John G. Roberts, Jr.: We will hear argument next in Case 08-5274, Dean v. United States. Mr. Forster.
Scott J. Forster: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court: The issue before the Court in this case is whether the discharge provision of 924(c) carries with it some requirement of intent. We believe that the answer to this question is yes. And to that end, we would cite to the -- to the text of the statute itself as well as the history involved, the presumption of mens rea that is inherent in all statutes such as this Court's case law has been clear on as well as the principle of the rule of lenity, if we get to that point, and if the Court deems that there is some type of ambiguity.
Ruth Bader Ginsburg: Mr. Forster, there are three levels under this: Possession, brandishing, and if the gun is discharged. You -- you don't quarrel with the notion that Dean at least brandished this gun?
Scott J. Forster: We -- we do not dispute that, Your Honor. No, he clearly intentionally brandished the weapon.
Ruth Bader Ginsburg: So we're talking about a three-year difference between brandishing and if the gun is discharged?
Scott J. Forster: Yes, Your Honor, that's exactly right. And the statute in 924 requires that the use of the firearm be during and in relation to the underlying crime of violence, which in this case is a bank robbery. And we believe that the proper reading of the statute would require that the discharge also be done during and in relation to the underlying crime of violence. Otherwise, the statute simply would not make any sense.
John G. Roberts, Jr.: I think one of the stronger arguments against you is the use of the passive voice. It doesn't say anybody who discharges a firearm. It says "a firearm is discharged". And that seems to me to take it away from the element of intent that you're trying to focus on.
Scott J. Forster: Your Honor, I think that it's a transitive verb the way it's used. By definition, it would have some object. Someone would have had to have discharged the weapon. And so I think that the Court's cases on mens rea and so forth would continue to apply, even given the way that the -- that it's phrased in the statute. I don't think that--
John G. Roberts, Jr.: So you think it's different -- I don't remember the grammar too well. You think "a firearm is discharged" is different than "firearm discharges"; is that your point?
Scott J. Forster: --I'm not sure it would make a difference in this case, Your Honor, because I don't think there's any -- I think that by definition the Court would have to ask itself who discharged the weapon. I don't think you can just use the word "discharge" in a vacuum. It has to be during and in relation--
John G. Roberts, Jr.: Well, I'm not sure that's right. I mean, if in fact the bank robber tries to flee, and the security guard is forced to use his firearm, increasing the danger to everybody else in the bank, I'm not sure this statute wouldn't cover that as well.
Scott J. Forster: --Your Honor, I don't believe the statute would, because the individual who would be charged with it would not himself had "during" or "and in relation to" the underlying crime of violence.
Ruth Bader Ginsburg: But it doesn't say -- it says, "if the gun is discharged". And I think on the government's reading, it would cover the police officer who is trying to apprehend the robber and fires a gun.
Scott J. Forster: Yes, Your Honor, I think under the government's theory that would be true. But I think that would open up--
Antonin Scalia: Excuse me. What -- what -- I guess I'm not following this. You say it would be true that if the blank -- if the bank guard fires his own gun when -- when the bank robber is fleeing, that would come within this?
Scott J. Forster: --No, Justice Scalia, not under our reading. I think--
Antonin Scalia: No, you say under the government's it would? I don't think it would under the government's either. Do you?
Anthony M. Kennedy: You have to use or carry the firearm before -- before section 2 even applies.
Ruth Bader Ginsburg: But it's the police officer who snatches the gun.
Antonin Scalia: Ah, that's different, yes.
Anthony M. Kennedy: That's different.
Ruth Bader Ginsburg: So it is using the robber's gun, but by the police officer who is apprehending him. In other words, as I understand the government's view, it doesn't matter whether it's the police officer. It has to be the gun of the robber, but it doesn't matter whether it's the robber or the police officer who discharges it.
Scott J. Forster: --That's true, ma'am.
Antonin Scalia: And I guess it's also the government's view -- and this is even weirder -- that it doesn't matter who brandishes the gun. So the bank -- the bank guard grabs the gun and brandishes the gun, and that also gets additional time served for the bank robber. It doesn't seem fair.
Scott J. Forster: Your Honor, I don't believe that the -- that the hypothetical of the guard waving the gun around -- I don't think that would meet the definition of 924 defines it.
Ruth Bader Ginsburg: So it has a very specific -- what are the words that define what is brandishing?
Scott J. Forster: Justice Ginsburg, "brandish" is defined under the statute a couple of different ways. The -- the dictionary definition of "brandish", which is to grab something and wave it around, is certainly contained in that. But the definition goes further. The definition also says that if I, for example, make known that I have a gun, if I pass a note saying I have a gun, that would also be brandishing under the statute.
Ruth Bader Ginsburg: I -- I didn't think the government or anybody was reading the definition of brandishing to include a police officer.
Scott J. Forster: The way the government's brief -- well, with regards to brandish, Your Honor, I don't know that the government goes that far.
David H. Souter: Well, they've run into the problem, which is also a different problem for you, and that is the brandishing must be for the purposes of -- for the purpose of intimidating.
Ruth Bader Ginsburg: Right.
David H. Souter: So that's probably going to eliminate the case in which the officer grabs the felon's gun. So the problem that it seems to me that it creates for you is that "brandish" is specifically defined to have that particular intentional element. There is, however, no definition of -- of the -- of the term in question here, which suggests that they did not have any discharge -- that they did not have any -- any -- any intent to impose an intent requirement. When they do it, they know how to do it. In this case. They didn't do it.
Scott J. Forster: Your Honor, I would disagree with that simply for this reason: This Court's case law is clear that if Congress wants to do away with the mens rea element, they must affirmatively do so. And I don't think that it's proper to say that because there's a specific definition of "brandish", therefore they meant discharge to be basically strict liability.
David H. Souter: Why is it improper? I mean, it may not be conclusive, but it seems to me evidence that points in that direction.
Scott J. Forster: Your Honor, I think that that would be disregarding the presumption of mens rea that exists pursuant to this Court's case law as well as the requirement--
David H. Souter: We have -- we have lots of cases in which it makes sense to disregard that presumption, and -- and nobody thinks twice about it, I mean, accomplice liability being an example. There are -- there are lots of State crimes in which it is dispensed with, reckless driving, death resulting. And in all of those cases, what in effect the rationale is that the -- that the individual who is being charged has created a risk. No one can control that risk, including himself, but he bears the responsibility for, if you will, bad luck if the risk is realized. And that is the rationale for -- for holding him liable for discharge here without any particular knowing or -- or intentional act in making the discharge. So why doesn't that make sense, and why is that not an answer to the usual presumption that there will be a specific state of mind required?
Scott J. Forster: --Your Honor, I don't think this statute is driven by consequence. And as I understand Your Honor's hypothetical--
David H. Souter: Why?
Scott J. Forster: --Because the words that the statute uses are directly focused to the -- to the conduct of the defendant: "Possess, use, brandish, discharge. " as opposed to, for example, carjacking.
Antonin Scalia: Well, this is conduct. I mean, it isn't just bad luck. This is -- what we have here is a negligent bank robber. I mean, he has left the safety off, okay, and -- and trips the gun. I mean, bank robbing is bad enough, but negligent bank robbing is something ---- [Laughter] --is something that should be punished more severely.
Scott J. Forster: Your Honor, certainly under the statute the court had far more authority than the 10 years it imposed, and I think Congress is clear that they -- they allowed for substantially larger sentences in such a case. This case obviously just discusses the application of the mandatory minimum.
John G. Roberts, Jr.: Your -- your argument would give rise to very serious problems of proof. Every time a gun goes off, the bank robber would be able to say it was an accident. I mean, we had a particularly klutzy robber here that everybody agrees it was an accident, but, you know, in many cases it won't be clear. Yes, I was pointing the gun at the person, but I didn't mean to fire it. It just went off. And he's sad about it just as everyone else is. And that would get to the jury in every case. Just because it was easy here doesn't mean it's going to be easy every time to draw a line. And it gets back to Justice Souter's point. If you pose the risk that the gun is going to go off, that's additionally punishable conduct.
Scott J. Forster: Your Honor, obviously -- I mean, the risk certainly does go up. But as I -- as I think the statute is written, it's not driven by what the risk is. As I say, as opposed to--
John G. Roberts, Jr.: That's not my question, really. The question is the problem of proof. Yours is an easy case. Most cases it's not going to be. Most cases, when the gun goes off, the robber will be able to say, I didn't intend that it discharged. It was -- it was an accident.
Scott J. Forster: --Your Honor, I don't believe a jury would be -- would make that decision, because under this Court's authority in Harris, that would be for the judge; and -- and obviously criminals would make these claims, and it would be--
Antonin Scalia: Excuse me? That would be for the judge?
Scott J. Forster: --Under this Court's authority in Harris, Your Honor, brandish and discharge are not elements of the offense that must be indicted and proved to a jury. They are sentencing elements -- or enhancements, if you will, that -- that would be up to the judge, and that's this Court's Harris ruling.
Samuel A. Alito, Jr.: Doesn't that undermine your argument that there's a presumption that a mens rea has to apply, since this is just a sentencing element?
Scott J. Forster: Your Honor, I don't believe so. This Court has never said that merely because it is a sentencing enhancement, rather than an element of the offense, that somehow the statutory rules of construction cease to apply.
Ruth Bader Ginsburg: Isn't it part of the background here that it was proposed at the time these enhancements came into the law. It was proposed that there be a specific state of mind requirement for the discharge of a gun, and that was not enacted?
Scott J. Forster: I didn't hear the -- I'm sorry, Your Honor.
Ruth Bader Ginsburg: I thought that part of the legislative history was that there were proposals -- I mean, there is a rather sharp difference between "possess" -- yes, you have to have a knowledge, intent element -- "brandishing", very clear, for purposes of intimidation -- then "discharge" has no -- it's just that the gun is discharged. Weren't there proposals to include something like what was included for the other two, that is, that there be an intent requirement?
