Baldwin v. New Yor Williams/Opinion of the Court

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held, over my dissent, joined by Mr. Justice Stewart, that a state criminal defendant is entitled to a jury trial in any case which, if brought in a federal court, would require a jury under the Sixth Amendment. Today the Court concludes, in No. 188, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, that New York cannot constitutionally provide that misdemeanors carrying sentences up to one year shall be tried in New York City without a jury. At the same time the Court holds in No. 927, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, that Florida's six-member-jury statute satisfies the Sixth Amendment as carried to the States by the Duncan holding. The necessary consequence of this decision is that 12-member juries are not constitutionally required in federal criminal trials either.

The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does not require 12-member juries is, in my opinion, much too thin to mask the true thrust of this decision. The decision evinces, I think, a recognition that the 'incorporationist' view of the Due Process Clause of the Fourteenth Amendment, which underlay Duncan and is now carried forward into Baldwin, must be tempered to allow the States more elbow room in ordering their own criminal systems. With that much I agree. But to accomplish this by diluting constitutional protections within the federal system itself is something to which I cannot possibly subscribe. Tempering the rigor of Duncan should be done forthrightly, by facing up to the fact that at least in this area the 'incorporation' doctrine does not fit well with our federal structure, and by the same token that Duncan was wrongly decided.

I would sustain both the Florida and New York statutes on the constitutional premises discussed in my dissenting opinion in Duncan, 391 U.S., at 161, 88 S.Ct. at 1453-1454 et seq. In taking that course in Baldwin, I cannot, in a matter that goes to the very pulse of sound constitutional adjudication, consider myself constricted by stare decisis.

Accordingly, I dissent in No. 188 and, as to the jury issue, concur in the result in No. 927. Given Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), I join that part of the Court's opinion in No. 927 relating to the Florida 'alibi' procedure.

* As a predicate for my conclusions, it is useful to map the circuitous route that has been taken in order to reach the results. In both cases, more patently in Williams than in Baldwin, the history of jury trial practice in both the state and federal systems has been indiscriminately jumbled together as opposed to the point of departure having been taken from the language in which the federal guarantee is expressed and the historical precedent that brings it to life. The consequence of this inverted approach to interpreting the Sixth Amendment results, fortuitiously, in Baldwin in a Sixth Amendment rule that would be reached under the correct approach, given the 'incorporationist' philosophy of Duncan, but, unhappily, imposes it on the one jurisdiction in the country that has seen fit to do otherwise; and in Williams results in a Sixth Amendment rule that could only be reached by standing the constitutional dialectic on its head.

* To the extent that the prevailing opinion premises its conclusions in the Baldwin case on federal precedent and the common-law practice, I agree that the federal right to jury trial attaches where an offense is punishable by as much as six months' imprisonment. I think this follows both from the breadth of the language of the Sixth Amendment, which provides for a jury in 'all criminal prosecutions,' and the evidence of historical practice. In this regard I believe that contemporary usage in the States is of little, if any, significance. For if exceptions are to be created out of the allembracing language of the Sixth Amendment they should only be those that are anchored in history.

It is to the distinction between 'petty' and 'serious' offenses, rooted in the common law, that this Court has looked to ascertain the metes and bounds of the federal right guaranteed by the Sixth Amendment. See District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); Callan v. Wilson, 127 U.S. 540, 552, 8 S.Ct. 1301, 1304-1305, 32 L.Ed. 223 (1888). Since the conventional, if not immutable practice at common law appears to have been to provide juries for offenses punishable by fines of more than 100 or sentences to hard labor of more than six months in prison, see Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926), I think it appropriate to draw the line at six months in federal cases, although, for reasons to follow, I would not encumber the States by this requirement.

