[Editor's note: footnotes (if any) trail the opinion]





[4] No. 70-5015

BLUE BOOK CITATION FORM: 1972.SCT.107 (http://www.versuslaw.com)

[5] Date Decided: June 12, 1972

[6] Reargued February 28, 1972.


[8] 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. 27-40.



[11] 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. 40. Burger, C. J., filed an opinion concurring in the result, post, p. 41. Powell, J., filed an opinion concurring in the result, in which Rehnquist, J., joined, post, p. 44.


[13] 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, 391 U.S. 145, 159, as respects the right to trial by jury and held that the right to court-appointed counsel extends onlyto trials "for non-petty offenses punishable by more than six months imprisonment." 236 So. 2d 442, 443.*fn1

[14] The case is here on a petition for certiorari, which we granted. 401 U.S. 908. We reverse.

[15] 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."

[16] 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 272.

[17] 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.

[18] In Washington v. Texas, supra, we said, "We have held that due process requires that the accused have the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial." 388 U.S., at 18. Respecting the right to a speedy and public trial, the right to be informed of the nature and cause of the 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).

[19] 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 and a new trial ordered, because the trial court had prejudicially restricted the right of cross-examination, a right guaranteed by the Sixth Amendment.

[20] 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 genealogy and is brigaded with a system of trial to a judge alone. As stated in Duncan :

[21] "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 156.

[22] While there is historical support for limiting the "deep commitment" to trial by jury to "serious criminal cases,"*fn2 there is no such support for a similar limitation on the right to assistance of counsel:

[23] "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. . . .

[24] . . . .

[25] "[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, 60, 64-65.

[26] 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.

[27] 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.

[28] The assistance of counsel is often a requisite to the very existence of a fair trial. The Court in Powell v. Alabama, supra, at 68-69 -- a capital case -- said:

[29] "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."

[30] 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:

[31] "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." 372 U.S., at 344.*fn3

[32] 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, supra, where the penalty is 60 days' imprisonment:

[33] "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 273 (emphasis supplied).

[34] 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.

[35] 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.

[36] 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 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 36-37. We said (id., at 36) that "the 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 at every step in the proceedings against him,'" citing Powell v. Alabama, 287 U.S., at 69. The premise of Gault is that even in prosecutions for offenses less serious than felonies, a fair trial may require the presence of a lawyer.

[37] 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.

[38] In addition, the volume of misdemeanor cases,*fn4 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:

[39] "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 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:

[40] "'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.

[41] "'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.

[42] "'Very little such observation of the administration of criminal justice in operation is required to reach the conclusion that it suffers from basic ills.'"

[43] 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 Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970).

[44] There is evidence of the prejudice which results to misdemeanor defendants from this "assembly-line justice." One study concluded that "misdemeanants 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).

[45] We must conclude, therefore, that the problems associated with misdemeanor and petty*fn5 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. Post, at 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 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."*fn6

[46] 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.*fn7

[47] 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:

[48] "We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This 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."*fn8

[49] 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.*fn9 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*fn10 where imprisonment actually occurs.

[50] The American Bar Association Project on Standards for Criminal Justice states:

[51] "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).

[52] 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.

[53] 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.

[54] Reversed.


[56] 236 So. 2d 442, reversed.


[57] contd MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART join, concurring.

[58] I join the opinion of the Court and add only an observation upon its discussion of legal resources, ante, at 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 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 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.

[59] MR. CHIEF JUSTICE BURGER, concurring in the result.

[60] 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.

[61] 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.

[62] 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.

[63] 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:

[64] "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.

[65] After considering the same general factors involved in the issue we decide today, the ABA Report specifically concluded that:

[66] "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.

[67] In a companion ABA Report on Standards Relating to the Prosecution Function and the Defense Function the same basic theme appears in the positive standard cast in these terms:

[68] "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).

[69] 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.

[70] contd MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST joins, concurring in the result.

[71] 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 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 offense2 be afforded the right to appointed counsel.

[72] 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 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 to counsel.6