Alabama v. Shelton

535 U.S. 654

Case Year: 2002

Case Ruling: 5-4

Opinion Justice: Ginsburg

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):


1st Concurring Opinion



1st Dissenting Opinion

Author: Scalia


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Scott v. Illinois (1979), the defendant, Aubrey Scott, was charged with the crime of theft, punishable by a maximum sentence of one year in prison and/or a $500 fine. Prior to the trial, the prosecutor announced that he had no intention of asking for a sentence of imprisonment if Scott were convicted. Because the defendant faced no real threat of imprisonment, the trial court judge ruled that he had no right under Gideon to an attorney at state expense. Scott was tried, convicted, and fined $50. He appealed, claiming that he should have had a lawyer.

The Supreme Court ruled in favor of the state, holding that actual imprisonment, not the threat of such a penalty, was the relevant factor in applying Argersinger's loss of liberty rule. Put another way, regardless of the range of penalties available to a judge, indigent criminal defendants may not be sentenced to incarceration unless they have been offered legal representation at government expense. Nearly twenty-five years later, in Alabama v. Shelton (2002), the justices of the Rehnquist Court reinforced this basic premise. LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of thirty days, which the trial court immediately suspended, placing Shelton on probation for two years. The question the Court addressed was whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applied to a defendant in Shelton's situation.



This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. Two prior decisions control the Court's judgment. First, in Argersinger v. Hamlin (1972), this Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," "that actually leads to imprisonment even for a brief period." Later, in Scott v. Illinois (1979), the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.

Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged.Argersinger....

Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Alabama now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment.... To assure full airing of the question presented, we invited an amicus curiae ("amicus") to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant "does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked."

In Gideon v. Wainwright (1963), we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Argersinger, holding that an indigent defendant must be offered counsel in any misdemeanor case "that actually leads to imprisonment." Seven Terms later, Scott confirmedArgersinger's "delimit[ation]." Although the governing statute in Scott authorized a jail sentence of up to one year,... we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine.... "Even were the matter res nova," we stated, "the central premise of Argersinger--that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment--is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" in nonfelony cases....

Subsequent decisions have reiterated the Argersinger-Scott "actual imprisonment" standard.... Applying the "actual imprisonment" rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment,"... "end[s] up in the actual deprivation of a person's liberty," Argersinger. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow....

Amicus ... contends that "practical considerations clearly weigh against" the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton's situation.... He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated.... Based on these estimations, amicus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States' attempts to impose effective probationary punishment. A more "workable solution," he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent....

Amicus observes that probation is "now a critical tool of law enforcement in low level cases."... Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment's domain that would result from the regimeamicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant.... In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an "informal" one,... at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence....

More significant, the sole issue at the hearing--apart from determinations about the necessity of confinement... is whether the defendant breached the terms of probation.... The validity or reliability of the underlying conviction is beyond attack....

We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing."... The Sixth Amendment does not countenance this result....

Nor do we agree with amicus or the dissent that our holding will "substantially limit the states' ability" to impose probation... or encumber them with a "large, new burden."... Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution.... All but 16 States, for example, would provide counsel to a defendant in Shelton's circumstances, either because he received a substantial fine or because state law authorized incarceration for the charged offense or provided for a maximum prison term of one year.... There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice in the large majority of the States. And given the current commitment of most jurisdictions to affording court-appointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus' concern that other States may lack the capacity and resources to do the same.... Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant "for a term that relates to the original offense" and therefore "crosses the line of `actual imprisonment'" established inArgersinger and Scott.... Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense."... Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court's judgment insofar as it vacated the term of probation Shelton was ordered to serve.

In effect, Alabama invites us to regard two years' probation for Shelton as a separate and independent sentence, which "the State would have the same power to enforce [as] a judgment of a mere fine."... Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, ibid.; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding....

Alabama describes the contempt proceeding it envisions as one in which Shelton would receive "the full panoply of due process," including the assistance of counsel.... Any sanction imposed would be for "post-conviction wrongdoing," not for the offense of conviction.... "The maximum penalty faced would be a $100 fine and five days' imprisonment,"... not the 30 days ordered and suspended by the Alabama Circuit Court.... There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton's probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes, we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General's acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence....

In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton's probation term freestanding and independently effective.... We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonmenthas a constitutional right to counsel."... We find no infirmity in that holding.

Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama.

It is so ordered.


...Today's decision ignores this long and consistent jurisprudence, extending the misdemeanor right to counsel to cases bearing the mere threat of imprisonment. Respondent's 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty. The Court holds that the suspended sentence violates respondent's Sixth Amendment right to counsel because it " may 'end up in the actual deprivation of [respondent's] liberty,'... "if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation,... and if the court determines that no other punishment will "adequately protect the community from further criminal activity" or "avoid depreciating the seriousness of the violation."... And to all of these contingencies there must yet be added, before the Court's decision makes sense, an element of rank speculation. Should all these contingencies occur, the Court speculates, the Alabama Supreme Court would mechanically apply its decisional law applicable to routine probation revocation (which establishes procedures that the Court finds inadequate) rather than adopt special procedures for situations that raise constitutional questions in light of Argersinger and Scott.... The Court has miraculously divined how the Alabama justices would resolve a constitutional question.

But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether "imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant's Sixth Amendment right to counsel."... Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions,... particularly with respect to constitutional questions... I am amazed by the Court's conclusion that it "makes little sense" to limit today's decision to the question presented (the constitutionality of imposing a suspended sentence on uncounseled misdemeanants) and to avoid a question not presented (the constitutionality of the "procedures that will precede its activation")....