U.S. Supreme Court Argersinger v. Hamlin, 407 U.S.
25 (1972) Argersinger v. Hamlin No. 70-5015 Argued December 6,
1971 Reargued February 28,
1972 Decided June 12, 1972 407 U.S.
25 CERTIORARI TO THE SUPREME COURT OF
FLORIDA Syllabus The right of an indigent defendant in a criminal trial to the
assistance of counsel, which is guaranteed by the Sixth Amendment
as made applicable to the States by the Fourteenth, Gideon v.
Wainwright, 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 prosecution, 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 non-petty
offenses punishable by more than six months imprisonment." Pp. 407 U. S.
27 -40. 236 So. 2d
442 , reversed.

															DOUGLAS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined.
BRENNAN, J., filed a concurring opinion, in which DOUGLAS and
STEWART, JJ., joined, post, p. 407 U. S. 40 .
BURGER, C.J., filed an opinion concurring in the result, post, p. 407 U. S. 41 .
POWELL, J., filed an opinion concurring in the result, in which
REHNQUIST, J., joined, post, p. 407 U. S.
44 . Page 407 U. S. 26 MR. JUSTICE DOUGLAS 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, a $1,000 fine, or both. 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
charge for which he stands convicted. The Florida Page 407 U. S. 27 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 , 391 U. S. 159 ,
as respects the right to trial by jury, and held that the right to
court-appointed counsel extends only to trials "for non-petty
offenses punishable by more than six months imprisonment." 236 So. 2d
442 , 443. [ Footnote 1 ]

															The case is here on a petition for certiorari, which we granted.
401 U.S. 908. 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.
S. 257 ), provides specified standards for "all criminal
prosecutions." Page 407 U. S. 28 One is the requirement of a "public trial." In 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 333 U. S.
272 .

															Another 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
for obtaining witnesses in one's favor. Washington v. Texas,
supra. We have never limited these rights to felonies or 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 388 U. S. 18 .
Respecting the right to a speedy and public trial, the right to be
informed of the nature and cause of the accusation, 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 , illustrates the point. There, the offense was
engaging without a license in the business of dealing in
second-hand 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 Page 407 U. S. 29 and a new trial ordered, because the trial court had
prejudicially 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 for six months or more. But, as the various opinions
in Baldwin v. New York, 399 U. S. 66 , make
plain, the right to trial by jury has a different geneology, and is
brigaded 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 safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or
eccentric judge. If the defendant preferred the common sense
judgment 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 provisions in the Federal and State
Constitutions reflect a fundamental decision about the exercise of
official 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 arbitrary law enforcement qualifies for protection
under the Due Process Clause of the Fourteenth Amendment, and must
therefore be respected by the States."

															391 U.S. at 391 U. S.
156 . Page 407 U. S. 30 While there is historical support for limiting the "deep
commitment" to trial by jury to "serious criminal cases," [ Footnote 2 ] there is no such support
for a similar limitation on the right to assistance of counsel:

															"Originally, in England, a person charged with treason or felony
was denied the aid of counsel, except in respect of legal questions
which the accused himself might suggest. At the same time, parties
in civil cases and persons accused of misdemeanors 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
consideration, had been definitely rejected, and the right to
counsel fully recognized in all criminal prosecutions, save that,
in one or two instances, the right was limited to capital offenses
or to the more serious crimes. . . ." Powell v. Alabama, 287 U. S. 45 , 287 U. S. 60 , 287 U. S.
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, 331-332, n. 9.

															We reject, therefore, the premise that, since prosecutions for
crimes punishable by imprisonment for less than Page 407 U. S. 31 six months may be tried without a jury, they may also be tried
without a lawyer.

															The assistance of counsel is often a requisite to the very
existence of a fair trial. The Court in Powell v. Alabama,
supra, at 287 U. S. 669 --
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 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,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar 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, 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. 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:

															"[I]n our adversary system of criminal justice, any person haled
into court who is too poor to hire a lawyer cannot be assured a
fair trial unless counsel is provided for him. This seems to us to
be an obvious truth. Governments, both state and federal, Page 407 U. S. 32 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
orderly 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 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. The
right of one 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 beginning, our state and national
constitutions and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the poor man
charged with crime has to face his accusers without a lawyer to
assist him."