In Williams the Court strangely does an about-face. Rather than bind the States by the hitherto undeviating and unquestioned federal practice of 12-member juries, the Court holds, based on a poll of state practice, that a six-man jury satisfies the guarantee of a trial by jury in a federal criminal system and consequently carries over to the States. This is a constitutional renvoi. With all respect, I consider that before today it would have been unthinkable to suggest that the Sixth Amendment's right to a trial by jury is satisfied by a jury of six, or less, as is left open by the Court's opinion in Williams, or by less than a unanimous verdict, a question also reserved in today's decision.

1. The Court, in stripping off the livery of history from the jury trial, relies on a two-step analysis. With arduous effort the Court first liberates itself from the 'intent of the Framers' and 'the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.' 399 U.S. at 92-93, 90 S.Ct. at 1902. Unburdened by the yoke of history the Court then concludes that the policy protected by the jury guarantee does not require its perpetuation in common-law form.

Neither argument is, in my view, an acceptable reason for disregarding history and numerous pronouncements of this Court that have made 'the easy assumption' that the Sixth Amendment's jury was one composed of 12 individuals. Even assuming ambiguity as to the intent of the Framers, it is common sense and not merely the blessing of the Framers that explains this Court's frequent reminders that: 'The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' Smith v. Alabama, 124 U.S. 465, 478, 8 S.Ct. 564, 569, 31 L.Ed. 508 (1888). This proposition was again put forward by Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), where the Court was called upon to define the term 'citizen' as used in the Constitution. 'The Constitution nowhere defines the meaning of these words (the Citizenship Clause) * *  *. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.' 169 U.S., at 654, 18 S.Ct., at 459. History continues to be a wellspring of constitutional interpretation. Indeed, history was even invoked by the Court in such decisions as Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), where it purported to interpret the constitutional provision for habeas corpus according to the 'historic conception of the writ' and took note that the guarantee was one rooted in common law and should be so interpreted. Cf. United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 1720, 14 L.Ed.2d 484 (1965). In accordance with these precepts, sound constitutional interpretation requires, in my view, fixing the federal jury as it was known to the common law.

It is, of course, true that history should not imprison those broad guarantees of the Constitution whose proper scope is to be determined in a given instance by a blend of historical understanding and the adaptation of purpose to contemporary circumstances. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Estes v. Texas, 381 U.S. 532, 595-596, 85 S.Ct. 1628, 1666, 14 L.Ed.2d 543 (1965) (concurring opinion); Olmstead v. United States, 277 U.S. 438, 471, 48 S.Ct. 564, 570, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); United States v. Lovett, 328 U.S. 303, 318, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring). B. Cardozo, The Nature of the Judicial Process (1921). This is not, however, a circumstance of giving a term 'a meaning not necessarily envisioned * *  * so as to adapt (it) to circumstances *  *  * uncontemplated.' See my opinion concurring in the result in Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970). The right to a trial by jury, however, has no enduring meaning apart from historical form.

The second aspect of the Court's argument is that the number '12' is a historical accident-even though one that has recurred without interruption since the 14th century (see 399 U.S., at 89, 90 S.Ct., at 1899)-and is in no way essential to the 'purpose of the jury trial' which is to 'safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' 399 U.S. at 100, 90 S.Ct., at 1906. Thus history, the Court suggests, is no guide to the meaning of those rights whose form bears no relation to the policy they reflect. In this context the 12-member feature of the classical common-law jury is apparently regarded by the Court as mere adornment.

This second justification for cutting the umbilical cord that ties the form of the jury to the past is itself, as I see it, the most compelling reason for maintaining that guarantee in its common-law form. For if 12 jurors are not essential, why are six? What if New York, now compelled by virtue of Baldwin to provide juries for the trial of misdemeanors, concludes that three jurors are adequate 'interposition between the accused and his accuser of the common-sense judgment of a group of laymen,' and constitute adequate 'community participation and (provide) shared responsibility which results from that group's determination of guilt or innocence'? The Court's elaboration of what is required provides no standard and vexes the meaning of the right to a jury trial in federal courts, as well as state courts, by uncertainty. Can it be doubted that a unanimous jury of 12 provides a greater safeguard than a majority vote of six? The uncertainty that will henceforth plague the meaning of trial by jury is itself a further sufficient reason for not hoisting the anchor to history.

