Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in No. 00-1214, Alabama v. LeReed Shelton.

General Pryor.

MR. WILLIAM H. PRYOR, JR.: Thank you, Mr. Chief Justice, and may it please the Court:

30 years ago in Argersinger v. Hamlin and then more than 20 years ago in Scott v. Illinois, this Court established the principle that, under the Sixth and Fourteenth Amendments, a State is not obligated to provide an indigent defendant in a misdemeanor case court-appointed and taxpayer-funded counsel, provided that the defendant is not actually imprisoned upon conviction.

8 years ago in Nichols v. the United States, this Court reaffirmed that principle.

The Supreme Court of Alabama distorted this well-established and workable rule and held that a probated or suspended sentence, which actually liberates a defendant to return to free society, nevertheless triggers a right to court-appointed and taxpayer-funded counsel.

There are three arguments that I would like to address this morning.

JUSTICE O'CONNOR: Do you -- do you concede that the State can never impose the original sentence of time in jail?

MR. PRYOR: Your Honor, obviously that is not a court -- a question that this Court has directly addressed in either Argersinger or Scott. Our best reading --

JUSTICE O'CONNOR: I'm asking whether the State of Alabama concedes that it can't ever impose that original sentence.

MR. PRYOR: Our reading of Scott is that -- that we cannot activate the suspended sentence. We acknowledge that Mr. Fried, as an amicus, certainly has a plausible reading that would allow the court to activate that sentence.

In our judgment, that original sentence relates back to the original offense and that the court --

JUSTICE O'CONNOR: What -- what happens in Alabama if -- if a -- a criminal defendant is convicted of a misdemeanor and placed on probation and then violates probation? Does that enable the State to impose the original sentence for violation of the probation?

MR. PRYOR: Yes, ordinarily it would. But for the problem presented involving an uncounseled defendant, it would allow the State to activate the suspended sentence.

JUSTICE ANTHONY KENNEDY: Well, then we're jumping probably ahead into what you're going to tell us, but while we're at this point, it seems to me that if -- if you say that the sentence cannot be reimposed, you're saying that the State courts are in the position of imposing a sentence that is something of a rouse. Why should you put your own courts in this position?

I -- I just don't think it's very sound for us to tell the State courts, well, you go ahead and tell these people that they can -- might be put in prison, but that that won't really happen. It seems to me that that's your position.

MR. PRYOR: Well, there's still a risk of imprisonment, the same risk of imprisonment, under our reading of Argersinger and Scott, that -- that is accompanied with the judgment of a mere fine.

Every court has the power to enforce any judgment as an essential aspect of the administration of justice through the power of contempt.

JUSTICE DAVID H. SOUTER: But you're -- you're treating the contempt proceeding, in effect, as a separate proceeding then, and I take it, though I'm not sure that I remember this from your briefs --

I take it that on -- on your view of the way the scheme ought to operate in the contempt proceeding, before there could be any confinement on a finding of contempt, that counsel would have to be provided then if -- if the individual is indigent and didn't waive it.

MR. PRYOR: That's -- that's correct, Justice Souter.

JUSTICE SOUTER: So, it's the separate counseled proceeding that distinguishes your case from -- from the case that Mr. Fried argues for.

MR. PRYOR: That -- that's correct, Justice Souter. And -- and at a minimum I would say, although I don't think the Court has to ever address this question because there's been no violation of probation -- at a minimum the State would have the same power to enforce its judgment that it would a judgment of a mere fine which this Court held squarely in Scott does not trigger a right to court-appointed --

CHIEF JUSTICE REHNQUSIT: From your point of view, General Pryor, what does the State gain as -- as opposed to what the Supreme Court of Alabama said, by following -- following your -- your line of reasoning?

I think as Justice Kennedy said, it -- it imposes a sentence, but a sentence that everybody knows can't be enforced.

MR. PRYOR: The State gains the powerful tool of probation to rehabilitate an offender that the State believes is a good risk, a risk to return to free society who can be rehabilitated, depending on whatever mechanisms of probation have been adopted by the trial court.

Meanwhile, the State is preserving its scarce judicial resources to incarcerate more dangerous offenders and provide counsel in more serious cases.

CHIEF JUSTICE REHNQUIST: But what -- how effective is probation going to be if there isn't the threat of -- of a sentence in case of probation violation?

MR. PRYOR: I think at a minimum, the probation is going to be as effective as a judgment of a fine because the State is going to still have the flexible power of contempt, whether civil or criminal in nature, to ensure that its orders are followed and -- and will continue to exercise jurisdiction of the probationer during that period of probation.

JUSTICE SOUTER: Is it the -- is it the case in Alabama that probation cannot be imposed without a suspended sentence?

MR. PRYOR: That is correct. Technically that is how probation is imposed, Justice Souter.

JUSTICE SOUTER: Wouldn't -- wouldn't we have at least a more candid system or wouldn't the interaction of Argersinger and -- and the Alabama system, as you view Argersinger, produce a more candid system if -- if we took the position that, no, they can't impose a suspended sentence, and Alabama would then presumably amend its laws so that probation could be imposed without imposing a suspended sentence, and you on your view would have your -- your contempt remedy.

We wouldn't be -- in effect, the -- the two systems wouldn't be producing this kind of silly effect of -- of a sentence which everyone realizes as such cannot be imposed.

MR. PRYOR: Alabama certainly has the freedom to adopt I think either system without running afoul of the Constitution, which is the -- the issue before this Court.

Although it might make more sense and not seem as silly to impose probation without going through the mechanics of --

CHIEF JUSTICE REHNQUIST: Well, is -- is there any State which imposes probation without a suspended sentence that you know of?

MR. PRYOR: I know from the amicus brief of the National Association of Criminal Defense Lawyers that there are some States that impose, in fact, pretrial probation, that that is something that --

CHIEF JUSTICE REHNQUIST: How about post-trial, after a conviction?

