Opinion — Argersinger v. Hamlin

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SUPREME COURT OF THE UNITED STATES

Syllabus

ARGERSINGER v. HAMLIN, SHERIFF

CERTIORARI TO THE SUPREME COURT OF FLORID.

No. 70-5015. Argued December 6, 1971—Reargued February 22,

1972—Decided June 12, 1972

The right of an‘indigent defendant in a criminal trial to the assist-

ance of counsel, which is guaranteed by the Sixth Amendment as

made applicable to the States by the Fourteenth. Gideon v. Wain-

wright, 372 U.S. 335, is not governed by the classification of the

offense or by whether or not a jury trial is required. No accused

may be deprived of his liberty as the result of any criminal prose-

cution, whether felony or misdemeanor, in which he was denied

the assistance of counsel. In this case, the Supreme Court of

Florida erred in holding that petitioner, an indigent who was tried

for an offense punishable by imprisonment up to six months, a

$1,000 fine, or both, and given a 90-day jail sentence, had no right

to court-appointed counsel, on the ground that the right extends

only to trials “for nonpetty offenses punishable by more than six

months imprisonment.” Pp. 2-14.

236 So. 2d 442, reversed.

Dovetas, J., delivered the opinion of the Court, in which Bren-

NAN, Stewart, Wuirr, MaRSHALL, and Buackmun, JJ., joined.

BRENNAN, J., filed a concurring opinion, in which Dovaias and

Stewart, JJ., joined, Burcerr, C. J., filed an opinion concurring in

the result. Powerwt, J ., filed an opinion concurring in the result, in

which ReEHNQUuist, J., joined.

NOTICE : This opinion is subject to formal revision before publication

in the prelimirary print of the United States Reports. Readers are re-

uested to notify the Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 205438, of one Sa hical or other

formal errors, in order that corrections may made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 70-5015

Jon Richard Argersinger, |

Petitioner,

v.

Raymond Hamlin, Sheriff,

Leon County, Florida. |

On Writ of Certiorari to the

Supreme Court of Florida.

[June 12, 1972]

Mr. Justice Dova.as delivered the opinion of the

Court.

Petitioner, an indigent, was charged in Florida with

carrying a concealed weapon, an offense punishable by

imprisonment up to six months and a $1,000 fine. The

trial was to a judge and petitioner was unrepresented by

counsel. He was sentenced to serve 90 days in jail and

brought this habeas corpus action in the Florida Supreme

Court, alleging that, being deprived of his right to counsel,

he was unable as an indigent layman properly to raise and

present to the trial court good and sufficient defenses to

the charges for which he stands convicted. The Florida

Supreme Court by a four-to-three decision, in ruling on

the right to counsel, followed the line we marked out in

Duncan v. Louisiana, 391 U. S. 145, 159, as respects the

rignt to trial by jury and held that the right to court-

appointed counsel extends only to trials “for nonpetty

ment.” 236 So. 2d 442, —.*

For a survey of the opinions of judges, prosecutors, and defenders

concerning the right to counsel of persons charged with misde-

offenses punishable by more than six months imprison-

ARGERSINGER v. HAMLIN

The case is here on a petition for certiorari which

we granted. 404 U.S. ——. We reverse.

The Sixth Amendment, which in enumerated situations

has been made applicable to the States by reason of the

Fourteenth Amendment (see Duncan v. Louisiana, supra;

Washington v. Texas, 388 U. S. 14; Klopfer v. North

Carolina, 386 U.S. 213; Pointer v. Texas, 380 U.S. 400;

Gideon v. Wainwright, 372 U. S. 335; and In re Oliver,

333 U. §. 257), provides specified standards for “all

criminal prosecutions.”

One is the requirement of a “public trial.” Jn re

Oliver, supra, held that the right to a “public trial”

was applicable to a state proceeding even though only

a 60-day sentence was involved. 333 U..S., at 272.

Anotixer guarantee is the right to be informed of the

nature and cause of the accusation. Still another, the

right of confrontation. Pointer v. Texas, supra. And

another, compulsory process .or obtaining witnesses in

one’s favor. Washington v. Texas, supra. We have

meanors, see I Silverstein, Defense of the Poor in Criminal Cases

in American State Courts, pp. 127-135 (1965).

A review of federal and state decisions following Gideon is con-

tained in Comment, Right to Counsel; The Impact of Gideon v.

Wainwright in the Fifty States, 3 Creighton L. Rev. 103 (1970).

Twelve States provide counsel for indigents accused of “serious

crime” in the misdemeanor category. Jd., pp. 119-124.

Nineteen States provide for the appointment of counsel in most

misdemeanor cases. Id., pp. 124-133. One of these is Oregon

whose Supreme Court said in Application of Stevenson, —— Ore.

——, 458 P. 2d 414, 418, “If our objective is to insure a fair trial

in every criminal prosecution, the need for counsel is not deter-

mined by the seriousness of the crime. The assistance of counsel

will best avoid conviction of the innocent—an objective as im-

portant in the municipal court as in a court of general jurisdiction.”

California’s requirement extends to traffic violations. Blake v.

Municipal Court, 242 Cal. App. 2d 857.

Overall, 31 States have now extended the right to defendants

charged with crimes less serious than felonies. Comment, Right

to Counsel, supra, at 134.

ARGERSINGER v. HAMLIN 3

never limited these rights to felonies nor to lesser but

serious offenses.

In Washington v. Texas, supra, we said, “We have

held that due process requires that the accused have

the assistance of counsel for his defense, that he be

confronted with the witnesses against him, and that he

have the right to a speedy and public trial.” 388 U. S.,

at 18. Respecting the right to a speedy and public

trial, the right to be informed of the nature and

cause of the accusaticn, the right to confront and cross-

examine witnesses, the right to compulsory process for

obtaining witnesses, it was recently stated, “It is simply

not arguable nor has any court ever held, that the trial

of a petty offense may be held in secret, or without notice

to the accused of the charges, or that in such cases the

defendant has no right to confront his accusers or to

compel the attendance of witnesses in his own behalf.”

Junker, The Right to Counsel in Misdemeanor Cases,

43 Wash. L. Rev. 685, 705 (1968).

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

trates the point. There, the offense was engaging with-

out a license in the business of dealing in secondhand

property, an offense punishable by a fine of $300 or

imprisonment for not more than 90 days. The Court

held that the offense was a “petty” one and could be

tried without a jury. But the conviction was reversed

anc a new trial ordered, because the trial court had preju-

dicially restricted the right of cross-examination, a right

guaranteed by the Sixth Amendment.

The right to trial by jury, also guaranteed by the

Sixth Amendment by reason of the Fourteenth, was

limited by Duncan v. Louisiana, supra, to trials where

the potential punishment was imprisonment of six

months or more. But as the various opinions in Bald-

win v. New York, 399 U. S. 66, make plain, the right to

trial by jury has a different genealogy and is brigaded

ARGERSINGER v. HAMLIN

with a system of trial to a judge alone. As stated in

Duncan:

“Providing an accused with the right to be tried

by a jury of his peers gave him an inestimable safe-

guard against the corrupt or overzealous prosecutor

and against the complaint, biased, or eccentric judge.

If the defendant preferred the common-sense judg-

ment of a jury to the more tutored but perhaps

less sympathetic reaction of the single judge, he

was to have it. Beyond this, the jury trial provi-

sions in the Federal and State Constitutions reflect

a fundamental decision about the exercise of offi-

cial power—a reluctance to entrust plenary powers

over the life and liberty of the citizen to one judge

or to a group of judges. Fear of unchecked power,

so typical of our State and Federal Governments in

other respects, found expression in the criminal law

in this insistence upon community participation in

the determination of guilt or innocence. The deep

commitment of the Nation to the right of jury trial

_ in serious criminal cases as a defense against arbi-

trary law enforcement qualifies for protection under

the Due Process Clause of the Fourteenth Amend-

ment, and must therefore be respected by the

States.” 391 U.S., at 156.

While there is historical support for limiting the

“deep commitment” to trial by jury to “serious crim-

inal cases,” ? there is no such support for a sim.lar limita-

tion on the right to assistance of counsel:

“Originally, in England, a person charged with

treason or felony was denied the aid of counsel,

2See Frankfurter & Corcoran, Petty Offenses and the Constitu-

tional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 980-982

(1926); James v. Headley, 410 F. 2d 325, 331. Cf. Kaye, Petty

Offenders Have No Peers, 26 U. Chi. L. Rev. 245 (1959).

ARGERSINGER v. HAMLIN 5

except in respect of legal questions which the ac-

cused himself might suggest. At the same time

parties in civil cases and persons accused of mis-

demeanors were entitled to the full assistance of

counsel. ... [It] appears that in at least twelve

of the thirteen colonies the rule of the English

common law, in the respect now under considera-

tion, had been definitively rejected and the right

to counsel fully recognized in all criminal prosecu-

tions, save that in one or two instances the right

was limited to cap‘cal offenses or to the more serious

crimes ....” Powell vy. Alabama, 287 U. S. 60

and 64-65.

