Sixth Amendment
Right to Counsel
Powell v. Alabama (1932)
287 U.S. 45 (1932)
Vote: 7-2
Decision: Reversed and remanded
Majority: Sutherland, joined by Brandeis, Cardoza, Hughes, Roberts, Stone, and Van Devanter
Dissent: Butler, joined by McReynolds
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
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The petitioners, hereinafter referred to as defendants, are negroes charged with the crime of rape, committed upon the persons of two white girls. … The indictment was returned in a state court of first instance on March 31, and the record recites that, on the same day, the defendants were arraigned and entered pleas of not guilty. There is a further recital to the effect that, upon the arraignment, they were represented by counsel. But no counsel had been employed, and aside from a statement made by the trial judge several days later during a colloquy immediately preceding the trial, the record does not disclose when, or under what circumstances, an appointment of counsel was made, or who was appointed. During the colloquy referred to, the trial judge, in response to a question, said that he had appointed all the members of the bar for the purpose of arraigning the defendants, and then, of course, anticipated that the members of the bar would continue to help the defendants if no counsel appeared. Upon the argument here, both sides accepted that as a correct statement of the facts concerning the matter.
. … As each of the three cases was called for trial, each defendant … entered a plea of not guilty. … Each of the three trials was completed within a single day. … The juries found defendants guilty and imposed the death penalty upon all. The trial court overruled motions for new trials and sentenced the defendants in accordance with the verdicts. The judgments were affirmed by the state supreme court. …
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The record shows that, on the day when the offense is said to have been committed, these defendants, together with a number of other negroes, were upon a freight train on its way through Alabama. On the same train were seven white boys and the two white girls. A fight took place between the negroes and the white boys in the course of which the white boys, with the exception of one named Gilley, were thrown off the train. … The two girls testified that each of them was assaulted by six different negroes in turn. …
Before the train reached Scottsboro, Alabama, a sheriff’s posse seized the defendants and two other negroes. … It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. … [T]he record clearly indicates that most, if not all, of them were youthful, and they are constantly referred to as “the boys.” They were ignorant and illiterate. …
. … It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. … The sole inquiry which we are permitted to make is whether the federal Constitution was contravened, and as to that, we confine ourselves … to the inquiry [of] whether the defendants were in substance denied the right of counsel, and, if so, whether such denial infringes the due process clause of the Fourteenth Amendment.
First. The record shows that, immediately upon the return of the indictment, defendants were arraigned, and pleaded not guilty. Apparently they were not asked whether they had, or were able to, employ counsel, or wished to have counsel appointed, or whether they had friends or relatives who might assist in that regard if communicated with. That it would not have been an idle ceremony to have given the defendants reasonable opportunity to communicate with their families and endeavor to obtain counsel is demonstrated by the fact that, very soon after conviction, able counsel appeared in their behalf.
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It is hardly necessary to say that … a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. This will be amply demonstrated by a brief review of the record.
. … When the first case was called, the court inquired whether the parties were ready for trial. The state’s attorney replied that he was ready to proceed. No one answered for the defendants or appeared to represent or defend them. …
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And in this casual fashion, the matter of counsel in a capital case was disposed of. …
It thus will be seen that, until the very morning of the trial, no lawyer had been named or definitely designated to represent the defendants. Prior to that time, the trial judge had “appointed all the members of the bar” for the limited “purpose of arraigning the defendants.” Whether they would represent the defendants thereafter if no counsel appeared in their behalf was a matter of speculation only. …
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. … In any event, the circumstance lends emphasis to the conclusion that, during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.
Nor do we think the situation was helped by what occurred on the morning of the trial. At that time … Mr. Roddy stated to the court that he did not appear as counsel, but that he would like to appear along with counsel that the court might appoint; that he had not been given an opportunity to prepare the case; that he was not familiar with the procedure in Alabama, but merely came down as a friend of the people who were interested. … [T]he trials immediately proceeded. The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril of their lives within a few moments after counsel for the first time charged with any degree of responsibility began to represent them.
. … Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial. … Under the circumstances disclosed, we hold that defendants were not accorded the right of counsel in any substantial sense. …
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Second. … The question … within our power to decide is whether the denial of the assistance of counsel contravenes the due process clause of the Fourteenth Amendment to the federal Constitution.
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. … The fact that the right involved is of such a character that it cannot be denied without violating those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” Hebert v. Louisiana (1926), is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment. …
While the question has never been categorically determined by this court, a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character.