MR. PRYOR: I just don't know. I know that there were several States that were cited in Shelton's briefly correctly that -- that used the same mechanism that Alabama does. There were several cites --

JUSTICE O'CONNOR: General Pryor --

JUSTICE ANTONIN SCALIA: Well, what -- what authority would -- would the State have to -- to put somebody on probation unless -- unless it is the suspension of -- of a judgment of incarceration? I mean, can a State just go around saying you're going to be on probation?

MR. PRYOR: Well --

JUSTICE SCALIA: It seems to me the only -- the only reason it -- it has that grip over the person is that -- is that it has a right to incarcerate him.

MR. PRYOR: The States certainly view that as an effective mechanism in most --

JUSTICE SCALIA: I'm not sure there's an alternative to it. I'm not sure you can just pass a law saying judges can put on probation whomever they want to put on probation.

MR. PRYOR: I think that -- that the Alabama legislature has the inherent power to define what a sentence is, whether a sentence is a fine or whether a sentence is imprisonment.

And in fact, I think the State would have the flexibility to define a sentence -- one of the sentencing options as -- as probation.

JUSTICE SOUTER: I take it what they would do on that scheme would be to say, upon conviction of offense A, the court may impose probation, and if the conditions of probation are violated and are shown in a separate trial or proceeding to that effect, the violation itself can be punished. That would be the way the scheme would work, wouldn't it?

MR. PRYOR: That's correct.

JUSTICE SOUTER: If -- if Alabama wanted it.

MR. PRYOR: If Alabama wanted it. But -- but this is really -- in my judgment this would be elevating form over substance because the -- the effect is the same with whichever system Alabama wants to adopt --

JUSTICE O'CONNOR: General Pryor, explain to me how some other States approach it. If I understand correctly, there is no trial. It's a deferred prosecution on condition that the -- the defendant abide by certain terms and conditions. Is that how it works?

MR. PRYOR: That's -- that's correct.

JUSTICE O'CONNOR: And if -- if the defendant then doesn't live up to it, then it proceeds to trial.

MR. PRYOR: Then it proceeds to trial.

JUSTICE O'CONNOR: How many States use a system like that?

MR. PRYOR: I believe the -- the brief listed 23 States.

JUSTICE KENNEDY: Well, these are pretrial diversion programs which have been very helpful in the drug context, but they're extremely expensive to administer.

MR. PRYOR: Absolutely. Absolutely. And -- and many States may very well feel that -- that there's something almost unseemly about using this kind of bargaining process before you have adjudicated guilt or innocence, and -- and the State certainly should have the --

JUSTICE O'CONNOR: Well, why is it any more unseemly than the ordinary plea bargain?

MR. PRYOR: Because at least in the -- in the case of the ordinary plea bargain, the defendant comes forward and admits the wrongdoing. There's an indicia of reliability there for the State that's not present in this kind of pretrial system.

And -- and the States who trust their system to adjudicate innocence or guilt may find that that's a -- that the system that Alabama has is a preferable system.

CHIEF JUSTICE REHNQUIST: But Shelton was not given any pretrial diversion. He was convicted, was he not?

MR. PRYOR: That's correct, and Alabama doesn't have it in this context except with respect to drug offenders.

JUSTICE RUTH BADER GINSBURG: General Pryor, I can understand a line between a fine and any kind of confinement, and probation may involve no immediate incarceration, but it does involve what could be very significant restraints on the person.

So, isn't it more logical to draw the line between money only on the one hand and confinement, be it in jail or under terms and conditions of probation?

MR. PRYOR: Justice Ginsburg, I'd say no for a couple of reasons. This Court has recognized that imprisonment is an intrinsically different form of punishment that has special constitutional significance.

The probation system is one that is meant more as rehabilitation and not as punishment to give an offender a second chance in free society.

And -- and even with the judgment of a fine, as I mentioned earlier, there -- it -- it is accompanied by the risk of imprisonment should the defendant willfully refuse to pay that fine.

So, even in that context, in the judgment of -- of a fine, there is at least that risk, the same risk that would exist under the regime that we propose.

I do not discount the fact that probation has -- can have serious restrictions on liberty, but it's not the -- the deprivation of liberty, the loss of physical liberty, that is, physical confinement that this Court has held triggers a right to court-appointed counsel under the Sixth and Fourteenth Amendments.

JUSTICE KENNEDY: Under your view, if you enforced the jail sentence through the contempt mechanism and reached the same result, I take it you now have a second jury trial.

MR. PRYOR: Well, I guess it would be dependent in part on the nature of the contempt proceeding.If it's civil contempt, if it's a direct contempt or an indirect contempt, but if it's criminal contempt, I would imagine -- I say that.

In Alabama, a criminal contempt procedure only has a maximum term of imprisonment of 5 days. So, I'm not sure that -- that there would be a right to a jury trial.

For more than 20 --

JUSTICE KENNEDY: But then -- but then the contempt is -- is really not a substitute of an equivalent for the -- for the imposition of the suspended sentence. They're not equivalent. If it's just 5 days, that's not equivalent to the suspended sentence.

MR. PRYOR: Oh, absolutely. That's absolutely right, although I would argue that -- that the threat of imprisonment is still enough to give the probationer an incentive to follow the orders of the court.

It's absolutely correct that there is a material difference between activation of the probated sentence in this case and the use of -- of the criminal contempt remedy that's provided by the code of Alabama. There's no doubt about that.

The -- what is at stake in this case is -- is the use of probation, a valuable tool for the States that allow them the freedom and flexibility again to ensure that scarce judicial resources can be preserved for more serious cases to provide counsel and to incarcerate more serious offenders.

If there are no further questions from the Court, Mr. Chief Justice, I'd like to reserve the balance of my time for rebuttal.

CHIEF JUSTICE REHNQUIST: Very well, General Pryor.

Mr. Fried, we'll hear from you.

MR. CHARLES FRIED: Thank you, Mr. Chief Justice, and may it please the Court:

First, if I might just refer to the deferred prosecution point, which was raised by Mr. Duke in his amicus brief and in one of the questions.

