Amicus Curiae Brief — Argersinger v. Hamlin

Jon RICHAKD ARGERSINGER,

BayMonp Haun, Samus, Leow ( |

ve i ie ;

rt

: Sag Pe

eee ii [*

~ Ge, o *

LR ES

ae

eee

ys oe

as

dee

¥

Seetement......--...-..-.-.---.--.---2------e

Summary of Argument____--------.---------_--

Argument:

The Fifth, Sixth and Fourteenth Amendments

Of The United States Constitution Require

That An Indigent Defendant Not Be De-

prived Of Liberty Without Having Been

Afforded Appointed Counsel_______---__-

A. The right to appointed counsel when an

indigent may be sentenced to imprison-

ment for more than six months_______-

B. The right te appointed counsel when an

indigent may be sentenced to imprison-

ment for less than six months________-

C. Formulation of the right_.____-___.______

D. Effect on the Federal system_______-___-

: E. Effect on the states_____.______________

Mupenclusion.___..-...-------------------------

2 CITATIONS

~ Cases:

Atlantic Cleaners & Dyers v. United States,

SO os Bie oe erence ee

~ Baldwin v. New York, 399 U.S. 66___--_____-

4 7, 10, 15, 16,

- Betts v. Brady, 316 U.S. 455__._------_-_- __

Bloom v. Illinois, 391 U.S. 194_______-__- _

Callan v. Wilson, 127 U.S. 540___-- ee

Cheff v. Schnackenberg, 384 U.S. 373_____. .

Cooke v. United States, 267 U.S. 517________-

District of Columbia v. Clawans, 300 U.S. 617_-

457-546—72 1 (T)°

ty

wo m8

Cases—Continued

Page

Douglas v. California, 372 U.S. 353._..__- 17, 18, 33

Duncan v. Louisiana, 391 U.S. 145__-------- 3,

6, 7, 10, 14, 20, 22

Escobedo v. Illinois, 378 U.S. 478_____- er: i

in v6 Goud, G67 US. 1... =.<---- oceews 16, 18

Gideon v. Wainwright, 372 U.S. 335_ 3, 6, 8, 16, 18, 33

Goldberg v. Kelly, 397 U.S. 254__-_-___- 4, 14,18

Griffin v. Illinots, 351 U.S, 12__--__-_---___ 17, 18

In re Groban, 352 U.S. 330___.....---------- 14

Hamilton vy. Alabama, 368 U.S. 52____-___--- ll

Johnson v. Zerbst, 304 U.S. 458__....------ 3, 8, 1

Mayer v. Ci'y of Chicago, Supreme Court No.

70-8040, decided Decemter 13, 1971 ______- 18

Mempa v. Rhay, 389 U.S. 128__-_----------_- 6, 11

Miranda v. Arizona, 384 U.S. 486__________- 11,17

Morris v. Schoonfield, 399 U.S. 508_________- 2,3

In re Oliver, 333 U.S. 257_______-__--_-_-_- 9

Powell\v. Alabama, 287 U.S. 45______- 3, 8, 10, 11, 14

Powell\v. Texas, 392 U.S. 514_____-______-- 12

Shillitani v. United States, 384 U.S. 364_____ 15

Tate v. Short, 401 U.S. 459__._-__--_--__---- 2,3

Thompson v. Louisville, 362 U.S.199________- 12

United \States v. Wade, 388 U.S. 218________- 11, 38

Williams v. Illinois, 399 U.S. 285__________- 2,3

INO OLE ORRS NTCA LEMES NEE MES DEE ANLEL EBL LIONEL SELES EE ALES OLN LES EI LIE SA SOE E REEE LEGION BE LS

Ill

Constitution, statutes and rules—Continued

18 U.S.C.: |

Section 1

2 D.C. Code 2222 (Supp. IV, 1971)_________

22 D.C. Code 1121___-__-__-2_-__-__ ee

25 D.C. Code 128 (Supp. IV, 1971)

40 D.C. Code:

‘Section 104_______-___ ee

Section 301______.________________

Section 605________-_________________.

Section 609____._____-__-__-________ Le.

Fla. Stat., as amended, i969, Laws of

Florida, § 790.01(1)_----__-__-___________-

Mississippi Code of 1942 (as amended):

Section 1202_________________________

Miscellaneous:

Annual Report, 1969, Criminal Court of the

City of New York_______--_____________.

Beaney, The Right to Counsel in American

Courts_____-_--_ 8. taeda 6 oe

Foote, Vagrancy-Type Law and Its Admin-

istration, 104 U. Pa. L. Rev. 603__________

Frankfurter and Corcoran. Petty Federal

Offenses and the Constitutional Guaranty

of Trial by Jury, 39 Harv. L. Rev. 917____

Miscellaneous—Continued ee

Hearings Before the! Subcommittee on Im-

provements in Judicial Machinery of the

Senate Committee on the Judiciary on §.

3475, 89th Cong., 2d Sess., and on 8. 945,

Obie Come. IS Oe... osc 2. yee 25

Hearings on S. 1461, 91st Cong., Ist Sess____-- 26

Junker, The Right to Counsel in Misdemeanor

Cases, 43 Wash. L. Rev. 685 (1968) ------- 16, 30

Minimum Standards for Criminal Justice,

Providing Defense Services, American

Bar Association.__................. 17, 21, 29

Note, Dollars and Sense of an Expanded Right

to Counsel, 55 Iowa L. Rev. 1248--------- 30

Ruud, That Burgeoning Law School En-

rollment, 58 A.B.A.J. 146------------- - i

Rule 3 of the Rules of Procedure for the

Trial of Minor Offenses Before United States

Magistrates, 400 U.S. 1037__------------~ 27,28

The President’s Commission on Law En-

forcement aud Administration of Justice: -

Challenge of Crime, The, in a Free

a | a en 17, 29

Task Force Report: The Courts__----- 30, 31

Task Force Report: Drunkenness-_------ 13

>

<

gn the Supreme Court of the Guited States

OcToBER TERM, 1971

No. 70-5015

JON RICHARD ARGERSINGER, PETITIONER

Vv.

RaYMOND HAMLIN, SHERIFF, Leon County, FLorma

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA

|

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

After hearing argument in this case on December 6,

1971, the Court, on December 20, 1971, ordered re-argu-

ment and invited the Solicitor General to express the

views of the United States. This brief is submitted in

response to that request.

STATEMENT

This case arose out of an original habeas corpus action

filed in the Florida Supreme Court (A. 1)2

- On January 13, 1970, petitioner pleaded guilty to

carrying a concealed weapon—brass knuckles— in vio-

) lation of § 790.01(1), Fla. Stat., as amended, 1969, Laws

of Florida (A. 4-5). That statute provides for punish-

ment by a penalty of imprisonment for not less than

*“A.” refers to the Joint Appendix filed in this Court.

(1)

yee

Sen Ral gtr bias a Ae BT ORS

2

three months nor more than six months or by a fine of

not less than $500 nor exceeding $1,000, or by both fine

and imprisonment (A. 5). Petitioner was sentenced

“to pay a fine of $500, and in default of the payment

of such fine and costs, to be imprisoned in the county

jail [at hard labor] for a period of three months”

(A, 4-5). Six days later, on January 19, 1970, peti-

tioner was ordered committed to the county jail pur-

suant to the judgment (A. 7).