Scott J. Forster: Your Honor, there were various drafts in the House and the Senate that -- that specifically provided the intent requirement. The compromise that came out was basically a disagreement over the penalty, and the language that the Congress used, "during and in relation to", necessarily implies some type of an intent element. I think the circuits are clear on that; it has to be knowing, otherwise it's not during and in relation to. And so I believe that the choice of language that Congress uses -- there has to be the connection, we believe, between the use -- during and in relation to and the discharge. Otherwise the statute makes no sense, because it wouldn't be triggered by anything.
Stephen G. Breyer: Why? I can't get anywhere with the language, to tell you the truth. I could read it either way. It -- the House language is the same. The person "discharges", yes, but what if he discharges it accidentally? Is the accidental case or unintended case meant to be covered or not meant to be covered?
Scott J. Forster: We don't--
Stephen G. Breyer: And you don't get anywhere -- I just can't get anywhere with the language. The reason they put the "is discharged" is probably for parallelism. It was a drafting section in the Senate, and they do their job in a stylistic way. I found nothing that suggests anything other than that. So -- so where am I? Sometimes a person who discharges the weapon accidentally is really much worse than the one who does it purposely. Purposely, he shoots at the ceiling; accidentally, he kills a person dead; okay? So I mean, I can't get too far with that. So where -- so there we are. Is there anything else -- there is the proof problem that the Chief Justice mentioned. Is there anything else you can say to me, who really doesn't see it one way or the other way in this statute?
Scott J. Forster: --Your Honor--
Stephen G. Breyer: Would you say, look, this is why you win?
Scott J. Forster: --Your Honor, in the committee reports and so forth, I think it's pretty clear that they did not intend an unintentional or an accidental discharge to be covered.
Stephen G. Breyer: Why -- why do you think that? I mean, it is absolutely true that a person who is a bank robber and has a gun and has already shown it, and it goes off accidentally is -- has caused a tremendous harm in certain cases, which traditionally has been thought meriting a higher sentence. And it is also true that he doesn't have the same state of mind as the one who does it purposely. That is true, too. Both are true. And so now what should I do? I know what you want me to do, but why?
Scott J. Forster: Your Honor, the requirement -- we think that the discharge, again, must be during and in relation to. There has to be that connection. And--
Antonin Scalia: Which -- it's during the bank robbery.
Stephen G. Breyer: It's in relation to the -- I mean, you know, in a sense it is, and in a sense it isn't; same problem.
Scott J. Forster: --I don't think this case -- this Court's case law would support a finding that an accidental use would have been in relation to. That's this Court's ruling in Smith.
Ruth Bader Ginsburg: Well, there's accidents and accidents. And couldn't one say, looking at this that, well, we will -- the State will find that the culpability that we will attribute to this statute is reckless? If recklessness were the requirement, certainly the facts of this case would fit, would they not?
Scott J. Forster: I think that the evidence would suggest that he was reckless--
Ruth Bader Ginsburg: You accept that--
Scott J. Forster: --but I don't believe that it was knowing. And I -- and then I think that--
Ruth Bader Ginsburg: --You say reckless is not enough; it has to be knowing. This is not a mere accident. It's -- this -- the gun was loaded, it wasn't locked, and he's raking in money with one hand, holding the gun with the other. The teller is crouching down. I mean, there was -- there was a pretty substantial risk of something going wrong, right?
Scott J. Forster: --Absolutely, there was. But I think this Court's authority in Smith talks about the -- the intent element that is inherent in this. It has to be purposeful, it has -- it cannot be by accident, and that's what this Court ruled in Smith.
Antonin Scalia: Why? You place a lot of reliance on this "during and in relation to" any -- any crime of violence or drug trafficking crime. But that's -- that's in the prologue, and it applies only to the matter covered in the prologue -- to wit, "During and in relation to any crime of violence or drug trafficking crime, for which the person may be prosecuted in a court of the United States, uses or carries a firearm or in furtherance of any such crime possesses a firearm. " That's -- that's what all that language "during and in relation to" applies to. And then it continues: "Shall" -- if that "in relation to" existed -- "in addition to the punishment provided for such crime -- (i) be sentenced to a term of imprisonment of not less than 5. " (ii) -- and number (iii) -- what we're dealing with here -- "if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. " I don't see how that language "during and in relation to any crime of violence. " applies to anything, except the use or carrying of a firearm.
Scott J. Forster: Justice Scalia, sir, we believe that the proper -- that the better reading would be some connection between those two, between the discharge and the underlying -- the during and relation to.
Antonin Scalia: Why is that? How could you -- how could you make the lack of connection any clearer than by ending the first -- the introduction with a dash, and then putting (i), (ii), and (iii)? I mean, it seems to me that it applies to the portion before the dash.
Scott J. Forster: Your Honor, if that were the -- if that were the interpretation, then it would lead to what we consider to be some of the absurdities as far as the results go. If there is no connection between "during and in relation to" -- as I will refer to it as "the connection" -- in absence of that connection, any number of different things could occur, and that connection is what makes this statute make sense. And I believe that the government basically acknowledges that in their brief, that there has to be -- if there's not some connection -- I think it's page 29 of the government's brief. That when we discussed the absurd results that might flow from a statute where there is no such connection, what the government says -- I believe it's on page 29 -- is that to avoid these absurd results, this connection does exist. But then the next sentence they say: But it doesn't mean there is a mens rea. And it seems to me that what the government wants in that case is the "during and in relation to" has to apply to "discharge" to avoid the absurd results, but yet they don't want Smith to go along with it. And Smith said that during and in relation to is purposeful, has to have an effect, and it can't be done by accident.
Antonin Scalia: How would -- how would a discharge not be during and in relation to? Give me an example of -- of what you're worried about.
Scott J. Forster: Any discharge any other time.
Stephen G. Breyer: He sees a duck fly by the window and he's a hunter.
Antonin Scalia: But that -- excuse me. That's not -- that's not covered. Number (iii) only applies to someone who has already been guilty of what's set forth in the prologue.
Scott J. Forster: That's the connection that we believe exists.
Antonin Scalia: And that's the only connection that's necessary. You have to have done what was set forth in the prologue, and it has -- has to be in the course of doing that. But "the course of doing that" means just in the course of using a firearm in connection with the bank robbery.
Scott J. Forster: Your Honor, I don't think that's the -- the best way to read it. I think it has to be during and in relation to the bank robbery.
Ruth Bader Ginsburg: The -- the "use or carry" certainly has to be in relation -- during and in relation to, but that's step one. So he already is using and carrying or carrying in relation to the bank robbery. And then -- so that's the starting premise. That excludes all your things about "years before" or "years after" he carried -- he carried a gun. You -- step one narrows it to the person who uses or carries a gun in connection with a bank robbery.
Scott J. Forster: And -- and I would agree with that, and then when you take this Court's authority in Smith to say that that type use during and in relation to cannot be accidental. And so I go back to the original question Your Honor asked me, did he intentionally brandish it? Clearly. And so we believe that if -- if this case we are here about is fit into Smith, he's on the hook for the seven years under brandish, but because the discharge was accidental, it cannot constitute use under this Court's authority in Smith.
John Paul Stevens: Let me ask you a question about that. I thought that "or possesses" was separate from the "uses or carries". Is possession an example of using or carrying or is it as it says -- "or who in furtherance of such crime possesses? " Isn't that a separate -- separate enhancement?
Scott J. Forster: I don't know that I would use the word "enhancement", Your Honor. The principal body of 924--
John Paul Stevens: Right.
Scott J. Forster: --carries with it "uses" as in this case as well as later on in the statute "possesses". So it says both.
John Paul Stevens: But merely possessing is enough to get the first enhancement of five years.
Scott J. Forster: If it is in furtherance--
John Paul Stevens: Or relation to.
Scott J. Forster: --If it's--
John Paul Stevens: The "uses or carries" doesn't -- doesn't necessarily apply to the possession.
Scott J. Forster: --The -- I believe, under the reading of the statute, Your Honor, they're separate. He could have been charged arguably with possession--
John Paul Stevens: Right.
Scott J. Forster: --in furtherance of, but he wasn't. He was charged with using during and in relation to the underlying crime of violence.
Antonin Scalia: Why do we have to find that the phrase "if a firearm is brandished" and the later phrase "if a firearm is discharged" require intentional brandishing and intentional discharging? Why can't we limit it by saying, oh, of course it means if the firearm is brandished by the bank robber or by the felon or if it's discharged by the felon, but leaving it quite undetermined whether it has to be intentionally discharged, or even intentionally brandished for that matter.
Scott J. Forster: Well--
Antonin Scalia: The definition of brandishing, I guess, requires some intent to put another person in fear.
Scott J. Forster: --Your Honor, I think that you would then have to turn to this Court's -- well, first of all, I think it's the best reading of the statute. It doesn't make sense any other way to say that you can have the gun discharged but not be during and in relation to the underlying crime of violence. It doesn't make sense. Second, I believe that this Court's statutory rules of construction would say that if Congress wanted to do away with the mens rea element in this case, they would have had to have done so expressly. And we don't believe that they did. Now, every circuit that has discussed the requirement of "during and in relation to" has found a knowledge requirement, that you can't not know the gun is there, for example. There has to be the knowledge requirement. And that this Court's authority in Smith suggests or says clearly that it cannot be used accidentally. So now the question becomes this: If the Court decides that during -- that the discharge must be during and in relation to, and when the Court does that it takes its own authority in Smith to say that it has to be purposeful, it has to have the effect of the commission of the crime, now is -- would the use in this case be subject to Smith? And Smith was clear that accidental discharge simply -- or accidental use, rather -- it didn't talk about discharge exactly -- but that accidental use would never be, because it--
Ruth Bader Ginsburg: Why -- you say that this background principle, that there has to be a state of mind element -- and we can accept that that's a general principle. But here we have a provision that does require a state of mind -- specifically requires a state of mind for the possession, for the brandishing, intent to intimidate, but here is this other one that suddenly doesn't. So wouldn't the text of this statute say -- well, the third one, discharging a gun, they didn't mean to have any element because -- any element of mens rea -- because they had it in number (i) and (ii), and (iii) leaves it out.
