Respondents Brief — Alabama v. Shelton

Supreme Court, U.S

> : " FILED

AUG 17 200!

No. 00-1214

In The

Supreme Court of the United States

STATE OF ALABAMA,

Petitioner,

VS. :

LEREED SHELTON,

Respondent.

On Writ Of Certiorari

To The Supreme Court Of Alabama

¢

BRIEF OF RESPONDENT

+

WiiuaM H. Miits

Counsel of Record

Reppen, Miiits & CLARK

940 Regions Bank Building

417 North 20th Street

Birmingham, Alabama 35203

(205) 322-0457

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

Page

Pee Ge GPS R Es 6 0060 cdcedeccedvoccccccoces i

TABLE OF AUTESORITIBG 2. cccccccccccccccvccccces ii

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

SUMMARY OF THE ARGUMENT ................. 1

PEN 66s cd eckcoceccdewésecsdesdeccedesseces 4

ii

TABLE OF AUTHORITIES

Page

Cases

Allgeyer vs. Louisiana, 165 U.S. 578 (1897)........+++. 13

: a vs. Hamlin, 407 U.S. 25 (1972) ....... passim

rf vs. State, 210 Ga. App. 627, 436 S.E.2d 793 a

Bates vs. Little Rock, 361 U.S. 516 (1960)..........++. 13

Berra vs. United States, 221 F.2d 590 (8th Cir. 1955) .... 15

Betts vs. Brady, 316 U.S. 455 (1942).......6.seeees 27, 31

Black vs. Romano, 471 U.S. 606 (1985)..........00005: 23

Board of Regents vs. Roth, 408 U.S. 564 (1972)........ 12

Bolling vs. Sharpe, 347 U.S. 497 (1954) ......-00eeeees 12

Bowers vs. State, 565 So.2d 1203 (Ala. Crim. App.

beh nbechebessecdecrcduccsdcosicccsonccencece 15

Boyd vs. Dutton, 405 U.S. 1 (1972).......sseeeeeeeees 32

Bracy vs. Gramsley, 520 U.S. 899 (1997) ........0.00:. 29

Byrd vs. State, 717 So.2d 874 (Ala. Crim. App.

ERG TOTSTTITT TIT TTTTT TILT 23

Carlton vs. State, 507 So.2d 998 (Ala. Crim. App

BIDE oo vvccccccccccccescvccccccscccccccccccccccece 25

Carnley vs. Cochran, 369 U.S. 506 (1962) ..........+05: 4

Coleman vs. Alabama, 399 U.S. 1 (1970) ........00000: 32

Commonwealth vs. Vincente, 405 Mass. 278, 540

NE.2d 669 (1989).......cccceceeee eee eeeeeeeeenees 25

Consolidated Edison Company vs. Public Service Com-

mission of New York, 447 U. S. 530 (1980)........... 13

iii

TABLE OF AUTHORITIES - Continued

Page

Edwards vs. State, 173 Ga. App. 589, 327 S.E.2d 559

SNe REROSES6bbb06b06ScnC0sécceccedeceecocoece: 14

Elkins vs. United States, 364 U.S. 206 (1960).......... 13

Ex Parte Caffie, 516 So.2d 831 (Ala. 1987)............ 24

Ex Parte Hutchison, 264 Ala. 447, 87 So.2d 847

PPO RGSE SENSES SEGCCRSSeoecdesccceesecccoececeees 6

Frank vs. United States, 395 U.S. 147 (1969).......... 16

Gagnon vs. Scarpelli, 411 U.S. 778 (1973).......... 23, 24

Gibbons vs. State, 775 S.W.2d 790 (Tex. App. 1989) .... 14

Gideon vs. Wainwright, 372 U.S. 335

BEEBPEPPSTTT TTT TTT TT TTT TT TTTee 9, 24, 27, 31, 32

Goolsby vs. State, 283 Ala. 269, 215 So.2d 602 (1968) .... 30

Griffin vs. Wisconsin, 483 U.S. 868 (1987) ......... 13, 15

Hamilton vs. State, 43 Ala. App. 192, 186 So.2d 108

ORC eGSSeGeedeeeseseosbedsnasesdocececcesoses 6

Hoffart vs. State, 686 S.W.2d 259 (Tex. App. 1985) .... 14

Holcomb vs. State, 644 So.2d 46 (Ala. Crim. App.

DP eeeneeeeSebeedesbeeeesedeesedéacecccoceces 24

Hustler Magazine vs. Falwell, 485 U.S. 46 (1988)...... 13

In Re: Griffiths, 413 U.S. 717 (1973)............00005. 13

In Re: Murchison, 349 U.S. 133 (1955)............. 29, 30

Jent vs. State, 495 So.2d 123 (Ala. Crim. App. 1986) ..

Johnson vs. State, 729 So.2d 897 (Ala. Crim. App.

SECS PRS SROs Cebccdeodssecccccecceqcescececcces 24

Katz vs. United States, 389 U.S. 347 (1967) ........... 13

iv

TABLE OF AUTHORITIES - Continued

Page

Kent vs. Dulles, 357 U.S. 116 (1958)........---eeeeee: 12

King vs. State, 574 So.2d 1013 (Ala. Crim. App.

TID)... vccccccccccccccccccccccccccsccccescccecsese 14

Land vs. State, 262 Ga. 898, 426 S.E.2d 370 (1993) .... 14

Lindsay vs. State, 606 So.2d 652 (Fla. App. 1992)..... 16

Lyda vs. State, 428 P.2d 347 (Okla. Crim. App.

BOGP). occccccccescccccscccccccccccceccceseecsecoees 7

Mann- vs. State, 154 Ga. App. 677, 269 S.E.2d 863

(1GBD) oo. cccccceccccccccsccccccccccececccccsescess 15

Mar. vs. State, 507 So.2d 1043 (Ala. Crim. App.

BOB). cccccccccccccccccccssccccccccceccegecessoes 14

Mayer vs. City of Chicago, 404 U.S. 189 (1971)........ 32

McCaskey vs. State, 589 So.2d 790 (Ala. Crim. App.

WDE). ccccccccescccccccccccccecescecccccccccoeess 24

Meyer vs. Nebraska, 260 U.S. 390 (1923)......-.-+++++ 12

Michael H. vs. Gerald D., 491 U.S. 100 (1989) ........ 12

Michigan vs. Harvey, 494 U.S. 344 (1990)...........-- 10

Moore vs. Illinois, 434 U.S. 220 (1977)........+--++++: 32

Morrissey vs. Brewer, 408 U.S. 471 (1972)......-..-- 7, 24

N.A.A.C.P. vs. Alabama, 357 U.S. 449 (1958).......--- 13

Nichols vs. United States, 511 U.S. 738 (1994). .4, 7, 9, 28

People vs. Brockelman, 933 P.2d 1315 (Colo. 1997)..... 14

People vs. DiStefano, 550 N.Y.S.2d 989 (1989)......... 14

People vs. Horton, 628 P.2d 117 (Colo. App. 1980) .... 15

Vv

TABLE OF AUTHORITIES - Continued

Page

People vs. Kimbrell, 291 Ill. App. 3d 605, 684 N.E.2d

SU aie ee Re ee 14

People vs. Mason, 97 Cal. Rptr. 302, 488 P.2d 630

SEPP E owes ebedbnadcecceseuabedeesesebéeeeecssisce 15

People vs. Miller, 256 Cal. Rptr. 587 (Cal. App.

Pe neecedesecdotonscosunecnséuceeseececsccecesse 15

People vs. Mitchell, 178 Cal. Rptr. 188, 125 Cal.

App. 3d 715 (1981)......... . eheeoccecesccceoseces 15

People vs. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d

BD Gee Pe wccvcsccccess ed peeecedecosenaesesedsces 14

People vs. Simmons, 35 Ill. App. 3d 627, 342 N.E.

Bey Geeeeiscesccccedcces ed seeoceseosesese ‘ ee

Persall vs. State, 31 Ala. App. 309, 16 So.2d 332

eee ebSencdandcccudessbecadesenséssivescceseocké 6, 7

Powell vs. Alabama, 287 U.S. 45 (1932)......... 9, 24, 32

Powell vs. State, 485 So.2d 379 (Ala. 1986)........... 24

Roberts vs. United States, 320 U.S. 264 (1943).......... 6

Roe vs. Wade, 410 U.S. 113 (1973) ..............0000. 13

Scott vs. Illinois, 440 U.S. 367 (1979)............. passim

Sherer vs. State, 486 So.2d 1330 (Ala. Crim. App.