The following day petitioner, acting through an

attorney, filed a habeas corpus action in the Supreme

Court of Florida. He claimed that he was indigent at

the time of his conviction, that he-was unrepresented

by counsel though he had not waived the assistance

of counsel, and that he had a defense to the charges

that he was unable as an indigent layman properly to

raise and present (A. 1-2). Arter releasing petitioner

on hail (A. 4) and hearing argument, the Florida

Supreme Court, on June 3, 1970, discharged the writ

(A. 8-11). Holding that an indigent defendant accused

of a misdemeanor is entitled to court-appointed coun-

sel only when the offense carries a possible penalty of

more than six months’ imprisonment, it ruled that

petitioner was not entitled to relief since the maxi-

mum term of imprisonment provided by the statute

under which he was convicted was six months, and

petitioner was actually sentenced to three months.”

? The decision of the Florida Supreme Court antedated this

Court’s decisions in Williams v. Illinois, 399 U.S. 235, Morrs

v. Schoonfield, 399 U.S. 508, and Zate v. Short, 401 U.S. 399.

No issue was raised below of the power of the state to im-

prison petitioner at h@rd labor for nonpayment of the fine.

The constitutional status of petitioner’s alternative sentence of

3

SUMMARY OF ARGUMENT

Nothing in the language or reasoning of Gideon Vv.

Wainwright, 372 U.S. 3385—which holds that the as-

sistance of counsel is fundamental to a fair criminal

trial and, therefore, that states must afford counsel to

indigents under the Fourteenth Amendment—limits

the scope of that decision to felonies. Since there is

no sound reason for interpreting the Sixth Amend-

ment to be less generous to defendants in granting

assistance of counsel than a jury trial, the right of

indigents to appointed counsel must, after Duncan v.

Louisiana, 391 U.S. 145, and Baldwin v. New York,

399 U.S. 66, extend at least to all cases involving a

possible sentence of imprisonment of more than six

months.

We agree with petitioner that the right to assist-

ance of counsel extends further, to all cases in which

an indigent defendant may be deprived of his liberty.

Since other Sixth Amendment rights, such as the right

of confrontation ond right to a speedy and public

trial, plainly are applicable to offenses not involving

more than six months imprisonment, there is no bar-

rier to such a holding with. respect to appointed coun-

sel, whether the right is derived from the Sixth

Amendment, or the Fifth and Fourteenth Amendment

requirements of ‘‘due process.’’ In earlier decisions

extending the right to counsel, such as Powell v. Ala-

bana, 287 U.S. 45, and Johnson v. Zerbst, 304 U.S.

imprisonment under those decisions is not clearly settled, since

petitioner's term of imprisonment was less than the maximum

that could have been imposed for the offense. Compare Wil-

hams and Tate, with Mr. Justice White’s concurring opinion in

Morris, 399 U.S. at 509.

22 a

PILES ORLY MD,

INNO OLL SAE IIE IID MELTING YY RE AG

4 “

458, the Court has not limited the right to the scope

contemplated by the Framers of the Constitution, but

has looked rather to the fundamental character of the

assistance of counsel to a fair trial. Since there is

little doubt that counsel’s aid n.ay be highly valuable

in respect to petty offenses, and deprivation of liberty,

for whatever length, is regarded by society as a very

serious penalty, indigents who may be subjected to

that penalty should, as a constitutional right, have the

opportunity to be assisted by counsel. Since fines,

however, nave an effect like other exactions and deter-

minations with financial consequences which the state

makes in nonjudicial settings with no right to ap-

pointed counsel, see, e.g. Goldberg v. Kelly, 397 US.

254, 270, and since even those who can afford to do

so commenly do not employ counsel when the only,

likely penalty is a fine, the constitutional right te ap-

poimed counsel should not extend to petty offenses

when only a fine is imposed.

If the right to appointed counsel were formulated in

terms of all offenses for which imprisonment is author-

ized by statute, it would apply in .nany cases where im-

prisonment is not a realistic possibility. A right drawn in

terms of likelihood of imprisonment viewed before the

trial would not protect the defendant who “unexpected-

ly” receives a prison sentence, and would necessitate f-

drawing an arbitrary line distinguishing degrees of

“likelihood.’’ Therefore, the right should be phrased to

be applicable when the actual sentence is one of im-

prisonment, an approach parallel to that taken by

the Court with respect to jury trial in criminal con-,

tempt cases. See, e.g., Bloom v. Illinois, 391 U.S. 194.’

5

If the prosecutor or judge thinks there is any chance

of a sentence of imprisonment, an indigent accused

should be iniormed of his right to appointed counsel

before pleading guilty or being tried.

Although the right to appointed counsel suggested

here would go beyond what is now required under

federal law, counsel is now provided in many petty

offense cases and the applicable statute, 18 U.S.C.

3006A, is framed to accommodate an expanded con-

stitutional right to appointed counsel. We are reason-

ably confident that the federal system could adjust to

this right without great difficulty.

It is more difficult to estimate the likelv effect on

fifty different states. The recommendations of the

American Bar Association and the President’s Com-

mission on Law Enforeement and Administration of

Justice in favor of providing counsel in essentially

the same circumstances urged here suggest that it

could- be practically implemented. The experience of

states that already afford such a right, the simplicity

of the issues in many petty offense cases, the high

rate of guilty pleas, the ability of the states to comply

with other expansions of the right to counsel, and

the burgeoning number of attorneys in the country

all point in the same direction. While we are con-

cerned with the possibility that in some jurisdictions

there may not be sufficient resources allocated to per-

mit representation of the highest quality, we do not

think that is a reason for withholding from indigents

a-valuable right which should otherwise be afforded.

PONIES EOS ELE

Aaa

sepiniod ge

ae a

SRE AR PN

ARGUMENT

THE FIFTH, SIXTH. AND FOURTEENTH AMENDMENTS OF

THE UNITED STATES CONSTITUTION REQUIRE THAT AN

INDIGENT DEFENDANT NOT BE DEPRIVED. OF LIBERTY

WITHOUT HAVING BEEN AFFORDED APPOINTED COUNSEL

In 1963, in Gideon v. Wainwright, 372 U.S. 335,

this Court held that the provision of the Sixth Amend-

ment that in all criminal prosecutions the accused

shall enjoy the right to counsel is fundamental and

essential to a fair trial and is therefore obligatory

on the states under the due process requirement of

the Fourteenth Amendment. In so ruling, this Court

rejected the test adopted in Betts v. Brady, 316 US.

455, 462, under which “an appraisal of the totality of

facts in a given case’? was made to determine if ap-

pointment of counsel was necessary in state cases.

Re

2

3

¥

&

“4

#

x

3

.

2

=

6

2

3

=

¢

3

ies

A. THE RIGHT TO APPOINTED COTNSEL WHEN AN INDIGENT MAY BE

SENTENCED TO IMPRISONMENT FOR MORE THAN SIX MONTIHIS

: Although, in passing, this Court has referred to

¢ Gideon as establishing “an absolute right to appoint-

: ment of counsel in felony cases,” Mempa v. Rhay, 389

U.S. 128 at 134, it has not held that the right does not

extend to other cases. Nothing in the Sixth Amend-

ment nor in the language or reasoning in Gideon

would limit its holding to felonies. The United States

: agrees with both parties in this case that the rule of

‘ Gideon is not limited to felony cases.