It never has been doubted by this court, or any other, so far as we know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they … constitute basic elements of the constitutional requirement of due process of law. …
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What, then, does a hearing include? Historically and in practice, in our own country, at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would 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 proceeding 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. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.
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In the light of the facts outlined in the forepart of this opinion — the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and, above all, that they stood in deadly peril of their lives — we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.
But passing that, and assuming their inability, even if opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. … All that it is necessary now to decide, as we do decide, is that, in a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law, and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.
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The judgments must be reversed, and the causes remanded for further proceedings not inconsistent with this opinion.
Judgments reversed.
Betts v. Brady (1942)
316 U.S. 455 (1942)
Vote: 6-3
Decision: Affirmed
Majority: Roberts, joined by Byrnes, Frankfurter, Jackson, Reed, and Stone
Dissent: Black, joined by Douglas and Murphy
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioner was indicted for robbery in the Circuit Court of Carroll County, Maryland. Due to lack of funds, he was unable to employ counsel, and so informed the judge at his arraignment. He requested that counsel be appointed for him. The judge advised him that this would not be done, as it was not the practice in Carroll County to appoint counsel for indigent defendants, save in prosecutions for murder and rape.
Without waiving his asserted right to counsel, the petitioner pleaded not guilty and elected to be tried without a jury. At his request, witnesses were summoned in his behalf. He cross-examined the State’s witnesses and examined his own. The latter gave testimony tending to establish an alibi. Although afforded the opportunity, he did not take the witness stand. The judge found him guilty, and imposed a sentence of eight years.
While serving his sentence, the petitioner filed with a judge of the Circuit Court for Washington County, Maryland, a petition for a writ of habeas corpus alleging that he had been deprived of the right to assistance of counsel guaranteed by the Fourteenth Amendment of the Federal Constitution. The writ issued, the cause was heard, his contention was rejected, and he was remanded to the custody of the prison warden.
Some months later, a petition for a writ of habeas corpus was presented … the Court of Appeals of Maryland. … [T]he evidence taken at the petitioner’s trial was incorporated in the record, and the cause was argued. [The judge] … denied the relief prayed and remanded the petitioner to the respondent’s custody.
The petitioner applied to this court for certiorari directed to Judge Bond. The writ was issued on account of the importance of the jurisdictional questions involved and conflicting decisions upon the constitutional question presented. …
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Was the petitioner’s conviction and sentence a deprivation of his liberty without due process of law, in violation of the Fourteenth Amendment, because of the court’s refusal to appoint counsel at his request?
The Sixth Amendment of the national Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a State of rights or privileges specifically embodied in that and others of the first eight amendments may … operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth. Due process of law is secured against invasion by the federal Government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth. The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances and in the light of other considerations, fall short of such denial. In the application of such a concept, there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules the application of which, in a given case, may be to ignore the qualifying factors therein disclosed.
The petitioner, in this instance, asks us, in effect, to apply a rule in the enforcement of the due process clause. He says the rule to be deduced from our former decisions is that, in every case, whatever the circumstances, one charged with crime who is unable to obtain counsel must be furnished counsel by the State. Expressions in the opinions of this court lend color to the argument, but, as the petitioner admits, none of our decisions squarely adjudicates the question now presented.
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… The question we are now to decide is whether due process of law demands that, in every criminal case, whatever the circumstances, a State must furnish counsel to an indigent defendant. Is the furnishing of counsel in all cases whatever dictated by natural, inherent, and fundamental principles of fairness … ? By the Sixth Amendment, the people ordained that, in all criminal prosecutions, the accused should “enjoy the right … to have the assistance of counsel for his defence.” We have construed the provision to require appointment of counsel in all cases where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived. Though … the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment. Relevant data on the subject are afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date. These constitute the most authoritative sources for ascertaining the considered judgment of the citizens of the States upon the question.
The Constitutions of the thirteen original States, as they were at the time of federal union, exhibit great diversity in respect of the right to have counsel in criminal cases. …
The substance of these provisions of colonial and early state constitutions is explained by the contemporary common law. Originally, in England, a prisoner was not permitted to be heard by counsel upon the general issue of not guilty on any indictment for treason or felony. The practice of English judges, however, was to permit counsel to advise with a defendant as to the conduct of his case and to represent him in collateral matters and as respects questions of law arising upon the trial. …
In the light of this common law practice, it is evident that the constitutional provisions to the effect that a defendant should be “allowed” counsel or should have a right “to be heard by himself and his counsel,” or that he might be heard by “either or both,” at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, but were not aimed to compel the State to provide counsel for a defendant. At the least, such a construction by State courts and legislators cannot be said to lack reasonable basis.