See Sdsesentecsécdccsonspanddeccacdiesoessceccees 14

State vs. Adape, 14 Kan. App. 2d 521, 794 P.2d 672

oP Sbadbnnshdnesetanbestocdecedecsdéecccaueccecs 7

State vs. Brown, 165 Vt. 79, 676 A.2d 350 (1996) ...... 8

State vs. Davis, 107 Idaho 215, 687 P.2d 998 (1984) ....

State vs. Fimbres, 108 Ariz. 430, 501 P.2d 14 (1972) ....

vi

TABLE OF AUTHORITIES - Continued

Page

State vs. Janise, 116 Ariz. 557, 570 P.2d 499 (1977)....

State vs. Josephson, 125 Idaho 119, 867 P.2d 993

(1993)... ccccccccccccccccccccccccvesccsesssceescess

(1990)... cccccccccsccccccccccccccccesscescccccens

State vs. Turner, 142 Ariz. 138, 688 P.2d 1030 (1984) ....

State vs. Williamson, 237 So.2d 69 (Fla. App. 1970) ....

Stevenson vs. Holgman, 254 Ore. 94, 458 P.2d 414

(19GB) .. cccccccccccccccsccccccccvcecceesecesccsees

Strickland vs. Washington, 466 U.S. 668 (1984)........

Sutton vs. State, 191 N.E.2d 104 (Ind. 1963)........-.

Thomas vs. State, 508 So.2d 310 (Ala. Crim. App.

BOBT) . .cccccccccccccccccccescccccccvccsvcccesseces

United States vs. Ash, 413 U.S. 300 (1973).........---

United States vs. Bortels, 962 F.2d 558 (6th Cir.

BOGBD. oc cccccccccccccccccccsccdecccccusessevescese

United States vs. Brown, 488 F.2d 94 (5th Cir. 1973) ....

United States vs. Clark, 918 F.2d 843 (9th Cir. 1990) ....

United States vs. Farmer, 512 F.2d 160 (6th Cir.

15

———_—

Vii

TABLE OF AUTHORITIES - Continued

Page

United States vs. Grayson, 438 U.S. 41 (1978)......... 28

United States vs. Johnson, 455 F.2d 932 (5th Cir.

PETS bdanevenshiscosebddedsesoensasussdédcciceses 25

United States vs. Lowe, 654 F.2d 562 (9th Cir. 1981) .... 14

United States vs. Reilley, 948 F.2d 648 (10th Cir.

SED CESSSN cdeeede veces scanscebedvanckocacecets 8, 26

'Inited States vs. Robel, 389 U.S. 258 (1967) .......... 12

United States vs. Tolla, 781 F.2d 29 (2nd Cir. 1986) .... 15

United States vs. Tucker, 404 U.S. 443 (1972) ......... 30

United States vs. Turner, 44 F.3d 900 (10th Cir. 1995) .... 14

United States vs. White, 529 F.2d 1390 (8th Cir.

PMR Ranb eSvecincdensnseddedcddcbisceadsdeceseeses 8

Upchurch vs. State, 289 Minn. 520, 184 N.W.2d 607

PEN Osdoeenasehdondénvcbdantedseedensss siéctcce 15

Washington vs. Gluckenberg, 521 U.S. 702 (1997)...... 12

Washington vs. State, 577 So.2d 473 (Ala. Crim.

SEY MU S0sdScscenewipeddcdesdesneseceséoncnesis 25

Weaver vs. State, 515 So.2d 79 (Ala. Crim. App.

SP NGrESedabntEOSESERL cotetepebsoandsedeseccese 14

Whaley vs. United States, 324 F.2d 356 (9th Cir.

BORD cc ccccces we egteeeeeeeeewessercessesssessceecs 15

Wilcox vs. State, 395 So.2d 1054 (Ala. 1981).......... 20

Wray vs. State, 472 So.2d 1119 (Ala. 1985)............ 6

Zemel vs. Rusk, 381 U.S. 1 (1965).................005 12

viii

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTION |

U.S. Const. Amend. VI .......... see ee eeeeeeees passim

U.S. Const. Amend. XIV........ piciasetoevenibases 1,7

STATUTES AND CODES

18 U.S.C. § 3563(a)(1).. 6. cece cece e cece eee e eee eeeeees 20

18 U.S.C. § 3563(b)(5)...... cece cece cece tence eee eeees 15

18 U.S.C. § 3563(b)(6).. 2... cece cece cece e eee eee nees 14

18 U.S.C. § 3563(b)(10).. 0... cece cece eee eee ee ee eens 15

18 U.S.C. § 3563(b)(13), (14)... 6... cece e eee eee eens 14

18 U.S.C. § 3563(b)(15).. 0... cece eee cece e eee e eens 14

18 U.S.C. § 3563(b)(16), (17)... 2-6 cece cence eee ee eens 15

ALA.CODE § 12-12-3 (1975). ......0ceee eee eeeeeeees 29

ALA.CODE § 12-12-32(a) (1975) ........- see ceeeeeees 29

ALA.CODE § 12-12-70(b) (1975).........++-- Acechene 29

ALA.CODE § 15-22-50 (1975) ........ecscceeeeeeenens 5

ALA.CODE § 15-22-52 (1975) .......0eceeeeeeeeeeees 14

GA. CODE ANN. § 17-10-1(a)(1) (1997) ..........-05: 6

IND. CODE § 35-38-2.6-3 (1976)........2e cc ceeeeeeeee 6

MASS. ANN. LAWS ch. 279 §§ 1, 1A (1991).......... 6

MISS. CODE ANN. § 47-7-33 (1972)......-..+eeeeeee 6

OHIO REV. CODE ANN. § 2929.51 (Baldwin 1953) ..... 6

OKLA. STAT. tit. 22, § 991(a) (1992).........0eeeeenes 6

ix

TABLE OF AUTHORITIES - Continued

TENN. CODE ANN. §§ 40-20-101, 203, 210;

PE NEE oe ondwccccsesseesccnccccescce

RULES AND REGULATIONS

Ala.R.Crim.P. 26.2

Ala.R.Crim.P. 27.2

Ala.R.Crim.P. 27.6(d)(1)

Ala.R.Crim.P. App., Form 99

ALA. CANONS OF JUDICIAL ETHICS 3C(1)(a)

Fed.R.Evid. 1101(d)(3)

OTHER AUTHORITIES

SOURCEBOOK OF CRIMINAL JUSTICE STATIS-

TICS 484, U.S. DEPT. OF JUSTICE (1999)

Bureau of Justice Statistics, U.S. Dept. of Justice,

Press Releases (August 18, 1997, August 16,

1998, August 22, 1999, July 23, 2000)...........

COMPENDIUM OF FEDERAL JUSTICE STATIS-

TICS 81, U.S. DEPT. OF JUSTICE (1997)

SOURCEBOOK OF CRIMINAL JUSTICE STATIS-

TICS 494, U.S. DEPT. OF JUSTICE (1999)

Examining Probationer Recidivism in Michigan,

CORRECTIONS COMPENDIUM (December

Factors samen Fe yey Outcome: A Review of

the Literature, FEDERAL PROBATION 23 (June

1993)

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1303 (1971)

eee eeeeeeeeeeeereeeeeeeeeeeee

—— ee oe -

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his

defense.

The Fourteenth Amendment provides:

. . » No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any siate deprive any person

of life, liberty or property, without due process or law;

nor deny any person within its jurisdiction the equal

protection of the laws.

+

SUMMARY OF THE ARGUMENT

I. Before a defendant can receive a suspended sen-

tence and probation under the law of Alabama and some

other jurisdictions judgment and sentence must first be

imposed. The judgment and sentence remain in effect in

spite of the subsequent suspension of the sentence and

probation. A suspended sentence after conviction is dif-

ferent from, and more onerous than, a pre-trial threat of

imprisonment from a mere accusation before there is a

conviction. Incarceration will follow if probation is

revoked. A convicted defendant who receives a jail sen-

tence which is suspended is sentenced to a term of

imprisonment within the meaning of Scott vs. Illinois.