Scott J. Forster: --Your Honor, if -- I believe such an interpretation would basically mean that that silence would be interpreted as a strict liability, that silence with regards to the specific intent requirement would mean the Congress meant that no intent was necessary. And that's simply never what these cases from this Court have held. There is the presumption that Congress operates against, and if they wish to eliminate the mens rea element, they must do so expressly. And we simply do not believe that it -- that it happened in this case. One last point is, we believe there's nothing else that Congress would have had to have done to establish a general intent, and if that's true, then I think the very least that could be said about our interpretation is that it would be a reasonable one, in which case lenity principles would then come into play. Mr. Chief Justice, if there's no other questions, I would like to reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel.
Scott J. Forster: Thank you.
John G. Roberts, Jr.: Ms. Maynard.
Deanne E. Maynard: Mr. Chief Justice, and may it please the Court: By its terms, the sentencing factor in section 924(c)(1)(A)(iii) contains no mens rea requirement. Rather, it requires a certain fact to be present in the course of the section 924(c) offense, namely that the firearm is discharged.
Antonin Scalia: Does it -- does it require that the discharge be during and in relation to the crime? I mean, suppose the bank robber, you know, he sees -- son of a gun, he sees among the customers a man that ran off with his wife a year ago, and he is just overcome with anger, and he -- you know, he takes a shot at this guy. It's not in relation to the bank robbery. Would -- would that discharge be covered?
Deanne E. Maynard: As long as the discharge occurs while the 924(c) offense is going on--
Antonin Scalia: Yes.
Deanne E. Maynard: --yes, Justice Scalia, it would -- it would apply. The "during and in relation to" language from the principal paragraph is part of the offense, but it does not carry down to the separate sentencing factors.
John G. Roberts, Jr.: What about the police come in and say, "Drop it"; he says, "Oh, my robbery's over"; he drops it, and it goes off?
Deanne E. Maynard: That case might present a question about whether or not, once he drops it in compliance with a lawful order to do so, he is still committing the section 924(c) offense. If the section 924(c) offense is deemed to be over at that point, then, no, the firearm would not -- the fact would not have been present while the course of the section 924(c)--
John G. Roberts, Jr.: All right. So that's the line between is it going on. But assuming the offense is -- the bank robbery is still going on, like he's got confederates gathering up the money or something, does that fall under your theory that the gun is discharged?
Deanne E. Maynard: --In our -- under our theory, the -- there must be a temporal connection between the offense that -- for which the defendant is being sentenced, which is a section 924(c) offense, the using or carrying the firearm during and in relation to the bank robbery in your hypothetical or possessing it in furtherance of the bank robbery in your hypothetical. If one concluded that because the bank robbery continued, even though he was no longer using or carrying the firearm or no longer possessing it, that the 924(c) offense also continued, and the firearm discharges when he drops it, then, yes, the firearm is discharged while the section 924(c) offense is ongoing, and, yes, the mandatory minimum would apply. But -- but that hypothetical presents questions about the beginning and end of the section 924(c) itself, not questions about whether or not the discharge was intentional or accidental.
Antonin Scalia: Do you think that -- regardless of whether it's intentional or accidental, do you think that he has to discharge it or that he has to brandish it? It is the passive voice. Does it mean if anybody discharges it or brandishes it?
Deanne E. Maynard: Two -- at least two points about that, Your Honor: The passive voice makes clear that Congress cared about the fact of a discharge, that Congress was indifferent as to who discharged the weapon. Because the "is brandished" is also stated in the passive voice, we think Congress was also indifferent as to who brandished the firearm, although there is a separate provision giving content to what it means to brandish, and brandish must be done in order to intimidate. So -- but if a confederate, for example--
Antonin Scalia: Grabs it out of his hand and brandishes it.
Deanne E. Maynard: --and brandishes it in order to intimidate the victims in the bank, then, yes, both of them would be subject to the brand -- to the brandishing enhancement. And even if one thought that the language in the -- in the sentencing factor, "if the firearm is discharged", applied only to the defendant's conduct, which -- that's not our position, and we think that clearly -- it clearly encompasses others -- ordinary liability rules under Pinkerton and aiding and abetting principles would hold a confederate liable for discharge by another.
John G. Roberts, Jr.: So even a police officer -- the police officer disarms the robber and 10 minutes later mishandles the gun and it goes off.
Deanne E. Maynard: Again, I think that would present questions about whether or not the section 924(c) offense was still continuing, if the law enforcement officer has the weapon.
John G. Roberts, Jr.: Well, assuming it is. I mean, he has got the one guy neutralized, but the others are still, you know, under the teller's window, and that isn't over. So then the guy who is captured already gets an extra three years because the officer mishandled the gun?
Deanne E. Maynard: If the section 924(c) offense is -- is -- is ongoing and if the firearm is discharged, the mandatory minimum sentence applies. One might conclude that if third parties take the weapon and discharge it -- and, by the way, I do believe these are purely hypotheticals. They point to no case where that's actually been the case -- but--
John G. Roberts, Jr.: Well, there probably aren't a lot of cases where the bank robbers are such klutzes that they're fumbling with the gun and it goes off, either. [Laughter]
Deanne E. Maynard: --That's true. There may not be very many accidental discharges, but there's no reason to believe Congress wanted courts to engage in the inquiry about whether or not the defendant accidentally discharged the weapon. If this Court were to -- to hold that accident -- accidental discharges are not covered by the sentencing factor, I think that we would see more claims of accidental discharge.
John G. Roberts, Jr.: I interrupted your answer.
Deanne E. Maynard: About the third -- if one is concerned about the actions of third parties who are not confederates in any way taking the weapon -- and we do believe it does under the statute's language need to be the firearm that is the basis of the section 924(c) offense, and not someone else's firearm. But if -- if -- in other words, not the security guard's firearm. If the firearm is discharged by a third party -- causes you concern, one could conclude that that is not the manner in which the defendant committed the offense. And that this Court's decision in Harris described this type of sentencing factor, these very sentencing factors, as the kind of factor that one looks at: Is a fact present in the manner in which the defendant committed the offense? And so one might conclude that if the law enforcement officer disarms the robber and then later discharges the weapon, that that fact of a discharge is not part of the manner in which the defendant committed the offense. We don't think that's compelled, by the way.
Ruth Bader Ginsburg: It would be the same -- you would give the same answer if the teller grabbed the gun from the robber and it went off?
Deanne E. Maynard: If the teller grabs the gun from the -- from the robber and it discharges, as long as the section 924(c) offense is continuing, then the firearm is discharged. But--
Ruth Bader Ginsburg: But your alternate position would apply to the teller as well as the police officer?
Deanne E. Maynard: --One could reasonably conclude that if the teller discharges it isn't a fact in the manner in which the defendant committed the offense. But I do think there's reason to believe Congress may have been concerned about the fact of the discharge by anyone. I mean, what you're talking about is someone who's engaging in inherently dangerous activity. They brought an armed weapon to commit a crime of violence or a drug trafficking crime, and they've handled it in such a way that either it is discharged--
Stephen G. Breyer: There is another--
Antonin Scalia: We don't really have to decide all this stuff, do we? We just have to decide whether, if he discharges it, the discharge has to be intentional.
Deanne E. Maynard: --There is no question here, Your Honor, but that it was the robber that discharged the weapon. And in fact the Petitioner testified that: "I pulled the trigger when I was switching the gun from one hand to the other. "
John Paul Stevens: But it's also uncontested it was accidental, I think.
Deanne E. Maynard: We have not challenged that it was accidental. But I think that it--
John Paul Stevens: What do you say to your opponent's argument -- I don't know if it's right or not -- but that there's sort of a background rule that generally we assume, when Congress prohibits conduct, it means intentional conduct; and normally if they don't mean that, they make it rather clear in the statute. Is that a correct -- is his background principle correct?
Deanne E. Maynard: --I don't think so, Justice Stevens, with respect to sentencing factors. I think there's no case in which this Court has indicated -- and no common law principles--
John Paul Stevens: What's the difference between a sentencing factor that adds five years to a sentence and an element of the crime? There are a lot of us who think that -- you've read Harris and Apprendi. You know there's -- that there's some debate about whether that really makes all that much difference.
Deanne E. Maynard: --Well, in Harris, which was -- in which this Court was interpreting these very sentencing factors here, the Court note -- noted that--
John Paul Stevens: Let me -- let me rephrase the question.
Deanne E. Maynard: --Yes.
John Paul Stevens: If it were an element of the crime, would you then agree with his background rule?
Deanne E. Maynard: No, Your Honor, because if it were an element--
John Paul Stevens: Then the fact that the sentencing factor is an element really isn't significant.
Deanne E. Maynard: --I think it might be a harder case for us if it were an element of the crime, but it wouldn't be an element that would be necessary.
John Paul Stevens: But why would it be a harder case for you?
Deanne E. Maynard: Why would it be a harder case for us? Because if it were a harbor -- hard -- if it were an element of the crime, then it would be an aggravated offense, and then one could debate whether or not the--
John Paul Stevens: But in that situation, would there be a background rule that we normally think Congress intends to punish intentional conduct?
Deanne E. Maynard: --I think there is a background rule with respect to the definition of criminal offenses that Congress intends some mens rea.
John Paul Stevens: So you really then are relying on the difference between an element of the crime and a sentencing factor?
Deanne E. Maynard: Not -- no, Your Honor, not in this way, because it -- it would -- it would be a more difficult -- case for us, I can see, but that you would still be talking about somebody who was engaged in wrongful conduct. There would be no danger. I mean, one of the reasons the Court assumes a mens rea requirement, or reads in a mens rea requirement when one's not there, is because of the fear of capturing innocent conduct. But what you would be talking about is someone who has taken a loaded weapon to commit a crime of violence or a drug trafficking crime and used it during and in relation to that crime or to -- possessed it in furtherance of that crime and is already guilty. They are engaged in--
John G. Roberts, Jr.: It's entirely fortuitous. You have two bank robbers. They both do exactly the same thing. In one case, the gun goes off; and the other, it doesn't. Does that -- does it seem -- does it seem fair to add three years onto the sentence of the one whose gun happens to go off but not on the sentence of the one whose doesn't?