This conclusion is a corollary of this Court’s deci-

sion in Duncan v. Louisiana, 391 U.S. 145, that under

the Sixth Amendmeit and Article 3, § 2 of the Con-

; stitution, the rigut to a jury trial for a serious offense,

7

whether categorized as a felony or misdemeanor, is

fundamental and must under the Fourteenth Amend-

ment be granted by the states. Instead of drawing a

line between felonies and misdemeanors, the Court

in Duncan drew one between serious offenses and

petty offenses, indicating that jury trials need not

be provided for the latter. It did not “settle in this

case the exact location of the line between petty of-

fenses and serious crimes’ (id. at 161) *; though as

one stan«!:::d for distinguishing between these kinds of

offenses it mentioned 18 U.S.C. 1, which for federal

jurisdictions defines petty offenses as those punishable

by no more than six months in prison and a $500 fine.

In Baldwin v. New York, 399 U.S. 66, the Court defi-

nitely settled that a person charged with a crime

where the possible penalty exceeds six months has a

right to a trial by jury, even if the crime is a misde-

meanor under state law.

Given the right to a jury trial for all cases involy-

ing a possible sentence of more than six months, the

right to counsel under the Sixth and Fourteenth

Amendments must extend at least to those cases.‘

There is no ‘Sound theoretical reason for interpreting

the Sixth Amendment to be less generous to defend-

ants in granting assistance of counsel than jury trial,

*See generally Frankfurter and Corcoran, Petty Federal

Offenses and the Constitutional Guaranty of Trial by Jury,

39 Harv. L. Rev. 917 (1926).

‘We do not think extended discussion of this point, on which

the parties and the court below agree, is necessary; the discus-

sion in the remainder of the brief, suggesting that the right to

appointed counsel is more extensive than the right to a jury

trial is, of course, also relevant to our position that it is at

least as extensive.

8

particularly in light of this Court’s consistent position

that the right to counsel is fundamental. See, e.9.,

Powell vy. Alabama, 287 U.S. 45; Johnson v. Zerbst,

304 U.S. 458; Gideon v. Wainwright, 372 U.S. 335.

Practically, in light of the complexities of proceed-

ings before a jury, the jury trial right would be of

relatively little value without the guiding hand of

counsel.

B. THE RIGHT TO APPOINTED COUNSEL WHEN AN INDIGENT MAY BE

SENTENCED TO IMPRISONMENT FOR LESS THAN SIX MONTHS

We agree with petitioner, however, that the con-

stitutional right to the assistance of counsel is not

coextensive with the right to a jury trial but reaches

further—to all cases in which an indigent defendant

may be deprived of his liberty. We recognize that this

position is not without some theoretical and practical

difficulties, but we suggest that it represents a sounder

interpretation of the Constitution than any other, and

that it would not impose an unjustified or unmanage-

able burden on the bar or the courts.

Before developing in more detail the reasons that J

underlie this position, we consider and reject certain

arguments that it would be inappropriate for this

Court to hold that the Constitution guarantees a right

to counsel whenever a person may be sentenced to im- §

prisonment. Fiorida argues that since the rights to

counsel and jury trial are both contained in the Sixth [

Amendment and it applies to ‘‘all criminal prosecu-

tions,’? whatever cases are encompassed within the

phrase ‘‘al] criminal prosecutions” must be the same

for the right to counsel as they are for the right to

a jury trial. (Brief for Respondent 12-13). There is

Pye tes. & af ee ie . |

9

much weight in this argument, but in response it may be

said that the position is unduly literalistic and incon-

sistent with existing constitutional law. The constitu-

tional term “criminal prosecutions’? need not have

a fixed and uniform meaning independent of the par-

ticular right asserted (cf. Atlantic Cleaners & Dyers

v. United States, 286 U.S. 427, 433), which necessarily

defines the boundaries of the cases to which a claimed

right applies. In addition to the right to counsel and

the right to jury trial, the Sixth Amendment contains

a number of other rights, such as the right, of con-

frontation and the right to a public and speedy trial.

These are applicable to prosecutions for petty offenses

as well as major offenses. See, ¢.g., District of Colum-

bia v. Clawans, 300 U.S. 617; In re Oliver, 333 U.S.

257. It is perhaps a nice doctrinal question whether

the undoubted applicability of those rights to charges

for petty offenses is a direct consequence of the Sixth

Amendment, in which event ‘‘criminal prosecutions”

would refer to somewhat variant classes of cases de-

pending on the Sixth Amendment right involved, or

whether those rights are applicable to petty offenses

because of the commands of the Fifth and Fourteenth

Amendments that no person be deprived of “life, lib-

erty, or property, without due process of law’’ See

Cooke v. United States, 267 U.S. 517. The essential

point, however, is that the rejection of a Sixth Amend-

ment right to a jury trial for offenses involving a

possibility of imprisonment for less than six months

in no way compels the conclusion that there is no right

on the part of indigents to have appointed counsel in

such cases.

“py AR Ra SDN BIER TR ARRAN AR ana

‘

=

3

*

y,

10

Indeed the opinions in Duncan v. Louisiana, 391

U.S. 145, and Baldwin v. New York, 399 U.S. 66, did

not rest finally on some fixed definition of ‘‘criminal.

prosecutions’? but upon the necessity of aceommodat-

ing the desirability of community participation in de-

terminations of eriminal guilt with the need for effec-

tive judicial administration. In Duncan, the Court

said:

* * * the possible consequences to defendants

from convictions for petty offenses have heen

thought insufficient to outweigh the benefits to

efficient law enforcement and simplified judi-

cial administration resulting from the availabil-

ity of speedy and inexpensive nonjury adjudi-

cations. * * * [3891 U.S. at 161.]

And in Baldwin the Court referred to the Duncan

holding as follows:

Where the accused cannot possibly face more

than six months’ imprisonment, we have held

that * * * disadvantages, onerous though they

may be, may be outweighed by the benefits that

result from speedy and inexpensive nonjury

adjudications. [399 U.S. at 73. ]

The court, in Duncan, did make reference to histor-

ical practice in delimiting the boundaries of the jury

trial right (391 U.S. 151-154) but that was only one ele-

ment of its approach; with respect to the right to coun-

sel, the Court, explicitly or implicitly, has consistently

declined to confine the right to its historical content at

the time of the adoption of the Constitution. The hold-

ing in Powell v. Alabama, 287 U.S. 45, that indigents

in some circumstances are entitled to appointed coun-

sel rests on an assessment of the necessities for a fair

11

hearing, not on a showing that due process was in

1789 understood to include a right to appointed

counsel. In Johnson v. Zerbst, 304 U.S., 458, the

Court established the Sixth Amendment right to ap-

pointed counsel, despite the absence of historical evi-

dence that the Framers intended such a right.’ More

recent decisions such as Hamilton v. Alabama, 368

U.S. 52, H’scobedo v. Illinots, 378 U.S. 478, Miranda v.

Arizona, 384 U.S. 436, United States v. Wade, 388

U.S. 218, and Mempa v. Rhay, 389 U.S. 128, clearly

do not depend on analysis of the historical content of

the right to counsel. It is thus consistent both with the

decisions on jury trial and with the development of

the right of counsel for this Court to determine the

houndaries of the cases to which that right applies on

the basis of a sensitive assessment of the necessary

prerequisites for a fair trial in light of the need for

efficient administration of criminal justice. Under

such an approach, we suggest that the assistance of

counsel must be supplied to indigents who wish it if

they are to be sentenced to imprisonment.