Consequently, the Sixth Amendment right to counsel

applies.

Il. The Sixth Amendment right to counsel, as

applied in Argersinger vs. Hamlin and Scott vs. Illinois,

operates to prevent a deprivation of a person's liberty by

insuring a fair trial in misdemeanor prosecutions. This

protection applies to all State ordercd deprivations of

liberty. It is not confined to protection against physical

restraint, which is only one form of deprivation of liberty.

The imposition of a suspended sentence and probation

following conviction of a crime, even if only for a misde-

meanor, imposes upon a defendant onerous burdens

which deprive a person of liberty. Restraints on many

recognized liberties, including the rights to free speech,

travel, association, employment of choice, and privacy,

are universally recognized as proper conditions of proba-

tion. Since the sanction of probation is inherently a depri-

vation of liberty, the Sixth Amendment right to counsel

should apply in cases where a defendant's liberty is

deprived by a suspended sentence and probation the

same as it applies where a defendant's liberty is deprived

by a sentence of immediate incarceration.

III. A. misdemeanant who receives a suspended sen-

tence and probation is subject to having the probation

revoked. Revocation of probation can, and usually does,

result in incarceration. A probationer who is revoked and

incarcerated suffers actual imprisonment. If an uncoun-

seled misdemeanant can be sentenced to a suspended

sentence and probation, and then revoked and incarcer-

ated, the result is no different from that of an uncoun-

seled misdemeanant who is convicted and immediately

incarcerated. Both suffer actual imprisonment from an

uncounseled conviction.

A substantial percentage of misdemeanor proba-

tioners are revoked and incarcerated. No rational basis

exists for a distinction in the application of the Sixth

Amendment's right of counsel to misdemeanants who are

immediately incarcerated and those whose incarceration

is delayed by a suspended sentence and probation that is

subsequently revoked. To prevent this disparity in the

benefit of Sixth Amendment rights the same rule with

respect to right of counsel should apply to defendants

convicted of misdemeanors and given suspended sen-

tences and probation as applies to misdemeanants sen-

tenced to immediate terms of incarceration.

IV. Argersinger vs. Hamlin and Scott vs. Illinois

should be overruled to the extent that they do not extend

the Sixth Amendment’s right to counsel to all cases where

a sentence of imprisonment is an authorized penalty. The

effect of these decisions is to require an awkward and

ethically questionable pre-judging by a trial judge of the

factors which determine the degree and nature of the

penalty for a misdemeanor conviction. Such a pre-

judging necessarily detracts from the ability of a trial

judge, who is usually the trier of fact in misdemeanor

cases, to be an impartial trier of facts because making the

assessments required by Argersinger means that the trial

judge must acquire information in advance of trial about

the nature of the defendant’s conduct and the defendant's

past record. Also, the practice of deciding in advance of

trial about the bounds of punishment denies a trial judge

the power to exercise judicial discretion in determining

the degree of punishment appropriate for a particular

offense after hearing the trial evidence regarding that

offense. A more workable and consistent practice, which

would assure that no uncounseled defendants would be

incarcerated, is to require counsel in all cases where a jail

sentence is an authorized penalty.

V. Assuring a fair trial in criminal prosecutions has

a financial cost. To assure that the adversary judicial

system produces a fair result the public must bear that

financial burden. The financial burden of providing coun-

sel in misdemeanor prosecutions where a jail sentence is

an authorized penalty has not proven to be intolerable. A

great majority of the States now provide this service,

which is a fair indication that the remaining States can

also tolerate the additional cost this will entail.

¢

ARGUMENT

Basing their position on Argersinger vs. Hamlin, 407

U.S. 25 (1972), Scott vs. Illinois, 440 U.S. 367 (1979), and

Nichols vs. United States, 511 U.S. 738 (1994), the Petitioner

and Amici aligned with it argue that the right of counsel

guaranteed by the Sixth Amendment? does not apply to a

person convicted of a misdemeanor and sentenced to a

jail term which is subsequently suspended on the condi-

tion of probation. The Respondent submits that this posi-

tion is (1) not supported by the Argersinger, Scott, and

Nichols decisions, (2) will accomplish results that are

1 The right of counsel when refered to in this brief will refer

to the right of every defendant to be informed of this right as

well as the right of indigents to appointed counsel. See Carnley

vs. Cochran, 369 U.S. 506, 516-17 (1962).

inimical to Argersinger and Scott, and (3) is contrary to

principles firmly established by this Court.

I. A SUSPENDED SENTENCE IS.A SENTENCE TO A

TERM OF IMPRISONMENT, NOT MERELY A

THREAT OF IMPRISONMENT, WITHIN THE

MEANING OF SCOTT VS. ILLINOIS.

The argument that a jail sentence for a misdemeanor

which is subsequently suspended on the condition of

probation is merely a threat of imprisonment, and not a

sentence to a term of imprisonment which invokes the

Sixth Amendment right to counsel described in Scott vs.

Illinois and Argersinger vs. Hamlin, is grounded on a

superficial analysis of those decisions which takes a

restricted view of their rationale and stresses a literal

reading of the term “actual imprisonment”. This analysis

also overlooks the procedure by which a defendant

receives a suspended sentence and probation under Ala-

bama law (and the law of other jurisdictions) and over-

looks the full significance of a suspended sentence and

probation following an adjudication of guilt.

Under Alabama law a court, upon a determination of

guilt, must pronounce judgment against and sentence the

defendant. See Ala.R.Crim.P. 26.2. It is only after judg-

ment has been entered and a sentence imposed (which

means a sentence of confinement if that is the sentence

suspended) that a court is authorized to suspend the

sentence and place the defendant on probation. See

ALA.CODE § 15-22-50 (1975); Ala.R.Crim.P. App., Form

99 (“ .. . has been convicted of __ and has been sen-

tenced to __. It is hereby ordered that said sentence is

hereby suspended, and the defendant is placed on proba-

tion... ”.). That was the procedure followed in Peti-

tioner’s case in the Alabama court (App.26). The laws of

other jurisdictions establish similar procedures. See, e.g.,

GA. CODE ANN. § 17-10-1(a)(1) (1997); IND. CODE

§ 35-38-2.6-3 (1976); MASS. ANN. LAWS ch. 279 §§ 1, 1A

(1991); MISS. CODE ANN. § 47-7-33 (1972); OHIO REV.

CODE ANN. § 2929.51 (Baldwin 1953); OKLA. STAT. tit.

22, § 991(a) (1992); TENN. CODE ANN. §§ 40-20-101, 203,

210; § 40-35-303 (1955).

Under Alabama law the suspension of a sentence and

the grant of probation does not operate to alter or set

aside the judgment and sentence. Even with a suspension

of the sentence and a grant of probation the judgment

and sentence remain in full force and effect, and the

defendant receives no credit on the suspended sentence

for time served on probation if probation is revoked. See

Wray vs. State, 472 So.2d 1119, 1121 (Ala. 1985); Ex Parte

Hutchison, 264 Ala. 447, 87 So.2d 847, 850 (1956); Hamilton

vs. State, 43 Ala. App. 192, 186 So.2d 108, 114 (1965);

Persall vs. State, 31 Ala. App. 309, 16 So.2d 332, 334 (1944).

The suspended sentence can be converted into incarcera-

tion by merely revoking probation.

The concept that a sentence though suspended

remains a sentence to imprisonment has been recognized

by a decision of this Court (which was rendered at a time

when federal sentencing procedures were more like the

present Alabama procedure). See Roberts vs. United States,

320 U.S. 264, 266 (1943) (“Neither probation nor suspen-

sion of execution rescinded the judgment sentencing peti-

tioner to imprisonment . . . ”). Other State courts have

made similar pronouncements. See, e.g., Sutton vs. State,

191 N.E.2d 104, 106 (Ind. 1963); State vs. Adape, 14 Kan.

App. 2d 521, 794 P.2d 672, 676 (1990); Lyda vs. State, 428

P.2d 347 (Okla. Crim. App. 1967). The concept under

Alabama law is that a suspended sentence is still a sen-

tence of imprisonment the probationer is merely serving

outside the prison walls. See Persall vs. State, supra. The

same idea was described by this Court in Morrissey vs.