Deanne E. Maynard: --They both engaged in inherently dangerous activity.
John G. Roberts, Jr.: Yes, they both did. That's my point.
Deanne E. Maynard: Right.
John G. Roberts, Jr.: They both did exactly the same thing.
Deanne E. Maynard: And it's common in criminal law to hold criminals responsible for their unintended consequences of their criminal acts, and that's -- in your hypothetical it wouldn't be unusual at all to hold someone liable for the accidental discharge when they've taken a loaded weapon to commit a violent crime, here a bank robbery, and handled it in such a way that it goes off. It's completely reasonable for Congress to conclude--
John G. Roberts, Jr.: You get three extra years for having bad luck?
Deanne E. Maynard: --Well, no -- well, they're -- just to be clear, they're both subject to life imprisonment for taking the gun and committing -- and using it to commit the bank robbery. So it's not tacking on three years; it's increasing the minimum. And that is a significant difference, Justice Stevens said this Court has recognized with respect to these various factors in Harris itself, that the -- whether or not there was a discharge is--
John G. Roberts, Jr.: Well, is this guy likely to get life for a bank robbery -- the gun accidentally goes off? I don't know whether it's his first offense or not.
Deanne E. Maynard: --As a practical matter, no, Your Honor. However, had the accidental discharge caused a death, then he would have committed a more serious offense, and that may have been the penalty. But the point is that one is often subject to higher penalties than one might have expected by the unintended consequences of one's criminal act.
Stephen G. Breyer: --What would you think -- to go back to Justice Stevens's question. I would start with the assumption that, normally, not always, where you have a criminal statute and the crime has elements, that Congress intends that the elements be carried out with a guilty state of mind. I would start with that assumption. And I would agree with you that sentencing is different, and the reason that it's different is because sentencing often goes up or down depending upon whether the harm that is foreseen does or does not occur, irrespective of the state of mind. So we couldn't apply that normal background rule, in my view.
Deanne E. Maynard: I think that's correct, Your Honor--
Stephen G. Breyer: All right.
Deanne E. Maynard: --and that's our view.
Stephen G. Breyer: Now -- now, having done that I wonder if the background rule should come into play once again where a mandatory minimum sentence is at stake, for the reason that if the harm eventuates, there are many ways in which the sentence will go up. If this person had been killed, for example, it becomes a murder in the course of a felony. There are all kinds of other statutes that can aggravate the felony. And if you don't apply the mandatory minimum, the judge still can give him the higher sentence, if he warrants it. But if you apply the mandatory minimum where the judge wouldn't go up, the only impact that has is to take people who the judge and others think fall into the minimal category of bad behavior plus consequences, and force them to have a higher sentence. Now, that would be a rationale for a rule of lenity in mandatory minimum sentencing matters.
Deanne E. Maynard: But that would be a reconceptualization of the rule of lenity, Justice Breyer.
Stephen G. Breyer: Yes, it would. It would.
Deanne E. Maynard: And one -- it would be a -- as you said for this Court, in Muscarello, the rule of lenity has never been a rule where the defendant always prevails. And it would be an odd notion to have a more muscular rule of lenity in the sentencing enhancement context than you have with respect to the crime itself. The whole point of having the mandatory minimum is to take away discretion from judges. What -- and the language of the statute here in our view is clear. It says "if the firearm is discharged", and I think it's the present tense that gets you the -- the temporal connection to the crime here. If it is discharged while you are using or carrying it or possessing it, in the offense in the principal paragraph, Congress wanted you to have 10 years.
Stephen G. Breyer: No, I can't -- I can't -- the trouble is I can't find anything in the history of this that really says why they use "is discharged" or used -- as opposed to "discharges". And I find those very metaphysical, those arguments, unless I -- I can see either something in the history or some functional consideration.
Deanne E. Maynard: Well, in the blue brief, they lay out the House's final version, and we have the House's final version in one of our footnotes. And then they lay out the Senate's final version. And one important distinction, Justice Breyer, between those two versions is that the House's version would have made it active voice, but not only active, but it would have been amenable to the argument that "during and in relation to" modifies "discharges", because the structure was different. But the House would have set the penalty for a discharge at 20 years. Okay. That's -- you can infer from that that the House thought an intentional discharge should subject you to 20 years. The Senate's version, which put it in the passive voice, said 10 years. And I think you can infer from that, Justice Breyer, the -- the current structure allows what you're positing, which is more culpable defendants who intend to discharge the firearm to receive a higher sentence. And one could infer, I think, that the House thinks that should be 20 years. So I think the -- the current structure does allow judges to take into consideration. It just sets the floor. And Congress is entitled to do that, and I think they have clearly done that and then to take out of the realm of debate whether or not the defendant intended to discharge the firearm or didn't mean to discharge the firearm. I would like to -- to say one factual point, which is in the -- in the indictment Petitioner actually was charged with use or carrying. It just seems -- if I could explain, the "use or carry during or in relation to. " is one prong, one way in which to commit the principal offense. "Possessing in furtherance" is another way to commit the principal offense. The "use or carry" is not modified by "possession in furtherance of", and "possess" is not modified by -- by "during or in relation to", which is another reason it makes no sense to -- to trail the "during or in relation to" down to the generally applicable sentencing factors.
Ruth Bader Ginsburg: Is there a difference, a practical difference, between the two formulations?
Deanne E. Maynard: The legislative -- well, the words are obviously different; the text is different; and the legislative history suggests that Congress wanted a beefed-up "in relation to" requirement for possession in order to make sure that incidental possession during -- you know, incidental possession while one was also committing a crime wasn't captured. So the "in furtherance of"--
John Paul Stevens: What you're saying, to make sure I understand, is that the "in relation to" language modifies both "use" and "possession"?
Deanne E. Maynard: --No, sir. The "in relation to" -- the "during or in relation to" modifier modifies only "use or carry". And if one is charged with a "use or carry" offense, then the government must show that you "used or carried during or in relation to. " in the way those words have been given meaning by this Court. If you're charged with possession, the government must show that you possessed the firearm in furtherance of. Now, the -- the "in furtherance of" and the "in relation to" prong have been given similar meanings by the courts, although generally it's thought that the "in furtherance of", like I say, is a sort of beefed-up "in relation to" requirement -- requires a--
Stephen G. Breyer: "Carries" -- what about "carries"? Is the -- if a person is carrying a gun in his pocket but he doesn't know it, which could happen, does that fall within "carries" or not?
Deanne E. Maynard: --He would be carrying, Justice Breyer.
Stephen G. Breyer: So is he guilty of the first; do we know?
Deanne E. Maynard: He would be carrying -- if I understood you, he would be carrying. And if he was also committing a crime, he would be carrying -- if he was also committing a crime of violence, he would be carrying it during the crime of violence.
Stephen G. Breyer: Yes.
Deanne E. Maynard: But under this Court's decision in Smith, if it were--
Stephen G. Breyer: The carrying has to be -- although the statute doesn't say it, Smith says the carrying has to be in relation to the crime.
Deanne E. Maynard: --The statute does say carrying has to be in relation to--
Stephen G. Breyer: It does?
Deanne E. Maynard: --Yes.
Stephen G. Breyer: I thought it just said "who in furtherance of any such crime possesses a firearm. "
Deanne E. Maynard: I am sorry. I thought you were asking me a "carry" hypothetical. If you are asking me a "possession" hypothetical--
Stephen G. Breyer: No, it's a "carrying". My -- my interest is the -- whoever, blah, blah, blah, for which the person may be prosecuted uses or carries a firearm, or who in furtherance of any such crime possesses a firearm. So I thought that the "in furtherance" does not modify "carry".
Deanne E. Maynard: --It doesn't.
Stephen G. Breyer: Okay.
Deanne E. Maynard: You are right. Okay. I am sorry. I answered--
Stephen G. Breyer: So, you know, what happens if the person has the firearm -- he is carrying the firearm in his pocket and doesn't know it? He picked it up from the tailor, and now is -- is there an intent requirement there? Do we know? Did Smith talk about that? I mean, is there, you know, a state of mind requirement?
Deanne E. Maynard: --It's hard to see how one could meet this Court's definition in Smith for--
Stephen G. Breyer: See, I look at Smith--
Deanne E. Maynard: --for "in relation to", which was to have--
Stephen G. Breyer: --Smith says "in relation to" and so the carrying has to be in relation to. And since the carrying has to be in relation to, that pretty much--
Deanne E. Maynard: --The underlying--
Stephen G. Breyer: --covers the state of mind.
Deanne E. Maynard: --The carrying has to be in relation to the underlying drug crime or crime of violence. This Court gave content to "in relation to" in Smith to mean have some purpose or effect, facilitate or further the underlying crime, not be by accident or coincidence. The gist of Petitioner's argument here is they want to read that "accident or coincidence" language down to modify "discharge". And structurally that -- that just doesn't work. And if -- if I can make one more point about why it's clear it isn't that, which is that the -- the "in possession in furtherance of requirement. " --I mean one of the things they say in response to our argument is that we are willing to put a temporal limitation on the sentencing factors, but not an "in relation to"--
John Paul Stevens: May I just make sure I understand your position? "During and in relation to" modifies the first words that follow it. "In furtherance to" modifies "possession". Now, do either "in relation to" or "in furtherance" modify the three subsequent subparagraphs?
Deanne E. Maynard: --Definitely not, no.
John Paul Stevens: So neither of them applies. So it doesn't have to be "in furtherance of" or "in relation to"?
Deanne E. Maynard: The -- the sentencing factors are set out separately. And you don't get to them--
John Paul Stevens: None of the sentencing factors require that that factor be in -- either in relation to the crime or in furtherance of the crime? It could be just walking down the street, you happen to have a gun?