The Sixth Amendment thus extended the right to

counsel beyond its common-law dimensions. But there

is nothing in the language of the Amendment, its history,

or in the decisions of this Court, to indicate that it was

intended to embody a retraction of the right in petty

offenses wherein the common law previously did require

that counsel be provided. See James v. Headley, 410

F, 2d 325, 332 n. 9.

We reject, therefore, the premise that since prosecu-

tions for crimes punishable by imprisonment for less than

six months may be tried without a jury, they may always

be tried without a lawyer.

The assistance of counsel is often a requisite to the

very existence of a fair trial. The Court in Poweil v.

Alabama; supra, 68-69—a capital case—said:

“The right to be heard would be, in many cases, of

little avail if it did not comprehend the right to be

heard by counse!. Even the intelligent and edu-

cated layman has small an} sometimes no skill in

the science of law. If charged with crime, he is

incapable, generally, of determining for himself

whether the indictment is good or bad. He is un-

!

‘

— LOI LELRE NI AIL LA ELE PDEA SES AALS SLIP IA SALES Bs os

6 ARGERSINGER v. HAMLIN

familiar with the rules of evidence. Left without

the aid of counsel he may be put on trial without

a proper charge. and convicted upon incompetent

evidence, ore. _nce irrelevant to the issue or other-

wise inadmissivie. He lacks both the skill and

knowledge adequately to prepare his defense, even

though he have a perfect one. He requires the

guiding hand oi counsel at every step in the pro-

ceedings against him. Without it, though he be

not guilty, he faces the danger of conviction be-

cause he does not know how to establish his inno-

cence. If that be true of men of intelligence, how

much more true is it of the ignorant and illiterate,

or those of feeble intellect.”

In Gideon v. Wainwright, supra (overruling Betts v.

Brady, 316 U. S. 455), we dealt with a felony trial.

But we did not so limit the need of the accused for a

lawyer. We said:

“

.

. in our adversary system of criminal justice,

any person haled into court, who is too poor to hire

a lawyer, cannot be assured a fair tria] unless coun-

sel is provided for him. This seems to us to be an

obvious truth. Governments, both state and fed-

eral, quite properly spend vast sums of money to

establish machinery to try defendants accused of

crime. Lawyers to prosecute are everywhere deemed

essential to protect the public’s interest in an or-

derly society. Similarly, there are few defendants

charged with crime, few indeed, who fail to hire

the best lawyers they can get to prepare and present

their defenses. That governmeit hires lawyers to

prosecute and defendants who have the money hire

lawyers to defend are the strongest indications of

the widespread belief that lawyers in criminal courts

are necessities, not luxuries. The right of one

ARGERSINGER v. HAMLIN 7

charged with crime to counsel may not be deemed

fundamental and essential to fair trials in some

countries, but it is in ours. From the very begin-

ning, our state and national constitutions and laws

have ijaid’ great emphasis on procedural and sub-

stantive safeguards designed to assure fair trials be-

fore impartial tribunals in which every defendant

stands equal before the law. This noble ideal can-

not be realized if the poor man charged with crime

has to face his accusers without a lawyer to assist

him.” 372 U.S., at 344.3

Both Powell and Gideon involved felonies. But their

rationale has relevance to any criminal trial, where an

accused is deprived of his liberty. Powell and Gideon

suggest that there are certain fundamental rights appli-

“cable to all such criminal prosecutions, even those, such

as In re Oliver, supra, where the penalty is 60 days’

imprisonment:

“A person’s right to reasonable notice of a charge

against him, and an opportunity to be heard in his

defense—a right to his day in court—are basic in

our system of jurisprudence; and these rights in-

cluded, as a minimum, a right to examine the wit-

nesses against him, to offer testimony, and to be

represented by counsel.” 333 U. S., at 273 (em-

phasis supplied).

The requirement of counse! may well be necessary

for a fair trial even in a petty offense prosecution. We

3See also Johnson v. Zerbst, 304 U.S. 458, 462-463:

“ The Sixth Amendment] embodies a realistic recognition of the

obvious truth that the average defendant does not have the pro-

fessional legal skill to protect himself when brought before a tri-

bunal with power to take his life or liberty, wherein the prosecution

is represented by experienced and learned counsel. That which is

simple, orderly and necessary to the lawyer, to the untrained layman

may appear intricate, complex and mysterious.”

ARGERSINGER v. HAMLIN

are by no means convinced that legal and constitutional

questions involved in a case that actually leads to im-

prisonment even for a brief period are any less complex

than when a person can be sent off for six months or more.

See, e. g., Powell v. Texas, 392 U. S. 514; Thompson v,

Louisville, 362 U. S. 199; Shuttlesworth v. Birmingham,

382 U. S. 87.

The trial of vagrancy cases is illustrative. While only

brief sentences of imprisonment may be imposed, the

cases often bristle with thorny constitutional questions.

See Papuchristou v. Jacksonville, 404 U. S. —.

In re Gault, 387 U. S. 1, dealt with juvenile de-

linquency and an offense which, if committed by an

adult, would have carried a fine of $5 to $50 or impris-

onment in jail for not more than two months (id., at 29),

but which when committed by a juvenile might lead

to his detention in a state institution until he reached

the age of 21. IJd., at 36-37. We said that “The juve-

nile needs the assistance of counsel to cope with. prob-

lems of law, to make skilled inquiry into the facts, to

insist upon regularity of the proceedings, and to ascer-

tain whether he has a defense and to prepare and submit

it. The child “requires the guiding hand of counsel 2:

every step in the proceedings against him,” citing Powell

v. Alabama, supra, at 69. The premise of Gault is that

even in prosecutions for offenses less serious than felonies,

a fair trial may require the presence of a lawyer.

Beyond the problem of trials and appeals is that of

the guilty plea, a problem which looms large in misde-

meanor as well as in felony cases. Counsel is needed so

that the accused may know precisely what he is doing, 80

that he is fully aware of the prospect of going to jail or

prison, and so that he is treated fairly ky the prosecution.

In addition, the volume of misdemeanor cases,‘ far

4In 195, 314,000 defendants were charged wtih felonies 4n state

cou' ts, and 24,000 were charged with felonies in federal courts.

President’s Commission on Law Enforcement and Administration of

ARGERSINGER v. HAMLIN

greater in number than felony prosecutions, may create

an obsession for speedy dispositions, regardless of the fair-

ness of the result. The Report by the President’s Com-

mission on Law Enforcement and Administration of

Justice, The Challenge of Crime in a Free Society, p. 128

(1967), states:

“For example, until kgislation last year increased

the number of judges, the District of Columbia

Court of General Sessions had four judges to process

the preliminary stages of more than 1,500 felony

cases, 7,500 serious misdemeanor cases, and 38,000

petiy offenses and an equal number of traffic of-

fenses per year. An inevitable consequence of

volume that large is the almost total preoccupa-

tion in such a court with the movement of cases.

The calendar is long, speed often is substituted for

care, and casually arranged out-of-court compromise

too often is substituted for adjudication. Inade-

quate attention tends to be given to the individual

defendant, whether in protecting his rights, sifting

the facts at trial, deciding the social risk he pre-

sents, or determining how to deal with him after

conviction. The frequent result is futility and fail-

ure. As Dean Edward Barrett recently observed:

“Wherever the visitor looks at the system, he

finds great numbers of defendants being processed

by harassed and overworked officials. Police have

more cases than they can investigate. Prosecutors

walk into courtrooms to try simple cases as they

take their initial looks at the files. Defense law-

Justice, Task Force Report: The Courts 55 (1967). Exclusive of

traffic offenses, however, it is estimated that there are annually

between four and five million court cases involving misdemeanors.

Ibid. And, while there are no authoritative figures, extrapolations

indicate that there are probably between 40.8 and 50 million traffic

offenses each year. Note, Dollars and Sense of an Expanded Right

to Counsel, 55 Iowa L. Rev. 1248, 1261 (1970).

— SSPE NAL SEE MND OREN AIP LER PILATE PS ELIE AIM oreo call

pation a = > aT <¢ % ~ 6 ‘

10 ARGERSINGER v. HAMLIN

yers appear having had no more. than time for

hasty conversations with their clients. Judges face

long calendars with the certain knowledge that their

calendars tomorrow and the next day will be, if

anything, longer, and so there is no choice but to

dispose of the cases.

“ Suddenly it becomes clear that for most defend-

ants in the criminal process, there is scant regard

for them as individuals. They are numbers on

dockets, faceless ones to be processed and sent on

their way. The gap between the theory and the

reality is enormous.

“Very little such observation of the administra- |

tion of criminal justice in operation is required to

reach the conclusion that it suffers from basic ills.’”

That picture is seen in almost every report. ‘The

misdemeanor trial is characterized by insufficient and

frequently irresponsible preparation on the part of the

defense, the prosecution, and the court. Everything is

rush rush.” Hellerstein, The Importance of the Mis-

demeanor Case on Trial and Appeal. 38 The Legal Aid

Brief Case 151, 152 (1970).

There is evidence of the prejudice which results to

misdemeanor defendants from this ‘“assembly-line jus-

tice.” One study concluded that “Misdemeanants rep-

resented by attorneys are five times as likely to emerge

from police court with all charges dismissed as are

defendants who face similar charges without counsel.”

ACLU, Legal Counsel for Misdemeanants, Preliminary

Report, 1 (1970).