I think that's a red herring because, as Mr. Duke points out, the deferred prosecution requires the consent of both the prosecutor and the defendant. Obviously, the kind of prosecutions we have here are usually not consented to by the defendant.

I think it is --

JUSTICE STEPHEN G. BREYER: Why -- why is that a red herring? Because I got from your brief the impression that the -- the -- there's a practical problem that a lot of States do without giving people lawyers. Perhaps thousands and thousands of cases say, go plead guilty.

We'll give you some light sentence that won't involve prison, but then they attach to that a suspended sentence.

And what I wondered is, well, isn't the solution to this to say -- it's called pretrial diversion or pretrial probation or they call it different names, but to say if you violate the condition, what happens to you is not prison, what happens to you is the trial that we haven't yet given you with a lawyer. And I thought maybe that works as a practical matter in a lot of these States in a lot of the cases to which you referred.

MR. FRIED: It -- it does work. For instance, we use it a great deal in the Commonwealth of Massachusetts where there is a quite different rule from -- from the Argersinger rule where in Massachusetts we say if there's a risk of imprisonment, you must get a lawyer.

And a number of States have that rule which is perhaps why they also have the deferred prosecution.

I say it's a red herring because what we're considering today is not the very best possible system but what is the constitutional minimum.

Our emphasis in the brief on Nichols is not in order to show that Nichols somehow resolves this question in favor of allowing the probated sentence and in favor of allowing it then to be activated on violation, but rather Nichols shows that the question is an open one.

Nichols doesn't resolve it, but then neither does Argersinger. And I think it's a mistake and it's a mistake the Alabama Supreme Court made to treat Argersinger as having resolved this question.

Argersinger made quite clear that there is a continuum here all the way from mere due process, which was the law prior to Gideon, to a criminal -- to the right of a criminal defendant having a counsel in any criminal case.

And it picked a point. It picked a point which the Court recognized had a certain arbitrariness, and it picked it for reasons of practicality and fairness.

And those considerations of practicality and fairness require no more than that there be counsel if the person is sentenced immediately then and there to prison.

The fairness aspect is, as the Illinois court pointed out, that in these cases the defendant carries the key to the prison in his own pocket. Whether he ends up in prison is a matter of his choice whether or not he violates the terms of the probation.

That's why I think Mr. Duke enters two more red herrings into the argument. The stay on appeal. Obviously in a stay case, the keys are not in the pocket of the defendant, but in the pocket of the appeals court.

And the 30-day or $30 prison which is executed immediately, in those cases the fine is either an illegal fine under the -- this Court's decision in Bierdon -- the person doesn't pay because he cannot, and that is itself a constitutional violation -- or once again, he is imprisoned because he chooses not to pay. And once again, that is the fairness point. The keys are in his pocket.

That is a reasonable place to draw the line because of the very important practicalities. The practicalities are the literally millions of misdemeanor cases, the very large number -- it's hard to say exactly what the number is -- the very large number of probationary misdemeanor sentences, and the fact that those probationary sentences overwhelmingly are intended to serve a rehabilitative or preventive function. Don't drive again. Take a anger management course. Go to counseling. And the -- this is meant to keep people out of prison, not to put them into prison.

Unfortunately, if you insert a mandatory formality into something which is a little bit like family court proceeding, necessarily you will have a perverse effect. The State has to spend more time, has to spend more resources.

It will do this less frequently, but it will make sure it gets more of, if you like, deterrent bang for its buck, and the result will be perverse.

This system, as simply a constitutional minimum, allows the States the flexibility which this Court from the beginning, from Argersinger on, has recognized.

JUSTICE KENNEDY: You do allow the possibility that counsel could be provided in the event the probation is revoked.

MR. FRIED: I think that's a very real possibility. Ganyon talks about that in terms of due process, and I think the practicalities change --

JUSTICE JOHN PAUL STEVENS: But the issue with the revocation hearing would not necessarily be whether he committed a crime. It would just be whether he violated a term of probation such as leaving the jurisdiction or something.

MR. FRIED: That is correct.

JUSTICE STEVENS: He can get counsel to defend him against that.

MR. FRIED: That is correct.

JUSTICE STEVENS: Not against the crime itself.

MR. FRIED: That is correct.

JUSTICE KENNEDY: Well, it would -- it would also cover, I take it, whether or not the plea was voluntary and knowingly made originally.

MR. FRIED: That could be brought up. Nothing -- nothing precludes bringing that up. What you have is a funnel with a very large opening, and in terms of the statistics, a very small tube at the bottom. It would not --

JUSTICE STEVENS: Well, is it your view that at the probation hearing you reexamine the validity of the original offense, the original conviction?

MR. FRIED: The -- Alabama is a good example of what is open at probation. In most jurisdictions, oddly enough, not in Massachusetts -- in most jurisdictions, the court on probation is free to impose new -- the revocation proceeding -- new conditions, the sentence that has already been imposed, or a lesser sentence in light of all circumstances, and it mentions specifically depreciating --

JUSTICE STEVENS: Yes, but all those alternatives assume the original conviction is valid.

MR. FRIED: I don't see why in those proceedings --

JUSTICE STEVENS: At least in a typical case.

MR. FRIED: -- the lawyer could not argue, look, you're asking whether this will depreciate the gravity of the original offense. Let me tell you a little bit about that. And I would think the judge would listen, and he has the discretion to impose a lesser sentence.

CHIEF JUSTICE REHNQUIST: This is all pretty speculative, isn't it, since that question doesn't confront us here?

MR. FRIED: No question. And I simply want to emphasize that that is open and is an important question perhaps best considered in a case where it can be fully developed.

But I don't think the Court should decide this case on the assumption that that possibility might not in a later case be open. And I think that leaves the kind of flexibility which is very desirable in these low level but very frequently encountered cases.

I think that's what will serve the -- the Constitution and the interests of rehabilitation best.