															372 U.S. at 372 U. S. 344 .
[ Footnote 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
applicable to all such criminal prosecutions, even those, such Page 407 U. S. 33 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 include, as a minimum, a right to examine the witnesses
against him, to offer testimony, and to be represented by
counsel. "

															333 U.S. at 333 U. S. 273 (emphasis supplied).

															The requirement of counsel may well be necessary for a fair
trial even in a petty offense prosecution. We are by no means
convinced that legal and constitutional questions involved in a
case that actually leads to imprisonment 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 Papachristou v.
Jacksonville, 405 U. S. 156 . In re Gault, 387 U. S. 1 , dealt
with juvenile delinquency and an offense which, if committed by an
adult, would have carried a fine of $5 to $50 or imprisonment in
jail for not more than two months ( id. at 387 U. S. 29 ),
but which, when committed by a juvenile, might lead to his
detention in a state institution until he reached the age of 21. Id. at 387 U. S. 36 -37.
We said ( id. at 387 U. S. 36 )
that

															"[t]he juvenile needs the assistance of counsel to cope with
problems of law, to make skilled inquiry into the facts, to insist
upon regularity of the proceedings, and to ascertain whether he has
a defense and to prepare and submit it. The child 'requires the
guiding hand of counsel Page 407 U. S. 34 at every step in the proceedings against him,' citing Powell
v. Alabama, 287 U.S. at 287 U. S.
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 misdemeanor, as well as in
felony, cases. Counsel is needed so that the accused may know
precisely what he is doing, so that he is fully aware of the
prospect of going to jail or prison, and so that he is treated
fairly by the prosecution.

															In addition, the volume of misdemeanor cases, [ Footnote 4 ] far greater in number than felony
prosecutions, may create an obsession for speedy dispositions,
regardless of the fairness of the result. The Report by the
President's Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society 128 (1967) ,
states:

															"For example, until legislation 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 petty
offenses and an equal number of traffic offenses per year. An
inevitable consequence of volume that large is the almost total
preoccupation Page 407 U. S. 35 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.
Inadequate attention tends to be given to the individual defendant,
whether, in protecting his rights, sifting the facts at trial,
deciding the social risk he presents, or determining how to deal
with him after conviction. The frequent result is futility and
failure. 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 lawyers 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 defendants 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 administration 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 Misdemeanor Page 407 U. S. 36 Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152
(1970).

															There is evidence of the prejudice which results to misdemeanor
defendants from this "assembly line justice." One study concluded
that

															"[m]isdemeanants represented 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."

															American Civil Liberties Union, Legal Counsel for Misdemeanants,
Preliminary Report 1 (1970).

															We must conclude, therefore, that the problems associated with
misdemeanor and petty [ Footnote
5 ] offenses often Page 407 U. S. 37 require the presence of counsel to insure the accused a fair
trial. MR. JUSTICE POWELL suggests that these problems are raised
even in situations where there is no prospect of imprisonment. Post at 407 U. S. 48 . 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, petitioner was, in fact, sentenced to jail. And,
as we said in Baldwin v. New York, 399 U.S. at 399 U. S.
73 ,

															"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. [ Footnote
6 ]"

															We hold, therefore, that, absent a knowing and intelligent
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. [ Footnote 7 ]

															That is the view of the Supreme Court of Oregon, with which we
agree. It said, in Stevenson v. Holzman, 254 Ore. 94, 102, 458 P.2d
414 , 418:

															"We hold that no person may be deprived of his Page 407 U. S. 38 liberty who has been denied the assistance of counsel as
guaranteed by the Sixth Amendment. This holding is applicable to
all criminal prosecutions, including prosecutions for violations of
municipal ordinances. The denial of the assistance of counsel will
preclude the imposition of a jail sentence. [ Footnote 8 ]"

															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. [ Footnote
9 ] 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 [ Footnote 10 ] where imprisonment actually
occurs. Page 407 U. S. 39 The American Bar Association Project on Standards for Criminal
Justice states:

															"As a matter of sound judicial administration, it is preferable
to disregard the characterization of the offense as felony,
misdemeanor or traffic offense. Nor is it adequate 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 particular case; it draws a
categorical line at those types of offenses for which incarceration
as a punishment is a practical possibility."

															Providing Defense Services 40 (Approved Draft 1968). Page 407 U. S. 40 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.

															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 when one's liberty is in jeopardy. Reversed. [ Footnote 1 ]

															For a survey of the opinions of judges, prosecutors, and
defenders concerning the right to counsel of persons charged with
misdemeanors, see 1 L. Silverstein, Defense of the Poor in
Criminal Cases in American State Courts 127-135 (1965).

															A review of federal and state decisions following Gideon is contained 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. Id. at 119-124.

															Nineteen States provide for the appointment of counsel in most
misdemeanor cases. Id. at 124-133. One of these is Oregon,
whose Supreme Court said, in Stevenson v. Holzman, 254
Ore. 94, 100-101, 458 P.2d
414 , 418,

															"If our objective is to insure a fair trial in every criminal
prosecution, the need for counsel is not determined by the
seriousness of the crime. The assistance of counsel will best avoid
conviction of the innocent -- an objective as important 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 731 , 51 Cal. Rptr. 771.