We must conclude, therefore, that the problems as-

sociated with misdemeanor and petty" offenses often

518 U. S. C. §1 defines a petty offense as one in which the

penalty does not exceed imprisonment for six months or a fine of

ee EEE

ARGERSINGER v. HAMLIN 11

require the presence of counsel to insure the accused a

fair trial. Mr. Justice PoweELi suggests that these

problems are raised even in situctions where there is no

prospect of imprisonment. Post, at —-. We need not

consider the requirements of the Sixth Amendment as

regards the right to counsel where loss of liberty is not

involved, however, for here, peu:tioner was in fact sen-

tenced to jail. And, as we said in Baldwin v. New York,

399 U. S., at 73: “[T]he prospect of imprisonment for

however short a time will seldom be viewed by the ac-

cused as a trivial or ‘petty’ matter and may well result

not more than $500 or both. 18 U.S. C. §3006A (b) provides for

the appointment of counsel for indigents in all cases “other than

a petty offense.” But as the Fifth Circuit Court of Appeals noted

in James v. Headley, 410 F. 2d 325, 330-331, 18 U. S. C. § 3006A,

which was enacted as the Criminal Justice Act of 1964, contuins a

congressional plan for furnishing legal representation at federal

expense for certain indigents and does not purport to cover the full

range of constitutional rights to counsel.

Indeed, the Conference Report on the Criminal Justice Act of

1964 made clear the conferees’ belief that the right to counsel ex-

tends to all offenses, petty and serious alike. Conference Report No.

1709, 88th Cong., 2d Sesc., U. S. Code & Admin. News 3000, 3002-

3003 (1964) (emphasis supplied).

In that connection the Federal Rules of Criminal Procedure, as

amended in 1966, provide in Rule 44 (a): “Every defendant who

is unable to obtain counsel shall be entitled to have counsel

assigned to represent him at every stage of the proceedings trom

his initial appearance before the commissioner or the couii through

appeal, unless he waives such appointment.”

The Advisory Committee note on Rule 44 says:

rule the amended rule provides a right to counsel

in two respects than that for which compensation is

Criminal Justice Act of 1964:

“(1) The right extends to petty offenses to be tried in the

district courts, and

“(2) The right extends to defendants unable to obtain counsel

for reasons other than financial.”

Like the original

hich is broader

12 ARGERSINGER v. HAMLIN

in quite serious repercussions affecting his career and his

reputation.” °

We hold, therefore, that absent a knowing and in-

telligent waiver, no person may be imprisoned for any

offense, whether classified as petty, misdemeanor, or

felony, unless he was represented by counsel at his trial.’

That is the view of the Supreme Court of Oregon with

which we agree. It said in Application of Stevenson,

—- Ore. —,, 458 P. 2d 414, 419:

“We hold that no person may be deprived of his

liberty who has been denied the assistance of counsel

as guaranteed by the Sixth Amendment. This hold-

ing is applicable to all criminal prosecutions, includ-

ing prosecutions for violations of municipal ordi-

nances. The denial of the assistance of counsel will

preclude the imposition of a jail sentence.” *

®See Marston v. Oliver, — F. Supp. —-, — (ED Va. 1971):

“Any incarceration of over thirty days, more or less, will usually

result in loss of employment, with a consonant substantial, detriment

to the defendant and his family.”

7 We do not share Mr. Justice PowE.u’s doubt that the Nation’s

legal resources are insufficient to implement the rule we announce

today. It has been estimated that between 1,575 and 2.300 full-time

counsel would be required to represent all indigent misdemeanants,

excluding traffic offenders. Note, Dollars and Sense of an Expanded

Right to Counsel, 55 Iowa L. Rev. 1249, 1260-1261 (1970). These

figures are relatively insignificant when compared to the estimated

335,200 attorneys in the United States (Statistical Abstract of the

United States 153 (1971)), a number which is projected to double

by the year 1985. See Ruud, That Burgeoning Law School Enroll-

ment, 58 A. B. A. J. 146, 147. Indeed, there are 18,000 new admis-

sions to the bar each year—3,500 more lawyers than are required

to fill the “estimated 14,500 average annual openings.”. J7/., at 148.

8 Article I, §9, of the proposed Revised Constitution of Oregon

provides:

“Every person has the right to assistance of counsel in all official

proceedings and dealings with public officers that may materially

ARGERSINGER v. HAMLIN 13

We do not sit as an ombudsman to direct state courts

how to manage their affairs but only to make clear the

federal constitutional requirement. How crimes should

be classified is largely a state matter. The fact that

traffic charges technically fall within the category of

“criminal prosecutions” does not necessarily mean that

many of them will be brought into the-class *° where im-

prisonment actually occurs.

The American Bar Association Project on Minimum

Standards for Criminal Justice states:

“As a matter of sound judicial administration it

is perferable to disregard the characterization of the

offense as felony, misdemeanor or traffic offense.

Nor is it adequate to require the provision of defense

affect him. If he cannot afford counsel, he has the right to have

counsel appointed for him in any case in which he may lose his

liberty.”

®One partial solution to the problem of minor offenses may well

be to remove them from the court system. The American Bar As-

sociation Special Committee on Crime Prevention and Control re-

cently recommended, inter alia, that:

“Regulation of various types of conduct which harm no one other

than those involved (e. g., public drunkenness, narcotics addiction,

vagrancy, and deviant sexual behavior) should be taken out of. the

courts. The handling of these matters should be transferred to non-

judicial entities, such as detoxification centers, narcotics, treatment

centers and social service agencies. The handling of other non-

serious offenses, such as housing code and traffic violations, should

be transferred to specialized administrative bodies.”

ABA Report, New Perspectives on Urban Crime, iv (1972). Such

a solution, of course, is peculiarly within the province of state and

local legislatures.

10“Forty thousand traffic charges (arising out of 150,000 non-

parking traffic citations) were disposed of by court action in Seattle

during 1964. The study showed, however, that in only about 4,500

cases was there any possibility of imprisonment as the result of a

traffic conviction. In only three kinds of cases was the accused

exposed to any danger of imprisonment: (1) where the offense

14 ARGERSINGER v. HAMLIN

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

particular case; it draws a categorical line at those

types of offenses for which incarceration as a punish-

ment is a practical possibility.”

Under the rule we announce today, every judge will

know when the trial of a misdemeanor starts that no

imprisonment may be imposed, even though local law

permits it, unless the accused is represented by counsel.

He will have a measure of the seriousness and gravity

of the offense and therefore know when to name a lawyer

- to represent the accused before the trial starts.

charged was hit-and-run, reckless or drunken driving; or (2) where

any additional traffic violation was charged against an individual

subject to a suspended sentence for a previous violation; or

(3) where, whatever the offense charged, the convicted individual

was unable to pay the fine imposed.” Junker, The Right to Coun-

sel in Misdemeanor Cases, 43 Wash. L. Rev. 685, 711 (1968).

Of the 1,288,975 =eople convicted by the City of New York in

1970 for traffic infractions such as jaywalking and speeding, only

24 were fined and imprisoned, given suspended sentences, or jailed.

Criminal Court of the City of New York Annual Report 11 (1970).

Of the 19,187 convicted of more serious traffic offenses, such as

driving under the influence, reckless driving, and leaving the scene

of an accident, 404 (2.1%) were subject to some form of imprison-

ment. Jbid.

15

ARGERSINGER v. HAMLIN

The run of misdemeanors will not be affected by .

today’s ruling. 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 necessary

»,hen one’s liberty is in jeopardy.

Reversed.

SUPREME COURT OF THE UNITED STATES

No. 70-5015.

Jon Richard Argersinger,|

‘Petitioner,

v.

Raymond Hamlin, Sher:#;

Leon County, Florida.

|On Writ of Certiorari to the..."

Supreme Court of Florida.

[June 12, 1972]

Mr. CuieF Justice Burcer, concurring in the result.

I agree with much of the analysis in the opinion of

the Court and with Mr. Justice Powe.Lu’s appraisal

of tne problems. Were I able to confine my focus solely

to the burden that the States will have to bear in pro-

--viding counsel, I would be inclined, at this stage of

_ the development of the constitutional right to counsel,

to conclude that there is much to commend drawing

the line at penalties in excess of six months’ confinement.

Yet several cogent factors suggest the infirmities in any

approach that allows confinement for any period with-

out the aid of counsel at trial; any deprivation of liberty

is a serious matter. The issues that must be dealt with

in a trial for a petty offense or a misdemeanor may often

be simpler than those involved in a felony trial and

yet be beyond the capability of a layman, especially

when he is opposed by a law-trained prosecutor. There

is little ground, therefore, to assume that a defendant,

unaided by counsel, will be any more able adequately

to defend himself against the lesser charges that may

involve confinement than more gerious charges. Appeal

from a conviction after an unciiiccled trial is not likely

to be of much help to a defendant since the die is usually

cast when judgment is entered on an uncounseled trial

record. ,

9 ARGERSINGER v. HAMLIN

Trial judges sitting in petty and misdemeanor cases—

and prosecutors—should recognize exactly what will be

required by today’s decision. Because no individual can

be imprisoned unless he is represented by counsel, the

trial judge and the prosecutor will have to engage in

a predictive evaluation of each case to determine whether

there is a significant likelihood that, if the defendant

is convicted, the trial judge will sentence him to a jail

term. The judge can preserve the option of a jail sen-

tence only by offering counsel to any defendant unable .

to retain cuunsel on his own. This need to predict |

will place a new load on courts already overburdened »

and already compelled to deal with far more cases in

one day than is reasonable and proper. Yet the pre-

diction is not one beyond the capacity of an experienced

judge, aided as he should be by the prosecuting officer.