JUSTICE BREYER: Do we have any idea of the 1.4 million to 1.8 million people who are on probation for misdemeanors, of what percentage of those cases the -- the probation -- or the defendant was not offered a lawyer? I mean, the relevant feature is --

MR. FRIED: We try --

JUSTICE BREYER: That's a rather -- yes.

MR. FRIED: We try to infer that in the brief. It's -- the statistics are not kept in a transparent or useful way. But it may be in the hundreds of thousands.

It may be in the hundreds of thousands because as -- as we explain in our brief, there are a very large number of persons on probation who did not have lawyers, and given Argersinger, we may assume that they were misdemeanors. So, it's a very large number.

But the number of persons who are actually incarcerated for breach of those conditions is quite small. It's in the thousands.

And that's why I think it becomes quite practical to offer an attorney to help in that condition, but really I think very confining and perhaps with a perverse effect to require it as a constitutional minimum in the much larger -- very much larger number of cases where the matter is first considered. After all, if the person has to be sent to prison, that's a failure.

I thank the Court for its attention.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Fried, and thank you for your participation as an amicus.

Mr. Duke, we'll hear from you. I'm sorry. Mr. Mills.

MR. WILLIAM H. MILLS: Mr. Chief Justice, and may it please the Court:

It obviously is apparent here that both the petitioner and the respondent come to this Court relying on the same authority, the -- primarily the Argersinger and Scott cases.

It seems that the State is taking a rather shallow view, in our judgment, of the Argersinger and Scott cases both as to their background and how Argersinger is -- is implemented and the effect of that implementation.

CHIEF JUSTICE REHNQUIST: Do you agree that neither of those cases squarely control the outcome here?

MR. MILLS: It -- it would be my position that Argersinger does by the -- some of the pronouncements that it makes.

CHIEF JUSTICE REHNQUIST: Certainly the holding does not.

MR. MILLS: The holding does not certainly.

And it would further be my position that -- that the Scott case has something to say to us about this issue also, although the holding -- the -- the facts certainly do not coincide with this case.

It seems to me that the background of the Argersinger and Scott cases, of course, are the -- the Powell v. Alabama, Gideon v. Wainwright series of cases.

And in those cases, it seems that the Court has established the purpose of the Counsel Clause which if we -- if we reduce to its barest terms is this.

The purpose of the Counsel Clause is to prevent, to the extent humanly possible, the conviction of the innocent in an adversary proceeding.

That seems to be what Justice Sutherland said in Powell v. Alabama and what Justice Black said in Gideon v. Wainwright, that what is to be done is to eliminate the risk that the innocent may be convicted.

And when we come to the Argersinger case, although the -- the Gideon case had -- had spoken of this as being a -- or nobel idea was the -- were the words used -- but I believe spoke of counsel for every defendant in every case as being a constitutional ideal.

I think in Argersinger, the Court was faced with the argument of practicability and expense and -- and the other arguments that -- that the State makes in this case, that the mandate can't be absolute, that there must be some accommodation to those arguments.

And in Argersinger, it -- it seems that the Court made those accommodations. And if we include --

JUSTICE O'CONNOR: Well, the Court basically said, fine only? Okay. We're not going to extend the Sixth Amendment to that.

Now, here we have a State that says, well, we know we can't enforce the sentence. It's a toothless tiger. We'll say probation, but it -- we don't mean it.

I mean, we'll -- we'll maybe have proceedings, but we -- we can never enforce the sentence. In light of that, should we be concerned here?

MR. MILLS: Well, that -- that puzzled me somewhat when the State made that concession in its reply brief that this was in -- in effect a sham sentence. And I see no authority in the law of Alabama or any other State that I'm aware of that authorizes a court --

JUSTICE O'CONNOR: Well, if that's the case, what do we think about this?

MR. MILLS: Perhaps we're dealing with a sham sentence. And perhaps that's the way the Alabama Supreme Court treated it. But certainly there shouldn't be, from this Court or any other court, an authorization for a trial court to enter a sentence that can't be enforced.

JUSTICE STEVENS: Would you just clarify one thing for me? Did the Alabama Supreme Court endorse that view, or is that the Attorney General?

MR. MILLS: That's the Attorney General's view. What the Alabama petit court -- Supreme Court did was merely strike the sentence.

JUSTICE SCALIA: I guess whether you strike it or not is a matter of State law, isn't it? I mean -- I don't know what the remedy should be for a sentence that's not -- not an enforceable sentence and the person writes it in the -- the judge writes in the book, suspended sentence.

And the State and everyone else, let's say, agree that that isn't a lawful sentence. So, the State Supreme Court says, erase those words. Strike them. Did anyone suggest that was a matter of Federal law or what you do under State law when a --

MR. MILLS: Well, I believe the Alabama Supreme Court said it was -- it was a matter of Federal law.

JUSTICE SCALIA: That it be struck rather than just left to lie there unenforceable.

MR. MILLS: I'm not sure they articulated in those terms, but their -- their basis for reaching the decision they reached was the Federal cases that deal with the right of counsel.

JUSTICE SOUTER: One of the things that didn't happen, we know for sure, in this case was that an offer of counsel. Was that merely a -- an inadvertence on the court's part or does Alabama not provide assigned counsel for indigents in -- in a misdemeanor like this?

MR. MILLS: Perhaps it was inadvertence, but the -- the Alabama rules of criminal procedure have that as a part of the -- the processing of any -- any case.

JUSTICE SOUTER: In any misdemeanor?

MR. MILLS: Any criminal prosecution, yes, sir.

JUSTICE SOUTER: All right. So that if -- if there had been -- if there were an offense in Alabama that carried as much as a 1-day sentence, the State would provide counsel for an indigent, at least if requested?

MR. MILLS: Not -- not in those terms. Not -- I believe the Alabama rules say where constitutionally required. And of course the --

JUSTICE SOUTER: So, they're not providing counsel in these cases now because, I take it, the State's position is it's not constitutionally required.

MR. MILLS: That's correct, Your Honor.

JUSTICE SOUTER: At what point do they regard it as being constitutionally required? When the sentence can exceed 6 months or what?

