does due process require that peti-

tioner be accorded such a hearing, for even under the guide-

lines outlined by Mr. Justice Powell in his concurring opin-

ion, 407 U.S. at 64, petitioner would not have been entitled

to counsel. Neither the complexity of the offense, probable

sentence or any individual factors set forth by petitioner

would result in appointment of counsel in this straightfor-

ward shoplifting case in Which a $50 fine was imposed.

Il.

PETITIONER’S ARGUMENT THAT THERE IS A FOUR.

TEENTH AMENDMENT RIGHT TO COUNSEL

APART FROM THE SIXTH AMENDMENT RIGHT

SHOULD NOT BE CONSIDERED BECAUSE IT HAS

BEEN WAIVED; ALTERNATIVELY, IT SHOULD BE

REJECTED.

This Court Should Not Consider Petitioner’s Claims That

Failure To Appoint Counsel Violated Due Process And

Equal Protection, Or His Contention That He Was Not Af-

forded A Fair Trial Because Petitioner Has Waived Those

Issues.

Petitioner never alleged or argued in the state courts of

review three issues which he now seeks to present for re-

view: that the due process clause of the Fourteenth Amend-

ment requires appointment of counsel (Pet. Br. II, 22-42);

that the Equal Protection Clause of the Fourteenth Amend-

ment requires appointment of counse! (Pet. Br. III, 47-50) ;

that he was denied due process because his trial was unfair

(Pet. Br. V, 60-65). Consequently, neither the Illinois Su-

preme Court nor the Appellate Court of Illinois ruled upon

these claims (Pet. for Cert. la-2la).

In determining Supreme Court jurisdiction over issues

in appeals from state courts, this Court has held that it is

the obligation of each state to prescribe the jurisdiction of

its appellate courts as to local, state and federal issues.

John v. Paullin, 231 U.S. 583, 585 (1913). Illinois has de-

termined that points not argued in an appellant’s brief in

the reviewing court are waived. Illinois Supreme Court

Rules 341(e)(7), 617(j), Ill. Rev. Stats., ch. 110A, § 341(e)

(7), 612(j) (1977). When a litigant has raised an issue for

the first time in this Court despite a state rule providing

that issues not raised in appellant's briefs are waived, this

Court has refused to review the improperly presented claim.

Beck y. Washington, 369 U.S. 541, 549-553 (1962) ; Lawn v.

United States, 355 U.S. 339, 362-3, n.16 (1957)

Additionally, petitioner’s arguments that the due process

and equal protection clause of the Fourteenth Amendment

provide a right to counsel distinct and separate from the

Sixth Amendment right were not raised by him in the Peti-

tion for Writ of Certiorari. In that petition, only two issues

were raised: the application of the Sixth Amendment right

to counsel to defendants charged with offenses punishable

by imprisonment (Pet. for Cert., 9-12) and the validity of

the predictive evaluation technique mandated by Arger-

singer (Pet. for Cert., 12-14). This Court granted certiorari

on a petition which tendered only those questions. Contrary

to the Supreme Court Rules, however, petitioner now at-

tempts to present additional questions for this Court’s con-

sideration. Supreme Court Rule 23(1)(¢c); Supreme Court

Rule 40(1)(d)(2). Respondent submits that the additional

questions presented are not properly before this Court and

should not be considered. Irvine v. California, 347 U.S. 128,

129 (1954); J. I. Case Co. v. Borak, 377 U.S. 426, 428-9

(1963); Neely v. Eby Construction Co., 386 U.S. 317, 330

(1966); Dorszynski v. United States, 418 U.S. 428, 431 n.7

(1974).

Due Process Does Not Require Appointment Of Counsel

For Non-Felony Cases Where No Imprisonment Is Imposed.

The Sixth Amendment enumerates a specific right to

counsel which applies in criminal proceedings. This right is

made applicable to the states through the Fourteenth

Amendment; in that context, due process of law of the

Fourteenth Amendment acts as a conduit for the Sixth

Amendment right to be applied to the states. Petitioner

argues that the Due Process Clause of the Fourteenth

Amendment provides a right to counsel which is distinct

and separate from the Sixth Amendment right. He cites no

authority, however, for this proposition: indeed, there is

no support for it either in the Constitution or in the prece-

dents of this Court. To contend that the right to counsel in

criminal proceedings exists in the Fourtenth Amendment

independently of what is provided in the Sixth Amendment

is to disregard precedent and to make the Constitution re-

dundant. Thus, the question of whether there is a federal

constitutional right to counsel at the state level in non-

felony cases not punished by imprisonment must be evalu-

ated in the context of Sixth Amendment concerns.

The requirements of due process are, of course, applie-

able to both criminal and civil proceedings. In the criminal

context, the question of due process involves determination

of whether fair procedure requires assistance of counsel.