															Overall, 31 States have now extended the right to defendants
charged with crimes less serious than felonies. Comment, Right to
Counsel, supra, at 134.

															[ Footnote 2 ] See Frankfurter & Corcoran, Petty Federal Offenses
and the Constitutional 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).

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

															"[The Sixth Amendment] embodies a realistic recognition of the
obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before a
tribunal with power to take his life or liberty, wherein the
prosecution is [re]presented 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."

															[ Footnote 4 ]

															In 1965, 314,000 defendants were charged with felonies in state
courts, and 24,000 were charged with felonies in federal courts.
President's Commission on Law Enforcement and Administration of
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. 1249, 1261 (1970).

															[ Footnote 5 ]

															Title 18 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
not more than $500, or both. Title 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 Court of Appeals for the Fifth
Circuit noted in James v. Headley, 410 F.2d at 330-331, 18
U.S.C. § 3006A, which was enacted as the Criminal Justice Act of
1964, contains 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
extends to all offenses, petty and serious alike. H.R.Conf.Rep. No.
1709, 88th Cong., 2d Sess. (1964).

															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 from his initial appearance before the
commissioner or the court through appeal, unless he waives such
appointment."

															The Advisory Committee note on Rule 44 says:

															"Like the original rule, the amended rule provides a right to
counsel which is broader in two respects than that for which
compensation is provided in the 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."

															[ Footnote 6 ] See Marston v. Oliver, 324 F.
Supp. 691 , 696 (ED Va.1971):

															"Any incarceration of over thirty days, more or less, will
usually result in loss of employment, with a consequent substantial
detriment to the defendant and his family."

															[ Footnote 7 ]

															We do not share MR. JUSTICE POWELL's doubt that the Nation's
legal resources are sufficient 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
355,200 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
Enrollment, 58 A.B.A.J. 146, 147. Indeed, there are 18,000 new
admissions to the bar each year -- 3,500 more lawyers than are
required to fill the "estimated 14,500 average annual openings." Id. at 148.

															[ Footnote 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 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."

															[ Footnote 9 ]

															One partial solution to the problem of minor offenses may well
be to remove them from the court system. The American Bar
Association Special Committee on Crime Prevention and Control
recently 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 nonjudicial entities, such as detoxification
centers, narcotics treatment centers and social service agencies.
The handling of other nonserious 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.

															[ Footnote 10 ]

															"Forty thousand traffic charges (arising out of 150,000
nonparking 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 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 Counsel in Misdemeanor Cases, 43
Wash.L.Rev. 685, 711 (1968).

															Of the 1,288,975 people 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
imprisonment. Ibid. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE STEWART join, concurring.

															I join the opinion of the Court and add only an observation upon
its discussion of legal resources, ante at 407 U. S. 37 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 established clinical programs in which
faculty-supervised students aid clients in a variety of civil and
criminal matters.* CLEPR Newsletter, May 1972, p. 2. These programs
supplement practice rules enacted in 38 States authorizing students
to practice law under prescribed conditions. Ibid. Like
the American Bar Association's Model Student Practice Rule (1969),
most of these regulations permit students to make supervised Page 407 U. S. 41 court appearances as defense counsel in criminal cases. CLEPR,
State Rules Permitting the Student Practice of Law: Comparisons and
Comments 13 (1971). Given the huge increase in law school
enrollments over the past few years, see Ruud, That
Burgeoning Law School Enrollment, 58 A.B.A.J. 146 (1972), I think
it plain that law students can be expected to make a significant
contribution, quantitatively and qualitatively, to the
representation of the poor in many areas, including cases reached
by today's decision.

															* A total of 57 law schools have also established clinical
programs in corrections, where law students, under faculty
supervision, aid prisoners in the preparation of petitions for
post-conviction relief. CLEPR Newsletter, May 1972, p. 3. See
United States v. Simpson, 141 U.S.App.D.C. 8, 15-16, 436 F.2d
162, 169-170 (1970).

															MR. CHIEF JUSTICE BURGER, concurring in the result.