What -- what I'm getting at is I want to know -- I want your response to the argument that there's going to be a -- a great practical difference if we say now you may not impose sentences like this at all, even though they're merely suspended.

I want to know what the practical difference is.

MR. MILLS: From the -- the wording of the Alabama Rules of Criminal Procedure about appointment of counsel at the present time, I would assume that the trial judge must go through the process outlined in Argersinger, that is, make the pretrial determination of whether imprisonment is a likely punishment in this particular case, and if -- if so, appoint counsel. If not so, counsel is not appointed.

JUSTICE SOUTER: Well, any imprisonment? 1 day of imprisonment?

JUSTICE GINSBURG: Isn't that what the Federal -- Argersinger requires?

MR. MILLS: I think that's what Argersinger says.

JUSTICE SOUTER: Okay. But Alabama, in other words, is not doing something eccentric in this respect.

MR. MILLS: That -- that's correct.

JUSTICE SOUTER: The -- the only difference then between the cases in which -- misdemeanor cases, for example, in which counsel is offered, if an individual is indigent, and counsel is not offered are cases in which the judge says in advance

I'm not going to put this guy away at all even if we convict him.

MR. MILLS: Presumably that's the process that's being followed.

JUSTICE SOUTER: Now, do you have -- do you have any basis to tell us what practical difference it would make if the judge said, well, I may impose a suspended sentence and therefore I will have to offer counsel because I read Argersinger as requiring that?

Do you know what difference that would make in practical terms? How many cases would counsel have to be offered and potentially provided for where it's not being offered and potentially provided for now?

MR. MILLS: I don't have any data that would -- would support that, but it -- but it would seem that if the trial judge makes the pretrial determination that any sentence, whether -- whether immediate or suspended, is warranted or may be warranted in this particular case, that counsel should be appointed -- of course, that's the position.

JUSTICE SOUTER: I understand that.

MR. MILLS: That's the position.

JUSTICE GINSBURG: Mr. Mills, there is one thing that I think is a piece of information that -- that is in the record, and that is that most non-indigent misdemeanors appear in court without counsel.

So, the position that you're urging is kind of a superior justice for the indigents. Counsel, you would say, in every case where, at the end of the line, there may be any jail time, although most people who can't afford counsel do not have counsel in cases of -- of this kind.

MR. MILLS: That perhaps is correct. I suppose my response to that would be that that's -- that that's a free choice that the non-indigent makes.

CHIEF JUSTICE REHNQUIST: Isn't it true also -- isn't it true also, at least according to some of the statistics quoted, that frequently these cases are not prosecuted by lawyers? They're simply prosecuted by the arresting officer.

MR. MILLS: That happens occasionally in Alabama. It used to happen a lot. It's -- it's fairly rare at the present time. But -- but that does happen. That does happen.

And, of course, in -- in Alabama, all misdemeanors, except those that are initiated by indictment, the first trial is in a -- a district or municipal court where there's no jury trial.

And the jury trial, if there is a right to jury trial, comes only by a -- an appeal and a de novo trial in the circuit court, which is an administrative problem. I don't see that as a -- as a philosophical problem.

It's -- it's still the -- most misdemeanors are -- are being tried in courts where there is no jury, certainly all of them in the first instance or most of them in the first instance.

It seems that the petitioner's position overlooks the fact that -- that the Sixth Amendment is -- is prophylactic rather than curative. Now, its -- its ideal is to prevent the convictions, not to do something about them after they occur.

Now, let me jump right quick to -- to the point that Argersinger deals with it somewhat in that way. Argersinger is what we might call an outcome-based analysis of whether there's a right to counsel. And -- and to that extent, maybe it's -- it's curative rather than prophylactic.

But if -- if it is to be outcome-based analysis, certainly it ought to be the -- the total outcome not just the immediate outcome, and if a suspended sentence results in incarceration, when the probation is revoked, that certainly is a part of the -- of the outcome that Argersinger was -- was dealing that the trial judge is required to make some decision on before trial even begins. So --

JUSTICE O'CONNOR: Do you suppose it would be constitutional for the State to offer the defendant at the outset the promise of imposition of a suspended sentence if counsel were waived?

MR. MILLS: If knowingly waived, I don't see a constitutional problem with that. And I'm sure that happens in fact.

JUSTICE O'CONNOR: Is that done sometimes in Alabama?

MR. MILLS: It -- it is. It is done. And, of course, this is -- this is the distinction between the -- the pretrial diversion mechanism that was addressed earlier and a trial. Most pretrial -- perhaps all pretrial diversions are by definition.

JUSTICE KENNEDY: Well, put in its raw form, if the judge said, now, if -- if you agree not to have a counsel, I'll agree not to impose a jail sentence, that -- that wouldn't be permitted. I mean --

MR. MILLS: Yes, sir, and it seems if --

JUSTICE KENNEDY: I assume. Correct me if I'm wrong. I assume it wouldn't be permitted.

MR. MILLS: I think that's correct. In fact, I think that's what Argersinger requires. I think Argersinger requires a trial judge to assure the defendant who goes to trial without a lawyer that he's not going to get jail sentence.

And if he can receive a jail sentence somewhere down the line, the judge has given him a false assurance. But --

CHIEF JUSTICE REHNQUIST: The -- the jail sentence would not be for the original crime necessarily but perhaps just for breaking probation.

MR. MILLS: Well, I couldn't speak to all jurisdictions, but certainly under Alabama law, there would be no -- no way to impose a sentence for breaking probation. It would either be the original sentence --

CHIEF JUSTICE REHNQUIST: Well, that's what I mean. But the reason this -- the original sentence now becomes effective is because he broke probation.

MR. MILLS: This, of course, is correct. This is the -- the carrot and stick analogy which -- which the --

JUSTICE O'CONNOR: Well, maybe I misunderstood General Pryor's argument, but I thought he was here arguing no, he wouldn't impose the original sentence ever. We'd just proceed on contempt, maximum 5 days. Did I misunderstand?