2. The circumvention of history is compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members and have fixed expectations accordingly. Thus in Thompson v. Utah a unanimous Court answered in the affirmative the question whether the Sixth Amendment jury 'is a jury constituted, as it was at common law, of twelve persons, neither more nor less.' 170 U.S. 343, 349, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898), and it appears that before Duncan no Justice of this Court has seen fit to question this holding, one that has often been reiterated. See Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930), where the Court reaffirmed earlier pronouncements and stated that the Sixth Amendment jury is characterized by three essential features: '(1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them in respect of the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.' See also Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900); Rassmussen v. United States, 197 U.S. 516, 527, 25 S.Ct. 514, 518, 49 L.Ed. 862 (1905); Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948) (unanimity). As Mr. Justice Frankfurter stated in Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958), in applying a constitutional provision 'rooted in history * *  * a long course of adjudication in this Court carries impressive authority.'

The principle of state decisis is multifaceted. It is a solid foundation for our legal system; yet care must be taken not to use it to create an unmovable structure. It provides the stability and predictability required for the ordering of human affairs over the course of time and a basis of 'public faith in the judiciary as a source of impersonal and reasoned judgments.' Moragne v. States Marine Lines, 398 U.S. 375, 403, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). See also Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940); Boys Markets v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Hertz v. Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 622, 54 L.Ed. 1001 (1910); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-406, 52 S.Ct. 443, 446 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). Woodenly applied, however, it builds a stockade of precedent that confines the law by rules, ill-conceived when promulgated, or if sound in origin, unadaptable to present circumstances. No precedent is sacrosanct and one should not hesitate to vote to overturn this Court's previous holdings-old or recent-or reconsidered settled dicta where the principles announced prove either practically (e.g., Moragne v. States Marine Lines, supra; Boys Markets v. Retail Clerks, supra), or jurisprudentially (e.g., Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969) (dissenting opinion)) unworkable, or no longer suited to contemporary life (e.g., Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (concurring opinion)). See also Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Estes v. Texas, 381 U.S., at 595-596, 85 S.Ct. 1628, 1666, 14 L.Ed.2d 543 (concurring opinion); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); James v. United States, 366 U.S. 213, 241, 81 S.Ct. 1052, 1067, 6 L.Ed.2d 246 (1961) (Separate opinion of Harlan, J.). Indeed, it is these considerations that move me to depart today from the framework of Duncan. It is, in part, the disregard of stare decisis in circumstances where it should apply, to which the Court is, of necessity, driven in Williams by the 'incorporation' doctrine, that leads me to decline to follow Duncan. Surely if the principle of stare decisis means anything in the law, it means that precedent should not be jettisoned when the rule of yesterday remains viable, creates no injustice, and can reasonably be said to be no less sound than the rule sponsored by those who seek change, let alone incapable of being demonstrated wrong. The decision in Williams, however, casts aside workability and relevance and substitutes uncertainty. The only reason I can discern for today's decision that discards numerous judicial pronouncements and historical precedent that sound constitutional interpretation would look to as controlling, is the Court's disquietude with the tension between the jurisprudential consequences wrought by 'incorporation' in Duncan and Baldwin and the counter-pulls of the situation in Williams which present the prospect of invalidating the common practice in the States of providing less than a 12-member jury for the trial of misdemeanor cases.

These decisions demonstrate that the difference between a 'due process' approach, that considers each particular case on its own bottom to see whether the right alleged is one 'implicit in the concept of ordered liberty,' see Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), and 'selective incorporation' is not an abstract one whereby different verbal formulae achieve the same results. The internal logic of the selective incorporation doctrine cannot be respected if the Court is both committed to interpreting faithfully the meaning of the federal Bill of Rights and recognizing the governmental diversity that exists in this country. The 'backlash' in Williams exposes the malaise, for there the Court dilutes a federal guarantee in order to reconcile the logic of 'incorporation,' the 'jot-for-jot and case-for-case' application of the federal right to the States, with the reality of federalism. Can one doubt that had Congress tried to undermine the common-law right to trial by jury before Duncan came on the books the history today recited would have barred such action? Can we expect repeat performances when this Court is called upon to give definition and meaning to other federal guarantees that have been 'incorporated'?