															I agree with much of the analysis in the opinion of the Court
and with MR. JUSTICE POWELL's appraisal of the problems. Were I
able to confine my focus solely to the burden that the States will
have to bear in providing 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 without 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 serious charges. Appeal from a
conviction after an uncounseled 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. Page 407 U. S. 42 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 sentence only by offering
counsel to any defendant unable to retain counsel 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 prediction is not
one beyond the capacity of an experienced judge, aided as he should
be by the prosecuting officer. As to jury cases, the latter should
be prepared to inform the judge as to any prior record of the
accused, the general nature of the case against the accused,
including any use of violence, the severity of harm to the victim,
the impact on the community, 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. Page 407 U. S. 43 This will mean not only that more defense counsel must be
provided, but also additional prosecutors and better facilities for
securing information about the accused 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 profession, speaking
through the American Bar Association in a Report on Standards
Relating to Providing Defense Services, determined that society'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." American Bar Association Project on
Standards for Criminal Justice, Providing Defense Services 1
(Approved Draft 1968). 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 criminal cases both from
the viewpoint of the defendant and of society." Id. 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 proceedings for
offenses punishable by loss of liberty, except those types of
offenses for which such punishment is not likely to be imposed,
regardless of their denomination as felonies, misdemeanors or
otherwise." Id. § 4.1, pp. 37-38. In a companion ABA Report on
Standards Relating to the Prosecution Function and the Defense
Function, Page 407 U. S. 44 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 properly constituted to
hear a criminal case must be viewed as a tripartite entity
consisting of the judge (and jury, where appropriate), counsel for
the prosecution, and counsel for the accused." Id. at 153 (Approved Draft 1968).

															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. S.
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 profession 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 overtaxed, but the dynamics of the profession
have a way of rising to the burdens placed on it.

															* 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.

															MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST 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. [ Footnote 2/1 ] The question Page 407 U. S. 45 before us today is whether an indigent defendant convicted of an
offense carrying a maximum punishment of six months' imprisonment,
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
appointed counsel. The broader question is whether the Due Process
Clause requires that an indigent charged with a state petty offense
[ Footnote 2/2 ] be afforded the
right to appointed counsel.

															In the case under review, the Supreme Court of Florida agreed
that indigents charged with serious misdemeanors 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.
[ Footnote 2/3 ] 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 criminal cases was limited to cases in which the offense
charged was punishable by more than six months' imprisonment. It is
clear that, wherever the right to counsel line is to be drawn, it
must be drawn so that an indigent Page 407 U. S. 46 has a right to appointed counsel in all cases in which there is
a due process right to a jury trial. An unskilled layman may be
able to defend himself in a nonjury trial before a judge
experienced in piecing together unassembled facts, but, before a
jury, the guiding hand of counsel is needed to marshal the evidence
into a coherent whole consistent with the best case on behalf of
the defendant. If there is no accompanying right to counsel, 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, 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 support a similar
limitation of the right to counsel; to the contrary, at common law,
the right to counsel was available in misdemeanor, but not in
felony, cases. [ Footnote 2/4 ] 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 innocence
determined by a jury -- tempering the possibly arbitrary and harsh
exercise of prosecutorial and judicial power [ Footnote 2/5 ] -- while important, is not as fundamental
to the guarantee of a fair trial as is the right to counsel.
[ Footnote 2/6 ] Page 407 U. S. 47 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 without 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 407 U. S. 37 . 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
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 accused's need
for the assistance of counsel does not mysteriously evaporate when
he is charged with an offense punishable by six months or less. In Powell v. Alabama [ Footnote
2/7 ] and Gideon, [ Footnote
2/8 ] both of which involved felony prosecutions, this Court
noted that few laymen can present 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 defendants, 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
conditions Page 407 U. S. 48 found in local jails or the effect of a criminal record on
employability, are frequently of sufficient magnitude not to be
casually dismissed by the label "petty." [ Footnote 2/9 ]

															Serious consequences also may result from convictions not
punishable by imprisonment. Stigma may attach to a drunken driving
conviction or a hit-and-run escapade. [ Footnote 2/10 ] 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 (1971), 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 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." Id. at 402 U. S. 539 .
When the deprivation of property rights and interests is of
sufficient consequence, [ Footnote
2/11 ] denying the assistance of counsel to indigents who are
incapable of defending themselves is a denial of due process. Page 407 U. S. 49 This is not to say that due process requires the appointment of
counsel in all petty cases, or that assessment 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, embodies 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 means a universal fact. Some petty offense cases are complex;
others are exceedingly simple. As a justification for furnishing
counsel to indigents accused of felonies, 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. [ Footnote
2/12 ]"

															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 sentence 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. [ Footnote
2/13 ] It is anomalous that the Court's opinion today will
extend Page 407 U. S. 50 the right of appointed counsel to indigent defendants in cases
where the right to counsel would rarely be exercised by nonindigent
defendants.

															Indeed, one 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 between 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.

															A survey of state courts in which misdemeanors are tried showed
that procedures were often informal, presided over by lay judges.
Jury trials were rare, and the prosecution was not vigorous.
[ Footnote 2/14 ] 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. [ Footnote
2/15 ]

															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 simplicity of such a rule is
appealing, because it could be Page 407 U. S. 51 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 criminal 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.