The decisions of this Court establish that the right

to counsel is one of the fundamental elements of a fair

criminal trial. As this Court said many years ago in

Powell v. Alabama, 287 U.S. 45, 68-69:

What, then, does a hearing include? Histor-

ically and in practice, in our own country at least,

it has always included the right to the aid of

counsel when desired and provided by the party

asserting the right. The right to be heard would

*The materials summarized in Beaney, The ight to Counsel

in American Courts, pp. 27-30, suggest rather strongly that a

constitutional right to appointed counsel was not contemplated.

oe

we RNG AN ae cl ena

wc awe

Spit GAS eR gs Mase VE SEERA SRR ARES SE Betntoebe rn 3S

12

be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel,

Even the intelligent and educated layman has

small and sometimes no skill in the science of

law. If charged with crime, he is incapable, gen-

erally, of determining for himself whether the

indictment is good or bad. He is unfamiliar

with the rules of evidence. Left without the aid

f counsel he may be put on trial without a

proper charge, and convicted upon incompetent

evidence, or evidence irrelevant to the issue or

otherwise inadmissible. He lacks both the skill

and knowledge adequately to prepare his defense,

even though he have a perfect one. He requires

the guiding hand of counsel at every step in the

proceedings against him. Without it, though

he be not guilty, he faces the danger of conviction

because he does not know how to establish his

innocence, * * *

While the elements of proof for petty offenses may

often be simpler than those for more serious offenses,

there is little reason to doubt that counsel can be of

great help for those charged with petty offenses. <Al-

though exhaustive statistics have not been compiled,

study suggests that a significantly higher percentage

of defendants with counsel receive favorable disposi-

tions in petty offense cases than those without counsel.

(See App. A to Brief of the Legal Aid Society of

New York). In some instances important and complex

issues of constitutional law are involved in conviction

for petty offenses (see, e.g., Thompson v. Louisville,

362 U.S. 199; Powell v. Texas, 392 U. 8. 514). It may

require special efforts by counsel to raise and pursue

these claims; certainly they would not occur to unin-

spp

13

formed laymen. Even with respect to more routine

cases, counsel may be important to ensure fairness.

The Task Force Report on Drunkenness of the Pres-

ident’s Commission on Law Enforcement and Ad-

ministration of Justice, pp. 3-4, commented that,

“One major reason’’ why “[t]he handling of drunk-

enness cases in court hardly refiects the standards of

fairness that are the basis of our system of criminal

justice’’ “is that counsel is rarely present.’’* Similar

conclusions have been reached about the processing of

vagrancy and loitering charges. See e.g., Foote, Va-

grancy-Type Law And Its Administration, 104 U. Pa.

L. Rev. 603 (1956).

The right to counsel is thus significantly different

from the right to trial by jury. Although the princi-

ple of community participation in determinations of

guilt is important, it is possible to have a fair trial

vefore a judge alone. But a trial, whether before a

judge, or judge and jury, is an adversary proceeding,

and the right to counsel affects what either judge

alone, or judge and jury, will hear. The risk of an

unfair trial in an adversary proceeding where the

defendant by reason of poverty is deprived of counsel

can be as great in a trial before a judge alone as in a

trial before a jury. Moreover, a crucial step in the

criminal process is the decision cf the accused whether

or not to plead guilty, and it is difficult to make an

informed decision without the advice of counsel. As

*In 1965 there were two million arrests for pub'ic 4runken-

hess, one-third of the total arrests (Task Force Report on

Drunkenness, p. 1); although many of those arrested are not

tried or convicted (id. at pp. 2-3), clearly public drunkenness

18 one of the most frequently prosecuted petty offenses.

457-546—72—__-3

ih

Mr. Justice Harlan put it, “The Court has held, prop-

erly I think, that in an adversary process it is a

requisite of fairness, for which there is no adequate

substitute, that a criminal defendant be afforded a

right to counsel * * *’? (Duncan v. Louisiana, 391 US.

145, 187 (dissenting) ).

In Powell v. Alabama, the Court wrote, ‘‘If in any

case, civil or eriminal, a state or federal court were

arbitrarily to refuse to hear a party by counsel, em-

ployed by and appearing for him, it reasonably may

not be doubted that such a refusal would be a denial

of a hearing, and, therefore, of due process in the con-

stitutional sense’? (287 U.S. at 69). With very nar-

row exceptions, including grand jury proceedings and

certain kinds of administrative inquiries (In re Gro-

ban, 352 U.S. 330), the right to appear by counsel of

one’s choice in every kind of legal action is well es-

tablished (see, e.g., Goldberg v. Kelley, 397 U.S. 254,

270-271) and obviously it encompasses petty criminal

prosecutions. We do not suggest that there is a con-

stitutional right to appointed counsel in every instance

in which there is a constitutional right to appear by

counsel of one’s choice. (Even those who can .fford to

do so often do not employ counsel for matters of less

than crucial importance, since they must weigh the

prospective cost of hiring’ counsel against the likely

benefit of his services; it would be an unworkable and

unsound rule to afford indigents free counsel, as a

constitutional right, for every matter with respect to

which a nonindigent might employ counsel at a cost.)

But we do suggest that when something as crucial is

at stake as a deprivation of liberty, pursuant to a

15

criminal conviction, it is unconstitutional to leave 1n-

digents who want the assistance of counsel unaided

by counsel.

As this Court said in Baldwin v. New York, ‘‘the

prospect of imprisonment for however short a time

will seldom be viewed by the accused as a trivial or

‘petty’ matter and may well result in quite serious

repercussions affecting his career and his reputation”’

(399 U.S. 66, 73). The seriousness with which a pen-

alty is regarded may be difficult to establish by simple

empirical data; but we suggest that the Court can ap-

propriately notice that imprisonment of any duration

is generally considered a serious penalty. With the

single exception of civil contempt,’ persons are not

imprisoned unless convicted of criminal acts or held

pending trial for criminal acts. This is one indication

of how gravely imprisonment is regarded by society.

It would be thought extraordinary for so:aeone facing

imprisonment who could afford counsel to decline to

seek counsel’s aid because he considered the penalty

not serious enough to justify the cost. This is another

indication of how the wenalty is viewed and perhaps

one particularly relevant to this case. Imprisonment,

unlike a fine, involves a complete disruption of normal

life, separation from family and friends, absence from

employment and very frequently loss of job.

Even if we considered imprisonment for a few days

to be less grave than this discussion indicates, we

"The person confined civilly, unlike the convicted criminal,

can gain release by performing what the court has ordered, and

thus purging himself of the contempt. He carries “the keys of

[his] prison in [his] own pocket” (Shilittani v. United States,

384 17.S. 364, 368).

ia

bites IRE eee OI ees Se ee

16

would suggest that certainly four or five months im-

prisonment is too severe a penalty to impose on an

indigent who lacks the opportunity to have the assist-

ance of counsel; and if there is to be a constitutional

right to counsel in such cases, we perceive no place

to draw the line short of holding that the right exists

when imprisonment of any length is involved.”