In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), I noted in an opinion concurring in the result that: 'The rule (of 'incorporation') is unwise because the States, with their differing law enforcement problems, should not be put in a constitutional strait jacket * *  *. And if the Court is prepared to relax (federal) standards in order to avoid unduly fettering the States, this would be in derogation of law enforcement standards in the federal system * *  * .' Id., at 45-46, 83 S.Ct. at 1646. Only last Term in Chimel v. California, supra, I again expressed my misgivings that 'incorporation' would neutrialize the potency of guarantees in federal courts in order to accommodate the diversity of our federal system. I reiterate what I said in dissent in Duncan, 391 U.S. 145, at 175-176, 88 S.Ct. 1444, at 1463: '(N)either history, nor sense, supports using the Fourteenth Amendment to put the States in a constitutional straitjacket with respect to their own development in the administration of criminal or civil law.' Since we now witness the first major attempt to wriggle free of that 'straitjacket,' it is appropriate, I think, to step back and view in perspective how far the incorporation doctrine has taken us, and to put the spotlight on a constitutional revolution that has inevitably become obscured by the process of case-by-case adjudication.

* The recent history of constitutional adjudication in state criminal cases is the ascendancy of the doctrine of ad hoc ('selective') incorporation, an approach that absorbs one-by-one individual guarantees of the federal Bill of Rights into the Due Process Clause of the Fourteenth Amendment, and holds them applicable to the States with all the subtleties and refinements born of history and embodied in case experience developed in the context of federal adjudication. Thus, with few exceptions the Court has 'incorporated,' each time over my protest, almost all the criminal protections found within the first eight Amendments to the Constitution, and made them 'jot-for-jot and case-for-case' applicable to the States.

The process began with Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), where the Court applied to the States the so-called exclusionary rule, rendering inadmissible at trial evidence seized in violation of the Fourth Amendment, and thereby overruling pro tanto Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). See my dissenting opinion, 367 U.S., at 672, 81 S.Ct. at 1700-1701. The particular course embarked upon in Mapp was blindly followed to its end in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), where the Court made federal standards of probable cause for search and seizure applicable to the States, thereby overruling the remainder of Wolf. See my opinion concurring in the result, 374 U.S., at 44, 83 S.Ct. at 1635. Thereafter followed Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), overruling Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), and Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), and incorporating the Fifth Amendment privilege against self-incrimination by holding that 'the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' 378 U.S., at 11, 84 S.Ct., at 1495. See my dissenting opinion in Malloy, 378 U.S., at 14, 84 S.Ct. at 1497, and my concurring opinion in Griffin, 380 U.S., at 615, 85 S.Ct. at 1233. The year of Griffin also brought forth Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), overruling Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), and Stein v. New York, 346 U.S. 156, 194, 73 S.Ct. 1077, 1097, 97 L.Ed. 1522 (1953), by holding that the Sixth Amendment's Confrontation Clause applied equally to the States and Federal Government. See my opinion concurring in the result, 380 U.S., at 408, 85 S.Ct. at 1070. In 1967 incorporation swept in the 'speedy trial' guarantee of the Sixth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and in 1968 Duncan v. Louisiana, supra, rendered the Sixth Amendment jury trial a right secured by the Fourteenth Amendment Due Process Clause. Only last Term the Court overruled Palko v. Connecticut, supra, and held that the 'double jeopardy' protection of the Fifth Amendment was incorporated into the Fourteenth, and hence also carried to the States. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); see my opinion concurring in the result in Klopfer, 386 U.S., at 226, 87 S.Ct. at 995; my dissenting opinion in Duncan, 391 U.S., at 171, 88 S.Ct. at 1458; my dissenting opinion in Benton, 395 U.S., at 801, 89 S.Ct., at 2066, and my separate opinion in North Carolina v. Pearce, 395 U.S. 711, 744, 89 S.Ct. 2072, 2085, 23 L.Ed.2d 656 (1969). In combination these cases have in effect restructured the Constitution in the field of state criminal law enforcement.