Brewer, 408 U.S. 471, 477 (1972) where parole, a similar

arrangement to probation with a suspended sentence,

was referred to as a “variation on imprisonment.”

Consequently, if we give full meaning to the words of

the penultimate sentence of the majority opinion in the

Scott case, sentencing under Alabama law to a jail term

with a subsequent suspension of the sentence on the

condition of probation is a sentence to a term of

imprisonment.

Petitioner’s argument that the Scott and Nichols cases

make a distinction between incarceration and a mere

“threat of incarceration” fails to appreciate the fact that

the comparison referred to in those cases was in a differ-

ent context. The threa\ of incarceration referred to in Scott

and Nichols is the pre-trial potential of incarceration

allowed by law for the offense charged if the defendant is

convicted. There is a vast difference between the threat of

incarceration facing an accused, who is presumed inno-

cent, and what faces a defendant already convicted and

2”... [The Sixth and Fourteenth Amendments to the

United States Constitution require only that no indigent

criminal defendant be sentenced to a term of imprisonment unless

the State has afforded him the right to assistance of appointed

counsel in his defense.” (Emphasis added).

under a suspended sentence. The “if convicted” condition

has been removed. Only probation revocation (a subject

more fully discussed in Part III =‘ this brief), which is a

thin reed as compared to the “it «o..victed” status, stands

between the defendant and iacarceration. The argument

which seeks to equate the pre-trial threat and the post-

conviction threat of incarceration should be rejected.

Well reasoned decisions of the Sixth Circuit, the

Tenth Circuit, and the Supreme Court of Vermont have

reached the conclusion that a suspended sentence is a

sentence of imprisonment which invokes the right to

counsel. See United States vs. White, 529 F.2d 1390, 1394

(8th Cir. 1976); United States vs. Reilley, 948 F.2d 648, 654

(10th Cir. 1991) (“If a defendant cannot be ordered to

serve a sentence of imprisonment, it seems obvious that a

conditional sentence of imprisonment is equally

invalid”); State vs. Brown, 165 Vt. 79, 676 A.2d 350, 354

(1996). These decisions merit consideration as being

instructive for this case.

The Petitioner’s argument should, for the simple rea-

son that a suspended jail sentence is a sentence to a term

of imprisonment within the meaning of the Argersinger

and Scott decisions, be rejected.

ll. A SUSPENDED SENTENCE AND PROBATION IS

A DEPRIVATION OF LIBERTY WHICH INVOKES

THE CONSTITUTIONAL RIGHT TO COUNSEL.

The Petitioner's argument over emphasizes the sig-

nificance of the term “actual imprisonment” from the

Scott and Argersinger opinions. It projects “actual

imprisonment” as the only sanction with which the Arger-

singer and Scott cases are philosophically concerned in

the context of the constitutional right to counsel. An

argument cast in these terms misses the full meaning of

the Scott and Argersinger decisions.

A. The Argersinger and Scott cases are concerned

with all uncounseled convictions which result

in deprivation of liberty, not solely with those

which result in physical restraint.

The dominating theme and goal of Argersinger and

Scott is protecting against an uncounseled conviction that

leads to a “deprivation of liberty”. This mission is not

limited to merely preventing a deprivation of liberty by

immediate incarceration. Neither the Scott nor Argersinger

(nor Nichols) holds or infers that a suspended jail sen-

tence and probation in a misdemeanor case does not

invoke the right to counsel. It was not, of course, neces-

sary to consider that issue in either case. Argersinger

involved an immediate jail sentence and Scott and Nichols

involved only a fine. Petitioner's argument seeks to

extend Scott (and Argersinger and Nichols) beyond their

peculiar facts without considering the full import of the

constitutional objective those cases sought to accomplish.

Citing principles established by such landmark deci-

sions as Powell vs. Alabama, 287 U.S. 45 (1932) and Gideon

vs. Wainwright, 372 U.S. 335 (1963), both the Argersinger

and the Scott opinions make it clear that the basic func-

tion of the Sixth Amendment's right to counsel is to

guarantee a fair trial in criminal prosecutions in order to

protect the constitutional right of every person to liberty.

10

The thrust of both decisions is that government may not

deprive a person of liberty through the agency of a crimi-

nal conviction, even if the conviction is only of a misde-

meanor, if that person did not have the benefit of counsel

in the guilt adjudication process. See also United States vs.

Ash, 413 U.S. 300, 309 (1973); Michigan vs. Harvey, 494 U.S.

344, 348 (1990); Strickland vs. Washington, 466 U.S. 668,

684-85 (1984).

The Argersinger opinion speaks often of the right to

counsel being related to the circumstance “where an

accused is deprived of his liberty”. 407 U.S. at 32. It

defines the scope of the Court’s consideration in that ones

by excluding cases “where loss of liberty is not involved”.

407 U.S. at 37. The Argersinger opinion quotes approv-

ingly from Stevenson vs. Holgman, 254 Ore. 94, 102, 458

P.2d 414, 418 (1969), which stated: “We hold that no

person may be deprived of his liberty who has been

denied the assistance of counsel .. . ” 407 U.S. 37-38. The

concluding sentence of the Argersinger majority opinion

stresses the deprivation of liberty theme with these

words:

But in those that end up in the actual deprivation

of a person's liberty, the accused will receive the

benefit of ‘the guiding hand of counsel’ so nec-

essary when one’s liberty is in jeopardy. 407 U.S.

at 40. [Emphasis added]

The Scott opinion quotes the last sentence from the

Argersinger opinion set out above. 440 U.S. at 370. The

Scott opinion further emphasizes the concept that the evil

to be avoided is a deprivation of liberty without the

assistance of counsel in a further reference to the Arger-

11

The Court in its opinion repeatedly referred to

trials ‘where an accused is deprived of his lib-

erty,’ id., at 32, and to ‘a case that actually leads

to imprisonment even for a brief period,’ id., at

33.. The Chief Justice in his opinion concurring

in the result also observed that ‘any deprivation

of liberty is a serious matter’ id., at 41.

The Argersinger and the Scott opinions can only be

read as pronouncements on a broader concern than

purely physical restraint by confinement - the concern

that no defendant be deprived of liberty by a criminal

conviction obtained in a proceeding where the defendant

was not afforded the right to counsel. Actual imprison-

ment, or physical restraint, as the prior decisions of this

Court discussed below make clear, is only one form of

deprivation of liberty. Therefore, a core issue of the pre-

sent case is whether a suspended jail sentence and the

imposition of a term of probation is a deprivation of

liberty. If it is, no apparent rationale exists for the consti-

tutional right to counsel to be denied in such cases.

B. A suspended sentence on the condition of pro-

bation is a deprivation of liberty.

To fully appreciate the concept of “deprivation of

liberty” it is instructive to first fully appreciate the con-

cept of “liberty”. Webster defines liberty as “the quality or

state of being free”, “freedom from usually external

restraint or compulsion”, “the power to do as one

pleases”, and “exemption from subjection to will of

another”. WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1303 (1971). Decisions of this Court have

elaborated on the meaning of liberty as guaranteed by the

12

Constitution. In Meyer vs. Nebraska, 260 U.S. 390 (1923)

this Court spoke of liberty in broad terms:

Without doubt, it denotes not merely freedom

from bodily restraint but also the right of the

individual to contract, to engage in any of the

common occupations of life, to acquire useful

knowledge, to marry, establish a home and

bring up children, to worship God according to

the dictates of ones own conscience, and gener-

ally to enjoy those privileges long recognized by

common law as essential to the orderly pursuit

of happiness by free men.

260 U.S. at 399. In Bolling vs. Sharpe, 347 U.S. 497 (1954)

this Court made it clear that liberty:

... is not confined to mere freedom from bodily

restraint. Liberty under the law extends to the

full range of conduct which the individual is

free to pursue...

347 U.S. at 499. The same idea that “liberty” is a broad

right and is not confined to mere freedom from physical

restraint can be found in other decisions. See, e.g., Wash-

ington vs. Gluckenberg, 521 U.S. 702, 719 (1997); Michael H.

vs. Gerald D., 491 U.S) 100, 121 (1989); Board of Regents vs.