As to jury cuses, the latter should be prepared to inform

the judge as to any prior record of the accused, the

general nature of the case against tiie accused, includ-

ing any use of violence, the severity of harm to the

victim, the impact on the gommunity and the other

factors relevant to the sentencing process. Since the

judge ought to have some degree of such information

after judgment of guilt is determined, ways can be found

in the more serious misdemeanor cases when jury trial

is not waived to make it available to the judge before

trial.* This will not mean a full “presentence” report

on every defendant in every case before the jury passes

on guilt, but a prosecutor should know before trial

whether he intends to urge a jail sentence and if he

does he should be prepared to aid the court with the

factual and legal basis for his view on that score.

*In a nonjury case the prior record of the accused should not

be made known to the trier of fact except by way of traditional

impeachment.

ARGERSINGER v. HAMLIN 3

This will mean not only that more defense counsel

must be provided, but also additional prosecutors and

better facilities for securing information about the ac-

cused as it bears on the probability of a decision to confine.

The step we take today should cause no surprise to

the legal profession. More than five years ago the pro-

fession, speaking through the American Bar Association

in a Report on Standards Relating to Providing Defense

Services, determined that the soeiety’s goal should be

“that the system for providing counsel and facilities

for the defense be as good as the system which society

provides for the prosecution.” J/d., at.1. The ABA

was not addressing itself, as we must in this case, to

the constitutional requirement but only to the broad

policy issue. Elsewhere in the Report the ABA stated

that

“The fundamental premise of these standards is

that representation by counsel is desirable in crim-

inal cases both from the viewpoint of the defendant

and of society.” Jd., at 3.

After considering the same general factors involved in

the issue we decide today, the ABA Report specifically

concluded that

“Counsel should be provided in all criminal pro-

ceedings for offenses punishable by loss of liberty,

except those types of offenses for which such pun-

ishment is not likely to be imposed, regardless

of their denomination as felonies, misdemeanors, or

otherwise.”

In a companion ABA Report on Standards Relating to

the Prosecution Function and the Defense Function

the same basic theme appears in the positive standard

cast in these terms:

“Counsel for the accused is an essential component

of the administration of criminal justice. A court

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4 ARGERSINGER v. HAMLIN

properly constituted to hear a criminal case must

be viewed as a tripartite entity consisting of the

judge (and a jury when appropriate), counsel for

the prosecution, and counsel for the defense.” /d.,

at 153.

The right to counsel has historically been an evolving

concept. The constitutional requirements with respect

to the issue have dated in recent times from Powell v.

Alabama, 287 U. 8. 45 (1932), to Gideon v. Wainwright,

372 U. S. 335 (1963). Part of this evolution has been

expressed in the policy prescriptions of the legal pro-

fession itself, and the contributions of the organized

bar and individual lawyers—such as those appointed to

represent the indigent defendants in the Powell and

Gideon cases—have been notable. The holding of the

Court today may well add large new burdens on a

profession already overtaaed, but the dynamics of the

profession “ave a way of rising to the burdens placed

on it.

es

_ SUPREME COURT OF THE UNITED STATES

No. 70-5015

Jon Richard Argersinger,)

Petitioner,

v.

Raymond Hamlin, Sheriff,

Leon County, Florida. |

On Writ of Certiorari to the

Supreme Court.of Florida.

[June 12, 1972]

Mr. Justice BRENNAN, with whom Mr. Justice

Dove.as and Mr. Justice Stewart join, concurring.

I join tie opinion of the Court and add only an

observation upon its discussion of legal resources, ante,

at 12,n.7. Law students as well as practicing attorneys

may provide an important source of legal representation

for the indigent. The Council on Legal Education for

Professional Responsibility (CLEPR) informs us that

more than 125 of the country’s 147 accredited law schools

have estabi’shed clinical programs in which faculty-

supervised students aid clients in a variety of civil and

criminal matters.* CLEPR Newsletter, May 1972, at

2. These programs supplement practice rules enacted

in 38 States authorizing siudonts to practice lew under

prescribed conditions. Jbid. Like the American Bar

Association’s Model Student Practice Rule (1969), most

of these regulations permit students to make supervised

court appearances as defense counsel in criminal cases.

CLEPR, State Rules Permitting the Student Practice of

*A total of 57 law schoois have also established clinical programs

in corrections, where law students, under faculty supervision, aid

prisoners in the preparation of petitions for post-conviction reéliet.

_CLEPR. Newsletter, May 1972, at 3. See United States v. Simpson,

141 U.S. App. D. C. 8, 15-16, 436 F. 2d 162, 169-170 (1970).

names 1 reg .

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2 ARGERSINGER v. HAMLIN

Law: Comparisons and Comments 13 (1971). Given the

huge increase in law schoo: enrollments over the past

few years, see Ruud, That Burgeoning Law School En-

rollment, 58 A. B. A. J. 146 (1972), I think it plain that

law students can be looked to to make a signficant con-

tribution, quantitatively and qualitatively, to the repre-

sentation of the poor in many areas, including cases

reached by today’s decision.

OO

SUPREME COURT OF THE UNITED STATES

No. 70-5015,

Jon Richard Argersinger,

Petitioner,

- v.

Raymond Hamlin, Sheriff,

Leon County, Florida. |

[June 12, 1972]

On Writ of Certiorari to the

Supreme Court of Florida.

Mr. Justice Powe, with whom Mr. Justice REHN-

QUIST Joins, concurring in the result.

Gideon v. Wainwright, 372 U.S. 335 (1963), held that

_ the States were required by the Due Process Clause of

the Fourteenth Amendment to furnish counsel to all

indigent defendants charged with felonies.’ The ques-

tion before us today is whether an indigent defendant

convicted of an offense carrying a maximum punish-

ment of six months’ imprisonment or a fine of $1,000

or both, and sentenced to 90 days in jail, is entitled as

a matter of constitutional right to the assistance of ap-

pointed counsel. The broader question is whether the

Due Process Clause requires that an indigent charged

with a state petty offense? be afforded the right to ap-

pointed counsel.

* While it is true that Mr. Justice Black’s opinion for the Court

in Gideon is not narrowly written, Mr. Justice Harlan was quick to

Suggest, in his concurring opinion, that the facts in Gideon did not

require the Court to decide whether the indigent’s right to ap-

pointed counsel should extend to all criminal cases. 372 U. S., at

351. In opinions announced more recently, the Court has assumed

that the ho' ting of Gideon has not yet been extended to misdemeanor

cases. See /n re Gault, 387 U. S. 1, 29 (1967); Mempa v. Rhay,

389 U. 8. 128, 134 (1967); Burgett v. Texas; 389 U. S. 109, 114

(1967); Loper v. Beto, — U.S, — (1972).

* As used herein, the term “petty offense” means any offense where

the authorized imprisonment does not exceed six months, Baldwin

v. New York, 399 U. S. 66, 69 (1970). It also includes all offenses

2 ARGERSINGER v. HAMLIN

In the case under review, the Supreme Court of Flor-

ida agreed that indigents charged with serious misde-

meanors were entitled to appointed counsel, but, by a

vote of four to three, it limited that right to offenses

punishable by more than six months’ imprisonment.’

The state court, in drawing a six-month line, followed

the lead of this Court in Duncan v. Louisiana, 391 U. S.

145 (1968), and in the subsequent case of Baldwin v.

New York, 399 U. S. 66 (1970), which was decided

shortly after the opinion below, in which the Court held

that the due process right to a trial by jury in state crim-

inal cases was limited to cases in which the offense

charged was punishabie by more than six months’ impris-

onment. It is clear that wherever the right-to-counsel

line is to be drawn, it must be drawn so that an indigert

has a right to appointed counsel in all cases in which there

is a due process right to a jury trial. An unskilled lay-

man may be able to defend himself in a nonjury trial

before a judge experienced in piecing together disas-

sembled facts, but before a jury the guiding hand of

counsel is needed to marshal the evidence into a coher-

ent whole consistent with the best case on behalf of

the defendant. If there is no accompanying right to

counsei, the right to,trial by jury becomes meaningless.

Limiting the right to jury trial to cases in which the

offense charged is punishable by more than six months’

imprisonment does not compel the conclusion that the

indigent’s right to appointed counsel must be similarly

restricted. The Court’s opinions in Duncan, Baldwin,

not punishable by imprisonment, regardless of the amount of any

fine that might be authorized. To this extent, the definition used

herein differs from the federal statutory definition of “petty of-

fense,” which includes offenses punishable by not more than six

months’ impr.sonment or by a fine not exceeding $500. 18 U.S.C.

§ 1.

5 236 So. 2d 442 (1970).