															The rule adopted today does not go all the way. It is limited to
petty offense cases in which the sentence is some imprisonment. The
thrust of the Court's position 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 assume a similar rejection of
discretion in other petty offense cases. It would be illogical --
and without discernible 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 Page 407 U. S. 52 all for drawing this distinction. The logic it 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 that
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 prophylactic 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
today's decision could have a seriously adverse impact upon the
day-to-day functioning of the criminal justice system. We should be
slow to fashion a new constitutional rule with consequences of such
unknown dimensions, especially since it is supported neither by
history nor precedent. II The majority opinion concludes that, absent a valid waiver, a
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 statutes 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
misdemeanors, ranging from spitting 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 Page 407 U. S. 53 will confront the judges of each of these courts with an awkward
dilemma. If counsel 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 discretion to impose some sentence of imprisonment and
abandon his 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.

															If the latter course is followed, the first victim of the new
rule is likely to be the concept that justice requires a
personalized decision both as to guilt and the sentence. The notion
that sentencing should be tailored 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 sentences of imprisonment
may be imposed and those in which no such sentence will be given
regardless of the statutory authorization. In creating categories
of offenses which by law are imprisonable, but for which he would
not impose jail sentences, a judge will be overruling de
facto the legislative determination as to the appropriate
range of punishment for the particular offense. It is true, as the
majority notes, that there are some classes of imprisonable
offenses for which imprisonment 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 Page 407 U. S. 54 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 technique of trial de novo if the
evidence -- contrary to pretrial assumptions -- justified a jail
sentence. Presumably a mistrial would be declared, counsel
appointed, and a new trial ordered. But the Solicitor General also
recognized that a second trial, even with counsel, might be unfair
if the prosecutor could make use of evidence which came out at the
first trial when the accused was uncounseled. If the second trial
were held before the same judge, he might 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. [ Footnote 2/16 ] In
all likelihood, there will be no second trial, and certain offenses
classified by legislatures as imprisonable will be treated by
judges as unimprisonable.

															The new rule announced today also could result in equal
protection problems. There may well be an unfair and unequal
treatment of individual defendants, depending on whether the
individual judge has determined in advance to leave open the option
of imprisonment. 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 in cases in which no jail sentence is imposed, the
results of this type of pretrial judgment could be arbitrary and
discriminatory. Page 407 U. S. 55 A different type of discrimination could result in the typical
petty offense case where judgment in the alternative is prescribed:
for example, "five days in jail or $100 fine." If a judge has
predetermined that no imprisonment 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. [ Footnote 2/17 ]

															To avoid these equal protection problems and to preserve a range
of sentencing options as prescribed by law, most judges are likely
to appoint counsel for indigents 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 sudden
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 the
mandatory requirement of defense counsel will

															"require more pretrial 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. [ Footnote
2/18 ] " Page 407 U. S. 56 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. [ Footnote 2/19 ]"

															The degree of the Solicitor General's concern is reflected by
his admittedly unique suggestion regarding 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, probation officers, and other persons
of that type" could be used "as counsel in certain types of cases
involving relatively small sentences." [ Footnote 2/20 ] 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 difficult 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 355,200 attorneys,
and that the number will increase rapidly, doubling by 1985. 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 Page 407 U. S. 57 offenders. It is totally unrealistic to imply that 355,200
lawyers are potentially available. Thousands of these are not in
practice, and many of those who do practice work for governments,
corporate legal departments, or the Armed Services, and are
unavailable for criminal representation. 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. [ Footnote 2/21 ]

															It is similarly unrealistic to suggest that implementation 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-time public
defenders available for, or private 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 to take
an Page 407 U. S. 58 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 across the
country.

															Perhaps the most serious potential impact of today's holding
will be on our already overburdened local courts. [ Footnote 2/22 ] The primary cause of "assembly
line" justice is a volume of cases far in excess of the capacity of
the system to handle efficiently and fairly. The Court's rule may
well exacerbate delay and congestion in these courts. We are
familiar with the common tactic of counsel of exhausting every
possible legal avenue, often without due regard to its probable
payoff. In some cases, this may be the lawyer's duty; in other
cases, it will be done for purposes of delay. [ Footnote 2/23 ] 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 zeal of these lawyers; their eagerness to make a
reputation; the time their not-yet crowded schedules permit them to
devote to relatively minor legal problems; their desire for
courtroom exposure; the availability in some cases of hourly fees,
lucrative to the novice; and the recent constitutional explosion in
procedural rights for the accused -- all these factors are likely
to result in the stretching Page 407 U. S. 59 out of the process with consequent increased costs to the public
and added delay and congestion in the courts. [ Footnote 2/24 ]

															There is an additional problem. The ability of various States
and localities to furnish counsel varies widely. Even if there were
adequate resources on a national basis, the uneven distribution of
these resources -- of lawyers, of facilities, and available 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 confront these realities. Many have concluded
that the indigent's right to appointed counsel does not extend to
all misdemeanor cases. In reaching this conclusion, 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. [ Footnote 2/25 ] Page 407 U. S. 60 In other States, legislatures and courts, through the enactment
of law or rules, have drawn the line short of that adopted by the
majority. [ Footnote 2/26 ] These
cases and statutes reflect the judgment of the courts and
legislatures of many States, which understand the problems of local
judicial systems better than this Court, that the rule announced by
the Court today may seriously overtax capabilities. [ Footnote 2/27 ]