Deanne E. Maynard: --Well, you have to be guilty of the principal offense, Justice Stevens, before you get to the sentencing factors. So you have to have either--
John Paul Stevens: But the sentencing factors need not be in relation to the crime nor in furtherance of the crime.
Deanne E. Maynard: --Right. The definitive--
Antonin Scalia: It has to be during the crime.
Deanne E. Maynard: --It has to be during and -- but there -- but it's not because the word "during" appears in the principal offense, which is how they would have our argument be. The -- the -- it has to -- the sentencing factor has to occur. First you have to commit the principal -- let me just back up. You have to commit the principal offense. So, you've used--
John Paul Stevens: Why does it have to be "during"? It -- it doesn't in the statute?
Deanne E. Maynard: --It has to be "during" for three reasons: One, the -- the language of the sentencing factor says "if the firearm is discharged". It's in the present tense. So the present tense of the "is discharged" language -- it has to be while you're using, carrying -- "uses, carries, or possesses. " is also in the act. The "is discharged" has to happen while you're using, carrying, or possessing. That takes out hypotheticals about, well, it was discharged at the factory before I got it, and law enforcement discharged it well after they took it from me to test the ballistics on it. Those aren't covered because it's not "is discharged" while you're using, carrying, or possessing. Secondly, this Court in Harris recognized that these are the types of sentencing factors that one considers when deciding whether a certain fact is present in the manner in which an offense is committed. So the fact has to be present in the commission of the offense. That's just the way this type of sentencing factor operates, and the Court so interpreted these particular sentencing factors in Harris. And we know that it's not because of the "during" in the principal paragraph, Justice Stevens, because there is no "during" element to the "possession" prong. Nevertheless, the sentencing factors apply to that prong, and we would apply temporal limitations to them.
John Paul Stevens: There is an "in furtherance". There's an "in furtherance of the crime".
Deanne E. Maynard: Yes, Your Honor, and if you possess a firearm--
John Paul Stevens: I want to make sure I understand. You are saying it need not be "during" or -- you said it has to be "during" but not because the statute includes the word "during".
Deanne E. Maynard: --Yes.
John Paul Stevens: Well, what does -- where does the "during" come from then?
Deanne E. Maynard: The "during" comes from the fact that the sentencing factor is in the present tense, and says "is discharged". That means that the "is discharged" must occur while the offense is -- is occurring. So the temporal limitation comes from -- and is from the nature of these types of sentencing factors, which ask: Is this fact present? That's what Congress cared about.
Antonin Scalia: And you say it can't come from the prologue, because if it came from the prologue, it wouldn't apply to the mere possession.
Deanne E. Maynard: Exactly.
Antonin Scalia: And the possession could be at any time, before the crime, after the crime, whatever.
Deanne E. Maynard: Possession -- it would just have to be possession that was in furtherance of an underlying crime. Once you're guilty of that, if the firearm was discharged while you were guilty of that--
Antonin Scalia: So you have to import some -- some contemporaneous -- contemporaneous requirement into the (i), (ii), and (iii).
Deanne E. Maynard: --Some temporal limitation, and the limitation is what -- is that it must be discharged while you're committing the offense for which you're being sentenced when we're looking at sentencing factors, which is -- as set forth in 924(c).
John Paul Stevens: Well, what if it's committed when the guy is trying to escape, and the gun goes off accidentally? Is that in -- I mean is that during the crime?
Deanne E. Maynard: Again, it would turn on -- on -- it wouldn't turn on whether accidental or intentional discharge, Justice Stevens. That would present a difficult hypothetical about whether or not the 924(c)--
John Paul Stevens: No, but assume that two hours later when he's -- when he got home, he carried the gun in -- in furtherance of the crime. He still had it with him all the way through, and the gun went off after he left the bank.
Deanne E. Maynard: --If -- if it were determined that the -- the 924(c) offense, which is the possession in furtherance of a crime, were still going on at that point -- in other words, he was still possessing it in furtherance of the underlying crime of violence, and it discharges -- then, yes, the sentencing factor, by its plain terms, applies.
John Paul Stevens: But then you're telling me that it need not be during as long as it's in furtherance of. So the "in furtherance of" is also incorporated implicitly in the sentencing factors.
Deanne E. Maynard: Well, the -- no, the "in furtherance of", it -- the inquiry we would be making at sentencing, Justice Stevens, is not was the discharge in furtherance of. You would -- you would -- all you would be asking is, were you still possessing a firearm in furtherance--
John Paul Stevens: The discharge must be during?
Deanne E. Maynard: --The discharge must be temporally related to the principal offense, yes, because the discharge is -- is discharged while you're in the course of the principal offense. That's the way these types of sentencing factors--
Stephen G. Breyer: I think I got everybody mixed up, because the first sentence of the statute is on the preceding page. And if I start at the beginning, I would discover -- of my memo -- if -- it says, if -- in -- who -- any person who during and in relation -- during and in relation to any crime of violence or drug trafficking crime, blah, blah, blah, of a certain kind uses or carries a firearm.
Deanne E. Maynard: --Right.
Stephen G. Breyer: So there it is right there.
Deanne E. Maynard: The "during and"--
Stephen G. Breyer: "Or who in furtherance of such a crime possesses shall be sentenced. " Okay. So we've got the during and in relation to covering the whole bunch. Then we have to read that into (ii) and (iii).
Deanne E. Maynard: --No, Your Honor. I mean, just to make sure I understand what you're saying. The "during and in relation to" only modifies the verbs "uses or carries"?
Stephen G. Breyer: Yes, exactly.
Deanne E. Maynard: Okay. The two--
Stephen G. Breyer: Then we have to read that by implication where it says "if the firearm is brandished during or. " --you have to imply that.
Deanne E. Maynard: --That's their argument.
Stephen G. Breyer: Yes. That's not your argument?
Deanne E. Maynard: No, Your Honor. [Laughter]
Stephen G. Breyer: Forget it. [Laughter]
Antonin Scalia: It's not your argument because if that was the only -- if that was the source of the contemporaneous requirement, there would be no contemporaneous requirement for the "in furtherance"?
Deanne E. Maynard: That's right. And also--
Antonin Scalia: The provision -- "in furtherance" provision--
Deanne E. Maynard: --The reason we don't believe that's the correct reading is because, as this Court indicated in Harris, the principal offense -- the principal paragraph sets forth the complete crime, and it ends with "shall". So once you do the things in the principal for crime, you're guilty. And then the only question is, what shall your sentence be?
Antonin Scalia: --And, of course, some of these difficult hypotheticals such as the one that Justice Stevens put about the gun going off while the -- while the individual is escaping, that's going to be a problem whether you adopt your interpretation or the -- or the Petitioner's interpretation. Even if you assume that it has to be during and in relation to, it's still going to be a problem. Is this -- is this during and in relation to the crime--
Deanne E. Maynard: Well, just to be--
Antonin Scalia: --if it occurs, you know, five hours later while he's escaping? I don't know.
Deanne E. Maynard: --Just to be clear about--
Antonin Scalia: We don't have to decide that, do we?
Deanne E. Maynard: --It wouldn't have anything to do with whether or not it intentionally went off, Justice Stevens. Your hypothetical could still raise a question--
John Paul Stevens: The strange thing about this case is we're talking about a category of crimes in which somebody mistakenly fires the gun. That doesn't happen very often. The whole -- the whole dispute is about really a trivial set of crimes.
Deanne E. Maynard: --Well, I think it's important to recognize, though, that Congress didn't want to open the door to claims that -- that the firearm was discharged accidentally.
John Paul Stevens: Sure. The defendant gets up and says, I didn't really mean to shoot the guy.
Deanne E. Maynard: Right. I mean, the -- the fact of a discharge is what Congress was clearly concerned about, and you can tell that from the text. What I did want to say is that in the indictment here he was actually charged with uses, carries, and possesses. The indictment is not perfectly worded. It only has the "during and in relation to" in it, but the -- the instructions were proper and there were no -- the jury instructions at trial were proper and there were no -- no objection to the instructions, but I did want to correct one point about that. And if there are no further questions--
John G. Roberts, Jr.: Thank you, counsel. Four minutes, Mr. Forster.
Scott J. Forster: This Court in U.S. Gypsum was very clear when it said that far more than the simple omission of the appropriate phrase of a statutory definition is necessary to justify dispensing with the intent requirement. And our argument is simply this: Merely because this might be a sentencing enhancement, rather than an element of the offense, this Court never said that the normal rules of statutory construction cease to apply under those circumstances, which means that the mens rea presumption is appropriate in this case. And just like this Court said in the passage I just cited, if Congress wants to dispense with that requirement, they must do so clearly, and they simply did not do that in this case. If they wanted to do that, they could insert the words "intentionally" or "unintentionally discharge", in which case that would be clear. And that simply is not the way this statute reads. The best reading of the statute, I believe, and this is what Your Honor was headed toward, is to read the discharge to require during and in relation to. I just think that's the best--
Stephen G. Breyer: Is that helping? I mean, this did take place during, and you would have thought when something goes off accidentally, it's in relation to. I mean, you know, I can imagine an argument to the contrary, but it isn't obvious. It just is--
Scott J. Forster: --But, Your Honor--
Stephen G. Breyer: --It just is -- they have "during", "in relation to", and "in furtherance of". So their -- in furtherance of doesn't carry over. The first two do. An accidental discharge -- is it not in relation to the crime?
Scott J. Forster: --Not under this Court's authority in Smith. I think Smith is clear. It must have purpose and effect and not be used by accident.
John Paul Stevens: What was the case you cited when you started your rebuttal?
Scott J. Forster: U.S. Gypsum.
John Paul Stevens: Is that the antitrust case? You caught me by surprise.
Scott J. Forster: I believe it is. I believe it is, Your Honor. Mr. Chief Justice, if there are no other questions, I thank the Court.
John G. Roberts, Jr.: Thank you, counsel, the case is submitted.


Earl Warren: Number 155, Clarence Earl Gideon, Petitioner, versus H.G. Cochran, Director, Division of Corrections. Mr. Fortas.
