Antonin Scalia

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

“ Ten of the thirty-four States cited by the Court do not offer appointed counsel in all cases where a misdemeanor defendant might suffer a suspended sentence. Six States guarantee counsel only when the authorized penalty is at least three or six months’ imprisonment. ”

“ If the thesis that it is the “functional equivalent” of post-trial probation were true, we would expect to see pretrial probation used for both major and minor crimes and to see it used in place of, not in addition to, post-trial probation.
↑ . The Court quotes Chief Justice Burger’s concurrence in Argersinger to support its “doubt that providing counsel after the critical guilt adjudication stage ‘ [would] be of much help to a defendant,’ for ‘the die is usually cast when judgment is entered on an uncounseled trial record.’ [Argersinger v. Hamlin, 407 U.S. 25, 41 (1972) ] .” ”

“ South Dakota does not provide counsel where the maximum permissible sentence is 30 days’ imprisonment, S. D. Codified Laws §22—6—2 (1998) , if “the court has concluded that [the defendant] will not be deprived of his liberty if he is convicted,” §§23A—40—6, 23A—40—6.1. Texas’s statute declares that appointed counsel should be offered to any defendant “charged with a misdemeanor punishable by confinement,” Tex. ”

“ State v. Hardman, 120 Idaho 667, 669—670, 818 P.2d 782, 784—785 (App. 1991) ; Md. Ann. Code, Art. 27A, §§2 (h) (2) , 4 (b) (2) (1957—1997) ; Nev. Rev. Stat. §§178.397, 193.120 (1996) ; N. M. Stat. Ann. ”