ARGERSINGER v. HAMLIN 3

and District of Columbia v. Clawans, 300 U. S. 617

(1937), reveal that the jury trial limitation has historic

origins at common law. No such history exists to sup-

port a similar limitation of the right to counsel; to the

contrary, at common law, the right to counsel was avail-

able in misdemeanor but not in felony cases.‘ Only as

recently as Gideon has an indigent in a state trial had a

right to appointed counsel in felony cases. Moreover,

the interest protected by the right to have guilt or inno-

cence determined by a jury—tempering the possibly

arbitrary and harsh exercise of prosecutorial and judicial

power °—while important, is not as fundamental to the

_ guarantee of a fair trial as is the right to counsel.®

I am unable to agree with the Supreme Court of

Florida that an indigent defendant, charged with a petty

offense, may in every case be afforded a fair trial with-

out the assistance of counsel. Nor can I agree with the

new rule of due process, today enunciated by the Court,

that “absent a knowing and intelligent waiver, no person

may be imprisoned . . . unless he was represented by

counsel at his trial.” Ante, at 12. It seems to me that

the line should not be drawn with such rigidity.

There is a middle course, between the extremes of

Florida’s six-month rule and the Court’s rule, which

comports with the requirements of the Fourteenth

Amendment. I would adhere to the principle of due

process that requires fundamental fairness in criminal

trials, a principle which I believe encompasses the right

*See Powell v. Alabama, 287 U. S. 45, 60-61 (1932).

* Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

° Although we have given retroactive effect to our ruling in

Gideon, Pickelsimer v. Wainwright, 375 U. 8. 2 (1963), we have

said that, “[t]he values implemented by the right to jury trial would

not measurably be served by requiring retrial of all persons con-

victed in the past by procedures not consistent with the Sixth

Amendment right to jury trial.” De Stefero v. Woods, 392 U. S.

631, 634 (1968).

4 ARGERSINGER v. HAMLIN

to counsel in petty cases whenever the assistance of

counsel is necessary to assure a fair trial.

I

I am in accord with the Court that an indigent ac-

cused’s need for the assistance of counsel does not mys-

teriously evaporate when he is charged with an offense

punishable by six months or less. In Powell v. Ala-

bama‘™ and Gideon,’ both of which involved felony

prosecutions, this Court noted that few laymen can pre-

sent..adequately their own cases, much less identify and

argue relevant legal questions. Many petty offenses will

also present complex legal and factual issues that may

not be fairly tried if the defendant is not assisted by

counsel. Even in relatively simple cases, some defend-

ants, because of ignorance or some other handicap, will

be incapable of defending themselves. The consequences

of a misdemeanor conviction, whether they be a brief

period served under the sometimes deplorable con-

ditions found in local jails or the effect of a crininal

record on employability, are frequently of sufficient mag-

nitude not to be casually dismissed by the label “petty.” °

Serious consequences also may result from convic-

tions not punishable by imprisonment. Stigma may

attach to a drunken driving conviction or a hit-and-run

escapade.*® Losing one’s driver’s license is more serious

for some individuals than a brief stay in jail. In Bell

v. Burson, 402 U.S. 535 (1970), we said:

“Once licenses are issued, as in petitioner’s case,

their continued possession may become essential in

the pursuit of a livelihood. Suspension of issued

7 Supra, n. 4, at 68-69.

8 372 U.S., at 343-345.

®See L. Silverstein, Defense of the Poor in Criminal Cases in

American State Courts, 132 (1965).

10 See James v. Headley, 410 F. 2d 325, 334-335 (CA5 1969).

he

ARGERSINGER v. HAMLIN 5

licenses thus involves state action that adjudicates

important interests of the licensees. In such cases

the licenses are not to be taken away without that

procedural due process required by the Fourteenth

Amendment.” J/d., at 539.

When the deprivation of property rights and interests is

of sufficient consequence," denying the assistance of

counsel to indigei.is who are incapable of defending them-

selves is a denial of due process.

This is not to say that due process requires the ap-

pointment of counsel in all petty cases, or that assess-

ment of the possible consequences of conviction is the

sole test for the need for assistance of counsel. The

flat six-month rule of the Florida court and the equally

inflexible rule of the majority opinion apply to all cases

within their defined areas regardless of. circumstances.

It is precisely because of this mechanistic application that

I find these alternatives unsatisfactory. Due process,

perhaps the most fundamental concept in our law, em-

bodies principles of fairness rather than immutable line-

drawing as to every aspect of a criminal trial. While

counsel is often essential to a fair trial, this is by no

1A wide rauge of civil disabilities may result from misdemeanor

convictions, such as forfeiture of public office (State v. Kruger, 280

Mo. 293, 217 S. W. 310 (1919)), disqualification for a licensed pro-

fession (Cal. Bus. & Prof. Code § 3094 (West 1962) (optometrists) ;

N.C. Gen. Stat. § 93 A-4 (b) (1965) (real estate brokers) ), and loss

of pension rights, Fla. Stat. Ann. § 185.18 (3) (West 1966) (police

disability pension denied when injury is result of participation in

fights, riots, civil insurrections, or while committing crime); Burns

Ind. Ann. Stat. § 28-5414 (1948) (teacher convicted of misdemeanor

resulting in imprisonment) ; 53 Purdon Pa. Stat. Ann. §§ 39323, 65599

(1957) (conviction of crime or misdemeanor)). See generally Proj-

ect, The Collateral Consequences of a Criminal Conviction, 23 Vand.

L. Rev. 929 (1970).

6 ARGERSINGER v. HAMLIN

means a universal fact. Some petty offense cases are

complex; others are exceedingly simple. As a justifica-

tion for furnishing counsel to indigents accused of fel-

onies, this Court noted, “That government hires lawyers

to prosecute and defendants who have the money hire

lawyers to defend are the strongest indications of the

widespread belief that lawyers in criminal courts are

necessities, not luxuries.” *? Yet government often does

not hire lawyers to prosecute petty offenses; instead the

arresting police officer presents the case. Nor does every

defendant who can afford to do so hire lawyers to defend

petty charges. Where the possibility of a jail sen-

tence is remote and the probable fine seems small, or

where the evidence of guilt is overwhelming, the costs

of assistance of counsel may exceed the benefits.’ It

is anomalous that the Court’s opinion today will extend

the right of ein! counsel to indigent defendants in

cases where the right to counsel would rarely be exer-

cised by nonindigent defendants.

Indeed, nl of the effects of this ruling will be to

favor defendants classified as indigents over those not

so classified yet who are in low income groups where

engaging counsel in a minor petty offense case would

be a luxury the family could not afford. The line be-

tween indigency and assumed capacity to pay for counsel

is necessarily somewhat arbitrary, drawn differently from

State to State and often resulting in serious inequities to

accused persons. The Court’s new rule will accent the

disadvantage of being barely self-sufficient economically.

12 Gideon v. Wainwright, 372 U.S., at 344.

13In petty offenses, there is much less plea negotiation than in

serious offenses. See Report by the President’s Commission on Law

Enforcement and the Administration of Justice, The Challenge of

Crime in a Free Society, 134 (1967) (hereinafter cited as “Chal-

lenge”). Thus, in cases where the evidence cf guilt is overwhelming,

the assistance of counsel is less essential to obtain a lighter sentence.

| cnt

ARGERSINGER v. HAMLIN 7

A survey of state courts in which misdemeanors are

tried showed that procedures were often informal, pre-

sided over by lay judges. Jury trials were rare, and the

prosecution was not vigorous. It is as inaccurate to

say that no defendant can obtain a fair- trial without

the assistance of counsel in such courts as it is to say

that no defendant needs the assistance of counsel if the

offense charged is only a petty one.”

Despite its overbreadth, the easiest solution would be

a prophylactic rule that would require the appointment

of counsel to indigents in all criminal cases. The sim-

plicity of such a rule is appealing because it could be

applied automatically in every case, but the price of

pursuing this easy course could be high indeed in terms

of its adverse impact on the administration of the crimi-

nal justice systems of 50 States. This is apparent when

one reflects on the wide variety of petty or misdemeanor

offenses, the varying definitions thereof, and the diversity

of penalties prescribed. The potential impact on state

court systems is also apparent in view of the variations

in types of courts and their jurisdictions, ranging from

justices of the peace and part-time judges in the small

communities to the elaborately staffed _police courts

which operate 24 hours a day in the great metropolitan

centers.

* Silverstein, supra, n. 9, at 125-126.

** Neither the Report by the President’s Commission on Law En-

forcement and the Administration of Justice nor the American Bar

Association went the route the Court takes today. The President’s

Commission recommended that counsel be provided to criminal de-

fendants who face “a significant penalty” and at least to those who are

in danger of “substantial loss of liberty.” Challenge, supra, n. 13, at

150. The American Bar Association standard would not extend the

right to counsel to cases where “loss of hberty” is not “likely to be

imposed.” American Bar Association Project on Minimum Standards

for Criminal Justice, Providing Defense Services, 37-40 (1968).

Neither supports a new, inflexible constitutional rule.

8 ARGERSINGER v. HAMLIN

The rule adopted today does noi go all the way. It

is limited to petty offense cases in which the sentence

is some imprisonment. The thrust of the Court’s posi-

tion indicates, however, that when the decision must

be made, the rule will be extended to all petty offense

cases except perhaps the most minor traffic violations.