There is no need to travel again over terrain trod in earlier opinions in which I have endeavored to lay bare the historical and logical infirmities of this 'incorporationist' approach. On that score I am content to rest on what I said in dissent in Duncan, 391 U.S. 145, at 171, 88 S.Ct. 1444, at 1460. I continue to consider the principles therein expressed as the sound basis for approaching the adjudication of state cases of the kind now before us. It is my firm conviction that 'incorporation' distorts the 'essentially federal nature of our national government,' Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 285, 90 S.Ct. 1739, at 1742, 26 L.Ed.2d 234 (1970), one of whose basic virtues is to leave ample room for governmental and social experimentation in a society as diverse as ours, and which also reflects the view of the Framers that 'the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system,' 391 U.S., at 173, 88 S.Ct. at 1461. The Fourteenth Amendment tempered this basic philosophy but did not unstitch the basic federalist pattern woven into our constitutional fabric. The structure of our Government still embodies a philosophy that presupposes the diversity that engendered the federalist system.

That these doctrines are not only alive in rhetoric but vital in the world of practical affairs is evidenced by contemporary debate concerning the desirability of returning to 'local' government the administration of many programs and functions that have in late years increasingly been centralized in the hands of the National Government.

But the best evidence of the vitality of federalism is today's decision in Williams. The merits or demerits of the jury system can, of course, be debated and those States that have diluted the common-law requirements evince a conclusion that the protection as known at common law is not necessary for a fair trial, or is only such marginal assurance of a fair trial that the inconvenience of assembling 12 individuals outweighs other gains in the administration of justice achieved by using only six individuals (or none at all as was the case in New York City).

The prevailing opinion rejects in Baldwin what would be the consistent approach, requiring affirmance, simply because New York City is the single jurisdiction in the Nation that sees fit to try misdemeanants without a jury. In doing so it, in effect, holds that 'due process' is more offended by a trial without a jury for an offense punishable by no more than a year in prison than it is by a trial with a jury of six or less for offenses punishable by life imprisonment. This ignores both the basic fairness of the New York procedure and the peculiar local considerations that have led the New York Legislature to conclude that trial by jury is more apt to retard than further justice for criminal defendants in New York City.

I, for one, find nothing unfair in the New York system which provides the city defendant with an option, in lieu of a jury, of a bench trial before three judges, N.Y.C.Crim.Ct.Act § 40. Moreover, I think it counterproductive of fairness in criminal trials to hold by way of incorporation that juries are required of States in these days when congested calendars and attendant delays make what many students of criminal justice feel is one of the most significant contributions to injustice and hardship to criminal defendants.

The statistics cited by the New York Court of Appeals and amplified in the briefs are revealing and trenchant evidence of the crisis that presently bedevils the administration of criminal justice in New York City. New York's population density, a factor which is, as noted by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 5, 28 (1967), directly associated with crime, is twice that of Buffalo, the second largest city in the State. Statistics supplied by the Office of the State Administrator of the Judicial Conference of the State of New York show that: 'From July, 1966 through December, 1968 the New York City Criminal Court disposed of 321,368 nontraffic misdemeanor cases; whereas in the next largest city, Buffalo, the City Court disposed of 8,189 nontraffic misdemeanor cases.' 24 N.Y.2d 207, 218, 299 N.Y.S.2d 424, 432, 247 N.E.2d 260, 266 (1969). Thus, New York City's misdemeanor caseload is 39 times that of Buffalo's although its population is only 17 times greater. After today each of such defendants in New York is entitled to a trial by some kind of a jury. It can hardly be gainsaid that a jury requirement with the attendant time for selection of jurors and deliberation, even if not invoked by all defendants, will increase delays in calendars, depriving all defendants of a prompt trial. Impressive evidence suggests that this requirement could conceivably increase delays in New York City courts by as much as a factor of eight. A study done of the administration of the Municipal Court in Minneapolis shows that the requirement of a trial by jury in cases of intoxicated driving increased court delays there from three to 24 months. Note, Right to a Jury Trial for Persons Accused of an Ordinance Violation, 47 Minn.L.Rev. 93 (1962).