Roth, 408 U.S. 564, 572 (1972). When Argersinger and Scott

spoke of “liberty” they undoubtedly were referring to the

same concept as described and defined in these cases.

Decisions of this Court have also been specific in

identifying the components of lib@rty. It has been made

clear that the liberty guaranteed by the Constitution

includes: the right to travel (see Zemel vs. Rusk, 381 U.S. 1,

14 [1965]; Kent vs. Dulles, 357 U.S. 116, 125-26 [1958]), the

right of association (see United States vs. Robel, 389 U.S.

13

258, 262-63 [1967]; Bates vs. Little Rock, 361 U.S. 516, 522

[1960]; N.A.A.C.P. vs. Alabama, 357 U.S. 449, 460 [1958)]),

the right to choose and follow an occupation or profes-

sion (see In Re: Griffiths, 413 U.S. 717, 720 [1973]; Allgeyer

vs. Louisiana, 165 U.S. 578, 589-90 [1897], the right of free

speech (see Hustler Magazine vs. Falwell, 485 U.S. 46, 51

'[1988]; Consolidated Edison Company vs. Public Service Com-

mission of New York, 447 U.S. 530, 534 [1980]), and the

right of privacy and freedom from governmental intru-

sion (see Roe vs. Wade, 410 U.S. 113, 152 [1973]; Katz vs.

United States, 389 U.S. 347, 350 [1967]; Elkins vs. United

States, 364 U.S. 206, 213 [1960]). Any restrictions on the

exercise of any of these rights is obviously a deprivation

of liberty.

A suspended sentence and the imposition of proba-

tion following a conviction unquestionably interferes

with the “full range of conduct which the individual is

free to pursue” and invariably operates to deprive a

probationer of some of “those privileges long recognized

by common law as essential to the orderly pursuit of

happiness by free men.”. This conclusion was pointedly

recognized by this Court in Griffin vs. Wisconsin, 483 U.S.

868, 874 (1987) with the statement that probationers “do

not enjoy ‘the absolute liberty to which every citizen is

entitled’.” This is true from the moment probation is

imposed.

A brief reference to some of the liberty-depriving

consequences of probation that are permitted in the

United States will further illustrate the conclusion that

probation is destructive of liberty. A probationer’s free-

dom of association can be impaired in that a probationer

can be restricted from associating with or even contacting

14

certain persons. See, e.g., 18 U.S.C. § 3563(b)(6); United

States vs. Bortels, 962 F.2d 558, 559-60 (6th Cir. 1992); King

vs. State, 574 So.2d 1013, 1014 (Ala. Crim. App. 1990);

State vs. Nickerson, 164 Ariz. 121, 791 P.2d 647, 649 (1990);

State vs. Davis, 107 Idaho 215, 687 P.2d 998, 1000 (1984);

People vs. Kimbrell, 291 Ill. App. 3d 605, 684 N.E.2d 443,

445 (1997); People vs. DiStefano, 550 N.Y.S.2d 989, 992

(1989). A probationer can be required to remain in a

specified geographical area or to refrain from going into a

specified geographical area, thereby restricting freedom

of travel. See, e.g., 18 U.S.C. § 3563(b)(13), (14); United

States vs. Lowe, 654 F.2d 562, 567 (9th Cir. 1981); King vs.

State, 574 So.2d 1013, 1014 (Ala. Crim. App. 1990); Weaver

vs. State, 515 So.2d 79, 82 (Ala. Crim. App. 1987); Sherer

vs. State, 486 So.2d 1330, 1332-33 (Ala. Crim. App. 1986);

People vs. Brockelman, 933 P.2d 1315, 1319-20 (Colo. 1997);

Edwards vs. State, 173 Ga. App. 589, 327 S.E.2d 559, 561

(1985); People vs. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d

1253, 1256 (1989); Gibbons vs. State, 775 S.W.2d 790, 795

(Tex. App. 1989). Most probationers are required to report

as directed to a probation officer, a requirement that may

affect the right to travel and which certainly affects the

right to be free from external compulsion. See, e.g., 18

U.S.C. § 3563(b)(15); ALA. CODE § 15-22-52 (1975). A

probationer may have restrictions placed on participation

in political activities, which impairs free speech and

expression. See United States vs. Turner, 44 F.3d 900, 903

(10th Cir. 1995); Markley vs. State, 507 So.2d 1043, 1050-52

(Ala. Crim. App. 1987); Land vs. State, 262 Ga. 898, 426

S.E.2d 370, 374 (1993); Hoffart vs. State, 686 S.W.2d 259,

264 (Tex. App. 1985). A probationer does not have the

same right of privacy and freedom from unreasonable

15

searches as other persons. See Griffin vs. Wisconsin, supra

at 874. In some jurisdictions a consent to a warrantless

search is recognized as a proper condition for probation.

See, e.g., United States vs. Gordon, 540 F.2d 452, 453 (9th

Cir. 1976); State vs. Turner, 142 Ariz. 138, 688 P.2d 1030,

1036 (1984); People vs. Mason, 97 Cal. Rptr. 302, 488 P.2d

630, 632 (1971); State vs. Josephson, 125 Idaho 119, 867 P.2d.

993, 996 (1993). In this same vein, the federal probation

statute requires a probationer to permit a probation offi-

cer to visit in the probationer’s home and requires a

probationer to answer any inquiries of a probation officer.

See 18 U.S.C. § 73563(b)(16), (17). A probationer can be

required to submit to a polygraph test. See, e.g., People vs.

Miller, 256 Cal. Rptr. 587, 589 (Cal. App. 1989); Mann vs.

State, 154 Ga. App. 677, 269 S.E.2d 863, 866 (1980). A

probationer can be prohibited from engaging in a certain

occupation or profession. See, e.g., 18 U.S.C. § 3563(b)(5);

United States vs. Brockway, 769 F.2d 263, 265 (5th Cir.

1985); United States vs. Tolla, 781 F.2d 29, 34-35 (2nd Cir.

1986); Berra vs. United States, 221 F.2d 590, 598 (8th Cir.

1955); Whaley vs. United States, 324 F.2d 356, 359 (9th Cir.

7963). Probationers can be required to spend part of their

time in custody. See, e.g., 18 U.S.C. § 3563(b)(10); Bowers

vs. State, 565 So.2d 1203, 1205-06 (Ala. Crim. App. 1990);

People vs. Horton, 628 P.2d 117, 119 (Colo. App. 1980); State

vs. Williamson, 237 So.2d 69, 70 (Fla. App. 1970); People vs.

Simmons, 35 Ill. App. 3d 627, 342 N.E.2d 187, 190 (1976).

Probationers can be restricted in the use or consumption of

alcoholic beverages. See, e.g., Jent vs. State, 495 So.2d 123,

126 (Ala. Crim. App. 1986); State vs. Janise, 116 Ariz. 557,

570 P.2d 499, 502 (1977); People vs. Mitchell, 178 Cal. Rptr.

188, 190, 125 Cal. App. 3d 715 (1981); Upchurch vs. State,

16

289 Minn. 520, 184 N.W.2d 607, 608 (1971). Probationers

can be required to issue public apologies or do other

things that call attention to their violation of the law. See,

e.g., United States vs. Clark, 918 F.2d 843, 848 (9th Cir.

1990); Lindsay vs. State, 606 So.2d 652, 657-58 (Fla. App.

1992); Ballenger vs. State, 210 Ga. App. 627, 436 S.E.2d 793,

794-95 (1993). In Alabama the conditions of probation

may be modified by a court without a hearing and with-

out notice, a seemingly obvious due process denial. See

Ala.R.Crim.P. 27.2; Thomas vs. State, 508 So.2d 310, 313-14

(Ala. Crim. App. 1987). While this list is not intended to

be exhaustive, it serves to illustrate that a sentence of

probation, from the time it is entered,_is inherently a

deprivation of a probationer’s liberty. See Frank vs. United

States, 395 U.S. 147, 154 (1969) (Warren, C.J., dissenting).

Further deprivations of liberty face a probationer

who is accused of violating the terms of probation and

threatened with revocation. These restrictions are more

fully discussed in Part III of this brief.