															The papers filed in a recent petition to this Court for a writ
of certiorari serve as an example of what today's ruling 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 municipal 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, Page 407 U. S. 61 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 to
hundreds of communities in the United States with no or very few
lawyers, with meager financial resources, but with the need to have
some sort of local court system to deal with minor offenses.
[ Footnote 2/28 ] It is quite
common for the more numerous petty offenses in such towns to be
tried by local courts or magistrates, while the more serious
offenses are tried in a countywide court located in the county
seat. [ Footnote 2/29 ] It is
undoubtedly true that some injustices result from the informal
procedures 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 imprisonable offense would be a practical
impossibility for many small town courts. The community could
simply not enforce its own laws. [ Footnote 2/30 ] Page 407 U. S. 62 Perhaps it will be said that I give undue weight both to the
likelihood of short-term "chaos" and to the possibility of
long-term adverse effects on the system. The answer may be given
that, if the Constitution requires the rule announced by the
majority, the consequences are immaterial. If I were satisfied that
the guarantee of due process required the assistance of counsel in
every case in which a jail sentence is imposeed, or that the only
workable method of insuring justice is to adopt the majority's
rule, I would not hesitate to join the Court' 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 an
already overburdened system, the majority's drawing 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 from the need for counsel in
other types of cases, unless the Court embraces an even broader
prophylactic rule. Due process requires a fair trial in all cases.
Neither the six-month rule approved below nor the rule today
enunciated by the Court is likely to achieve this result. Page 407 U. S. 63 III I would hold that the right to counsel in petty offense cases is
not absolute, but is one to be determined by the trial courts
exercising a judicial discretion on a case-by-case basis. [ Footnote 2/31 ] 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. [ Footnote 2/32 ] If the
trial court should conclude that the assistance of counsel is not
required in any case, 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 insure that there is admissible evidence tending to
support the elements of the offense. If a case went to trial
without defense counsel, the court should intervene, when
necessary, to insure that the defendant adequately brings out the
facts in his favor, and to prevent legal issues from being
overlooked. Formal trial rules should not be applied strictly
against unrepresented defendants. Finally, appellate Page 407 U. S. 64 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 determining
whether the appointment of counsel is necessary 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, but charges that
contain difficult intent elements or which raise collateral legal
questions, such as search and seizure problems, would usually be
too complex for an unassisted layman. If the offense were one where
the State is represented by counsel and where most defendants who
can afford to do so obtain counsel, there would be a strong
indication that the indigent also needs the assistance of
counsel.

															Second, the court should consider the probable sentence 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 407 U. S. 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 particular defendant or particular incident
would 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 counsel in a case where the court would
normally think this unnecessary. Obviously, 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. Page 407 U. S. 65 Such a rule is similar in certain respects to the special
circumstances rule applied to felony cases in Betts v.
Brady, 316 U. S. 455 (1942), and Bute v. Illinois, 333 U.
S. 640 (1948), which this Court overruled in Gideon. [ Footnote 2/33 ]
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 372 U. S.
350 -351. But this Court should not assume 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
fundamental fairness, there is little reason to think that
insensitivity 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 availability 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 view I have expressed in this opinion would accord
considerable discretion to the courts, and would allow the Page 407 U. S. 66 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 Solicitor 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 counsel in petty offense cases. [ Footnote 2/34 ] But the according of reviewable
discretion to the courts in determining when counsel is necessary
for a fair trial, rather than mandating a completely inflexible
rule, would facilitate an orderly transition to a far wider
availability and use of defense counsel.

															In this process, the courts of first instance which decide 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
availability 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 accord with
the views expressed above, I concur in the result of the decision
in this case.

															[ Footnote 2/1 ]

															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 appointed counsel should extend to all criminal
cases. 372 U.S. at 372 U. S. 351 .
In opinions announced more recently, the Court has assumed that the
holding of Gideon has not yet been extended to misdemeanor
cases. See In re Gault, 387 U. S. 1 , 387 U. S. 29 (1967); Mempa v. Rhay, 389 U. S. 128 , 389 U. S. 134 (1967); Burgett v. Texas, 389 U.
S. 109 , 389 U. S. 114 (1967); Loper v. Beto, 405 U. S. 473 (1972).

															[ Footnote 2/2 ]

															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 , 399 U. S. 69 (1970). It also includes all offenses 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 offense," which includes
offenses punishable by not more than six months' imprisonment or by
a fine not exceeding $500. 18 U.S.C. § 1.