Notwithstanding this critical situation the Court concludes that the Constitution requires a procedure fraught with delay even though the American Bar Association Project on Standards for Criminal Justice, Trial By Jury, has recognized the New York City three-judge procedure as a possible compromise measure where jury trials are not permitted or waived, and the further fact that one-half the defendants tried for misdemeanors in New York City are acquitted.

Today's decisions demonstrate a constitutional schizophrenia born of the need to cope with national diversity under the constraints of the incorporation doctrine. In Baldwin the prevailing opinion overrides the consideration of local needs, but in Williams the Court seeks out a minimum standard to avoid causing disruption in numerous instances even though, a priori, incorporation would surely require a jury of 12. The six-man, six-month rule of today's decisions simply reflects the lowest common denominator in the scope and function of the right to trial by jury in this country, but the circumstance that every jurisdiction except New York City has a trial by a jury for offenses punishable by six months in prison obscures the variety of opinion that actually exists as to the proper place for the jury in the administration of justice. More discriminating analysis indicates that four States besides Florida authorize a jury of less than 12 to try felony offenses and three States authorize a nonunanimous verdict in felony cases, and at least two other States provide a trial without jury in the first instance for certain offenses punishable by more than one year with a right to de novo trial on appeal. Eight States provide for juries ranging from five to 12 to try crimes punishable by one year in prison, and one State has provided for a verdict by nine in a jury of 12. Five States first provide a bench trial for misdemeanors from which the defendant can seek a trial de novo by jury, a procedure that this Court, in a federal trial, has deemed incompatible with the Sixth Amendment for putting the accused to the burden of two trials if he wishes a jury verdict. See Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888).

These varying provisions, reflecting as they do differing estimates of the importance of the jury in securing a fair trial and the feasibility of administering such a procedure given the local circumstances, and the extensive study and debate about the merits and demerits of the jury system, demonstrate that the relevance and proper role of trial by jury in the administration of criminal justice is yet far from sure.

'Incorporation' in Duncan closed the door on debate, irrespective of local circumstances, such as the backlogs in urban courts like those of New York City, and has, without justification, clouded with uncertainty the constitutionality of these differing state modes of proceeding, see Appendix, pending approval by this Court; it now promises to dilute in other ways the settled meaning of the federal right to a trial by jury. Flexibility for experimentation in the administration of justice should be returned to the States here and in other areas that now have been swept into the rigid mold of 'incorporation.' I agree with THE CHIEF JUSTICE: 'That the 'near-uniform judgment of the Nation' is otherwise than the judgment in some of its parts affords no basis * *  * to read into the Constitution something not found there.' Opinion of THE CHIEF JUSTICE in Baldwin, 389 U.S., at 77, 90 S.Ct., at 1892.

It is time, I submit, for this Court to face up to the reality implicit in today's holdings and reconsider the 'incorporation' doctrine before its leveling tendencies further retard development in the field of criminal procedure by stifling flexibility in the States and by discarding the possibility of federal leadership by example.

A. Nonunanimous Verdict For Felony-Type Offenses

1. Louisiana: La.Crim.Proc., Code Art. 782. (Verdict of nine out of 12 in cases necessarily punished by hard labor.)

2. Oregon: Constitution, Art. I, § 11; Ore.Rev.Stat. §§ 136.330, 136.610 (1967) (five out of six sufficient for verdict in a circuit court except in capital cases).