MR. MILLS: I think that's what he -- he said. I'm sure he -- he told us the whole story about contempt under Alabama law. Each day that a contempt continues can be a separate violation, a separate contempt, and -- and could warrant a -- an additional 5-day sentence.

So, contempt -- if a person was cited for violating his probation because he quit his job --

JUSTICE O'CONNOR: Well, but that wouldn't -- that wouldn't involve imposition of the original sentence. That's something else.

MR. MILLS: That --

JUSTICE O'CONNOR: That was what I understood --

MR. MILLS: That would be something else. That is -- that is for the contempt itself.

JUSTICE SOUTER: What is your position in the case of the individual who refuses to pay the fine? No suspended sentence of incarceration, simply a sentence of a fine, and he refuses to pay it.

Assuming the facts are otherwise the same, he did not have counsel and he was not offered counsel if indigent. Could the fine be enforced by a contempt sanction?

MR. MILLS: I think this Court has addressed that issue that it constitutionally can, and I -- I assume there's no -- no impediment to that under Alabama law.

JUSTICE SOUTER: Well, does -- is there -- is there some tension between the position you take about the inability of the State to enforce a -- a condition of sentence or a condition of suspension in the position that you take or acknowledge about the ability to enforce the -- the sentence of fine?

Why should the two cases be different?

MR. MILLS: Well, I think the -- the difference is if the suspended sentence is imposed, a person is being imprisoned because he committed a crime. That would never --

JUSTICE SOUTER: And if the fine -- if the fine is imposed, the fine is being imposed because the individual committed a crime.

MR. MILLS: Well, this is true, but only if he willfully refuses to pay it where he has the ability to do so.

JUSTICE SOUTER: Well, is the -- is the difference that you're making willful? That -- that violations of the conditions of suspension are not willful and refusals to pay a fine are willful?

MR. MILLS: Well, I believe willfulness -- willfully refusing to pay a fine would be a -- a precondition to -- to a contempt sentence.

JUSTICE SOUTER: All right. Then let's assume that we're talking about the class of -- of breach of -- of conditions of suspension that are willful.

Let's assume there's a condition of suspension that says you will be home every night at 9 o'clock to keep you away from the -- you know, the bad influences you've had, and he willfully refuses.

I take it your position is that the suspended sentence still cannot be imposed. Is that correct?

MR. MILLS: That -- that's --

JUSTICE SOUTER: But that's just as -- the willfulness factor is the same in the refusal to abide by that condition as it is in the refusal to pay the fine. So, I'm having difficulty seeing why you -- why on your view the -- the two should come out differently.

MR. MILLS: Well, the -- the fine and the -- the contempt for willfully refusing to comply with some other conditions, I -- I could not distinguish those.

JUSTICE SOUTER: No.

MR. MILLS: Of course, let me add one other thing about the contempt process to -- to enforce. Under Alabama law, it wouldn't save the State any money.

It would -- in fact, it would cost the State a lot of money because of the formalities required in a criminal contempt proceeding. There must be a separate proceeding.

I think there probably would not have to be a jury trial, but certainly there would have to be counsel if it is anticipated that imprisonment will be one of the punishments for willfully refusing.

JUSTICE SCALIA: But -- but it would only -- it would only undergo that expense where there has been a breach of the conditions of -- of probation. Whereas, you're arguing that the State must undergo the expense of counsel in all cases.

The number of cases where there's a violation of probation is -- is presumably quite small, and -- and to say that the State has to provide counsel in those cases in order to get the contempt sanction is -- is not nearly as much of an imposition as -- as you're urging us to impose.

MR. MILLS: Well, I would say one thing. Perhaps the -- the number of cases would not be as large as -- as might be anticipated.

Presumably in many of the suspended sentence cases, the judge perhaps has already made that decision, this is a possible jail case or this is not a possible jail case.

Or if he's made a decision it is a possible jail case, appoints counsel, he may, of course, impose a suspended sentence rather than an immediate sentence. So, perhaps many of the cases are already being appointed counsel. So, the -- the number may not be that large.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Mills.

Mr. Duke, we'll hear from you.

MR. STEVEN B. DUKE: Mr. Chief Justice, may it please the Court:

Were this a petty offense prosecution, perhaps the only legitimate, appropriate question would be the one that has occupied the Court thus far this morning, but this is a not a petty offense prosecution.

This is a serious offense prosecution. As such, it is a criminal prosecution within the Sixth Amendment.

The Sixth Amendment guarantees counsel regardless of the sentence or sanction imposed. There are two reasons why this is so. One is textual; the other is common sensical.

CHIEF JUSTICE REHNQUIST: You're not saying it would guarantee counsel if only a fine were imposed.

MR. DUKE: Yes, Mr. Chief Justice. The counsel would be guaranteed in any serious offense prosecution.

CHIEF JUSTICE REHNQUIST: Well, how do you reconcile that with Argersinger?

MR. DUKE: Because Argersinger, Mr. Chief Justice, was a petty offense case. Argersinger explicitly assumed that if it were a serious offense case, there would be the right to counsel.

In fact, the lower court said there would be a right to counsel, but the lower court said he can't have a lawyer here because this was a petty offense.

CHIEF JUSTICE REHNQUIST: Well, but wasn't the basis on -- the basis you're submitting now wasn't the basis on which the Supreme Court of Alabama ruled, was it?

MR. DUKE: It -- it was not the -- the rationale, but it -- it does support the result of the Alabama Supreme Court's decision.

JUSTICE BREYER: But I thought that the main issue that we had here is the one we've been talking about, is you have to give a person a lawyer when it is a petty offense. And the fact is that there's going to be a suspended sentence. So, what about that question?

I mean -- and I -- I thought that Mr. Fried's main point was don't do it because if you say you have to give a person a lawyer, where it's a petty offense and the only key thing is is a suspended sentence, I'll tell you there are 1,800,000 people who have received probation in petty offenses.

And there must have been some stick if they violated probation, and that stick is like a suspended sentence. So, deal with it when you worry about the probation violation; don't worry about it up front. That's -- that's what, I take it, is basically the argument.