We think the Court may also take notice that most

fines, particularly those typically imposed for petty

offenses, are not regarded as seriously as imprison-

ment by most persons. It is a rare case in which a per-

son with an alternative of a fine or jail sentence will-

ingly chooses imprisonment. In their effect, fines are

not essentially different from other financial execu-

tions imposed on individuals by the state through non-

eriminal processes. When persons charged with petty

offenses do not expect imprisonment, it is not at all

unusual for them to act without counsel, even though

they could comfortably afford to hire counsel. See

Junker, The Right to Counsel in Misdemeanor

Cases, 43 Wash. L. Rev. 685, 7135-714 (1968).

The principle that indigents who face imprisonment

should have a right to the assistance of counsel is

implied not only by the import of Gideon v. Wain-

wright, 372 U.S. 335, and In re Gault, 387 U.S. 1,

which focus on the intrinsic importance of counsel to

a fair trial, but also by cases employing an equal pro-

® The line between more than six months’ and less than six

months’ imprisonment is based largely on history and _ present

practice in most jurisdictions, see, e.¢., Baldwin v. New York,

399 U.S. 66, but that line is inappropriate for the right to

counsel, and t:-ere is no other short of that between different

terms of imprisonment that does not seem arbitrary.

17

tectiG:: aialysis, Which indicate that “[t]here can be no

equal justice where the kind of trial a man gets de-

pends on the amount of money he has.” Griffin v. Llli-

nois, 31 U.S. 12, 19 (plurality opinion of Black, J.).

See Douglas v. California, 372 U.S. 353, and Miranda v.

Arizona, 384 U.S. 436, applying that essential concept

to a right to counsel, Afrording an indigent who faces

imprisonment the opportunity to have counsel has

been. urged by the American Bar Association, in its

Minimum Standards for Criminal Justice, Providing

Defense Services, Section 4.1:

Counsel should be provided in all criminal pro-

ceedings for offenses punishable by loss of lib-

erty, except those types of offenses for which

such punishment is not likely to be imposed,

regardless of their denomination as felonies.

: misdemeanors, or otherwise.

And in slightly different languese the President’s

Commission on Law Enforcement and Administra-

tion of Justice recommended that:

The objective to be met as quickly as possible

is to provide counscl"to every criminal defendant

who faces a significant penalty, if he cannot af-

ford to provide counse] himself. This should ap-

ply to cases cRassified as misdemeanors as well as

those classified as felonies. * * * The immediate

nunimum, until it heeomes possible to provide the

foregoing, is that all defendants who are in

danger of substantial loss of liberty shall be pro-

vided with counsel. [The Challenge of Crime in

A Free Society, p. 150. ]

Such thoughtful conclusions do not, of course, estab-

lish a rule of constitutional law, but they do reflect

oh

SS ee

eg Veoh Si ae

Spey aod 5 +

errr cocoa perc Se Pia at Ma er eee Eee pan eet ete

PAE ENCRET OOE N NE SOM TASTE RTE REID EN LT THY CS NE EEN

ZEAE TERE Re SERA

LUD PPE ORG

witpiaie |

—

Qo

a persuasive assessment of the importance of loss of

liberty and estimation. of the standards for minimal

fairness in the criminal process. They thus lend

strong support to a constitutional principle drawn

from Gideon, Griffin, Douglas and Gault. In Gault,

the Court, considering juvenile delinquency proceed-

ings, formulated a right very close to that suggested

here; holding that juveniles have a constitutional

right to appointed counsel in “proceedings to deter-

mine delinquency which may result in commitment

to an institution in which the juvenile’s freedom is

curtailed.’’ 387 U.S. at 41.

As we have indicated earlier, we do not think that

these cases or the principle urged would require the

government to supply counsel to indigents in every

petty offense proceeding in which a person has a

right to appear by counsel of his choice. Since the

state imposes exactions, and makes other determina-

tions with financial consequences much more sérious’

than the typica! fine for a petty offense, in non judicial |

settings and with no right to appointed counsel (e.g.

Goldberg v. Kelly, 397 U.S. 254, 270), we suggest

that neither the Sixth nor the Fifth Amendment

guarantees indigents a right to counsel for petty

offenses when imprisonment is not imposed.°

°Conceivably there might be extraordinary circumstances in

which the collateral consequences of s conviction not involving

imprisonment were so severe that a right to appointed counsel

might arguably exist either prior to the conviction - itself or

before’ the consequences could attach (cf. Mayer v. City of

Chicago, No. 70-5040, decided December 13, 1971) but that

possibility is not one the Court need consider to decide this

case. .

19

Despite the argument developed thus far, we recog-

nize that a ght to appointed counsel must depend

in part on the possibility that counsel can in fact be

afforded. However appealing, the argument for ¢oun-

sel must be rejected if it is impossible for the courts

and the bar to provide counsel. In a subsequent sec-

tion, we consider in more detail the practical implica-

tions of the position urged here, focusing particularly

on the federal system, but we note at this point that

supplying counsel may well be less complicated and

expensive for society than providing a jury trial and

that the relevant facts in most petty offense cases are

simpler than those in more serious crimes, and ade-

quate representation for the former would ordinar-

ily be less time-consuming than adequate representation

for the latter. Before further discussing the prac-

tical aspects of an expanded right to appointed coun-

sel, we turn to a related and troubling aspect of the

problem, the precise scope of the right urged here.

C. FORMULATION OF THE RIGHT

If legislatures had conveniently provided that less

serious petty offenses could be punished only by fines,

and had reserved imprisonment for those offenses for

which imprisonment is the common penalty, indigents

charged with the latter offenses would have to be

offered counsel. Typically, however, legislattres have

provided the possibility of imprisonment upon con- |

viction of petty offenses for which that penalty is

very rarely imposed. For example, in New York City

in 1969 less than 40 of 1,800,000 persons convicted of

jaywalking, speeding, and certain other traffic viola-

hacia aida rtd Li ecb OR ane Prien et

tions were incarcerated or given a suspended sen-

tence. Criminal Court of the City of New York,

Annual Report of 1969, p. 18, Table 3, line 11.

With respect to the right to a jury trial for crimes

defined by statute, this Court has focused on the maxi-

mum authorized penalty (see e.g., Duncan v. Louisi-

ana, supra); in this area that approach might require

appointment of counsel in a vast number of cases in

which the possibility of imprisonment is exceedingly

remote. As a consequence, a some vhat more flexible

standard is required, one simila. to that govern-

ing jury trial for criminal contempt (e.g., Chef v.

Schnackenberg, 384 U.S. 373; Bloom v. [linois, 391

U.S. 194), that rests on the actual penalty imposed.

The constitutional right we suggest is that no one can

be imprisoned for a petty offense without being in-

formed that he has a right to counsel, which includes a

right to have appointed counsel if he is indigent. Al-

though this Court need not now resolve every conceivable

question raised by this standard, we deem it desirable

to explore tnis and alternative formulations. suff-

ciently to show that it is a viable constitutional

standard and preferable to possible alternatives.