Abe Fortas: Mr. Chief Justice, may it please the Court. This case is here on writ of certiorari to the Supreme Court of the State of Florida. In issuing the writ of certiorari, this Court expressly requested counsel to discuss the following question: should this Court's holding in Betts versus Brady, 316 U.S. 455, be reconsidered? The question, of course, is the right of accused in State criminal proceedings to the appointment of counsel, specifically in the present case which you have before you, the question is an exceedingly narrow one. The question in the present case is whether requests being made by the accused that counsel be appointed to him, the accused being concededly indigent, it is the duty of the State to accede to that request and to appoint counsel as a -- for purposes of assisting the accused in the trial of the case. In other words, the present case involves a trial, a plea of not guilty. It involves a felony. And that is the narrow question that this case presents. Clarence Earl Gideon was convicted by the State of Florida for the violation of a statute which makes it a felony, unlawfully and feloniously, to break and enter a building of another with intent to commit a misdemeanor. He was charged with breaking and entering the Pearl -- the Bay Harbor Poolroom in the city -- in Panama City, Florida. And having broken and entered that poolroom, he is charged with having extracted some wine, perhaps some cigarettes, and a sum of money. There is no evidence in the record as to the amount, but the amount must have been less than $100 because the statute of the State of Florida defines petty larceny as the taking of goods or money in an amount less than $100. At the commencement of the trial, the Court asked Clarence Earl Gideon if he was ready to proceed, he said he was not. He said he was not because he was without funds and without counsel. And he asked the Court to appoint counsel to represent him. As you will see on page 2 of the petitioner's brief, the Court replied that he could not appoint counsel to represent a defendant in a noncapital case. Whereupon, the case proceeded to trial, with Clarence Earl Gideon doing what he could --
Potter Stewart: Mr. Fortas, excuse me.
Abe Fortas: -- doing what he could to defend himself. Yes, Mr. Justice?
Potter Stewart: There is some point -- the question whether or not its -- we have before us the trial transcript. But it really doesn't make any difference, does it, because these were the allegations of his habeas corpus --
Abe Fortas: That's correct.
Potter Stewart: -- application in the State of Florida. They don't -- there's no variance between them and this copy.
Abe Fortas: No, that's correct. If you -- you will also see on page 2 of petitioner's brief in the footnote that the State of Florida concedes that the allegations in the habeas corpus petition are true. Namely, that petitioner was without funds and without an attorney at the time of trial, that he requested the appointment of counsel and that the trial court failed to appoint counsel. You will see that quoted on page 2 of our brief.
Potter Stewart: So that we have the same case here, whether the transcript is before us or not, don't we?
Abe Fortas: That is -- that is my view, yes. I must say, Your Honor, that it was at my request. The transcript was not before the Supreme Court of Florida. I was coming to that in a moment. After Gideon -- and let me state it this way. After Gideon was convicted and sentenced, several months later he sent a petition for a writ of habeas corpus to the State of -- to the Supreme Court of the State of Florida, which appears in this transcript. That petition cited no special circumstances. It made the bald, bare claim that Gideon was entitled to counsel as a constitutional matter and that the trial court refused to appoint counsel for him. And on that basis, Gideon asked that he be released. The Supreme Court -- there were no supporting affidavits, there was no supporting information, and there was no supporting trial transcript. Gideon -- the Supreme Court of Florida denied the writ and dismissed the petition. And they dismissed it without opinion without hearing or without reference for the taking of testimony whatever. And it's from that denial that the case is here on Gideon's application, pro se, for a writ of certiorari. Accordingly, the record before the Supreme Court of Florida consists of nothing except Gideon's old application for a writ of habeas corpus. After the case came to this Court and this Court granted the writ of certiorari and I as counsel for Mr. Gideon, requested the clerk of this Court to ask the Florida trial court to certify the transcript here. I did that because I thought that the transcript should be here, that the Court should be -- this Court should be completely informed as to what had happened. That the Attorney General of Florida filed a motion to deny my request that the transcript be sent to this Court. That motion was -- the Attorney General's opposition was turned down by this Court. My motion was granted and the transcript was sent up from the trial court directly to this Court. The Attorney General of Florida now takes the position that the transcript is not properly before this Court. We disagree, but for reasons that I shall come to, we do not believe that makes any difference whether the transcript is here or not. We believe that Betts against Brady is properly raised in this case and must unavoidably be considered. The reason for that is that I see no basis, or as -- I do not see an adequate basis for an argument that special circumstances exist in this case. And I will come to that in more length in a moment. But let me say this, if the Court please, if you will look at this transcript of the record, perhaps you will share my feeling, which is a feeling of despondency. This record is not -- does not indicate that Clarence Earl Gideon is a man of inferior natural talents. This record does not indicate that Clarence Earl Gideon is a moron or a person of low intelligence. This record does not indicate that the judge of the trial court in the State of Florida, or that the prosecuting attorney in the State of Florida, was derelict in his duty. On the contrary, it indicates that they tried to help Gideon. But to me, if the Court please, this record indicates the basic difficulty with Betts against Brady. And the basic difficulty with Betts against Brady is that no man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial.
John M. Harlan II: Betts and Brady did not proceed on that basis. It did not deny the obvious. Obviously, a man is not represented -- who is not represented, who is not as -- hasn't had as good a shake in Court as the man who is represented. Betts and Brady didn't go on any such basis as that.
Abe Fortas: Do you -- are you suggesting, Mr. Justice Harlan, which I believe to be the case, that the real basis for Betts against Brady is the following. That a man does not get a fair trial if he does -- is not represented by a lawyer, but that the demands of federalism overweigh the absence of a fair trial.
John M. Harlan II: That's what I understood the basis of Betts and Brady to be, yes.
Abe Fortas: I read it as indicating both, but of course, we must remember in reading Betts against Brady that Betts against Brady was involved a trial before a very distinguished jurist, Judge Bond of Maryland, and it did not involve a jury trial. But it's interesting after all these years, Mr. Justice Harlan, to read the recent article by Professor Kamisar of the University of Minnesota in which even in Betts against Brady, even in that case, trial to -- tried to a judge alone and not to a jury, and tried before a very distinguished judge, the record -- the record, the transcript of record, as Professor Kamisar shows, is replete with error. And the case that he makes is an entirely convincing case to me, just as in Gideon's case. There's -- there is error in this transcript. There is error in most criminal trials. I think we all know even where lawyers are present. There is error in this transcript. But I have suggested in my brief and I hope it's not a gross overstatement that -- to say that this transcript distinguishes this case from the run of criminal trials is like trying to distinguish between Tweedle Dum and Tweedle Dee. And I believe that -- I believe that this case dramatically illustrates the point that you cannot have a fair trial without counsel. Indeed, I believe that the right way to look at this, if I may put it that way, is that a court, a criminal court is not properly constituted -- and this has been said in some of your own opinions -- under our adversary system of law, unless there is a judge, and unless there is a counsel for the prosecution, and unless there is a counsel for the defense. Without that, how can a civilized nation pretend that it is having a fair trial under our adversary system, which means that counsel for the State will do his best within the limits of fairness and honor and decency to present the case for the State and counsel for the defense will do his best similarly to present the best case possible for the defendant and from that clash there will emerge the truth. That is our concept. And how can we say? How can it be suggested that a court is properly constituted, that a trial is fair, unless those conditions exist. Someone said the --
John M. Harlan II: Well that isn't quite so simple as that because under our concepts in the federal system apart from the Sixth Amendment. We would consider that a man in a felony case hadn't had a fair shake if he wasn't tried before a jury. I suppose the State could do away with the jury trial and yet you wouldn't say this trial was inherently unfair, would you?
Abe Fortas: That's right. Now that -- and that's what I want to get to, Mr. Justice.
John M. Harlan II: I think you got to argue this on the basis of federalism.
Abe Fortas: I appreciate that and I am happy if we can clear the debris, if I may say so. We can understand exactly what is that issue here. And I just want to say and to nail this, if I may, that we are not, and we cannot, as I think this colloquy has disclosed, Mr. Justice Harlan, proceed on the assumption that there is any such thing as a fair criminal trial where the defendant is not represented by counsel. And now, I would like to get to the question of federalism.
William O. Douglas: Well, this federalism that Justice Harlan mentions is implicit, as I gather in all that we have written, I believe I have read all of them, written some of them. I don't know if anyone has -- any member of this Court has come out and said in so many terms it's the constitutional right of the State to provide a system whereby people get unfair trial.
Abe Fortas: Well, Mr. Justice Douglas --
John M. Harlan II: I don't believe I suggested that, I don't suppose --
William O. Douglas: I thought that's what we were talking about, isn't it?
Abe Fortas: Mr. Justice Douglas, I --
William O. Douglas: You mean, if a person can't have a fair trial without a lawyer and this is the problem of federalism, you come down to whether -- how a State has a constitutional right to provide a system that perpetuates unfair trials.