And I've been waiting for you to talk because I thought you might be a person who'd know the statistics.

So, you might know if that's really so if -- or which seems hard to get at how many of those 1.5 million walking-around probation people did -- were never offered a lawyer. What's --

MR. DUKE: We don't know.

JUSTICE BREYER: We don't know. So, what are we supposed to do?

MR. DUKE: The -- the studies that I've seen suggest that in misdemeanor -- petty misdemeanor cases, frequently the -- the people are offered a lawyer in a -- in a group and it's suggested that most of them don't need lawyers because they're not going to jail.

But I submit, Justice Breyer, that the -- that the real red herring in this case is treating this as a petty offense. This is not a petty --

JUSTICE BREYER: And it's not offense because?

MR. DUKE: Because the authorized sentence in this case was 1 year, which made the jury trial right -- guaranteed him a right to a jury trial under the Sixth Amendment, and because this was a criminal prosecution.

CHIEF JUSTICE REHNQUIST: But the question presented is this. In light of the actual imprisonment standard established in Argersinger, refined in Scott, does the imposition of a suspended or conditional sentence in a misdemeanor case invoke a defendant's Sixth Amendment right to counsel?

Now, I think what you're saying is that the Supreme Court of Alabama decision could be supported on another ground, but I'm not sure it -- it fits within the question presented.

MR. DUKE: Well, I submit it does, Mr. Chief Justice, because as I suggested, Argersinger dealt with a petty offense.

Scott dealt with the question of imprisoning somebody, but the -- but the fundamental question here that -- that this Court should not allow itself to get embroiled in it to repeat the mistake is to treat this as if this is a trivial case because -- or to put it this way, at some point someone has to ask the question how is it that this defendant in this case had a constitutional right to a jury trial under the Sixth Amendment because this was a criminal prosecution, but he did not have a right to assistance of counsel.

CHIEF JUSTICE REHNQUIST: Our -- our cases have reached different results on those two issues.

MR. DUKE: But, Mr. Chief Justice, the -- the Scott opinion, which you wrote, did not actually address the serious offense 6-month distinction because the parties were not addressing it.

JUSTICE SCALIA: Where do you get that from? You're appealing to the text of the Constitution. Aren't all misdemeanors criminal offenses?

MR. DUKE: All --

JUSTICE SCALIA: Aren't all misdemeanors criminal offenses?

MR. DUKE: They're criminal offenses but they're not criminal prosecutions.

JUSTICE SCALIA: And -- and what does the Constitution say?

MR. DUKE: Pardon?

JUSTICE SCALIA: And what does the Constitution say? It says in all criminal prosecutions.

MR. DUKE: Yes.

JUSTICE SCALIA: So, if you're appealing to the Constitution -- and -- and you say it's clear language. I don't think it is. But if -- if you think it's clear language, you should be arguing that even in petty offenses you're entitled to counsel.

MR. DUKE: I -- I don't think I have to argue that, Justice Scalia.

JUSTICE SCALIA: No, only if you rely on the text of the Constitution, which is what I thought you were doing.

MR. DUKE: I'm saying that the right to a jury trial exists because and only because it's a criminal prosecution under the Sixth Amendment.

Logically, therefore, if it is a criminal prosecution under the Sixth Amendment, then there is a right to counsel because the Sixth Amendment says there is. But what the right to counsel should be in petty offenses is a different issue.

JUSTICE SCALIA: Why? It's a criminal offense. If -- if you're arguing --

MR. DUKE: It's a criminal offense --

JUSTICE SCALIA: -- from the text of the Constitution that says in all criminal prosecutions, it includes petty misdemeanors as well as what you call major misdemeanors.

MR. DUKE: I'm not arguing that all petty offenses are criminal prosecutions. They plainly are not.

JUSTICE SCALIA: I know you're arguing it.

MR. DUKE: They're not.

JUSTICE SCALIA: They are not criminal prosecutions?

MR. DUKE: No, otherwise there would be a right to a jury trial. There is not a right to a jury trial.

JUSTICE BREYER: Has this Court held that there is a congruent right to a jury trial and --

MR. DUKE: No.

JUSTICE BREYER: No. All right.

MR. DUKE: But nor has it --

JUSTICE BREYER: Now, before I wrote an opinion signing on to that, I'd like to see a brief.

MR. DUKE: Nor has it --

JUSTICE BREYER: I'd like everybody to --

MR. DUKE: Nor has it held otherwise.

JUSTICE BREYER: What?

MR. DUKE: Nor has it held otherwise.

JUSTICE BREYER: Fine. But before I decide something like that, I'd like to have everyone present their point of view. I actually read the briefs. I'm interested in both sides. And -- and suddenly to decide it in this case, what would you suggest we do?

I'm not going to decide something like that myself without having it fully briefed. And -- and so, what would you suggest we do with this case?

MR. DUKE: Then -- then I urge the Court to at least reserve the issue of what is the appropriate right to counsel in a serious offense where, as in this case, the defendant has a constitutional right to jury trial.

Let me just briefly quote Justice Powell, joined by then Justice Rehnquist, on the following proposition. 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 where there's a right to a jury trial.

If there is no accompanying right to counsel, the right to a jury trial becomes meaningless. No Justice of this Court, so far as I know, in the last 40 years has disagreed with that proposition.

JUSTICE GINSBURG: But the jury trial line is 6 months' imprisonment, isn't it?

MR. DUKE: Yes.

JUSTICE GINSBURG: And here, under Argersinger, it could be 1 day.

MR. DUKE: Argersinger dealt with a stop-gap issue about where there's no right to a jury trial, can we deny counsel, and Argersinger said no, not if you send the person to prison because that's the basic due process proposition.

There's no -- it's not a criminal prosecution under the Sixth Amendment. It's a due process issue as in Powell against Alabama. It's fundamentally unfair to send somebody to prison without giving him a lawyer.

