Alabama v. Shelton/Dissent Scalia

Justice Scalia, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting.

In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), we held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense … unless he was represented by counsel at his trial.” (Emphasis added.) Although, we said, the “run of misdemeanors will not be affected” by this rule, “in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit” of appointed counsel. Id., at 40 (emphasis added). We affirmed this rule in Scott v. Illinois, 440 U.S. 367 (1979), drawing a bright line between imprisonment and the mere threat of imprisonment: “[T]he 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.” Id., at 373 (emphasis added). We have repeatedly emphasized actual imprisonment as the touchstone of entitlement to appointed counsel. See, e.g., Glover v. United States, 531 U.S. 198, 203 (2001) (“any amount of actual jail time has Sixth Amendment significance” (emphasis added)); M. L. B. v. S. L. J., 519 U.S. 102, 113 (1996) (“right [to appointed counsel] does not extend to nonfelony trials if no term of imprisonment is actually imposed” (emphasis added)); ''Lassiter v. Department of Social Servs. of Durham Cty.'', 452 U.S. 18, 26 (1981) (the Court “has refused to extend the right to appointed counsel to include prosecutions which, though criminal, do not result in the defendant’s loss of personal liberty” (emphasis added)).

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,’ ” ante, at 1—2 (emphasis added), if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation, Ala. Code §15—22—54(d)(1) (1995), 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,” §15—22—54(d)(4). 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. Ante, at 10—11. 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.” Pet. for Cert. i. 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, Hayburn’s Case, 2 Dall. 409 (1792), particularly with respect to constitutional questions (as to which we seek to avoid even non-advisory opinions, Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)), 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”). Ante, at 12.

Although the Court at one point purports to limit its decision to suspended sentences imposed on uncounseled misdemeanants in States, like Alabama, that offer only “minimal procedures” during probation revocation hearings, see ante, at 12, n. 5, the text of today’s opinion repudiates that limitation. In answering the question we asked amicus to address–whether “the Sixth Amendment permit[s] activation of a suspended sentence upon the defendant’s violation of the terms of probation”–the Court states without qualification that “it does not.” Ante, at 6. Thus, when the Court says it “doubt[s]” that any procedures attending the reimposition of the suspended sentence “could satisfy the Sixth Amendment,” ante, at 12, n. 5, it must be using doubt as a euphemism for certitude.

The Court has no basis, moreover, for its “doubt.” Surely the procedures attending reimposition of a suspended sentence would be adequate if they required, upon the defendant’s request, complete retrial of the misdemeanor violation with assistance of counsel. By what right does the Court deprive the State of that option? It may well be a sensible option, since most defendants will be induced to comply with the terms of their probation by the mere threat of a retrial that could send them to jail, and since the expense of those rare, counseled retrials may be much less than the expense of providing counsel initially in all misdemeanor cases that bear a possible sentence of imprisonment. And it may well be that, in some cases, even procedures short of complete retrial will suffice.

Our prior opinions placed considerable weight on the practical consequences of expanding the right to appointed counsel beyond cases of actual imprisonment. See, e.g., Scott, 440 U.S., at 373 (any extension of Argersinger would “impose unpredictable, but necessarily substantial, costs on 50 quite diverse States”); see also Argersinger, 407 U.S., at 56—62 (Powell, J., concurring in result) (same). Today, the Court gives this consideration the back of its hand. Its observation that “[a]ll but 16 States” already appoint counsel for defendants like respondent, ante, at 13, is interesting but quite irrelevant, since today’s holding is not confined to defendants like respondent. Appointed counsel must henceforth be offered before any defendant can be awarded a suspended sentence, no matter how short. Only 24 States have announced a rule of this scope. Thus, the Court’s decision imposes a large, new burden on a majority of the States, including some of the poorest (e.g., Alabama, Arkansas, and Mississippi, see U.S. Census Bureau, Statistical Abstract of the United States 426 (2001)). That burden consists not only of the cost of providing state-paid counsel in cases of such insignificance that even financially prosperous defendants sometimes forgo the expense of hired counsel; but also the cost of enabling courts and prosecutors to respond to the “over-lawyering” of minor cases. See Argersinger, supra, at 58—59 (Powell, J., concurring in result). Nor should we discount the burden placed on the minority 24 States that currently provide counsel: that they keep their current disposition forever in place, however imprudent experience proves it to be.

Today’s imposition upon the States finds justification neither in the text of the Constitution, nor in the settled practices of our people, nor in the prior jurisprudence of this Court. I respectfully dissent.