Argersinger v. Hamlin/Concurrence Powell

by Lewis F. Powell, Jr.

[p44] 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.^[1] The question [p45] 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^[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.^[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 [p46] 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 pricing 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.^[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^[5]—while important, is not as fundamental to the guarantee of a free trial as is the right to counsel.^[6]

[p47] 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 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^[7] and Gideon,^[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 [p48] conditions 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."^[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.^[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 the procedural due process required by the Fourteenth Amendment." Id., at 539.

When the deprivation of property rights and interests is of sufficient consequence,^[11] denying the assistance of counsel to indigents who are incapable of defending themselves is a denial of due process.

[p49] 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."^[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.^[13] It is anomalous that the Court's opinion today will extend [p50] 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 indigence 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.^[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.^[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 [p51] 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 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 [p52] 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 [p53] 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 [p54] imprisonment—even when rarely carried out—as serging 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.^[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.

[p55] 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.^[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 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."^[18]

[p56] 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."^[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."^[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 course at between 1,575 and 2,300, to represent all indigent misdemeanants, excluding traffic [p57] 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.^[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 [p58] 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.^[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.^[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 [p59] out of the process with consequent increased costs to the public and added delay and congestion in the courts.^[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.^[25] [p60] In other States, legislatures and courts through the enactment of laws or rules have drawn the line short of that adopted by the majority.^[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.^[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, [p61] 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.^[28] It is quite common for the more numerous petty offenses in such towns to be tried by local court or magistrates while the more serious offenses are tried in a county-wide court located in the county seat.^[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.^[30]

[p62] 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 imposed or that the only workable method 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 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.

III

[p63] 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.^[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.^[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 [p64] 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 charges. 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 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 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.

[p65] 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.^[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 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 [p66] 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.^[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.

Notes

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 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, 29 (1967); Mempa v. Rhay, 389 U.S. 128, 134 (1967); Burgett v. Texas, 389 U.S. 109, 114 (1967); Loper v. Beto, 405 U.S. 473 (1972).
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, 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.
3. 236 So. 2d 442 (1970).
4. See Powell v. Alabama, 287 U.S. 45, 60-61 (1932).
5. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
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 persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial." DeStefano v. Woods, 392 U.S. 631, 634 (1968).
7. Supra, n. 4, at 68-69.
8. 372 U.S., at 343-345.
9. See 1 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).
11. A wide range of civil disabilities may result from misdemeanor convictions, such as forfeiture of public office (State ex rel. Stinger 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-4 (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).
12. Gideon v. Wainwright, 372 U.S., at 344.
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.
14. Silverstein, supra, n. 9, at 125-126.
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. 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 37-40 (Approved Draft 1968). Neither supports a new, inflexible constitutional rule.
16. See Callan v. Wilson, 127 U.S. 540 (1888); 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 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.
18. Tr. of Oral Arg. 34-35.
19. Id., at 36-37.
20. Id., at 39.
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. 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.
22. See generally H. James, Crisis in the Courts, c. 2 (1968); Challenge, supra, n. 13, at 145-156.
23. See, e. g., James, supra, n. 22, at 27-30; Schrag, On Her Majesty's Secret Service: Protecting the Consumer in New York City, 80 Yale L.J. 1529 (1971).
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).
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. Mallory, 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).
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 (P) (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. § 77-64-2 (Supp. 1971); Vt. Stat. Ann., Tit. 13, §6503 (Supp. 1971); Va. Code Ann. § 19.1-241.1 (Supp. 1971).
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 tor 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, 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.)
29. See Silverstein, supra, n. 9, at 125-126.
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. 128. "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 economy is over 8 tims 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.
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).
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 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.
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 n. 1, supra. Neither case controls today's result.
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.