There are three basic alternatives, assuming accept

ance of the underlying principle of a right to appointed

counsel for persons facing imprisonment. One is to re-

quire appointment on behalf of an indigent who wishes

counsel whenever the statute authorizes imprison-

ment. That approach would mean appointment even

for offenses in which imprisonment is not a realistic

possibility and for which most persons who can afford

counsel do not appear by counsel. A second alterna-

21

tive, that chosen by the Ainerican Bar Association,”

is to require appointment in respect to offenses likely

to result in imprisonment. One difficulty with making

the right to counsel turn on the likelihood of impris-

onment, viewed before a plea of guilty or trial, is

that it would. not protect the accused who “unexpect-

edly” receives an infrequently imposed sentence of im-

prisonment. It may be precisely in such situations of de-

fendants singled out for unusually severe penalties

that counsel would have been most useful. In any

event, if it 1s unconstitutional to allow someone to be

imprisoned without counsel when that is “foreseen,”’

it can not be constitutional to allow imprisonment

when it is “‘untoreseen.’’ This difficulty with a “likeli-

hood”’ standard could be rectified by making the right

turn on either “‘likelihood” or actual sentence, but

*In its commentary, Minimum Standards for Criminal

Justice, Providing Defense Services, p. 40, the Bar Association

stated :

As a matter of sound judicial administration it is pref-

erable to disregard the characterization of the offense

as felony, misdemeanor or traffic offense. Nor is it ade-

quate to require the provision of defense services for all

offenses which carry a sentence to jail or prison. Often,

as a practical matter, such sentences are rarely if ever

imposed for certain types of offenses, so that for all

intents and purposes the punishment they carry is at

most a fine. Thus, the standard seeks to distinguish those

classes of cases in which there is real likelihood that

incarceration may follow conviction from those types in

which there is no such likelihood. It should be. noted

that the standard does not recommend a determination of

the need for counsel in terms of the facts of each par-

ticular case; it draws a categorical line at those ty pes

of offenses for which incarceration as a punishment is a

pravtical possibility. Cf. Williams vy. Commonwealth, 216

N.E.2d 779 (Mass. 1966).

ein Sarasa s 4

SE PE OAT RY RS ELI ET RE RY

art

as

zs

x

+

=

pd

4

#

a

3

3

=

¥

e

<

3

ef

4

5]

%

3

B

4

a

;

a

3

‘

4

amore) tebe

there is another less solvable problem. The assumption

of a “likelihood’’ approach is that if imprisonment is

reasonably likely, viewed prospectively, then there is

a right to |appointed counsel for indigents. If that

were the constitutional standard, a failure to appoint

counsel would be unconstitutional even if imprison-

ment were |in fact not imposed. The constitutional

right would rest, then, on the percentage of cases

within the class for which an accused is prosecuted in

which imprisonment results. Although as a matter of

legislation or administration, such an approach may

be sound, we do not understand how this Court

would draw. the line at which the percentage is *‘high

enough”’ for the right to counsel to attach, nor do we

think such a line would have a sound basis in consti-

tutional principle.”

Focus on the actual sentence imposed is similar to

the approach taken for jury trial in eriminal con-

tempt cases and avoids the difficulties of the two al-

ternatives. In a case in which a prosecutor or a judge

believed at the outset there was any likelihood of a

sentence of jmprisonment, the accused would be in-

formed of his right to counsel and to have counsel

appointed if lhe is indigent.” No sentence of imprison-

This would be quite different from a line drawn between

terms of maxinjum authorized penalty, see Duncan v. Louisiana,

supra, and Baldwin v. New York, supra, which derives from

the historical definition and treatment of different classes of

crimes and does not require the Court to draw an essentially

arbitrary math¢matical line.

12 Although guch an approach would give the prosecutor

some power over whether a sentence of imprisonment were

imposed, he already has very great practical power in this re

spect by deciding whether to charge a person and what crime

7

23

ment could be imposed in the absence of such a

warning to an accused,” at least without another

trial."* A state could avoid the complexity of predict-

ing a likely sentence by providing an opportunity for

counsel in all cases where imprisonmert is now au-

trorized, or by redefining petty offenses so that with

to charge, and in recommending a sentence to the judge. either

after a plea bargain or in other circumstances. The effective

setting of a maximum sentence by an initial determination of

what procedure to follow would not be novel since that occurs

in any criminal contempt case tried without a jury.

*In order to avoid a problem of reverse discrimination,

the warning of possible imprisonment presumably would also

have to be given to nonindigents, so that they could make their

decisicr. whether to hire counsel with the same information as

an indigent would have.

“There might be rare cases, presumably among those going

to trial rather than resulting in guilty pleas, in witich the

facts as developed would suggest to the judge the appropriate-

ness of a prison sentence he hed thought not at all likely at

the beginning of trial. Such cases could be reduced to a bare

minimum if all initial doubts in the first instance about likely

sentence were resolved in favor of granting counsel. If a state

wished to provide that a judge could impose imprisonment even

though an opportunity for counsel had not been afforded, that

might be constitutional if the defendant were entitled to a trial

de novo with counsel. Some problems with such a procedure

would be that if the second trial were before the same judge,

he might no longer be openminded about the case; and the

prosecutor might make use of evidence coming out at the first

trial because defendant was uncounseled. But these difficulties

might not render the procedure itself unconstitutional. Such

a procedure probably would not offend the prohibition against

double jeopardy, because the second trial would be held at the

request of a convicted defendant. A very similar procedure

exists in states which provide an initial trial for certain mis-

demeanors before a justice of the peace who may be a layman

and grant a right to trial de novo before a legally trained judge

ina court of record. See, ¢.9., Mississippi Code of 1942, as

amended, $$ 1202, 1617. But cf. Callan v. Wilson, 127 U.S. 540.

Fl

3

4

(

4

4

awe Dae

ba.

es

Sh REE LG EE A ROR EN FARE PSI SS

24

respect to offenses rarely invoi zing imprisonment the

conditions of aggravation 1° which imprisonment

would be appropriate would be legislatively deter-

mined. But even if jurisdictions did not take these

steps, a constitutional rule which turned on the actual

sentence imposed” would be workable. In practical —

effect, it would probably not be very different from

the “likelihood” approach, since the initial determina-

tion by prosecutor snd judge whether imprisonment

might be imposed would typically turn on the usual

treatment of similar offenses, .ut would be constitu-

tionally more sound.

D. FFFECT ON THE FEDERAL SYSTEM

It is impossible to ascertain the precige effect on

the courts and the bar of a rule that an indigent has

a constitutional right to the assistance of counsel be-

fore being sentenced to prison. We are persuaded,

however, that the need for counsel that such a prin-

ciple would entail can be met, and that whatever

burden is likely to be imposed is outweighed by the

reasons that underlie the establishment of the right

to counsel.

We begin with a discussion of the federal system.

Federal courts have three different sorts of juris-

diction cver petty offenses. In areas such as the Dis-

trict of Columbia, where the local law is federal, petty

offenses cover much the same range of behavior as

in most municipalities, including disorderly conduct,

15 An exception might be crimes so serious the maximum at-

thorized penalty was more than six months. Under Baldwin v.

New York, supra, counsel well might be required in such cases

even in the absence of an actual sentence of imprisonment.

25

gambling, prostitution, liquor offenses, violations of

business, health, and building codes, and traffic of-

fenses. See, ¢.g., 40 D.C. Code §§ 104, 301, 605 and

609 (traffic offenses); 22 D. C. Code 1121 (disor-

derly conduct) and 25 D. C. Code 128 (drinking al-

coholic beverages on street). Other federal courts

enforce local state law under the Assimilative Crimes

Statute, 18 U.S.C. 13. Finally there are petty offenses in

the United States Code applicable to the entire coun-

try. These are defined as ‘‘Any misdemeanor, the pen-

alty for which does not exceed imprisonment for a

period of six months or a fine of not more than $500,

or both”’ (18 U.S.C. 1), and include such widely diverse

offenses as temporarily landing in the United States

without proper authorization (8 U.S.C. 1282), shipping

fruits or vegetables in barrels of less than standard

capacity (15 U.S.C. 235), and using the Swiss Confeder-

ation coat of arms for commercial purposes (18 U.S.C.