A decision in this case should be a substantiation of

the teachings of Argersinger and Scott that there can be no

deprivation of liberty by a process that does not meet

constitutional standards. The Argersinger and Scott cases

inculcate that a suspended sentence and probation in a

misdemeanor case, being a deprivation of the defendant's

liberty, is a case that requires a defendant be afforded the

right of counsel. The argument that a defendant in such

circumstances has no right of counsel should be rejected.

17

Ill. A PROBATIONER WHO IS INCARCERATED TO

SERVE A SUSPENDED SENTENCE FOLLOWING

REVOCATION OF PROBATION SUFFERS

ACTUAL IMPRISONMENT.

Even if it be conceded for purposes of argument that

a suspended sentence and probation is not “actual

imprisonment” or a “deprivation of liberty” when

imposed, the Petitioner’s argument for a rule that

excludes misdemeanor defendants who receive such a

penalty from the protection of the Sixth Amendment's

right to counsel ignores the effect of such a rule where

probation is revoked and a probationer incarcerated. The

briefs of Petitioner and Amici aligned with it contain no

reference to this aspect of the present issue. By ignoring

this subject they tacitly argue that it is constitutionally

permissible to incarcerate a revoked probationer even

though no right of counsel was afforded before the proba-

tioner’s guilt was established and a suspended sentence

imposed. Argersinger, Petitioner submits, does not sanc-

tion uncounseled incarceration that is merely delayed.

The fact that a revoked and incarcerated probationer

suffers actual imprisonment is, of course, obvious. The

revoked probationer’s imprisonment is no less “actual”

or “real” than that of the defendant who is sentenced and

immediately incarcerated.

Probation, must, of course, carry with it the authority

of the granting court to revoke and incarcerate. Without

such authority probation would be meaningless and inef-

fective. The reality of probation revocation, and its fairly

high incidence, and the stark truth that for many defen-

dants a suspended sentence and probation is only a way

18

station on the road to incarceration, compels a consider-

ation of whether the rule advocated by the Petitioner can

be squared with the standard of the Scott and Argersinger

decisions — i.e., that no person convicted of a misde-

meanor suffer imprisonment who is not afforded the

right to counsel at trial.

A. Substantial numbers of misdemeanor proba-

tioners are incarcerated following revocation of

probation.

The frequency and volume of incarcerations of mis-

demeanants upon revocation of probation is somewhat

difficult to quantify because of lack of precise statistics.

Available statistics and studies point to the certain con-

clusion that many misdemeanor probationers are revoked

and incarcerated. The fact that many of these incarcerated

probationers had no counsel at trial, especially in those

jurisdictions that follow the rule advocated by the Peti-

tioner, seems reasonably certain.

Statistics published by the United States Department

of Justice show that in 1996-1999 time period the numbers

of adults on probation in the United States were:

1996 — 3,164,996

1997 — 3,296,513

1998 - 3,670,591

1999 — 3,773,624

See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS

484, U.S. DEPT. OF JUSTICE (1999). Press releases issued

19

by the Bureau of Justice Statistics of the Justice Depart-

ment show that in these same years the following per-

centages of those probationers were on probation for

non-felony offenses:

1996 -— 45%

1997 — 46%

1998 -— 43%

1999 — 48%

See Bureau of Justice Statistics, U.S. Dept. of Justice, Press

Releases (August 18, 1997, August 16, 1998, August 22,

1999, July 23, 2000). These same press releases show that

in these years the following numbers of probationers had

their probation terminated for all reasons:

1996 — 1.5 million

1997 — 1.6 million

1998 — 1.5 million

1999 — 1.9 million

Of these terminated probationers the Justice Department

press releases show the following percentages were ter-

minated and reincarcerated for violating the conditions of

probation:

1996 — 18% (or approximately 270,000)

1997 - 17% (or approximately 272,000)

1998 - 18% (or approximately 270,000)

1999 - 14% (or approximately 266,000)

Admittedly, these figures do not show the number or

percentage of re-incarcerated misdemeanor probationers.

However, statistics published by the Department of Jus-

tice for Federal probations for 1997 and 1998 show that

about 30% of Federal misdemeanor probationers who

were terminated in 1997 and about 20% of Federal misde-

meanor probationers who were terminated in 1998 were

20

terminated for violation of probation conditions or new

crimes.? See COMPENDIUM OF FEDERAL JUSTICE

STATISTICS 81, U.S. DEPT. OF JUSTICE (1997); SOURCE-

BOOK OF CRIMINAL JUSTICE STATISTICS 494, U.S.

DEPT. OF JUSTICE (1999). These statistics indicate that

Federal misdemeanor probationers were re-incarcerated

at a higher rate than probationers in general in these

years. Even if the percentage of misdemeanant revoca-

tions for these years were the same as the misdemea-

nants’ percentage of all probationers (i.e., 45%, 46%, 43%

and 48%), the Justice Department figures indicate that for

these four years well over 100,000 misdemeanor proba-

tioners were reincarcerated each year.

Published studies in professional journals indicate

high revocation rates for probationers. A study published

in Corrections Compendium of a survey of probationer

recidivism in 79 counties in Michigan showed 47 percent

of the probationers in that study who left probation had

their probation revoked. See Maxwell, Bingham, Gray,

Combs, Examining Probationer Recidivism in Michigan,

CORRECTIONS COMPENDIUM (December 2000). This

same study reports earlier studies where revocation rates

ranged from 19 percent to 62 percent. A study published

in the June 1993 edition of Federal Probation includes a

review of the literature on the outcome of probation and

concludes that failure rates (which should be a rough

equivalent of revocation and re-incarceration) range from

14 percent to 51 percent. See Morgan, Factors Influencing

3 A new crime, being a violation of law, is a standard

probation violation. See 18 U.S.C. § 3563(a)(1); Wilcox vs. State,

395 So.2d 1054, 1056 (Ala. 1981).

21

Probation Outcome: A Review of the Literature, FEDERAL

PROBATION 23 (June 1993).

While these statistics and studies do not precisely

identify the number or percentage of uncounseled misde-

meanor probationers who are incarcerated upon revoca-

tion of probation, they do illustrate a problem of

considerable magnitude. Obviously, a large number of

probationers are incarcerated because their probation is

revoked. It seems reasonably certain from available statis-

tics that a large number of these revoked probationers are

misdemeanor probationers. Under the rule advocated by

the Petitioner, each of these revoked misdemeanor proba-

tioners could have been constitutionally convicted at a

trial where no counsel was afforded. The incarceration of

even one revoked misdemeanor probationer who was not

afforded counsel at trial is a failure to meet the constitu-

tional standard expressed in Argersinger and Scott that,

absent a knowing and intelligent waiver, “no person may

be imprisoned for any offense . . . unless he was repre-

sented by counsel at his trial”.

B. A suspended sentence and probation present a

“practical possibility” of incarceration.

It is worth noting that the Argersinger opinion, while

not explicitly dealing with the subject of suspended sen-

tences and probation followed by revocation (those were

not the facts of that case), does recognize (seemingly with

approval) a generic event which would include a sus-

pended sentence and probation that is subsequently

revoked as presenting a circumstance where the right of

counsel must be afforded. The opinion quotes at length

22

from the American Bar Association Project on Standards

for Criminal Justice, which somewhat coincides with the

ultimate ruling in Argersinger. Included in the quoted

portions of the Standard is the Standard’s own descrip-

tion of its dividing line between cases which warrant

counsel and cases which do not warrant counsel:

. .. it draws a categorical line at those types of

offenses for which incarceration as a punish-

ment is a practical possibility. (Emphasis added)

407 U.S. at 39.

Incarceration is certainly a “practical possibility”

when there is a suspended jail sentence which can be

made an actual jail sentence upon revocation of proba-

tion. Therefore, the American Bar Association Standard

and the Argersinger opinion appear to recognize that

counsel should be afforded where there is a suspended

sentence which can become, through the “practical possi-

bility” of probation revocation, incarceration.

C. Providing right to counsel will result in no

constitutionally significant disparity between

indigent and non-indigent misdemeanor defen-

dants.

The argument in Amici’s brief that affording counsel

for suspended sentence cases will result in anomalous

treatment of indigent and non-indigent defendants

(Amici brief, p. 22 et seq.) dwells on an irrelevancy and

misses the point of a much more significant anomaly that

results from the position Amici advocate. The perceived

disparity referred to in Amici’s brief between the repre-

sented indigent and the unrepresented non-indigent who

23

chose to waive counsel has no constitutional implications.

