Scott v. Illinois

440 U.S. 367

Case Year: 1979

Case Ruling: 5-4, Affirmed

Opinion Justice: Rehnquist

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Burger, Powell, Stewart, White


1st Concurring Opinion

Author: Powell


1st Dissenting Opinion

Author: Blackmun


2nd Concurring Opinion



2nd Dissenting Opinion

Author: Brennan


3rd Concurring Opinion



3rd Dissenting Opinion

Author: Marshall


Other Concurring Opinions:


Illinois charged Aubrey Scott with theft, a crime carrying a maximum sentence of a $500 fine and/or one year in prison. Prior to trial the prosecutor announced that he had no intention of asking for a jail sentence if Scott was convicted. Without the assistance of counsel, Scott was tried, convicted, and fined $50. He appealed to the Supreme Court, claiming that he should have had a lawyer. The Court addressed the following question: Should the loss of liberty rule apply to those crimes for which the potential for imprisonment exists, but the accused is not imprisoned?



We granted certiorari in this case to resolve a conflict among state and lower federal courts regarding the proper application of our decision in Argersinger v. Hamlin (1972)...

Petitioner Scott was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both. The petitioner argues that a line of this Court's cases culminating in Argersinger v. Hamlin requires state provision of counsel whenever imprisonment is an authorized penalty.

The Supreme Court of Illinois rejected this contention, quoting the following language from Argersinger:

"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."

"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 Supreme Court of Illinois ... state[d] that it was "not inclined to extend Argersinger" to the case where a defendant is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant.... We agree with the Supreme Court of Illinois that the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant such as petitioner, and we therefore affirm its judgment.

In his petition for certiorari, petitioner referred to the issue in this case as "the question left open in Argersinger v. Hamlin."... Whether this question was indeed "left open" in Argersinger depends upon whether one considers that opinion to be a point in a moving line or a holding that the States are required to go only so far in furnishing counsel to indigent defendants. The Supreme Court of Illinois, in quoting ... the language from Argersinger, clearly viewed the latter asArgersinger's holding.... Petitioner, on the other hand, refers to language in the Court's opinion, responding to the opinion of MR. JUSTICE POWELL, which states that the Court "need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved ... for here petitioner was in fact sentenced to jail."...

In Argersinger the Court rejected arguments that social cost or a lack of available lawyers militated against its holding, in some part because it thought these arguments were factually incorrect. But they were rejected in much larger part because of the Court's conclusion that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense, regardless of the cost to the States implicit in such a rule. The Court in its opinion repeatedly referred to trials "where an accused is deprived of his liberty," ... and to "a case that actually leads to imprisonment even for a brief period."... THE CHIEF JUSTICE in his opinion concurring in the result also observed that "any deprivation of liberty is a serious matter."...

Although the intentions of the ArgersingerCourt are not unmistakably clear from its opinion, we conclude today thatArgersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings. Even were the matter res nova [a new issue], we believe that 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. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. The judgment of the Supreme Court of Illinois is accordingly



... This case presents the question whether the right to counsel extends to a person accused of an offense that, although punishable by incarceration, is actually punished only by a fine....

The Court, in an opinion that at best ignores the basic principles of prior decisions, affirms Scott's conviction without counsel because he was sentenced only to pay a fine. In my view, the plain wording of the Sixth Amendment and the Court's precedents compel the conclusion that Scott's uncounseled conviction violated the Sixth and Fourteenth Amendments and should be reversed.

The Court's opinion intimates that the Court's precedents ordaining the right to appointed counsel for indigent accuseds in state criminal proceedings fail to provide a principled basis for deciding this case. That is demonstrably not so. The Principles developed in the relevant precedents are clear and sound. The Court simply chooses to ignore them....

Earlier precedents had recognized that the assistance of appointed counsel was critical not only to equalize the sides in an adversary criminal process, but also to give substance to other constitutional and procedural protections afforded criminal defendants. Gideon established the right appointed counsel for indigent accused as a categorical requirement, making the Court's former case-by-case due process analysis ... unnecessary in cases covered by its holding. Gideon involved a felony prosecution, but that fact was not crucial to the decision; its reasoning extended, in the words of the Sixth Amendment, to "all criminal prosecutions." Argersinger v. Hamlin took a cautious approach toward implementing the logical consequences of Gideon's rationale....

Although its analysis, like that in Gideon and other earlier cases, suggested that the Sixth Amendment right to counsel should apply to all state criminal prosecutions, Argersinger held only that an indigent defendant is entitled to appointed counsel, even in petty offenses punishable by six months of incarceration or less, if he is likely to be sentenced to incarceration for any time if convicted. The question of the right to counsel in cases in which incarceration was authorized but would not be imposed was expressly reserved.

In my view petitioner could prevail in this case without extending the right to counsel beyond what was assumed to exist inArgersinger. Neither party in that case questioned the existence of the right to counsel in trials involving "nonpetty" offenses punishable by more than six months in jail. The question the Court addressed was whether the right applied to some "petty" offenses to which the right to jury trial did not extend. The Court's reasoning in applying the right to counsel in the case before it--that the right to counsel is more fundamental to a fair proceeding than the right to jury trial and the historical limitations on the jury trial right are irrelevant to the right counsel--certainly cannot support a standard for the right to counsel that is more restrictive than the standard for granting a right to jury trial....

The offense of "theft" with which Scott was charged is certainly not a "petty" one. It is punishable by a sentence of up to one year in jail.... The State indicated at oral argument that the services of a professional prosecutor were considered essential to the prosecution of this offense.... Likewise, nonindigent defendants charged with this offense would be well advised to hire the "best lawyers they can get." Scott's right to the assistance of appointed counsel is thus plainly mandated by the logic of the Court's prior cases, including Argersinger itself.

But rather than decide consonant with the assumption in regard to nonpetty offenses that was both implicit and explicit inArgersinger, the Court today retreats to the indefensible position that the Argersinger "actual imprisonment" standard is the only test for determining the boundary of the Sixth Amendment right to appointed counsel in state misdemeanor cases, thus necessarily deciding that in may cases (such as this one) a defendant will have no right to appointed counsel even when he has a constitutional right to a jury trial. This is simply an intolerable result. Not only is the "actual imprisonment" standard unprecedented as the exclusive test, but also the problems inherent in its application demonstrate the superiority of an "authorized imprisonment" standard that would require the appointment of counsel for indigents accused of any offense for which imprisonment for any time is authorized....

It may well be that adoption by this Court of an "authorized imprisonment" standard would lead state and local governments to re-examine their criminal statutes. A state legislature or local government might determine that it no longer desired to authorize incarceration for certain minor offenses in light of the expense of meeting the requirements of the Constitution. In my view this re-examination is long overdue. In any event, the Court's "actual imprisonment" standard must inevitably lead the courts to make this re-examination, which plainly should more properly be a legislative responsibility.

The Court's opinion turns the reasoning of Argersinger on its head. It restricts the right to counsel, perhaps the most fundamental Sixth Amendment right, more narrowly than the admittedly less fundamental right to jury trial. The abstract pretext that "constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another" ... cannot camouflage the anomalous result the Court reaches. Today's decision reminds one of Mr. Justice Black's description of Betts v. Brady: "an anachronism when handed down" that "ma[kes] an abrupt break with its own well-considered precedents."...