708)."° Although we believe that the great majority of

petty offenses tried in the federal judicial system are

traffic offenses and park violations, essentially similar to

the kinds of offenses tried by state courts, there are no

accurate statistics on the subject.” Having directed a

**A complete list of petty offenses was compiled by the Ad-

ministrative Office of the United States Courts in 1966 Sce

also Hearings Before the Subcommittee on Improvements in

Judicial Machinery of the Senate Committee on the Judiciary on

8. 8475, 89th Cong., 2d Sess., and on S. 945, 90th Cong., 1st

Sess., pp. 284-305.

“Immigration cases probably constitute less then 5 per cent

of federal petty offenses, but are the largest category of uniquely

national violations. Since imprisonment is much more fre-

quently imposed with respect to these than traffic and park

Violations, they make up a considerably higher proportion of the

_ Offenses for which imprisonment results.

SF QS aie LG aia Aging Cab BS

Pe aaah ale ys tests LF Sorin

%

y

‘=

¢

=

=

2

&

=

&

a

26

study of the operation of the Criminal Justice Act

of 1964, Professor Dallin Oaks informed the Senate

Judiciary Committee in 1969 (Hearings on S. 1461,

91st Cong., 1st Sess., p. 329) :

So far as we are aware, there are no statistics

on the number and type of petty offenses in the

Federal courts. The category unquestionably

includes an assortment of offenses that are

handled on the state level by police or traffic

courts. On the basis of our observation and the

impressions of those with whom we have dis-

cussed the matter, we are of the opinion that

a very high proportion of the petty offenses

being heard in the Federal judicial system,

perhaps as high as 90 percent, are traffic vio-

lations for which the penalty is a fine only. Most

are heard by commissioners. For example, the

U.S. commissioner in San Francisco estimates

that his office has approximately 55 such cases

per weex, almost all relating to offenses com-

mitted at the Presidio or Treasure Island, two

major ni litary installations within his jurisdic-

tion. Sinilarly, District of Columbia traffic

tickets are all processed as petty offenses.

Finally, we have the impression that almost all

defendants throughout the Federal system un-

dergo petty offense proceedings without the

benefit of counsel, and this presumably includes

many defendants who could afford counsel. * * *

Under 18 U.S.C. 3006A, a “person financially un-

able to obtain adequate representation”’ has a right to

appointed counsel compensated by the government for

all felonies and misdemeanors other than petty of-

fenses and for a case in which ‘“‘the Sixth Amend-

ment to the Constitution requires the appointment

27

of counsel or * * * in a case in which [the accused ]

faces loss of liberty, any Federal law requires the

appointment of counsel.’’ The Act, in many respects,

is generous in the representation it directs the courts

to provide, reaching persons charged with violations

of probation or parole or in custody as material wit-

nesses and including not cnly counsel but investiga-

tive, expert and other services necessary to an ade-

quate defense. Although the Act does not require the

provision of compensated counsel for petty offenses,

the open-ended subsection governing cases controlled

by the Sixth Amendment, passed in 1970 (P.L. 91-

447, 84 Stat. 916), reflects congressional awareness

of the possible development of a right to appointed

counsel for those offenses, and is designed to accom-

modate any such development within the statutory

scheme.

Rule 44(a) of the Federal Rules of Criminal Proce-

dure already provides that “[e]very defendant who

is unable to obtain counsel shall be entitled to have

counsel assigned to represent him * * *,’? = As the Ad-

visory Committee Note to the 1966 amendments recog-

nized, this rule is broader than the Statutory rizht to

counsel created by Congress. Since a person accused ofa

petty offense has a right to be tried in the district

court, see Rule 3 of the Rules of Procedure for the

Trial of Minor Offenses Before United States Magis-

trates, 400 U.S. 1037, 1038, he has a right to appointed

counsel if he chooses that course. If he chooses tu be

These rules do not apply to proceedings under 18 U.S.C.

3401, 3402, relating to petty offenses on federal reservations.

Rule 54(b) (4), Fed. R. Crim. P. or to cases tried before

magistrates.

VERT ee Oru +e

28

tried by the magistrate, he has a “right to counsel,”

Rule 3, but no provision is made for appointed coun-

sel. Some of the Federal Public Defender officers now f

assist in a considerable number of petty offense cases; .

they indicate informally that the added burden is not

significant and that in some of the cases, on the basis }

of rather brief contacts, they have given legal assist-

ance of great value. Rule 44 of the Rules of Criminal |

Procedure for the Superior Court of the District of

Columbia, which tries petty offenses there, follows the

federal rule providing for assignment of counsel in all

cases; since the Public Defender can represent only

those punishable by more than six months’ imprison- f

ment, 2 D.C. Code 2222 (Supp. IV, 1971), assignment

in other cases must be of private attorneys.

Given. the extent of the right of appointed counsel

that already exists in the federal system, legislation

which is framed to accommodate a right expanded to

petty offenses, the manageable number of petty offenses

(probably in the range of a few hundred thousand

annually) tried in the federal courts, and the much }

smaller number for which imprisonment is a realistic

possibility, we are reasonably confident that these courts

could adjust to the constitutional principle urged here

without great difficulty.

E. EFFECT ON THE STATES

It is harder to assess with any degree of precision

the impact of that principle on the administration cf

justice in the fifty states, but we think there is a

sound basis for concluding that the burden would

not be insuperable or unjustifiably heavy. Generally

speaking, the provision of counsel to a defendant is

wares

29

not as expensive or as complicated as providing for

a jury trial. The recommendations of the American

Bar Association and the President’s Commission on

Law Enforcement and Administration of Justice,

supra, that counsel be afforded in essentially the

same circumstances as suggested here reflect a judg-

ment by well qualified bodies made up of persons

from all areas of the country and with a wide diver-

sity of experience that counsel can feasibly be pro-

vided in these circumstances; on this score the rec-

ommendations are obviously entitled to considerable

weight. As mentioned earlier, the issues in many

petty offenses are relatively simple: was the accused

publicly drunk? or engaging in prostitution? Counsel

can give possibly valuable advice in such cases and

even conduct a trial in much less time than appro-

priate representation would take for most serious fel-

onies. And we see no reason to think that the advent

of appointed counsel would significantly decrease the

very high percentage of these cases disposed of by

guilty pleas, given the simplicity of the issues and the

continued high rate of guilty pleas for serious of-

fenses in which counsel is now afforded as a matter

of right. And, of course in many cases the right to

counsel will be waived. Although each state differs,

the supposition that states can afford to provide

| counsel in the cases suggested here is strongly

_ Supportec hy the fact that California, New York,

Illinois, Massachusetts, Minnesota, New Hampshire

and Texas already provide a right to appointed coun-

- Sel in all or most cases in which incarceration is a

Tealistic possibility (see Pet. Br. 14, 16, 19, 20, 22,

AR PS WER Weer eerie oo

Eindsh ic tie Se % }

. y 5.3 pita namie Rags

Lg rar nny Osh neg eran I ORES

rede PN Le Bot

tN ee A a Ly Ae Vat et on Ce a Ta Do) aT Ee ae

den would still be significant. However, it is rauch

attorneys, expected to double by 1985, and the 18,000

right to counsel is much less than frequently supposed.

