Argersinger v. Hamlin, 407 U.S. 25 (1972)

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner, an indigent, was charged in Florida with carrying a concealed weapon, an

offense punishable by imprisonment up to six months, a $1,000 fine, or both. The trial

was to a judge, and petitioner was unrepresented by counsel. He was sentenced to serve

90 days in jail, and brought this habeas corpus action in the Florida Supreme Court,

alleging that, being deprived of his right to counsel, he was unable as an indigent layman

properly to raise and present to the trial court good and sufficient defenses to the charge

for which he stands convicted. The Florida [p27] Supreme Court, by a four-to-three

decision, in ruling on the right to counsel, followed the line we marked out in Duncan v.

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." [p28]

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.

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.

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).

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 [p29] and a new trial ordered, because the trial court had

prejudicially restricted the right of cross-examination, a right guaranteed by the Sixth

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

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. [p30]

While there is historical support for limiting the "deep commitment" to trial by jury to

"serious criminal cases," [n2] there is no such support for a similar limitation on the right

[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.

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.

We reject, therefore, the premise that, since prosecutions for crimes punishable by

imprisonment for less than [p31] six months may be tried without a jury, they may also

be tried without a lawyer.

The assistance of counsel is often a requisite to the very existence of a fair trial. The

Court in Powell v. Alabama, supra, at 68-69 -- a capital case -- said:

The right to be heard would be, in many cases, of little avail if it did not comprehend the

right to be heard by counsel. Even the intelligent and educated layman has small, and

sometimes no, skill in the science of law. If charged with crime, he is incapable,

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

[I]n our adversary system of criminal justice, any person haled into court who is too poor

seems to us to be an obvious truth. Governments, both state and federal, [p32] 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

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. [n3]

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 [p33] as In re Oliver, supra, where the penalty is 60 days' imprisonment:

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).

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.

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

[t]he 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

hand of counsel [p34] 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.

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.

For example, until legislation last year increased the number of judges, the District of

offenses and an equal number of traffic offenses per year. An inevitable consequence of

volume that large is the almost total preoccupation [p35] 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:

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

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.

Very little such observation of the administration of criminal justice in operation is

required to reach the conclusion that it suffers from basic ills.

That picture is seen in almost every report.

preparation on the part of the defense, the prosecution, and the court. Everything is rush,

rush.

Hellerstein, The Importance of the Misdemeanor [p36] Case on Trial and Appeal, 28 The

Legal Aid Brief Case 151, 152 (1970).

There is evidence of the prejudice which results to misdemeanor defendants from this

"assembly line justice." One study concluded that

[m]isdemeanants represented by attorneys are five times as likely to emerge from police

court with all charges dismissed as are defendants who face similar charges without

counsel.

We must conclude, therefore, that the problems associated with misdemeanor and petty

[n5] offenses often [p37] 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

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

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

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:

We hold that no person may be deprived of his [p38] liberty who has been denied the

ordinances. The denial of the assistance of counsel will preclude the imposition of a jail

sentence. [n8]

only to make clear the federal constitutional requirement. How crimes should be

classified is largely a state matter. [n9] 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 [n10] where imprisonment actually occurs. [p39]

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

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

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

Providing Defense Services 40 (Approved Draft 1968). [p40]

seriousness and gravity of the offense, and therefore know when to name a lawyer to

The run of misdemeanors will not be affected by today's ruling. But, in those that end up

in the actual deprivation of a person's liberty, the accused will receive the benefit of "the

guiding hand of counsel" so necessary when one's liberty is in jeopardy.

Reversed.

Poor in Criminal Cases in American State Courts 127-135 (1965).

A review of federal and state decisions following Gideon is contained in Comment, Right

103 (1970).

Twelve States provide counsel for indigents accused of "serious crime" in the

misdemeanor category. Id. at 119-124.

Nineteen States provide for the appointment of counsel in most misdemeanor cases. Id. at

124-133. One of these is Oregon, whose Supreme Court said, in Stevenson v. Holzman,

254 Ore. 94, 100-101, 458 P.2d 414, 418,

If our objective is to insure a fair trial in every criminal prosecution, the need for counsel

is not determined by the seriousness of the crime. The assistance of counsel will best

avoid conviction of the innocent -- an objective as important in the municipal court as in

4. In 1965, 314,000 defendants were charged with felonies in state courts, and 24,000

Exclusive of traffic offenses, however, it is estimated that there are annually between four

and five million court cases involving misdemeanors. Ibid. And, while there are no

authoritative figures, extrapolations indicate that there are probably between 40.8 and 50

million traffic offenses each year. Note, Dollars and Sense of an Expanded Right to

Counsel, 55 Iowa L.Rev. 1249, 1261 (1970).

petty offense." But, as the Court of Appeals for the Fifth Circuit noted in James v.

Headley, 410 F.2d at 330-331, 18 U.S.C. § 3006A, which was enacted as the Criminal

In that connection, the Federal Rules of Criminal Procedure, as amended in 1966, provide

in Rule 44(a):

before the commissioner or the court through appeal, unless he waives such appointment.

Like the original rule, the amended rule provides a right to counsel which is broader in

1964:

(1) The right extends to petty offenses to be tried in the district courts, and

financial.

employment, with a consequent substantial detriment to the defendant and his family.

misdemeanants, excluding traffic offenders. Note, Dollars and Sense of an Expanded

(Statistical Abstract of the United States 153 (1971)), a number which is projected to

double by the year 1985. See Ruud, That Burgeoning Law School Enrollment, 58

A.B.A.J. 146, 147. Indeed, there are 18,000 new admissions to the bar each year -- 3,500

more lawyers than are required to fill the "estimated 14,500 average annual openings." Id.

at 148.

Every person has the right to assistance of counsel in all official proceedings and dealings

9. One partial solution to the problem of minor offenses may well be to remove them

(e.g., public drunkenness, narcotics addiction, vagrancy, and deviant sexual behavior)

should be taken out of the courts. The handling of these matters should be transferred to

nonjudicial entities, such as detoxification centers, narcotics treatment centers and social

service agencies. The handling of other nonserious offenses, such as housing code and

ABA Report, New Perspectives on Urban Crime iv (1972). Such a solution, of course, is

peculiarly within the province of state and local legislatures.

10.

Forty thousand traffic charges (arising out of 150,000 nonparking traffic citations) were

disposed of by court action in Seattle during 1964. The study showed, however, that in

conviction. In only three kinds of cases was the accused exposed to any danger of

imprisonment: (1) where the offense charged was hit-and-run, reckless or drunken

driving; or (2) where any additional traffic violation was charged against an individual

subject to a suspended sentence for a previous violation; or (3) where, whatever the

Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685, 711 (1968).