If the Court rejects on constitutional grounds, as it has

today, the exercise of any judicial discretion as to need

for counsel if a jail sentence is imposed, one must as-

sume a similar rejection of discretion in other petty

offense cases. It would be illogical—and without dis-

cernible support in the Constitution—to hold that no

discretion may ever be exercised where a nominal jail

sentence is contemplated and at the same time endorse

the legitimacy of discretion in “non-jail” petty offense

cases which may result in far more serious consequences

than a few hours or days of incarceration.

The Fifth and Fourteenth Amendments guarantee that

property, as well as life and liberty, may not be taken

from a person without affording him due process of law.

The majority opinion suggests no constitutional basis

for distinguishing between deprivations of liberty and

property. In fact, the majority suggests no reason at

all for drawing this distinction. The logic jit advances

for extending the right to counsel to all cases in which

the penalty of any imprisonment is imposed applies

equally well to cases in which other penalties may be

imposed. Nor does the majority deny thai some “non-

jail” penalties are more serious than brief jail sentences.

Thus, although the new rule is extended today only

to the imprisonment category of cases, the Court’s

opinion foreshadows the adoption of a broad prophy-

lactic rule applicable to all petty offenses. No one can

foresee the consequences of such a drastic enlargement of

the constitutional right to free counsel. But even to-

day’s decision could have a seriously adverse impact

ba i ial ad —————— pa

ARGERSINGER v. HAMLIN 9

upon the day to day functioning of the «riminal justice

system. We should be slow to fashion a new constitu-

tional rule with consequences of such unknown dimen-

sions, especially since it is supported neither by history

nor precedent.

II

The majority opinion concludes that, absent a valid

waiver, @ person may not be imprisoned even for lesser

offenses unless he was represented by counsel at the trial.

In simplest terms this means that under no circumstances,

in any court in the land, may anyone be imprisoned—

however briefly—unless he was represented by or waived

his right to counsel. The opinion is disquietingly barren

of details as to how this rule will be implemented.

There are thousands of siatutes and ordinances which

authorize imprisonment for six months or less, usually

as an alternative to a fine. These offenses include some

of the most trivial of misdereanors, ranging from spit-

ting on the sidewalk to certain traffic offenses. They

also include a variety of more serious misdemeanors.

This broad spectrum of petty offense cases daily floods

the lower criminal courts. The rule laid down today

will confront the judges of each of these courts

with an awkward dilemma. If counzel is not appointed

or knowingly waived, no sentence of imprisonment

for any duration may be imposed. The judge will

therefore be forced to decide in advance of trial—

and without hearing the evidence—whether he will

forgo entirely his judicial discretior. +o impose some

sentence of imprisonment and abandon ais responsibility

to consider the full range of punishments established

by the legislature. His alternatives, assuming the

availability of counsel, will be to appoint counsel

and retain the discretion vested in him by law, or to

abandon this discretion in advance and proceed without

counsel.

DALE LEGER LL ELLE EAE EES SALES

10 ARGERSINGER v. HAMLIN

If the latter course is followed, the first victim of the

new rule is likely to be the concept that justice re-

quires a personalized decision both as to guilt and the

sentence. The notion that sentencing should be tai-

iored to fit the crime and the individual would have

to be abandoned in many categories of offenses. In

resolving the dilemma as to how to administer the

new rule, judges will be tempted arbitrarily to divide

petty offenses into two categories—those for which sen-

tences of imprisonment may be imposed and those in

which no such sentence will be given regardle= of the

statutory authorization. In creating categories of oi-

fenses which by law are imprisonable but for which

he would not impose jail sentences, a judge will be

overruling de facto the legisiative determination as to

the appropriate range of punishment for the particu-

lar offense. It is true, as the majority notes, that there

are some classes of imprisonable offenses for which im-

prisonment is rarely imposed. But even in these, the

occasional imposition of such a sentence may serve a

valuable deterrent purpose. At least the legislatures,

and until today the courts, have viewed the threat of

imprisonment—even when rarely carried out- as serving

a legitimate social function.

In the brief for the United States as amicus curiae,

the Solicitor General suggested that some flexibility

could be preserved through the techniqve of trial de novo

if the evidence—contrary to pretrial assumptions—jus-

tified a jail sentence. Fresumably a mistrial would be

declared, counse! appointed, and a new trial ordered.

But the Solicitor General also recognized that a second

trigl, even with counsel, might be unfair if the prose-

cutor could make use of evidence which came out at

the first trial when the accused was uncounselled. If

the second trial were held before the same judge, he

ARGERSINGER v. HAMLIN 11

mieht no longer be open-minded. Finally, a second

trial held for no other reason than to afford the judge

an opportunity to impose a harsher sentence might run

afoul of the guarantee against being twice placed in

jeopardy for the same offense.** In all likelihood, there

will be no second trial and certain offenses classified by

legislatures as imprisonabdle, will be treated by judges

as unimprisonable.

- The new rule announced today also could result in

equal protection problems. There may well be an un-

fair and unequal treatment of individual defendants

depending on whether the individual judge has de-

termined in advance to leave open the option of impris-

ciament. Thus, an accused indigent would be entitled

in some courts to counsel while in other courts in the

same jurisdiction an indigent accused of the same offense

would have no counsel. Since the services of counsel

may be essential to a fair trial even ‘1 cases in which

no jail sentence is imposed, the results of this type of

pretrial judgment could be arbitrary and discriminatory.

A different type of discrimination could result in the

typical petty offense case where judgment in the alter-

native is prescribed: for example, “five days in jail or

$100 fine.” If a judge has predetermined that no im-

prisonment will be imposed with respect to a particular

category of cases, the indigent who is convicted will often

receive no meaningful sentence. The defendant who

can pay a $100 fine, and does so, will have responded

to the sentence in accordance with law, whereas the

indigent who commits the identical offense may pay

no penalty. Nor would there be any deterrent against

the repetition of similar offenses by indigents.”’

16 See Callan v. Wilson, 127 U. S. 540 (1880); North Carolina v.

Pearce, 395 U. S. 711 (1969). ;

17 The type of penalty discussed above (involving the discretionary

alternative of “jail or fine”) presents serious problems of fairness——

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12 ARGERSINGER v. HAMLIN

To avoid these equal protection problems and to pre-

serve a range of sentencing options as prescribed by

law, most judges are likely to appoint counsel for indi-

gents in all but the most minor offenses where jail

sentences are extremely rare. It is doubtful that the

States possess the necessary resources to meet this sud

den expansion of the right to counsel. The Solicitor

General, who suggested on behalf of the United States

the rule the Court today adopts, recognized that the

consequences could be far reaching. In addition to the

expense of compensating counsel, he noted that ‘he man-

datory requirement of defense counsel will “require more

pre-trial time of prosecutors, more courtroom time, and

this will lead to bigger backlogs with present personnel.

Court reporters will be needed as well as counsel, and

they are one of our worst bottlenecks.” **

After emphasizing that the new constitutional rule

should not be made retroactive, the Solicitor General

commented on the “chaos” which could result from any

mandatory requirement of counsel in misdemeanor cases:

“{I]f ... this Court’s decision should become fully

applicable on the day it is announced, there could

be a massive pileup in the state courts which do

not now meet this standard. This would involve

delays and frustrations which would not be a real.

contribution to the administration of justice.” ’®

The degree of the Solicitor General’s concern is

reflected by his admittedly unique suggestion regard-

both to indigents and nonindigents and to the administration of

justice. Cf. Tate v. Short, 401 U. S. 395 (1971). No adequate

resolution of these inherently difficult problems has yet been found.

The rule adopted by the Court today, depriving the lower courts of

all discretion in such cases unless counsel is available and is appointed,

could 2g,tavate the problem.

_ 38 Tr. of Oral Arg., at 34-35.

19 Td., at 36-37.

ARGERSINGER v. HAMLIN 13

ing the extraordinary demand for counsel which

would result from the new rule. Recognizing implicitly

that, in many sections of the country, there simply will

not be enough lawyers available to meet this demand

either in the short or long term, the Solicitor General

speculated whether “clergymen, social workers, proba-

tion officers, and other persons of that type” could be used

“as counsel in certain «ypes of cases involving relatively

small sentences.” *° Quite apart from the practical and

political problem of amending the laws of each of the 50

States which require a license to practice law, it is diffi-

cult to square this suggestion with the meaning of the

term “assistance of counsel” long recognized in our law.

The majority’s treatment of the consequences of the

new rule which so concerned the Solicitor General is

not reassuring. In a footnote, it is said that there are

presently 335,200 attorneys and that the number will

increase rapidly, doubling by i985. This is asserted to

be sufficient to provide the number of full-time counsel,

estimated by one source at between 1,575 and 2,300, to

represent all indigent misdemeanants, excluding traffic

offenders. It is totally unrealistic to imply that 335,200

lawyers are potentially available. Thousands of these

are not in practice, and many of those who do practice

work for governments, corporate legal departments, the

Armed Services and are unavailable for criminal repre-

sentation. Of those in general practice, we have no

indication how many are qualified to defend criminal

cases or willing to accept assignments which may prove

less than lucrative for most.?!