With respect to the -- the argument that Mr. Fried makes, that this is essentially a little bit of an extension of Nichols, there's no way that a -- the sentence in this case could be activated, imposed without, in effect, holding that the defendant can be sent to jail, convicted of a crime and sent to jail, without providing him a lawyer. This Court --

JUSTICE SOUTER: Well, it doesn't follow that he could be sent to jail without providing him a lawyer in the subsequent proceeding.

MR. DUKE: Yes, but --

JUSTICE SOUTER: I mean, in Nichols, after all, we had another conviction, and we had a lawyer representing the individual when the question came up whether the first conviction should be considered and so on. And that may well be so, let's say, on -- on Mr. Fried's view.

There would be a subsequent proceeding, and there would at least -- this is not a position he's arguing for this morning, but it would be consistent with his position that counsel be provided in that subsequent proceeding.

MR. DUKE: Yes, but the crucial difference is that the defendant under this proceeding that Mr. Fried is -- is urging the Court to approve -- the defendant would be sent to jail without his guilt ever being determined in a criminal trial in which he was represented by counsel. Never.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Duke.

General Pryor, you have 6 minutes remaining.

MR. PRYOR: Thank you, Mr. Chief Justice.

JUSTICE KENNEDY: General, what was the -- assuming that Mr. Fried's position is adopted by the Court, what is the maximum time that the Alabama trial judge could sentence the violator to? What's the maximum time in prison?

MR. PRYOR: The suspended sentence was 30 days, Justice Kennedy.

JUSTICE KENNEDY: The suspended sentence of 30 days.

MR. PRYOR: That's -- that's correct.

JUSTICE BREYER: Can I ask you before --

MR. PRYOR: Yes, Justice Breyer.

JUSTICE BREYER: There are -- at the bottom line of the Alabama Supreme Court has two phrases in it. The first one, it says, we reverse that aspect of his sentence imposing 30 days of suspended jail time. We reverse.

MR. PRYOR: Right.

JUSTICE BREYER: Then it goes to say, we tell everybody to the trial court vacate that aspect which imposed the suspended jail time. Those are two things. We reverse and we tell them to vacate.

As to the first, we reverse that aspect, the State of Alabama agrees because they were there arguing in the Alabama Supreme Court that a real suspended sentence that meant something could be imposed, and here you're saying it's not a real sentence because we can never carry it out.

So, am I right in thinking it's the second part that you disagree with and not the first part?

MR. PRYOR: We're trying to make sense, as we understand it, of -- of the application of the rule of actual imprisonment. And I will acknowledge Mr. Fried may be right, and if so, we would welcome that.

But our understanding of Argersinger and Scott is we cannot activate the suspended sentence --

JUSTICE BREYER: I'm not really asking about your -- I just want to know if you agree or you disagree with their part which says we reverse that aspect of the sentence.

MR. PRYOR: No. No, Justice Breyer, I don't agree with that. And -- and the reason I don't agree with that is because Mr. Mills said something that I think is correct when he said that the Alabama Supreme Court struck only the suspended sentence and based only on Federal law, and what I contend is a misapprehension of Federal law. But the suspended sentence itself is not a sham. It's a device to allow the court to impose probation, which is at a minimum then fully enforceable through the same power that's available to the -- to any court to enforce any judgment, including a mere fine, which Mr. Mills concedes does not trigger a right to court-appointed counsel.

Now, I wanted to address one of the concerns raised by Justice Souter as to the practicality. There are some aspects -- some statistics we know as to the practicalities that are helpful, but I will admit we don't know everything that we need to know.

We know that there are approximately 115,000 misdemeanors each year in the State of Alabama. Those are addressed in our reply brief, the yellow brief. We know that approximately 25,000 of those result in supervised probation.

We don't know from the administrative office of courts in Alabama how many result in unsupervised probation.

We also know in Alabama -- this is not addressed in our brief, but I checked it with -- with information in State government -- that between -- there are between 2,100 and 2,200 attorneys in Alabama who accept court-appointed work.

Unfortunately, the fact that we don't know is how many of these cases, whether supervised or unsupervised probation and in misdemeanor cases, involve indigent defendants. But I hope that's at least somewhat helpful.

JUSTICE BREYER: Let me ask you one more question. And I -- I don't imagine your statistics show this, but I want to pass it up.

Out of the 115, do we know, A, how many of those were fine-only cases, not suspended sentences, but fine-only cases, and B, how many of those were motor vehicle cases?

MR. PRYOR: Were -- were?

JUSTICE BREYER: Were motor vehicle cases because the motor vehicle cases take you out of this problem, I assume, in fine situations because if the fine isn't paid, the motor vehicle -- I mean, the -- the motor vehicle laws simply provide a -- a purely civil administrative means of -- of remedying the problem.

And if they are a substantial part of the 115, then the -- the fear of what this will do, in fact, is somewhat -- the Alabama Supreme Court's view is -- is somewhat lessened. Do you know those numbers?

MR. PRYOR: No, I don't. But -- but I do know that 2,100 lawyers to take -- when we have 25,000 supervised probation and some number in excess of that of unsupervised probation, still means that it's a daunting task.

Justice Ginsburg, the point that you raised about the cost of counsel not being incurred by more affluent defendants I think is relevant from this standpoint, when you consider that it is reasonable then for the State to preserve its own resources, just as a more affluent defendant would -- would preserve its resources not to incur the cost of counsel in this kind of circumstance.

As to the argument that Argersinger would require the trial judge to inform the defendant that a sentence of imprisonment will not be imposed because counsel is not being appointed, that is not what Argersinger or Scott require.

Argersinger and Scott merely deprive the trial court of that remedy upon conviction, but there's no requirement that the defendant be informed of that.

As to Mr. Duke's argument that -- that there's a distinction made in those decisions between petty and serious offenses, it's -- it's simply not there, and -- and this is a misdemeanor case.

It's clearly a criminal proceeding where the defendant not only enjoyed a Sixth Amendment right to retain counsel, but the record shows that he clearly understood that right to retain counsel.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, General Pryor. The case is submitted.