Abe Fortas: Mr. Justice Douglas, it seems to me that's -- perhaps the prop -- that -- I would state the proposition in this way. And I do believe that it is a proposition that proves itself. That is to say the Fourteenth Amendment requires a fair trial. You cannot have a fair trial unless the defendant has counsel. Now, the Q.E.D. to me is so obvious that I can't escape from it, and I can't escape from it by saying that the Q.E.D. does not follow because of a principle of federalism. We start with the proposition that the Fourteenth Amendment requires a fair trial and we say that the defendant in a criminal proceeding cannot get a fair trial unless he has counsel. And it seems to me to follow without any possible escape hatch that he's got to have a fair trial. But I -- I think I may be wrong about this, but I do believe that in some of this Court's decisions, there has been a tendency from time to time because of the pull of federalism to forget -- to forget the realities of what happens downstairs, of what happens with these -- to these poor, miserable, indigent people when they are arrested and they are brought into the jail, and they are questioned. And later on, they are brought in these strange and awesome circumstances before a magistrate, and then later on they are brought before a court. And there, Clarence Earl Gideon, defend yourself. Apply them the doctrine of Mapp against Ohio. Construe this statute of the State of Florida which says that breaking and entering with intent to commit a misdemeanor is a felony. You should know, Clarence Earl Gideon that the State of Florida, the Supreme Court of the State of Florida, has construed this statute and it has made available to you various defenses. Well then how can Clarence Earl Gideon do it? I was reminded the other day as I was pondering this case about Clarence Darrow's trial. Court will remember that Clarence Darrow was accused, subsequently acquitted of attempting to bribe jurors and subordination of perjury. And I looked at Irving Stone's book. Irving Stone's book says that the first thing that Clarence Darrow realized was that he had to have a lawyer. He was a man who, by our folklore anyway, and I think perhaps really was our greatest criminal lawyer. He needed a lawyer. He got a lawyer. He was eventually acquitted. But I think that in some of the Court's opinions, if I may say so, Mr. Justice Harlan, this element, this failure to remember what happens downstairs, has crept in not because of an insensitivity of the judges, but because of the understandable pull of the sensitivity about the State's own jurisdiction and I want -- that's what I want to analyze. That I don't think that it's -- that it stands a test of logic and I don't think that the argument of federalism here is either correct or soundly founded or stands the test of experience, and that's what I want to come to. Now, first --
John M. Harlan II: Understandable sensitivity -- to describe a basic principle of our Government -- doesn't seem to me to be a very happy expression.
Abe Fortas: Well, I'm -- I'm sorry, sir. I meant that a regard which I myself share for the principles of federalism. But I believe that those principles are misapplied here. First, they are misapplied, if I may respectfully say so, when they are used for the purpose of negating a Fourteenth Amendment right to a fair trial. Secondly, they are misapplied here because a true regard, in my judgment, Mr. Justice Harlan for federalism here means that this Court will lay down a principle, will establish a principle, and that this Court will not exercise the kind of minute, detailed, ex post facto supervision over state court trials that you have been exercising for these past years, in which in my opinion, is the most corrosive possible way to administer our federal state system. And that, it is I -- -- I should like to restate that very simply and very plainly, Your Honor. I believe that Betts against Brady does not incorporate a proper regard for federalism. I believe that Betts against Brady laying down as it does a prin -- the principle of case by case supervision by the federal courts of state criminal proceedings is antithetical to federalism. Federalism requires, in my judgment, if Your Honors please, that the federal courts should refrain, so far as possible, from intervention in state criminal proceedings and certainly at where intervention is necessary because of a constitutional principle that that intervention should be exercised in the least corrosive, the least aggressive fashion possible. Now let's take a look at that. In the Betts against Brady, we have to start back with that magnificent opinion, magnificent decision and opinion of this Court written by Mr. Justice Sutherland in Powell against Alabama, and the Scottsboro case. When Mr. Justice Sutherland's opinion makes it perfectly clear that the correct principle in capital cases is that a state court cannot conduct a criminal proceeding without providing counsel for the accused. Now, this Court has said that that is a flat rule. That in capital cases, this Court does not stop to inquire whether there are special circumstances. Counsel must be appointed for the accused. That was in 1932. In 1938, along came Johnson against Zerbst, in which this Court construed the Sixth Amendment to require the appointment of counsel for indigent accused in all federal criminal proceedings. Then in 1942, Betts against Brady came to this Court. And in Betts against Brady, this Court in an opinion by Mr. Justice Roberts held that the Fourteenth Amendment would not be construed to require that the State's appoint counsel for the accused in all criminal cases where the accused is not able to afford counsel, but that counsel would be required as part of the Fourteenth Amendment's requirement of a fair trial only where there were special circumstances or to quote the Court's words, “Only where there has been a denial of fundamental fairness shocking to the universal sense of justice”. Which according to the Court, required something more than the mere absence of counsel. Alright, what has happened in the years since Betts against Brady? I have read, I think, I'm sure I've read all of the cases that have come to this Court. I've read a great many of the State cases and the lower federal court cases, many as I could find. It is a fascinating inquiry, a fascinating inquiry. In the brief filed by the American Civil Liberties Union here, which is represented by my Brother, Mr. Rankin, they have examined 139 State cases, reported cases. They say that they have found only 11 cases in which the State Appellate Courts found special circumstances under Betts against Brady, contrast that with what's happened in this Court. Take a look as -- I beg your pardon. When I have -- as I have read the opinions of this Court, I hope I may be forgiven for saying that my heart has been full of compassion for the judges who during these years have had to review and pass on these cases. Most of the time, of course, this Court has said there are special circumstances. Sometimes, a majority of this Court, usually a bare majority, has found that there were not special circumstances.
Potter Stewart: How long has it been since we've failed to find special circumstances? I think I'm right in saying that in the four and a half terms I've been here, we've always found special circumstances in any case.
Abe Fortas: I think you're right, sir. I'd like to check this but I believe the last case in which you failed to find special circumstances was --
Potter Stewart: One of those Michigan cases?
Abe Fortas: It was Quicksall, I think. Well --
Potter Stewart: That's not very important but I think --
Abe Fortas: Yes.
Potter Stewart: I'm right in -- -- the comment I made.
Abe Fortas: Yes, sir.
Potter Stewart: From my recollection.
Abe Fortas: Now, of course, this is wrong and it's wrong as a matter of federalism, because what happens is the following. Let's take a look at it. A defendant is arraigned. How can a judge, looking at the defendant, decide whether there are special circumstances in his case? Does a judge look at this defendant and say, “You look stupid. You look as if you are a moron.” Does he have a -- does he have a mental examination of him at the time? Does the judge -- does the judge or the magistrate before whom these defendants are arraigned on a typical day in court take a look at the crimes with which they are charged and say, “Now this one involves complicated questions of intent. So I think that at the trial you're going to need a counsel.” "Now in your case, the crime that you're charged with doesn't look to me to be so complicated. So I don't think you're going to need counsel." Now let's have arraignment. Then you go to trial and the defendant -- the accused man has pleaded not guilty. And the judge who's sitting on the bench, he's hearing a lot of these cases. How is he going to decide at the beginning of the case whether there are special circumstances within the criteria laid down by this Court? The interesting thing too, according to the study made by the American Civil Liberties Union, they have not encountered a single case in the state courts in which the trial has been stopped in midstream and the Court has said, “There are special circumstances here and you better have a lawyer, because it looks to me that you're not brighter than Clarence Darrow, or you're a moron and you can't really defend yourself. You just don't correctly understand the hearsay rule. I'm going to appoint you to counsel.” The whole rule is just totally unadministerable. Mr. Justice Harlan, I'd like --
John M. Harlan II: Practically all the states have recognized that so.
Abe Fortas: Yes, sir, and there are 37 states now.
John M. Harlan II: And they've done that under a line of decisions in this Court which, at least so far as -- would have permitted an opposite conclusion.
Abe Fortas: I don't believe they have done it so much under the decisions of this Court, Mr. Justice Harlan. I'm sorry to say. I believe that they have done it because of a growing conscience and growing awareness on the part of the bar stimulated by the opinions of this Court. But the decisions of this Court -- and this is precisely my plea here. The decisions of this Court are still struggling with this impossible question of do special circumstances exist in this case or don't they? Whereas, the Bar and the States are far beyond that point. No. There is a brief amicus here, a remarkable document, filed by 20 -- by the Attorneys General of 22 states urging this Court to overrule Betts against Brady. It is filed here. I am proud of our country that we have this. It was not solicited by counsel for Cochran or by counsel for Gideon or anybody associated with him, and I am proud that it is here. It is a fine document. If you will look at that document at page -- I don't find it here.
Earl Warren: (Inaudible)
Abe Fortas: Alright.
Earl Warren: (Inaudible)
Abe Fortas: Thank you. The Attorneys General point out to this Court that the rule of Betts against Brady is an unadministerable rule. I call your attention to page 17 at the bottom of the page.
Hugo L. Black: What brief is that?
Abe Fortas: That is this brown brief, Mr. Justice Black, a brief for the State Government, amici curiae. At the bottom of page 17, it says, “But it is difficult to comprehend how as a practical matter, a trial judge can do this” -- that is to say apply Betts against Brady, with the degree of consistency presupposed by a judicial determination placing the onus of such decisions upon him. In the first place, in a felony case, it is highly unlikely that there is one trial judge as such. Different judges may preside at the arraignment, at the grand jury session, possibly at the pretrial motions, if any, and at the trial itself. How can the judge in the arraignment session anticipate what is to come up in trial? How is the trial judge to know what crucial matters transpired at the arraignment which thenceforth require counsel, and so on? Now if the Court please, there's one aspect of this brief amicus curiae to which I want to call your particular attention. There are three states whose attorneys general have subscribed to this which do not, by law or court rules, so far as we can find out require the appointment of counsel in all felony cases. Those three states are Hawaii, Maine, and Rhode Island.
Potter Stewart: I thought Colorado wasn't completely (Inaudible)
Abe Fortas: Colorado has recently adopted a rule of court.
Potter Stewart: So --
Abe Fortas: That's cited --
Potter Stewart: I see Colorado on both lists and that's the reason I wondered --
Abe Fortas: That is cited in our --
Potter Stewart: -- and Colorado is one of the 22 here.
Abe Fortas: Yes. That's cited in our brief.
Hugo L. Black: (Inaudible)
Abe Fortas: I beg your pardon, sir.
Hugo L. Black: (Inaudible)
Abe Fortas: That's correct. Yes, sir. And I don't know of the circumstances, Mr. Justice Black.
Hugo L. Black: (Inaudible)
Abe Fortas: That's right.
Hugo L. Black: (Inaudible)
Abe Fortas: Yes, sir.