3. Texas: Tex.Code Crim.Proc., Art. 36.29 (1966) (permitting verdict by less than 12 when juror is incapacitated).

B. Non-Jury Trial In Cases Punishable By More Than One Year's Imprisonment With De Novo Review

1. Maryland: Constitution, Declaration of Rights, Arts. 5, 21; Md.Ann. Code, Art. 51, § 18, Art. 52, § 13 (1968), Art. 66 1/2, §§ 48, 74, 75, 216, 325 (1967), § 327 (Supp.1969); Md.Rules Proc. 743, 758. (Trial by jury appears not to be afforded in motor vehicle cases in the first instance even though some motor vehicle offenses carry a penalty of up to five years' imprisonment.)

2. North Carolina: Constitution, Art. I, § 13; State v. Sherron, 4 N.C.App. 386, 166 S.E.2d 836 (1969); N.C. Gen.Stat. §§ 7A-272(a), 7A-196(b), 14-3 (1969). (District courts have jurisdiction to try, without a jury, all offenses below the grade of felony. Such offenses are denominated petty misdemeanors and the maximum sentence which may be imposed is a fine or two years' imprisonment.)

3. Pennsylvania: Constitution, Sched. Art. 5, § 16(r)(iii) (offenses tried in the municipal division of the court of common pleas carrying penalties up to two years' imprisonment and indictable offenses under the motor vehicle laws for which punishment does not exceed three years' imprisonment).

1. Alaska: Constitution, Art. I, § 11; Alaska Stat. §§ 11.75.030 (1962), 22.15.060, 22.15.150 (1967). (Jury of six in district magistrate's courts, which have jurisdiction of misdemeanors, punishable by up to one year's imprisonment.)

2. Georgia: Constitution, Art. I, § 2-105, Art. VI, § 2-5101; Ga.Code Ann. § 27-2506 (Supp.1968); Ga. Laws 1890-1891, pp. 935, 939, 942. (In county criminal courts, which have jurisdiction of misdemeanors-cases in which the maximum sentence imposable is a fine of up to $1000 or imprisonment for a term of up to 12 months or both-a defendant may demand a jury trial. Depending upon the county, however, a jury ranges in size from five to 12 persons. The Criminal Court of Atlanta, for example, tries misdemeanors with juries of five. In Hall County the same crimes are tried by juries of 12.)

3. Iowa: Constitution, Art. 1, § 9; Iowa Code §§ 602.15, 602.25, 602.39, 687.7 (1966). (Jury of six in municipal courts, which have jurisdiction of misdemeanors, carrying a maximum fine of $500 or imprisonment for one year or both.)

4. Kentucky: Constitution, §§ 7, 11, 248; Ky.Rev.Stat. §§ 25.010, 25.014, 26.400, 29.015 (1963). (Misdemeanors, carrying a maximum penalty of $500 or 12 months' imprisonment, are tried in inferior courts by a jury of six. Circuit courts, where a 12-member jury is used, have concurrent jurisdiction.)

5. Mississippi: Constitution, Art. 3, § 31, Art. 6, § 171; Miss.Code Ann. §§ 1831, 1836, 1839 (1956). (Jurisdiction of crimes punishable in the county jail may be tried in the justice of the peace courts by a six-man jury. Many such crimes have a one-year maximum term. Circuit courts have concurrent jurisdiction. Such crimes include, e.g., offenses involving corruption in elections (Miss.Code Ann. §§ 2031, 2032), escape or aiding escape of prisoners (§§ 2133, 2134, 2135, 2141), public officers' interest in contracts (§§ 2301, 2302), and trade marks (§§ 2390, 2391).)

6. Oklahoma: Constitution, Art. 2, §§ 19, 20; Okla.Stat.Ann. Tit. 11, §§ 958.3 958.6 (Supp.1969-1970), Tit. 21, § 10 (1958). (In misdemeanor cases-those in which a sentence of up to one year's imprisonment may be imposed-in courts of record, a defendant may demand a jury of 12; nine members of the jury may render a verdict. For violations of city ordinances tried in courts not of record, the defendant may demand six jurors, five of whom may render a verdict.)