It is the result of free choice on the part of the non-

indigent.

The disparity illustrated by the following scenario is

not a result of free choice and does have constitutional

implications: Prisoner A had counsel (either retained or

appointed) at trial and was convicted of a misdemeanor

and sentenced to a jail term and is serving it. Prisoner A’s

incarceration does not violate the Argersinger-Scott princi-

ple. Prisoner A’s cell mate, Prisoner B, an indigent, was

convicted of a similar misdemeanor at a trial with no

counsel and was given a suspended sentence and proba-

tion. Subsequently, Prisoner B’s probation was revoked

and he was incarcerated to serve the previously sus-

pended sentence. Both Prisoner A and Prisoner B are

imprisoned, but Prisoner B’s incarceration violates the

Argersinger-Scott principle that no defendant be incarcer-

ated who did not have the benefit of counsel at trial.

D. The failure to afford the right of counsel at trial

to a convicted misdemeanant cannot be

remedied by providing counsel at a probation

revocation hearing.

The absence of counsel at trial (or plea) for the

revoked probationer cannot be remedied by having coun-

sel at a probation revocation hearing. First, it should be

noted that the assurance of counsel at a probation revoca-

tion hearing is somewhat problematic under the present

state of the law. See Black vs. Romano, 471 U.S. 606, 612

(1985); Gagnon vs. Scarpelli, 411 U.S. 778, 789, 790 (1973);

Byrd vs. State, 717 So.2d 874, 875-76 (Ala. Crim. App.

24

1998). Even if counsel is provided at the revocation hear-

ing, the probationer still has not had the benefit of the

“guiding hand” of counsel at trial for the purpose of

assuring a fair trial before conviction of the offense that

will be the basis for incarceration upon revocation. See

Powell vs. Alabama, 287 U.S. 45, 68-69 (1932); Gideon vs.

Wainwright, 372 U.S. 335, 344 (1963).

A probation revocation hearing cannot, of course, re-

examine the initial adjudication of guilt, which is the only

stage of the proceedings against a defendant where coun-

sel has a constitutional significance (“for his defense”).

Moreover, a probation revocation hearing is not a crimi-

nal trial where the safeguards a defendant has in a crimi-

nal trial are available to protect against unwarranted

revocation and incarceration. See Morrissey vs. Brewer, 405

U.S. 471, 480, 483 (1972); McCaskey vs. State, 589 So.2d

790, 791 (Ala. Crim. App. 1991). At probation revocation

hearings the burden of proof standard is the reasonable

satisfaction standard, not the beyond reasonable doubt

standard. See Powell vs. State, 485 So.2d 379, 380 (Ala.

1986); see also, Gagnon vs. Scarpelli, supra, and Morrissey

vs. Brewer, supra. The rules of evidence do not generally

apply at probation revocation hearings and hearsay and

other normally inadmissible evidence can be received.

See Fed.R.Evid. 1101(d)(3); Ala.R.Crim.P. 27.6(d)(1); John-

son vs. State, 729 So.2d 897, 899 (Ala. Crim. App. 1997). At

a probation revocation hearing illegally seized evidence

may be admissible. See United States vs. Brown, 488 F.2d

94, 95 (5th Cir. 1973); United States vs. Farmer, 512 F.2d

160, 162 (6th Cir. 1975); Ex Parte Caffie, 516 So.2d 831, 833

(Ala. 1987); Holcomb vs. State, 644 So.2d 46, 47-48 (Ala.

Crim. App. 1994). A probationer may be revoked for

25

committing another offense even though no conviction of

the other offense has been obtained through the normal

criminal trial process. See Washington vs. State, 577 So.2d

473, 474 (Ala. Crim. App. 1990); Carlton vs. State, 507

So.2d 998, 1002 (Ala. Crim. App. 1986). Evidence of state-

ments by probationers made in violation of the Miranda

rule have been held admissible in probation revocation

hearings. See United States vs. Johnson, 455 F.2d 932, 933

(5th Cir. 1972); Thompson vs. State, 356 So.2d 757, 761 (Ala.

Crim. App. 1978); State vs. Fimbres, 108 Ariz. 430, 501 P.2d

14, 16 (1972); Commonwealth vs. Vincente, 405 Mass. 278,

540 N.E.2d 669, 671 (1989).

Given these “weaknesses” of a probationer’s position

at a revocation hearing, which enhance the “practical

possibility” of incarceration (see Argersinger, at 404 U.S.

at 39), having counsel at a revocation hearing cannot be

the equivalent of, or compensate for the lack of, counsel

at trial where guilt was determined and where the “guid-

ing hand”, had it been available, may have avoided the

conviction and/or suspended sentence which now man-

dates incarceration.

E. A pre-trial determination by a trial judge that

no suspended sentence will be imposed as the

penalty for a misdemeanor conviction can be

made with the same facility that a determina-

tion can be made that no jail sentence will be

imposed.

The Argersinger decision requires a judge trying a

misdemeanor case where incarceration is an authorized

penalty to engage in a pre-judging of the case because the

judge must decide in advance of trial that no jail sentence

26

will be imposed if the right to counsel is not afforded. See

407 U.S. at 40. This process is somewhat of a venture into

judicial clairvoyance because the judge must determine

the appropriate penalty (or, at least, its upper limits)

before trial. If the rule advocated by the Petitioner is

adopted and judges in misdemeanor cases are permitted

to sentence uncounseled defendants to suspended sen-

tences and probation even greater clairvoyance will be

required. To assure that Argersinger’s requirements that

no uncounseled defendant can be incarcerated is com-

plied with the judge, it seems, will be required to know in

advance of trial that an uncounseled defendant who

receives a suspended sentence and probation will be able

to successfully complete probation without revocation

and incarceration. Otherwise, a suspended sentence and

probation are mere hollow gestures that can never be

enforced. See United States vs. Reilley, 948 F.2d 648, 654

(10th Cir. 1991). Such a rule thrusts upon a judge the task

of precisely predicting the future. This is an impossible

task, but a necessary one under the rule advocated by

Petitioner if probation is to continue as a meaningful

sanction in misdemeanor cases and uncounseled misde-

meanor probationers are not to be incarcerated.

Requiring such an impossible determination or use-

less gesture seems grossly inappropriate as a step in

applying a standard for guaranteeing the constitutional

right to counsel and a fair trial and preventing uncon-

stitutional deprivations of liberty. If a judge can, and is

required to, make a pre-trial determination regarding

incarceration as an appropriate penalty for a particular

charged offense, and to afford counsel on the basis of that

determination, as Argersinger now requires, there is no

27

reason the judge cannot extend that pre-trial determina-

tion and decide before trial whether a suspended sen-

tence and probation (and possible deferred incarceration)

is an appropriate penalty and afford counsel based on

that determination.

IV. ARGERSINGER VS. HAMLIN AND SCOTT VS.

ILLINOIS SHOULD BE OVERRULED TO THE

EXTENT THAT THEY DENY APPLICATION OF

THE SIXTH AMENDMENT RIGHT TO COUNSEL

TO MISDEMEANOR CASES WHERE IMPRISON-

MENT IS AN AUTHORIZED PENALTY.

In Gideon vs. Wainwright, 372 U.S. 335, 345 (1963) the

Court recognized as unsound and reversed its earlier

decision in Betts vs. Brady, 316 U.S. 455 (1942), which

established the rule that whether a defendant has a right

to counsel under the Sixth Amendment depends on a

case-by-case analysis. 372 U.S. at 345. Argersinger and

Scott effectively establish a case-by-case analysis rule for

misdemeanor cases. They impose on a trial judge the

responsibility in each misdemeanor case to determine

whether the Sixth Amendment applies. And, most signifi-

cantly, they require an analysis that easily can jeopardize

the ability of a trial judge to fulfill the venerable role of a

jurist in an independent and ordered judicial system. This

hazard arises from Argersinger’s direction to trial judges

that they know in advance of trial whether a particular

prosecution will merit imprisonment as a penalty and,

armed with that knowledge, decide in advance of trial

whether there is a right to counsel in the particular case.

See 407 U.S. at 40. This, Petitioner submits, is a serious

28

flaw in the Argersinger and Scott decisions that, for the

reasons discussed below, should be corrected.