															[ Footnote 2/3 ] 236 So. 2d 442 (1970).

															[ Footnote 2/4 ] See Powell v. Alabama, 287 U. S.
45 , 661 (1932).

															[ Footnote 2/5 ] Duncan v. Louisiana, 391 U. S. 145 , 391 U. S. 156 (1968).

															[ Footnote 2/6 ]

															Although we have given retroactive effect to our ruling in Gideon, Pickelsimer v. Wainwright, 375 U. S.
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 person convicted
in the past by procedures not consistent with the Sixth Amendment
right to jury trial." DeStefano v. Woods, 392 U. S. 631 , 392 U. S. 634 (1968).

															[ Footnote 2/7 ] Supra, 407 U.S.
25 fn2/4|>n. 4, at 68-69.

															[ Footnote 2/8 ]

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

															[ Footnote 2/9 ] See 1 L. Silverstein, Defense of the Poor in Criminal
Cases in American State Courts 132 (1965).

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

															[ Footnote 2/11 ]

															A wide range of civil disabilities may result from misdemeanor
convictions, such as forfeiture of public office ( State ex rel.
Stinger v. v. Kruger, 280 Mo. 293, 217 S.W. 310 (1919)),
disqualification for a licensed profession (Cal.Bus. &
Prof.Code § 3094 (1962) (optometrists); N.C.Gen.Stat. § 93A(b)
(1965) (real estate brokers)), and loss of pension rights
(Fla.Stat.Ann. § 185.18(3) (1966) (police disability pension denied
when injury is result of participation in fights, riots, civil
insurrections, or while committing crime); Ind.Ann.Stat. § 28-4616
(1948) (teacher convicted of misdemeanor resulting in
imprisonment); Pa.Stat.Ann., Tit. 53, § 39323 (Supp. 1972-1973) and
§ 65599 (1957) (conviction of crime or misdemeanor)). See
generally Project, The Collateral Consequences of a Criminal
Conviction, 23 Vand.L.Rev. 929 (1970).

															[ Footnote 2/12 ] Gideon v. Wainwright, 372 U.S. at 372 U. S.
344 .

															[ Footnote 2/13 ]

															In petty offenses, there is much less plea negotiation than in
serious offenses. See Report by the President's Commission
on Law Enforcement and Administration of Justice, The Challenge of
Crime in a Free Society (hereinafter Challenge) 134 (1967). Thus,
in cases where the evidence of guilt is overwhelming, the
assistance of counsel is less essential to obtain a lighter
sentence.

															[ Footnote 2/14 ]

															Silverstein, supra, 407 U.S.
25 fn2/9|>n. 9, at 125-126.

															[ Footnote 2/15 ]

															Neither the Report by the President's Commission on Law
Enforcement and Administration of Justice nor the American Bar
Association went the route the Court takes today. The President's
Commission recommended that counsel be provided for criminal
defendants who face "a significant penalty," and at least to those
who are in danger of "substantial loss of liberty." Challenge, supra, n. 407 U.S.
25 fn2/13|>13, at 150. The American Bar Association standard
would not extend the right to counsel to cases where "loss of
liberty" is not "likely to be imposed." American Bar Association
Project on Standards for Criminal Justice, Providing Defense
Services 370 (Approved Draft 1968). Neither supports a new,
inflexible constitutional rule.

															[ Footnote 2/16 ] See Callan v. Wilson, 127 U. S. 540 (1888); North Carolina v. Pearce, 395 U.
S. 711 (1969).

															[ Footnote 2/17 ]

															The type of penalty discussed above (involving the discretionary
alternative of "jail or fine") presents serious problems of
fairness -- 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
aggravate the problem.

															[ Footnote 2/18 ]

															Tr of Oral Arg. 335

															[ Footnote 2/19 ] Id. at 36-37.

															[ Footnote 2/20 ] Id. at 39.

															[ Footnote 2/21 ]

															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 one of the most
generous compensation plans, the rates for appointed counsel -- $20
per hour spent 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 & Gordley, Legal Aid: Modern
Themes and Variations, 24 Stan.L.Rev. 347, 377-378 (1972). MR.
JUSTICE BRENNAN suggests, in his concurring opinion, that law
students might provide an important source of legal representation.
He presents no figures, however, as to how many students would be
qualified and willing to undertake the responsibilities of
defending indigent misdemeanants. Although welcome progress is
being made with programs, supported by the American Bar
Association, to enlist the involvement of law students in indigent
representation, the problems of meeting state requirements and of
assuring the requisite control and supervision are far from
insubstantial. Moreover, the impact of student participation would
be limited primarily to the 140 or less communities where these law
schools are located.