7. Oregon: Constitution, Art. I, § 11; Constitution of 1857, Art. VII, § 12; Ore.Rev.Stat. §§ 5.110 (1965), 46.040, 46.175, 46.180 (1967). (Jury of six in county courts, which have jurisdiction of all crimes except those carrying the death penalty or life imprisonment. Jury of six in district courts, which have jurisdiction of all misdemeanors, punishable by one year's imprisonment.)

8. Virginia: Constitution, Art. I, § 8; Va.Code Ann. §§ 16.1 123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136 18.1-6 (1960), 18.1-9 (Supp.1968), 19.1-206 (1960). (In courts not of record, which have jurisdiction of misdemeanors, punishable by up to one year's imprisonment, charges are tried without a jury. The defendant may appeal as of right to the circuit court, where he receives a trial de novo. All trials in the circuit court of offenses not felonious, whether in the first instance or on appeal, are with five jurors.)

D. Non-Jury Trial For Misdemeanors Subject to De Novo Review

1. Arkansas: Constitution, Art. 2, § 10; Ark.Stat.Ann. §§ 22 709, 22-737, 26-301 (1962), 41-106, 43-1901, 43-1902, 44-115, 44 116, 44-509 (1964); see generally Greenebaum, Arkansas' Judiciary: Its History and Structure, 18 Ark.L.Rev. 152 (1964). (No jury provided in municipal courts, which have jurisdiction of misdemeanors carrying a maximum penalty of one year's imprisonment. Upon conviction, the defendant may appeal to the circuit court where he is entitled to a trial de novo before a common-law jury.) 2. Maine: Constitution, Art. I, §§ 6, 7; Me.Rev.Stat.Ann., Tit. 4, § 152 (Supp.1970), Tit. 15, §§ 1, 451 (1965); Me.Rules Crim.Proc. 23(b), 31(a); Sprague v. Androscoggin County, 104 Me. 352, 71 A. 1090 (1908); letter dated Dec. 17, 1968, from Maine Attorney General's office to New York County District Attorney's office. (Maine district courts try misdemeanors-crimes punishable by a sentence of up to one year-without a jury. A defendant may appeal his conviction to the Superior Court, however, where he is entitled to a common-law jury.)

3. New Hampshire: Constitution, pt. 1, Arts. 15, 16, pt. 2, Art. 77; N.H.Rev.Stat.Ann. § 599:1 (Supp.1969), §§ 502-A:11, 502 A:12, 502:18 (1968); State v. Despres, 107 N.H. 297, 220 A.2d 758 (1966). (District and municipal courts try, without a jury, misdemeanors carrying a maximum term of imprisonment of one year. The defendant in these courts has an absolute right of appeal to the Superior Court where he may demand a jury of 12 in his trial de novo.)

4. Rhode Island: Constitution, Art. 1, §§ 10, 15; R.IGen.Laws Ann. §§ 12-3-1, 12-17-1, 12-22-1, 12-22-9 (1956); State v. Nolan, 15 R.I. 529, 10 A. 481 (1887). (There are no juries in the district courts, which have jurisdiction of misdemeanors-crimes punishable by a fine of up to $500 or imprisonment for up to one year or both. A defendant may appeal his conviction to the Superior Court where he is entitled to a trial de novo before a jury of 12.)

5. Virginia: Constitution, Art. I, § 8; Va.Code Ann. §§ 16.1 123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136, 18.1-6 (1960), 18.1-9 (Supp.1968). (In courts not of record, which have jurisdiction of misdemeanors, punishable by up to one year's imprisonment, charges are tried without a jury. The defendant may appeal as of right to the circuit court, where he receives a trial de novo with five jurors.)

Mr. Justice STEWART, dissenting in No. 188, and concurring in the result in No. 927.