20 Id., at 39.

*t The custom in many, if not most, localities is to appoint counsel

on a case-by-case basis. Compensation is generally inadequate.

Even in the federal courts under the Criminal Justice Act of 1964,

18 U.S. C. § 3006A, which provides orie of the most generous com-

pensation plans, the rates for appointed counsel—$20 per hour spent

bye

14 ARGERSINGER v. HAMLIN

It is similarly unrealistic to suggest that implementa-

tion of the Court’s new rule will require no more than

1,575 to 2,300 “full-time” lawyers. In few communities

are there full-tiine public defenders available for or pri-

vate lawyers specializing in petty cases. Thus, if it were

possible at all, it would be necessary to coordinate the

schedules of those lawyers who are willing ‘» take an

occasional misdemeanor appointment with the crowded

calendars of lower courts in which cases are not scheduled

weeks in advance but instead are frequently tried the day

after arrest. Finally, the majority’s focus on aggregate

figures ignores the heart of the problem, which is the

distribution and availability of lawyers, especially in the

hundreds of small localities acress the country.

Perhaps the most serious potential impact of today’s

holding will be on our already overburdened local

courts.”*7 The primary cause of “assembly line” justice

is a volume of cases far in excess of the capacity

out of court, $30 per hour of court time, subject to a maximum total

fee of $400 for a misdemeanor case and $1,000 for a felony—are low

by American standards. Consequently, the majority of persons

willing to accept appointments are the young and inexperienced.

See Cappelletti, Part One: The Emergence of a Modern Theme, in

Cappelletti and Gordley, Legal Aid: Modern Themes and Variations,

24 Stanford L. Rev. 347, 377-378 (1972). Mr. Justice BRENNAN

suggests, in his concurring opinion, that law students might provide

an important source of legal representatica. He presents no figures,

however, as to how many students would be qualified and willing

to undertake the responsibilities of defending indigent misdemean-

ants. Although welcome progress is being made with programs,

supported by the American Bar Association, to enlist the involve-

ment of law students in indigent representation, the problems of

meeting state requirements and of assuring the requisite centrol

and supervision, are far from insubstantial. Moreover, the iipact

of student participation would be limited primarily to the 140 or

less communities where these law schools are located.

22 See generally H. James, Crisis in the Courts, c. 2 (1967);

Challenge, supra, n. 13, 145-156.

ae

ARGERSINGER v. HAMLIN 15

of the system to handle efficiently and fairly. The

Court’s rule may well exacerbate delay and con-

gestion in these courts. We are familiar with the

common tactic of counsel of exhausting every pos-

sible legal avenue, often without due regard to its prob-

able payoff. In some cases this may be the lawyer’s

duty; in other cases it will be done for purposes of

delay.** The absence of direct economic impact on the

client, plus the omnipresent ineffective assistance of

counsel claim, frequently produces a decision to litigate

every issue. It is likely that young lawyers, fresh out

of law school, will receive most of the appointments in

petty offense cases. The admirable zeel of these law-

yers; their eagerness to make a reputation; the time

their not-yet crnwaed schedules permit them to devote

to relatively minor legal problems; their desire for court-

room exposure; the availability in some cases of hourly

fees, lucrative to the novice; and the recent con-

suitutional explosion in procedural rights for the ac-

cused—all these factors are likely to result in the stretch-

ing out of the process with consequent increased costs

to the public and added delay and congestion in the

courts.**

*8 See, e. g., James, supra, n. 21, at 27-30; Schrag, On Her

Majesty’s Secret Service: Protecting the Consumer in New York

City, 80 Yale L. J. 1529 (1971).

*4In Cook County, Illinois, a recent study revealed that the mem-

bers of the Chicago Bar Association’s Committce on the Defense

of Prisoners, who are appointed to represent indigent defendants,

elect a jury trial in 63% of their trial cases, while retained and ap-

pointed counsel do so in 33% and the public defender in only 15%.

“One possible explanation for this contrast is that committee counsel,

who are sometimes serving in part to gain experience, are more

willing to undertake a jury trial than is an assistant public defender,

who is very busy and very conscious of the probable extra penalty

accruing to a defendant who loses his case before a jury.” D. Oaks

and W. Lehman, A Criminal Justice System and the Indigent, 158

(1968) (footnote omitted).

16 ARGERSINGER v. HAMLIN

There is an additional problem. The ability of vari-

ous States and localitics to furnish counsel varies widely.

Even if there were adequate resources on a national

basis, the uneven distribution of these resources—of law-

yers, of facilities and availabie funding—presents the

most acute problem. A number of state courts have

considered the question before the Court in this case,

and have been compelled to c ront these cealities.

Many have concluded that the indigent’s right to ap-

pointed counsel does not extend to all misdemeanor

cases. In reaching this conchusion, the state courts have

drawn the right-to-counsel line in different places, and

most have acknowledged that they were moved to do so,

at least in part, by the impracticality of going further.”

In other States, legislatures and courts through the en-

actment of laws or rules have drawn the line short of

that adopted by the majority.2* These cases and stat-

utes reflect the judgment of the courts and legislatures

of many States, who understand the problems of

local judicial systems better than this Court, that

25 See Irvin v. State, 44 Ala. App. 101, 203 So. 2d 283 (1967);

Burrage v. Superior Court, 105 Ariz. 53, 459 P. 2d 313 (1969);

Cableton v. State, 243 Ark. 351, 420 S. W. 2d 535 (1967); Arger-

singer v. Ramlin, 236 Sc. 2d 442 (Fla. 1970); People v. Dupree, 42

Ill. 2d 249, 246 N. E. 2d 281 (1969); People v. Mallory, 378 Mich.

538, 147 N. W. 2d 66 (1967); Hendrix v. City of Seattle, 76 Wash.

2d 142, 456 P. 2d 696, cert. denied, 397 U. S. 948 (1969); State ex

rel. Plutshack v. Department of Health and Social Services, 37 Wis.

2d 713, 155 N. W. 2d 549 (1968).

26 See Hawaii St. Const., Art. I, §11 (1968); Idaho Code Ann.

§§ 19-851, 19-852 (1971 Supp); Kan. Gen. Stat. Ann. § 22-4503

(1970 Supp.); Ky. Crim. Proc. Rule 8.04; La. Rev. Stat., 15-

141 (F) (West 1967); Me. Rule Crim. Proc. 44; Md. R. 719 §b2

(a); Neb. Rev. Stat. § 29-1803 (1967); Nev. Rev. Stat. §§ 171.188,

193.140 (1969); N. Mex. Stat. Ann. § 40-2017 (19%0 Supp.) ; Utah

Code Ann. § 77-64-2 (1971 Supp.); Vt. Stat. Ann., Tit. 13, § 6503

(1971 Supp.); Va. Code Ann. § 19.1-241.1 (1971 Supp).

——_——

ARGERSINGER v. HAMLIN 17

the rule announced by the Court today may seriously

overtax capabilities.”

The papers filed in a recent petition to this Court for a

writ of certiorari serve as an example of what today’s rul-

ing will mean in some localities. In November 1971 the

petition in Wright v. Town of Wood, No. 71-5722, was

filed with this Court. The case, arising out of a South

Dakota police magistrate court conviction for the mu-

nicipal offense of public intoxication, raises the same

issues before us in this case. The Court requested that

the town of Wood file a response. On March 8, 1972,

a lawyer occasionally employed by the town filed with

the clerk an affidavit explaining why the town had not

responded. He explained that Wood, South Dakota,

has a population of 132, that it has no sewer or water

system and is quite poor, that the office of the nearest

lawyer is in a town 40 miles away, and that the town

had decided that contesting this case would be an unwise

allocation of its limited resources.

Though undoubtedly smaller than most, Wood is not

dissimilar from hundreds of communities in the. United

States with no or very few lawyers, with meager finan-

cial resources, but with the need to have some sort of

local court system to deal with minor offenses.” It is

27See Kimisar & Choper, The Right to Counsel in Minnesota:

Some Field Findings and Legal-Policy Observations, 48 Minn. L. Rev.

1, 68 (1963). Local judges interviewed by the authors concluded

that the right to counsel should not be extended to petty cases.

“If no such dividing line can be drawn, if the question of assigned

counsel in misdemeanor cases resolves itself into an ‘all or nothing’

proposition, then, the thrust of their views was that limited funds

and lawyer-manpower and the need for judicial economy dictate that

it be ‘nothing.’” (Footnote omitted.) But see State v. Borst, 278

Minn. 388, 154 N. W. 2d 888 (1967).

28 See Cableton v. State, supra, n. 24, at 358: “[T]here are more

justices of the peace in Arkansas than there are resident prac-

ticing lawyers and . . . there are counties in which there are no

S aene a

18 ARGERSINGER v. HAMLIN

quite common for the more numerous petty offenses in

such towns to be tried by local courts or magistrates

rhile the more serious offenses sre tried in a county-

ide court located in the county seat.”® It is undoubt-

edly true that some injustices result from the inforrnai

ocedures of these local courts when counsel is not

furnished; certainly counsel should be furnished to some

indigents in some cases. But to require that counsel be

furnished virtually every indigent charged with an im-

prisonable offense would be a practical impossibility for

any small town courts. The community could simply

not enforce its own laws.*°

Perhaps it will be said that I give undue weight

both to the likelihood of short term “cnaos” and to

the possibility of long term adverse effects on the system.