The statutes in force in the thirteen original States at the time of the adoption of the Bill of Rights are also illuminating. It is of interest that the matter of appointment of counsel for defendants, if dealt with at all, was dealt with by statute, rather than by constitutional provision. The contemporary legislation exhibits great diversity of policy.
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This material demonstrates that, in the great majority of the States, it has been the considered judgment of the people, their representatives, and their courts that appointment of counsel is not a fundamental right, essential to a fair trial … [T]he matter has generally been deemed one of legislative policy. In the light of this evidence, we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the States, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems proper, to appoint counsel where that course seems to be required in the interest of fairness.
The practice of the courts of Maryland gives point to the principle that the States should not be straight-jacketed in this respect by a construction of the Fourteenth Amendment. Judge Bond’s opinion states, and counsel at the bar confirmed the fact, that, in Maryland, the usual practice is for the defendant to waive a trial by jury. This the petitioner did in the present case. Such trials, as Judge Bond remarks, are much more informal than jury trials, and it is obvious that the judge can much better control the course of the trial, and is in a better position to see impartial justice done, than when the formalities of a jury trial are involved.
In this case, there was no question of the commission of a robbery. The State’s case consisted of evidence identifying the petitioner as the perpetrator. … Petitioner called and examined witnesses to prove that he was at another place at the time of the commission of the offense. The simple issue was the veracity of the testimony for the State and that for the defendant. As Judge Bond says, the accused was not helpless, but was a man forty-three years old, of ordinary intelligence and ability to take care of his own interests on the trial of that narrow issue … It is quite clear that, in Maryland, if the situation had been otherwise and it had appeared that the petitioner was, for any reason, at a serious disadvantage by reason of the lack of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction. …
To deduce from the due process clause a rule binding upon the States in this matter would be to impose upon them … a requirement without distinction between criminal charges of different magnitude or in respect of courts of varying jurisdiction.
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… [T]he Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and, while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.
The judgment is affirmed.
MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY concur.
To hold that the petitioner had a constitutional right to counsel in this case does not require us to say that “no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.” This case can be determined by a resolution of a narrower question: whether, in view of the nature of the offense and the circumstances of his trial and conviction, this petitioner was denied the procedural protection which is his right under the Federal Constitution. I think he was.
The petitioner, a farm hand, out of a job and on relief, was indicted in a Maryland state court on a charge of robbery. He was too poor to hire a lawyer. He so informed the court, and requested that counsel be appointed to defend him. His request was denied. Put to trial without a lawyer, he conducted his own defense, was found guilty, and was sentenced to eight years’ imprisonment. The court below found that the petitioner had “at least an ordinary amount of intelligence.” It is clear from his examination of witnesses that he was a man of little education.
If this case had come to us from a federal court, it is clear we should have to reverse it, because the Sixth Amendment makes the right to counsel in criminal cases inviolable by the Federal Government. I believe that the Fourteenth Amendment made the Sixth applicable to the states. …
This Court has just declared that due process of law is denied if a trial is conducted in such manner that it is “shocking to the universal sense of justice” or “offensive to the common and fundamental ideas of fairness and right.” On another occasion, this Court has recognized that whatever is “implicit in the concept of ordered liberty” and “essential to the substance of a hearing” is within the procedural protection afforded by the constitutional guaranty of due process. Palko v. Connecticut [1937].
The right to counsel in a criminal proceeding is “fundamental.” Powell v. Alabama, [(1932)]. It is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the Federal Government. It is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the Federal Government. …
A practice cannot be reconciled with “common and fundamental ideas of fairness and right,” which subjects innocent men to increased dangers of conviction merely because of their poverty. …
Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the “universal sense of justice” throughout this country. In 1854, for example, the Supreme Court of Indiana said:
It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defence of the poor in such cases is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.
Webb v. Baird, 6 Ind. 13, 18. And most of the other States have shown their agreement by constitutional provisions, statutes, or established practice judicially approved, which assure that no man shall be deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.
