# Argersinger v. Hamlin/Concurrence Burger

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan Burger Powell
[p41] MR. CHIEF JUSTICE BURGER, concurring in the result.
I agree with much of the analysis in the opinion of the Court and with MR. JUSTICE POWELL's appraisal of the problems. Were I able to confine my focus solely to the burden that the States will have to bear in providing counsel, I would be inclined, at this stage of the development of the constitutional right to counsel, to conclude that there is much to commend drawing the line at penalties in excess of six months' confinement. Yet several cogent factors suggest the infirmities in any approach that allows confinement for any period without the aid of counsel at trial; any deprivation of liberty is a serious matter. The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial and yet be beyond the capability of a layman, especially when he is opposed by a law-trained prosecutor. There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges. Appeal from a conviction after an uncounseled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounseled trial record.
[p42] Trial judges sitting in petty and misdemeanor cases—and prosecutors—should recognize exactly what will be required by today's decision. Because no individual can be imprisoned unless he is represented by counsel, the trial judge and the prosecutor will have to engage in a predictive evaluation of each case to determine whether there is a significant likelihood that, if the defendant is convicted, the trial judge will sentence him to a jail term. The judge can preserve the option of a jail sentence only by offering counsel to any defendant unable to retain counsel on his own. This need to predict will place a new load on courts already overburdened and already compelled to deal with far more cases in one day than is reasonable and proper. Yet the prediction is not one beyond the capacity of an experienced judge, aided as he should be by the prosecuting officer. As to jury cases, the latter should be prepared to inform the judge as to any prior record of the accused, the general nature of the case against the accused, including any use of violence, the severity of harm to the victim, the impact on the community, and the other factors relevant to the sentencing process. Since the judge ought to have some degree of such information after judgment of guilt is determined, ways can be found in the more serious misdemeanor cases when jury trial is not waived to make it available to the judge before trial. This will not mean a full "presentence" report on every defendant in every case before the jury passes on guilt, but a prosecutor should know before trial whether he intends to urge a jail sentence, and if he does he should be prepared to aid the court with the factual and legal basis for his view on that score.
This will mean not only that more defense counsel must be provided, but also additional prosecutors and better facilities for securing information about the accused as it bears on the probability of a decision to confine.
The step we take today should cause no surprise to the legal profession. More than five years ago the profession, speaking through the American Bar Association in a Report to Standards Relating to Providing Defense Services, determined that society's goal should be "that the system for providing counsel and facilities for the defense be as good as the system which society provides for the prosecution." American Bar Association Project on Standards for Criminal Justice, Providing Defense Services 1 (Approved Draft 1968). The ABA was not addressing itself, as we must in this case, to the constitutional requirement but only to the broad policy issue. Elsewhere in the report the ABA stated that:
   "The fundamental premise of these standards is that representation by counsel is desirable in criminal cases both from the viewpoint of the defendant and of society." Id., at 3.
After considering the same general factors involved in the issue we decide today, the ABA Report specifically concluded that:
   "Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise." Id., § 4.1, pp. 37-38.
In a companion ABA Report on Standards Relating to the Prosecution Function and the Defense Function [p44] the same basic theme appears in the positive standard cast in these terms:
   "Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused." Id., at 153 (Approved Draft 1968).
The right to counsel has historically been an evolving concept. The constitutional requirements with respect to the issue have dated in recent times from Powell v. Alabama, 287 U.S. 45 (1932), to Gideon v. Wainwright, 372 U.S. 335 (1963). Part of this evolution has been expressed in the policy prescriptions of the legal profession itself, and the contributions of the organized bar and individual lawyers—such as those appointed to represent the indigent defendants in the Powell and Gideon cases—have been notable. The holding of the Court today may well add large new burdens on a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it.

## Notes

* ↑ In a nonjury case the prior record of the accused should not be made known to the trier of fact except by way of traditional impeachment.