30

25-26; Brief of the Legal Aid Society of New York,

Amicus Curiae, p. 2, note 1; Junker The Right to

Counsel. in Misdemeanor Cases, 43 Wash. L. Rey. |

685, App. 732-734. The ability of the states to meet

the expansions of the constitutional right to appointed

counsel to all felony cases, to pretrial interrogation

and line-up, and to appellate review probably implies

a capacity to adjust to a further expansion of the

right to counsel.

Although we are highly skeptical of the precision of

statistical assessments of the impact of the proposed

constitutional standard, we note that, based on the

analysis of the Task Foree Report on The Courts,

pp. 55-96, of the President’s Crime Commission, of

the time of handling different kinds of cases, it has

been estimated that the representation of all indi- |

gent misdemeanants, not including traffic violators,

would require 1,575 to 2,300 full-time counsel (Note,

Dollars and Sense of an Expanded Right to Counsel,

35 Iowa L. Rev. 1249, 1260-1261 (1970) ). If counsel was

provided only when imprisonment was likely, this

figure obviously wouid be substantially reduced.”

Viewed against the less than 5,000 lawyers in the

country whom it is estimated take criminal cases

more than occasionally (7d. at 1259), this added bur-

less so viewed against the country’s estimated 342,935

Based on care ful statistical analysis of areas where appointed

counsel is afforded in misdemeanor cases, the brief for the National

Legal Aid and Defense Association, Amicus Curiae, pp. 7-16,

persuasively concludes that the burden on the bar of an extended

ERSTE REND WEEP INE IO L LLANE ESLER SAE AEE SIRT, OE SSR, LTTE

| —3y

new admissions to the bar each year. See Ruud, That

Burgeonng Law School Enrollment, 58 A.B.A.J. 146,

147. The problem raised hy providing indigents fac-

ing imprisonment with counsel is not one of some

absolute limit on monetary resources or legal talent

that might preclude fulfiliment of the right—indeed

“the estimated 14,500 average annual openings [fe.

lawyers] are significantly below the estimated new

admissions to the Bar” (id. at 148). The problem,

rather, 1s one involving an allocation of resources

which is solvable if society expends sufficient re-

sources to pay enough members of public defender

or legal aid offices or to reimburse private appointed

counsel, or instead spreads the responsibility of gratis

representation broadly enough among members of

the bar.

This problem raises what perhaps is the most

troublesome practical aspect of extending the right

to appomted counsel to petty offenses. Criminal de-

fense lawyers are already overworked and the quality

of representation is often deficient. The Task Force

Report on The Courts, p. 32, commented:

As_has been noted, in many lower courts

defense counsel are not provided for defendants

without funds. In those places where counsel

are assigned, frequently he is not compensated

sad often his performance is poor. A commu-

nity sets the kind of legal service it pays for,

and typically it pays little or nothing for de-

fense counsel in its lower court.

Attorneys operating regularly in these courts

rareiy appear in other courts. Often they seem

to be more concerned with extracting a fee

from their clients than with defending them.

BR cg By Oe ee. Oe Lan SN

BOP THe Rh EY

3

a

They operate on a mass production basis, rely-

ing on the plea of guilty to dispose of cases

quickly. Frequently these lawyers are unpre-

pared, make little contact with their clients,

fail to investigate their backgrounds, and make

little effort aside from the plea he~rgaining

session to protect their interests or to secure a

favorable disposition.

And where legal aid and public defender offices On-

erate, a heavy caseload strains their ability to provide

representation of the highest quality. It is conceivable

that in some instances an expanded right to counsel

would result in an even greater caseload that would

force at least a temporary dilution in the quality of

representation.

Although it would be unduly sanguine not to view

this prospect with concern, we do not think it militates

against holding that there is a constitutional right to

appointed counsel for indigents who may be impris-

oned. Most fundamentally, since the aid of counsel

is an essential element of a fair criminal trial, it

would be mistaken to reach a constitutional decision

withholding the right to that assistance when it is

feasible for society and the bar to provide it, solely

because in some jurisdictions those responsible are not

willing to allocate the necessary resources to make the

right fully effective. The assumption must be that the

other organs of government will respond to this

Court’s interpretation of what is constitutionally re-

quired, and that they will expend the necessary mini-

mal resources. Whatever burden is imposed may be

ameliorated if states and municipalities carefully

33

consider what offenses, or aggravated forms of

offenses, really merit unprisonment, and draft their

statutes and ordinances accordingly. And it may well

be that the kind of representation required for certain

petty offenses would not necessarily involve members

of the Bar, but might be handled by law students or

other trained personnel.

The problem raised by a decision extending counsel

to petty offenses for which imprisonment may be

imposed raises precisely the same kind of need in

respect to the allocation of legal resources as other

recent decisions expanding the right to counsel, which,

so far as we are aware, have not caused any deteriora-

tion in the quality of representation. The conceivable

possibility of that occurring did not preclude the

Court from making decisions like Gideon v. Wain-

wright, supra, Dougies vy. California, supra, and

United States y. Wade, supra; nor, though on a

national level the magnitude of the effect on the bar

might be greater, do we think that possibility should

preclude the Court from recognizing the right to

counsel for indigents subject to imprisonment.

We recognize that the time spent by appointed

lawyers on most petty offenses may not be very

great; but frequently lawyers by giving advice about

pleading guilty or consulting briefly with the prosecu-

tor may give valuable assistance to an accused, and

they may be in a position to forestall summary con-

viction of those defendants, perhaps comparatively

few, against whom a serious miscarriage of justice

might otherwise result. We are struck by the Task

Foree’s conclusion supra, at p. 32, that even shoddy

Pie. a -

SO Se eee te Eee oe © eee ae

ee ee ee ee

aeSEOEEEEEeeeeeeeeeeEeeEeEeEeEeEeEeEeEeyEyyEEEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeOowrvrreereeeee—eSa>aanananaeEeEeaeEeaeaeaEeEeEeEeaeEeEeEeEeEeEeEaEa9mmeEeEeEaeaeaeaeaeaeaeaaaaa————————eeEe a eas

a,

34

representation is usually better than none at all, and

we trust that most jurisdictions \il work out repre-

sentation much better than that described in the

quoted portion of the Report. In any event, that bet-

ter assistance inight be provided in petty offenses

eases would not be a proper ground for finding indi-

gents not to be entitled to minimal assistance that

would often be of considerable valuable.

In summary, recognizing that there will be trouble-

some pzactical aspects to effectuating the right, we

suggest that the fundamental character of counsel's

assistance for fair criminal trials should lead this

Court to hold that there is a constitutional right to

appointed counsel for indigents who may be sen-.

tenced to imprisonment.

CONCLUSION

For the foregoing reasons, the judgment of. the

Florida Supreme Court. should be reversed.

Respectfully submitted.

Erwin N. GRISWOLD,

Solicitor Generel.

Henry E. PETERSEN,

Assistant Attorney General.

KENT GREENAWALT,

Deputy Solicitor General.

Harry R. SAcuse,

Assistant to the Solicitor General.

BEATRICE ROSENBERG,

SipNEY M. Gazer,

. Attorneys, Department of Justice.

FeEpruary 1972.

U.S GOVERNMENT PRINTING OFFICE: 1°72