Hugo L. Black: (Inaudible)
Abe Fortas: That's correct. Yes, sir. So I believe that the fact of the matter is this. I think that the -- we can confidently predict. We can confidently say that overruling Betts against Brady at this time is acting in accordance with the common opinion of those citizens of our country who are qualified to have an opinion. That's not always the case with respect to great constitutional changes. I think with respect to this one that is, is the case and that -- you will remember that in Betts against Brady, this Court placed some emphasis upon the fact that at that time less than a majority of the States, as I remember, required the appointment of counsel. That is no longer true in these --
Potter Stewart: Yes, I just looked at the appendix to the dissenting opinion in Betts against Brady indicated that some 35 states required the appointment of counsel at that time. And I wondered if there had been so little development since.
Abe Fortas: No. I don't -- the fact of the matter is I'll find that in just a minute.
Potter Stewart: Well, don't -- don't tarry now. You can --
Abe Fortas: That at the time of Betts against Brady, there were less than a majority of the States that required it by statute or court rule. Now I should say that presently in addition to the 37 states that require the appointment of counsel for indigents by a statute or court rule, a recent study, a very careful study by a Professor Kamisar, shows that there are eight states that require that do appoint counsel when requested. That makes a total of 45 states that appoint counsel either by a statute, court rule or by practice, and it really leaves only five states. And of those five states -- those five states are Alabama, Florida, Mississippi, North Carolina, and South Carolina. And even in Florida, from which four of the -- this Court's last eight cases have come, there is a situation that is worth notice. In Florida, there is a statute providing for a public defender in the larger counties. As a matter of fact, there is a public defender that functions in the four largest counties of Florida and I'm sure you'll hear more about that from my Brother representing the State. So that my point here is that, we may be comforted in this constitutional moment by the fact, as it clearly is, that what we are doing represents a deliberate change after 20 years, after 20 years of experience, and it represents a change that clearly has the overwhelming support of the bench and the Bar and even of the states themselves.
Arthur J. Goldberg: (Inaudible)
Abe Fortas: This case, of course, narrowly presents the question of the appointment at the time of the trial and it presents -- narrowly presents the question of a felon. In my own view, I believe that the requirement that counsel should be appointed for indigents in State criminal proceedings should be coextensive with the proposition that persons who are able to hire counsel, to employ counsel, have a right, a legally protected right, a constitutional right, to utilize the services of such counsel. Now we all know that the scope of the latter principle is not entirely clear. There are some decisions of this Court. There are many aspects of the problem where it has not been decided. Now, let me cut back on that, if I may. In the literature, there seems to be clear agreements that the right to counsel should attach not later than the time of arraignment, and this brief of the 22 attorneys general reiterates that point. In other words, that the latest point is the time of arraignment.
Potter Stewart: Of course, that very word has many different meanings in the different states --
Abe Fortas: Exactly.
Potter Stewart: That's the trouble of --
Abe Fortas: That's correct.
Potter Stewart: -- of verbalizing any test. Arraignment in some states has -- is quite a different process from what it is in other states.
Abe Fortas: Yes, sir. My own view, Mr. Justice Stewart, is that there is a right to counsel as soon as practicable after arrest.
Hugo L. Black: (Inaudible)
Abe Fortas: No, sir. We do not. I was responding to Mr. Justice Goldberg's inquiry. You certainly do not have to pass on it here.
Hugo L. Black: (Inaudible)
Abe Fortas: There are some just in the District of Columbia of petty offenses which probably don't require appointment of counsel. The -- in the question -- with respect to the question of jury under the Sixth Amendment, this Court, in a case that we have cited in our brief coming up from the District of Columbia held that the constitutional requirement of the Sixth Amendment with respect to jury trial did not apply to petty offense which in that case involved an offense punishable by imprisonment up to 90 days, as I remember.
Hugo L. Black: (Inaudible)
Abe Fortas: I beg your pardon.
Hugo L. Black: (Inaudible)
Abe Fortas: Yes sir but you will recall that in the Sixth Amendment that language runs together, right to jury and the right to counsel.
Earl Warren: (Inaudible)
Abe Fortas: I don't recall one. I don't recall a decision of this Court on that subject. But it does -- but there is this case involving jury, the right to jury. If you'd like me to continue, Mr. Justice Goldberg, I would -- so far as I'm concerned, I would say that the right to counsel attaches as soon as practicable after the arrest, just as I believe that a person who can retain counsel should have recognized the right to consult the counsel shortly after arrest. Here we have a problem relating to Crooker against California. Now, as to the extent on the other end, this Court has held that the States must supply transcripts to indigents for purposes of enabling the indigent to perfect their appeal. I believe that the right to counsel also attaches for purposes of perfecting appeal and for the appeal. The decisions of this Court have not, as I read them, going quite that far although there is a language indicating that. Now, as to the type of crime, the Sixth Amendment, of course, speaks in terms of criminal prosecutions. The question -- there is a consensus, I believe, that the right to counsel should be recognized in felony cases. I'm talking now about the States and that is the provision -- that is the attitude of the 22 attorneys general.
Potter Stewart: Does that word have a common meaning in all --
Abe Fortas: It does --
Potter Stewart: -- of the 50 states?
Abe Fortas: It does not. It has a -- there is an area in which the word is very fuzzy.
William J. Brennan, Jr.: Well, I know in my own state, Mr. Fortas, we don't recognize this thing as felony. They're high misdemeanors or --
Abe Fortas: Yes sir.
William J. Brennan, Jr.: -- misdemeanors.
Abe Fortas: And then -- that's correct. Even the word “misdemeanor” is a fuzzy word which does not have a common meaning. My own view about this again is that the right should attach on a much broader basis, and that it should attach to all except petty offenses. And I think this Court's opinion in the District of Columbia case points the way to handle that particular problem.
William J. Brennan, Jr.: Well, there again though, how do you measure petty offense? For example, I know before I left New Jersey, we downgraded a number of former misdemeanors to something we called “disorderly person offenses”.
Abe Fortas: Yes.
William J. Brennan, Jr.: Petty offenses, the notion being that in that way, no requirement of jury trial for that. But conviction for some of those can bring a jail sentence up to a year and a fine up to, as I remember it now, to $1000. Is that a petty offense?
Abe Fortas: Mr. Justice Brennan, I'd certainly pay no attention to the nomenclature adopted by the States. You can't, because the (Inaudible) -- the words mean so many different things in the States. But fortunately, in times of stress such as this, when you are asked to confront a problem of this sort, we lawyers can point to the fact that a straight line can be drawn in many ways, and a line can be drawn by a series of dots represented by individual decisions of this Court.
Potter Stewart: Of course, that's just what you're asking us not to do. That becomes more of this ad hoc and ex post facto situation.
Abe Fortas: No, because what we're really talking about, Mr. Justice Stewart is the extremes of this problem. Now a good many of the States, I believe it's over 20, one list shows 24, one list shows 21. A good many of the States had required the appointment of counsel, the indigents, include misdemeanors or their statutes are broad enough so that they indicate that they include misdemeanors under the laws of the -- of the particular States.
William J. Brennan, Jr.: Well tell me, Mr. Fortas, would there be anything in trying to measure the line if the line must be drawn based on the confinement which conviction might bring?
Abe Fortas: Well, that that would be -- my own view about that, Mr. Justice Brennan, is that one day's confinement is enough. And I really believe, if I may -- if I may say -- put it this way, I really believe that the difficulties, practical difficulties, which we can envision here are more fancy than real. And I think our experience in the District of Columbia with our public defender here indicates that. In other words, that when a State goes about this job, as your State of California has so well done, Mr. Chief Justice, and as I hope we're doing in the District of Columbia. What it does is to set up a system by which persons when they are arrested, without nice regard to whether -- to the extent of punishment or the classification of the crime, those persons are told that they can go and see the public defender or that they can have a lawyer appointed for them and the system works. And the difficulties are much greater when we sit here and apply our minds to the problem.
Potter Stewart: How about the (Voice Overlap) --
Abe Fortas: Then it is -- then those difficulties are when we sit -- really create a mechanism for handling them.
Potter Stewart: How about the traffic violation? A person who can afford a lawyer is entitled, as far as I know in every state, to hire a lawyer for traffic violation?
Abe Fortas: I see no real difficulty, Mr. Justice, in saying to --
Potter Stewart: Most of them don't.
Abe Fortas: -- people for a traffic when they're arrested for traffic violation. If you want to see the public defender, he's in Room 102, and to assign a public defendant, anybody who wants it. It really works. It will work. It sounds crazy, perhaps, but it work. It'll work, I'm sure it will.
Tom C. Clark: Suppose you don't have one.
Abe Fortas: Well I -- more and more states, Mr. Justice Clark, are building orderly systems and of course, one of the great functions that this Court performs by announcing the law and clarifying the principles of law is to provide an impetus to the States to erect such systems but there are many systems that are now available. There is a public defender system, there is the voluntary legal aid system, there is the system of assignment, there is a system that is in vogue here in the District and, I believe in Massachusetts which is very promising indeed of using law students working under the supervision of experienced members of the Bar --
Tom C. Clark: (Inaudible)
Abe Fortas: -- for handling many offenses.
Tom C. Clark: I just wonder if the legal aid would want to take on a traffic (Inaudible) --
Abe Fortas: Well, I -- again --
Tom C. Clark: They have so many felons already, I'm just wondering.
Abe Fortas: Again, Mr. Justice Clark, I think that most people involved in traffic offense really be just sort of the -- if I may use, vulgarism, the “oddball” who's involved in a minor traffic offense who will say that he wants a lawyer. But if he's got a real problem -- if a person involved in traffic offense has a real problem and a real defense and really need -- thinks he should have a lawyer, why not.
Hugo L. Black: Mr. Fortas, I want to ask you a question you can answer it when I get back. I attached to my dissent in Betts versus Brady a study made after much hard work --
Abe Fortas: Yes.
Hugo L. Black: -- which I believed then and believe now was accurate, which had said this, “States which require that indigent defendants in noncapital as well as capital criminal cases be provided with counsel by request.” I stated there were 35. What I would like to know is if there are only 35 now, have some of those before Betts versus Brady gone back to the Betts versus Brady ruling, or what has happened?
Abe Fortas: I accept that.
Earl Warren: We'll recess now.