Application of the due process analysis in the criminal con-

text is illustrated by this Court’s decision in Ross v. M offitt,

supra, where the Court examined the state practice of not

appointing counsel for indigents in discretionary appeals

to determine if such procedure was consistent with the re-

quirements of fair procedure guaranteed by the Due

Process Clause. The Court found that counsel was not re-

quired because individuals could obtain a fair discretionary

appeal without an attorney. ,

Similar analysis in the context of trial court proceedings

in non-felony cases shows that individuals ean obtain a fair

trial without an attorney. The simple nature of the issues,

the de minimus nature of the sanctions once imprison-

ment is removed as a possibility, and the relaxing of the

adversarial process combine to permit an individual to

make a defense and obtain a fair hearing without an at-

torney.

The instant case illustrates the reliability and fairness

of a trial without an attorney. This is a simple case, pre-

senting a very simple issue. The trial court was not faced

with complex or difficult issues, but rather with a case in

which the issue was one of credibility of witnesses, The

testimony at the trial required that the judge believe either

that petitioner was apprehended outside the store with a

briefease which he had not paid for (as the store detective

testified) or that petitioner was still in the store looking

for the salesgirl when lie was stopped (as petitioner testi-

fied). Addition of an attorney may have added greater de-

tail to the description of what the store detective observed

(if the attorney had cross-examined the detective) but

basically, there was no complex defense which needed pres-

entation, nor special theory of defense which needed elab-

oration and development. It was a completely straightfor-

ward case to which the addition of a lawyer perhaps may

have added cohesion and eloquence. That there was no

defense lawyer, however, did not detract from the reliability

of the proceedings.

Analysis of the instant facts by application of the stand-

ards set forth by Mr. Justice Powell in Argersinger v.

Hamlin, 407 U.S. 64 confirms the conclusion that due proc-

ess did not require appointment of counsel in this case. Mr.

Justice Powell suggested that relevant factors to be con-

sidered included the complexity of the offense charged, the

probable sentence which will result upon conviction, and

individual factors peculiar to each case, This case was nei-

ther complex, nor was petitioner incompetent to present it.

Petitioner admits both that there was nothing unusually

difficult in this case and that he was not incompetent to

present it (Pet. Br. 64). Nor does the sentence imposed

require a different result: the actual penalty imposed was

a small $50.00 fine which was paid immediately out of peti-

tioner’s bond. No additional factors have been suggested

which would require appointment of counsel in this case.

Indeed, the unfortunate lack of moral condemnation by

society for offenses such as shoplifting supports the con-

clusion that due process did not require that petitioner

have counsel appointed for him for this trial.

Finally, if by analogy this Court wishes to consider the

right to appointed counsel according to the standards of the

civil due process cases, the result of such analysis leads to

the same conclusion. The purpose of the approaches

adopted in the civil due process cases is to insure fairness

in proceedings between the State and individuals. To do

so, the Court has found it necessary to consider and balance

three distinct factors:

‘First, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Gov-

ernment’s interest, including the function involved and

the fiscal administrative burdens that the additional or

substitute procedural requirements would entail.’’

Mathews vy. Eldridge, 424 U.S. 319, 335 (1976).

In applying these factors to the instant case it is clear

that an individual has a significant interest in not being

convicted when he is not guilty. However, the procedures

involved in a criminal trial provide various safeguards:

witnesses must testify against defendant, the defendant is

presumed innocent and must be proven guilty beyond a rea-

sonable doubt. The addition of a lawyer to these safeguards

will not significantly add to the fairness and reliabilty of

the proceedings. (See supra, pp 22-23). In light of the fact

that the probable value of the proposed additional safe-

guard is minimal, while the costs which it would impose on

society and on defendants who are presently entitled to

counsel under the Sixth Amendment are high (see supra,

pp. 25-37), the conclusion is inevitable—whether under the

tests of civil due process or criminal due process-—that ap-

pointment of an attorney was not required in petitioner’s

shoplifting trial and is not required in non-felony trials

which do not lead to imprisonment.

CONCLUSION

For the foregoing reasons respondent respectfully re-

quests that the judgment and opinion of the Supreme Court

of Illinois affirming the conviction of petitioner by the Cir-

cuit Court of Cook County, Illinois be affirmed.

Respectfully submitted,

WituiaM J. Scorr,

Attorney General,

State of Illinois,

Donatp B. Mackay,

Mecsourne A, Noet, Jr,

Gerrt PapusHKEWYCH,

Assistant Attorneys General,

500 South Second Street,

Springfield, Illinois 62706,

(217) 782-1090,

Attorneys for Respondent.

James B. Davinson,

Assistant State's Attorney,

Cook County, Illinois,

Of Counsel.

(& .meth A. Fedinets, law student at DePaul University College of

Law, assisted in preparation of this brief).

APPENDIX A

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