The Argersinger opinion does not explain the process

by which a trial judge is to obtain the information

required to “have a measure of the seriousness and grav-

ity of the offense” and “know when to name a lawyer”

for a particular defendant in a particular case. If it is not

to be made by whim, a correct determination about the

appropriate penalty for a particular defendant in a partic-

ular case it seems would require the same kinds of infor-

mation a judge would consider in sentencing after

conviction. It is generally recognized that for purposes of

sentencing judges have a right to, and must, acquire

information from a multitude of sources (and are not

restricted to legal evidence) in order to decide on an

appropriate penalty. See, e.g., Nichols vs. United States, 511

U.S. 738, 747 (1994); United States vs. Grayson, 438 U.S. 41,

50 (1978). This would include such in‘ ormation as the

nature of the defendant’s conduct, the harm resulting

from the defendant’s conduct, the defendant’s back-

ground and record, and the type of sanction best suited to

promote deterrence as to the public and rehabilation as to

the defendant.

Such information could be acquired by a trial judge

in a number of ways, but there appear to be two general

methods. One method would be by conducting an open,

adversarial judicial hearing where evidence is presented

under oath and the defendant is allowed to participate.

Such a procedure, while assuring fairness and due pro-

cess, hardly seems feasible. It could expend large

amounts of judicial time and resources in an effort that

has a limited purpose, or possibly no purpose. Such

29

information could be acquired by the judge from a pri-

vate source. The most likely private source would be the

prosecuting attorney or a law enforcement officer. Any

private source (particularly the ones mentioned), it

seems, presents insurmountable due process problems.

Consequently, the Argersinger requirement leaves a trial

judge on the horns of a dilemma as to how to properly

carry it out.

Misdemeanor cases are typically tried without a jury.

The judge is the trier of facts. In Alabama, for instance, all

misdemeanor prosecutions not initiated by indictment

and all prosecutions of municipal ordinance violations

are tried before only a judge (although there is a right of

appeal and trial de novo be* re a jury). See ALA. CODE

§§ 12-12-3, 12-12-32(a), 12-12-70(b) (1975). Due process

requires a fair trial in a fair tribunal. Bracy vs. Gramsley,

520 U.S. 899, 904 (1997). A fair tribunal is unlikely to exist

where the judge and trier of fact is supplied unsworn

information which is not tested by cross examination

about the offense to be tried and about the defendant to

be tried before the trial actually begins. See In Re: Mur-

chison, 349 U.S. 133, 136-38 (1955). Moreover, the posses-

sion of such information might render a judge subject to

disqualification under the Canons of Judicial Ethics as

having personal knowledge of disputed evidentiary facts.

See, e.g., ALA. CANONS OF JUDICIAL ETHICS 3C(1)(a).

The pre-trial determination a trial judge is required

by Argersinger to make is antithetical to the role of the

trial judge as an impartial trier of facts. This is true

whether counsel is appointed or not appointed. The con-

duct of the defendant which is the basis of the charge, the

defendant’s background (including any criminal record),

30

and the harm done to any victim are obviously necessary

considerations in making the required assessment about

an appropriate penalty. Some of this information, partic-

ularly a defendant's record, would not likely be admissi-

ble evidence at trial. To be an impartial trier of facts it is

obviously inappropriate that the judge, in advance of trial

and before hearing the trial evidence and making a deter-

mination of guilt or innocence, have information, some of

which may be highly prejudicial to the defendant (or the

prosecution) and which, as a practical matter, it would be

difficult or impossible for the judge to disregard in decid-

ing guilt or innocence. See In Re: Murchison, supra. A

judge who is informed of such matters in advance of trial

cannot serve as an impartial trier of fact.

Further, making a pre-trial determination about the

bounds of punishment for a particular case undermines

the traditional judicial role in sentencing a defendant in

the event of a conviction. Traditionally, judges exercise

great discretion in determining the appropriate penalty

for a particular offense and a particular defendant after

hearing the trial evidence. See, e.g., United States vs.

Tucker, 404 U.S. 443, 446 (1972); Goolsby vs. State, 283 Ala.

269, 270, 215 So.2d 602 (1968). If a sentencing judge has,

in obedience to the requirements of Argersinger, made a

determination in advance that no sentence of imprison-

ment will be imposed in a particular case the judge is,

after conviction, powerless to impose imprisonment. This

is true even if the facts developed at trial or by informa-

tion secured in an orderly and proper way following

conviction pursuant to a sentencing judge’s inherent

right, which were not known pre-trial, show the defen-

dant’s conduct or record was extremely egregious and

31

imprisonment is manifestly warranted for the particular

defendant and the particular offense. Providing counsel

for all offenses where incarceration is an authorized pen-

alty will eliminate this derogation of inherent judicial

power.

The Court should recognize these flaws in the Arger-

singer and Scott decisions, just as the Court in Gideon vs.

Wainwright recognized the flaw in Betts vs. Brady. These

flaws should be removed by overruling these decisions to

the extent they infringe upon the proper and traditional

role of a trial judge and by replacing them with a rule

that is more philosophically consistent and more work-

able in practice. The obvious replacement, it seems, to the

practice mandated by Argersinger is the rule rejected by

the Argersinger and Scott decisions - that the right of

counsel applies in all cases where imprisonment is an

authorized penalty. Many states now follow this practice

(See App. To Amici brief, pp. 1a-8a). This fact is an

indication that experience has shown it to be a fairer »nd

more workable arrangement.

V. A STRAIN ON PUBLIC RESOURCES DOES NOT

JUSTIFY UNCOUNSELED MISDEMEANOR TRI-

ALS WHICH RESULT IN DEPRIVATION OF LIB-

ERTY.

The argument in the briefs of Petitioner and Amici

that affording the right of counsel to misdemeanor defen-

dants who receive suspended sentences should be denied

because it will severely tax public resources is wrong in

theory and on principle and unsupported factually.

32

The contention that assuring constitutional rights

will impose a burden upon the public treasury is not a

novel argument. It no doubt was raised in Powell vs.

Alabama, 287 U.S. 45 (1932); Gideon vs. Wainwright, 372

U.S. 335 (1963); Coleman vs. Alabama, 399 U.S. 1 (1970);

Boyd vs. Dutton, 405 U.S. 1 (1972); Argersinger vs. Hamlin,

407 U.S. 25 (1972); and Moore vs. Illinois, 434 U.S. 220

(1977). Obviously, the implementation of the decision in

each of those cases has required the expenditure of addi-

tional public funds. As this Court pointed out in Mayer

vs. City of Chicago, 404 U.S. 189, 197-98 (1971), a “State’s

fiscal interest is . . . irrelevant” where the denial of the

constitutional rights of due process and equal protection

are concerned. Constitutional rights cannot be sacrificed

to the contention that they are expensive.

On the factual side, neither Petitioner nor Amici have

undertaken to quantify what is described as a financial

burden. Apparently affording counsel in cases such as the

present case has not been financially unbearable in those

jurisdictions which now do so. From the appendix to the

brief of Amici it appears that probably half of the States

would definitely have afforded counsel for a defendant in

a case like the present case (where a jail sentence was

authorized) and a large number of others would probably

have done so (depending on the meaning of such phrases

as “incarceration is likely”, conviction is a “practical pos-

sibility”, where the accused person may be “deprived of

liberty”, etc.). The concurring opinion of Justice Powell in

Scott vs. Illinois pointed out that at the time that case was

decided the law in at least 33 states (and possibly as

many as 40) would have required counsel be afforded to a

33

defendant faced with a charge like the Respondent faced

in this case. 440 U.S. at 388.

The argument that cost and convenience trump rights

guaranteed by the Constitution should never be adopted

as the law. That is essentially the argument the Petitioner

and Amici are making. That argument, especially where

not articulated quantatively, should be rejected as a rea-

son for not affording the right of counsel in suspended

sentence cases.

¢

CONCLUSION

Respondent prays that the petition be denied and

that the judgment of the Supreme Court of Alabama be

affirmed.

Respectfully submitted,

WituuaM H. Mis

Reppen, Mrits & CLARK

940 Regions Bank Building

417 North 20th Street

Birmingham, Alabama 35203

(205) 322-0457

Attorney for Respondent