The answer may be given that if the Constitution re-

quires the rule announced by the majority, the conse-

practicing lawyers. The impact of [right to counsel in misdemeanor

cases] would seriously impair the administration of justice in Arkansas

and impose an intolerable burden upon the legal profession.” (Foot-

note omitted.)

24 See Silverstein, supra, n. 9, at 125-126.

3¢The successful implementation of the majority’s rule would

require state and local governments to appropriate considerable

funds, something they have not been willing to do. Three States

with 21% of the Naticn’s population provide more than 50% of all

state appropriations for indigent defense. Note, Dollars and Sense

of an Expanded Right to Counsel, 55 Iowa L. Rev. 1249, 1265

(1970). For example, in 1971 the State of Kansas spent $570,000

defending indigents in felony cases—up from $376,000 in 1969.

Although the budgetary request for 1972 was $612,000, the legislature

has |appropriated only $400,000. Brief for Appellant in James v.

Strange, No. 73-11. “In view of American resources the funds

spent on the legal services program can only be regarded as trivial.”

Cappelletti, supra, n. 21, at 379. “Although the American econ-

omy) is over 8 times the size of the British and the American popu-

lation is almost 4 times as great, American legal aid exp2nditures

are less thar 2 times as high.” /d., at 379, n. 210.

ARGERSINGER v. HAMLIN 19

quences are immaterial. If I were sati,Sed that the

guarantee of due process required the assistance of

counsel in every case in which a jail sentence is imposed

or that the only workable methed of insuring justice

is to adopt the majority’s rule, I would not hesitate

to join the Court’s opinion despite my misgivings as

to its effect upon the administration of justice. But

in addition to the resulting problems of availability of

counsel, of costs, and especially of intolerable delay

in a:' already overburdened system, the majority’s draw-

ing of a new inflexible rule may raise more Fourteenth

Amendment problems than it resolves. Although the

Court’s opinion does not deal explicitly with any

sentence other than deprivation of liberty however

brief, the according of special constitutional status

to cases where such a sentence is imposed may derogate

the need for counsel in other types of cases, unless the

Court embraces an even broader prophylectic rule. Due

process requires .a fair trial in all cases. Neither the

six-month rule approved below nor the rule today enun-

ciated by the Court is likely to achieve this result.

III

I would hold that the right to counsel in petty

offense cases is not absolute but is one to be deter-

mined by the trial courts exercising a judicial dis-

cretion on a case-by-case basis.*? The determination

should be made before the accused formally pleads;

many petty cases are resolved by guilty pleas in

which the assistance of counsel may be required,” If

*1 It seems to me that such an individualized rule, unlike a six-

month rule and the majority’s rule, does not present equal protec-

tion problems under this Court’s decisions in Griffin v. Illinois, 351

U. S. 12 (1956); Douglas v. California, 372 U. 8. 353 (1963); and

Mayer v. City of Chicago, 404 U. 8. 199 (1971).

*? See, e. g., Katz, Municipal Courts—Another Urban Ill, 20 Case

Western Reserve L. Rev. 87, 92-96 (1968). Cf. Hamilton v. Ala-

a 2

20 ARGERSINGER v. HAMLIN

the trial court should conclude’ the assistance of

counsel is not required in any , it should state its»

reasons so that the issue could be preserved for review.

The trial court would then become obligated to scrutinize

carefully the subsequent proceedings for the protection

of the defendant. If an unrepresented defendant sought

to enter a plea of guilty, the Court should examine

the case against him to incure that there is admissible

evidence tending to support the elements of the of-

fense. If a case went to trial without defense counsel,

the court should intervene, when necessary, to insure

that the defenda:.t adequately brings out the facts in

his favor and to prevent legal issues from being over-

looked. Formal trial rules should not be applied strictly

against unrepresented defendants. Finally, appellate

courts should carefully scrutinize all decisions not to

appoint counsel and the proceedings which follow.

It is impossible, as well as unwise, to create a precise

and detailed set of guidelines for judges to follow in de-

termining whether the appointment of counsel is neces-

sary to assure a fair trial. Certainly three general factors

should be weighed. First, the court should consider the

complexity of the offense charged. For example, charges

of traffic law infractions would rarely present complex

legal or factual questions, bu‘ charges that contain difficult

intent elements or which raise collateral legal questions,

such as search and seizure problems, would usualiy be too

complex for an unassisted layman. If the offerse were

one where the State is represented by counsel and where

most defendants who can afford to do so obtain counsel, ”

bama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59 (1963);

Harvey v. Mississippi, 340 F. 2d 263 (CA5 1965).

Although there is less plea negotiating in petty cases, see n. 13,

supra, the assistance of counsel may still be needed so that the de-

fendant who is not faced with overwhelming evidence of guilt can

make an intelligent decision whether to go to trial.

ARGERSINGER v. HAMLIN 21

there would be a strong indication that the indigent also

needs the assistance of counsel.

Second, the court should consider the probable sen-

tence that will follow if a conviction is obtained. The

more serious the likely consequences, the greater is the

probability that a lawyer should be appointed. As noted

in Part I above, imprisonment is not the only serious

consequence the court should consider.

Third, the court should consider the individual factors

peculiar to each case. These, of course, would be the

most difficult to anticipate. One relevant factor would be

the competency of the individual defendant to present his

own case. The attitude of the community toward a par-

ticular defendant or particular incident wouid be another

consideration. But there might be other reasons why a

defendant would have a peculiar need for a lawyer which

would compel the appointment of counsei in a case where

the court would normaliy think this unnecessary. Ob-

viously, the sensitivity and diligence of individual judges

would be crucial to the operation of a rule of fundamental

fairness requiring the consideration of the varying factors

in each case.

Such a rule is similar in certain respects to the special

circumstances rule applied to felony cases in Betts v.

v. Brady, 316 U.S. 455 (1942), and Bute v. Illinois, 333

U.S. 640 (1948), which this Court overruled in Gideon.

One of the reasons for seeking a more definitive standard

in felony cases was the failure of many state courts to

live up to their responsibilities in determining on a case-

by-case basis whether counsel should be appointed. See

the concurring opinion of Mr. Justice Harlan in Gideon,

372 U.S., at 350-351. But this Court should not assume

———

*°I do not disagree with the overruling of Betts; I am in complete

accord with Gideon. Betts, like Gideon, concerned the right to

counsel in a felony case. See n. 1, supra. Neither case controls

today’s result. ,

WS RY peas

22 ARGERSINGER v. HAMLIN

that the past insensitivity of some state courts to the

rights of defendants will continue. Certainly if the

Court follows the course of reading rigid rules into the

Constitution, so that the state courts will be unable to

exercise judicial discretion within the limits of funda-

mental fairness, there is little reason to think that in-

sensitivity will abate.

In concluding, I emphasize my long held conviction

that the adversary system functions best and most fairly

only when all parties are represented by competent

counsel. Before becoming a member of this Court, I

participated in efforts to enlarge and extend the avail-

ability of counsel. The correct. disposition of this case,

therefore, has been a matter of considerable concern to

me—as it has to the other members of the Court. We

are all strongly drawn to the ideal of extending the right

to counsel, but I differ as to two fundamentals: (i) what

the Constitution requires, and (ii) the effect. upon the

criminal justice system, especially in the smaller cities

and the thousands of police, municipal and justice of the

peace courts across the country.

The vier? I have expressed in this opinion would accord

considerable discretion to the courts, and would allow the

flexibility and opportunity for adjustment which seems

so necessary when we are imposing new doctrine on the

lowest level of courts of 50 States. Although this view

would not precipitate the “chaos” predicted by the Solici-

tor General as the probable result of the Court’s absolutist

rule, there would still remain serious_practical-problems—

resulting from the expansion of indigents’ rights to coun-

sel in petty offense cases.** But the according of review-

54 Indeed, it is recognized that many of the problems identified in

this opinion will result from any raising of the standards as to the

requirement of counsel. It is my view that relying upon judicial

discretion to assure fair trial of petty offenses not only comports

with the Constitution but will minimize problems whici otherwise

ARGERSINGER v. HAMLIN 23

able discretion to the courts in determining when counsel

is necessary for a fair trial, rather than mandating a com-

pletely inflexible rule, would facilitate an orderly transi-

tion to a far wider availability and use of defense counsel.

In this process, the courts of first instance which de-

cide these cases would have to recognize a duty to consider

the need for counsel in every case where the defendant

faces a significant penalty. The factors mentioned above,

and such standards or guidelines to assure fairness as

might be prescribed in each jurisdiction by legislation or

rule of court, should be considered where relevant... The

goal should be, in accord with the essence of the adversary

system, to expand as rapidly as practicable the avail-

ability of counsel so that no person accused of crime

must stand alone if counsel is needed.

As the proceedings in the courts below were not in

e cord with the views expressed above, I concur in the

result of the decision in this case.

could affect adversely the administration of criminal justice in the

very courts which already are under the mosi severe strain.