															[ Footnote 2/22 ] See generally H. James, Crisis in the Courts, c. 2
(1988); Challenge, supra, 407 U.S.
25 fn2/13|>n. 13, at 145-156.

															[ Footnote 2/23 ] See, e.g., James, supra, 407 U.S.
25 fn2/22|>n. 22, at 270; Schrag, On Her Majesty's Secret
Service: Protecting the Consumer in New York City, 80 Yale L.J.
1529 (1971).

															[ Footnote 2/24 ]

															In Cook County, Illinois, a recent study revealed that the
members of the Chicago Bar Association's Committee on the Defense
of Prisoners who are appointed to represent indigent defendants
elect a jury trial in 63% of their trial cases, while other
appointed counsel and retained 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 & W. Lehman, A Criminal Justice System and the
Indigent 159 (1968) (footnote omitted).

															[ Footnote 2/25 ] 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 534 (1967); State ex rel. Argersinger v.
Hamlin, 236 So. 2d 442 (Fla.1970); People v. Dupree, 42 Ill. 2d
249 , 246 N.E.2d
281 (1969); People v. Millory, 378 Mich. 538, 147 N.W.2d
66 (1967); Hendrix v. City of Seattle, 76 Wash. 2d
142 , 456 P.2d
696 (1969), cert. denied, 397 U.S. 948 (1970); State ex rel. Plutschack v. Department of Health and Social
Services, 37 Wis.2d 713, 155 N.W.2d 549 (1968).

															[ Footnote 2/26 ] See Hawaii Const., Art. I, § 11 (1968); Idaho Code §§
19-851, 19-852 (Supp. 1971); Kan.Stat.Ann. § 22-4503 (Supp. 1971);
Ky.Rule Crim.Proc. 8.04; La.Rev.Stat. § 15:141(F) (1967); Me.Rule
Crim.Proc. 44; Md.Rule 719b2(a); Neb.Rev.Stat. § 29-1803 (1964);
Nev.Rev.Stat. §§ 171.188, 193.140 (1969); N.Mex.Stat.Ann. § 41-22-3
(Supp. 1971); Utah Code Ann. § 772 (Supp. 1971); Vt.Stat.Ann., Tit.
13, § 6503 (Supp. 1971); Va.Code Ann. § 19.1-241.1 (Supp.
1971).

															[ Footnote 2/27 ] See Kamisar & 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).

															[ Footnote 2/28 ] See Cableton v. State, 243 Ark., at 358, 420 S.W.2d at
538-539:

															"[T]here are more justices of the peace in Arkansas than there
are resident practicing lawyers, and . . . there are counties in
which there are no 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."

															(Footnote omitted.)

															[ Footnote 2/29 ] See Silverstein, supra, 407 U.S.
25 fn2/9|>n. 9, at 125-126.

															[ Footnote 2/30 ]

															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 Nation'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. 71-11, decided today, post, p. 407 U. S. 128 . "In
view of American resources, the funds spent on the legal services
program can only be regarded as trivial." Cappelletti, supra, 407 U.S.
25 fn2/21|>n. 21, at 379.

															"Although the American economy is over 8 times the size of the
British, and the American population is almost 4 times as great,
American legal aid expenditures are less than 2 times as high." Id. at 379 n. 210

															[ Footnote 2/31 ]

															It seems to me that such an individualized rule, unlike a
six-month rule and the majority's rule, does not present equal
protection problems under this Court's decisions in Griffin v.
Illinois, 351 U. S. 12 (1956); Douglas v. California, 372 U.
S. 353 (1963); and Mayer v. City of Chicago, 404 U. S. 189 (1971).

															[ Footnote 2/32 ] See, e.g., Katz, Municipal Courts -- Another Urban Ill,
20 Case Western Reserve L.Rev. 87, 92-96 (1968). Cf. Hamilton
v. Alabama, 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 407 U.S.
25 fn2/13|>n. 13, supra, the assistance of counsel
may still be needed so that the defendant who is not faced with
overwhelming evidence of guilt can make an intelligent decision
whether to go to trial.

															[ Footnote 2/33 ]

															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 407 U.S.
25 fn2/1|>n. 1, supra. Neither case controls today's
result.

															[ Footnote 2/34 ]

															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 which
otherwise could affect adversely the administration of criminal
justice in the very courts which already are under the most severe
strain.

Summary: In Argersinger v. Hamlin, the Supreme Court ruled that an indigent defendant in a criminal trial has the right to legal assistance, regardless of the classification of the offense or the presence of a jury trial. The Court reversed the Florida Supreme Court's decision, which had denied the right to court-appointed counsel to an indigent petitioner charged with a misdemeanor punishable by up to six months' imprisonment. The Sixth Amendment, applied to the states through the Fourteenth Amendment, guarantees the right to counsel in all criminal prosecutions, and an accused cannot be deprived of liberty without it.