Gideon v. Wainwright (1963)
372 U.S. 335 (1963)
Vote: 9-0
Decision: Reversed and remanded
Majority: Black, joined by Brennan, Clark, Douglas, Goldberg, Harlan, Stewart, Warren, and White
Concurrence: Clark
Concurrence: Harlan
Concurrence: Douglas
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:
“The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.”
“The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.”
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the charge contained in the Information filed in this case.” The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights by the United States Government.”. … Since 1942, when Betts v. Brady [(1942)], was decided by a divided Court, the problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give this problem another review here, we granted certiorari. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady be reconsidered?”
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. …
Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and, on review, this Court affirmed. …
Treating due process as “a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,” the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding, if left standing, would require us to reject Gideon’s claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration, we conclude that Betts v. Brady should be overruled.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” We have construed this to mean that, in federal courts, counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response, the Court stated that, while the Sixth Amendment laid down
“no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.”
In order to decide whether the Sixth Amendment’s guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered
“[r]elevant data on the subject … afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date.”
On the basis of this historical data, the Court concluded that “appointment of counsel is not a fundamental right, essential to a fair trial.”. …
We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama (1932), a case upholding the right of counsel, where the Court held that, the Fourteenth Amendment “embraced” those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'” even though they had been “specifically dealt with in another part of the federal Constitution.” In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. …
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We accept Betts v. Brady‘s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that “the right to the aid of counsel is of this fundamental character.” Powell v. Alabama (1932). While the Court, at the close of its Powell opinion, did, by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:
“We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution.”
Grosjean v. American Press Co. (1936). And again, in 1938, this Court said:
“[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. … The Sixth Amendment stands as a constant admonition that, if the constitutional safeguards it provides be lost, justice will not ‘still be done.'”
Johnson v. Zerbst (1938). … In light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that “one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State,” conceded that “[e]xpressions in the opinions of this court lend color to the argument. … ” The fact is that, in deciding as it did — that “appointment of counsel is not a fundamental right, essential to a fair trial” — the Court in Betts v. Brady made an abrupt break with its own well considered precedents. In returning to these old precedents … we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, 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. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama (1932):
“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.”
The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down,” and that it should now be overruled. We agree.
The judgment is reversed, and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion.
Reversed.
Argersinger v. Hamlin (1972)
407 U.S. 25 (1972)
Vote: 9-0
Decision: Reversed
Majority: Douglas, joined by Blackmun, Brennan, Burger, Marshall, Powell, Rehnquist, Stewart, and White
Concurrence: Brennan, joined by Douglas and Stewart
Concurrence: Burger
Concurrence: Powell, joined by Rehnquist
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 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 (1968) … and held that the right to court-appointed counsel extends only to trials “for non-petty offenses punishable by more than six months imprisonment.”
The case is here on a petition for certiorari, which we granted. We reverse.
The Sixth Amendment, which, in enumerated situations, has been made applicable to the States by reason of the Fourteenth Amendment provides specified standards for “all criminal prosecutions.”
One is the requirement of a “public trial.” In re Oliver [(1948)] held that the right to a “public trial” was applicable to a state proceeding even though only a 60-day sentence was involved.
Another guarantee is the right to be informed of the nature and cause of the accusation. Still another, the right of confrontation. And another, compulsory process for obtaining witnesses in one’s favor. We have never limited these rights to felonies or to lesser but serious offenses.
In Washington v. Texas (1967), 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.”
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The right to trial by jury, also guaranteed by the Sixth Amendment by reason of the Fourteenth, was limited by Duncan v. Louisiana (1968), to trials where the potential punishment was imprisonment for six months or more. But, as the various opinions in Baldwin v. New York (1970), make plain, the right to trial by jury has a different geneology, and is brigaded with a system of trial to a judge alone.
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While there is historical support for limiting the “deep commitment” to trial by jury to “serious criminal cases,” there is no such support for a similar limitation on the right to assistance of counsel:
“Originally, in England … parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel. … ”
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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.
We reject, therefore, the premise that, since prosecutions for crimes punishable by imprisonment for less than 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 (1932) — 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 [ … ].”
In Gideon v. Wainwright (1963) (overruling Betts v. Brady (1942)), 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, 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. … 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.”
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 as In re Oliver (1948), where the penalty is 60 days’ imprisonment [.]
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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.
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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, 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 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 adjudiciation. 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 … ”
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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 offenses often 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. 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 (1970),
“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.”
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.
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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.
