Ruth Bader Ginsburg

“ Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton’s sentence within constitutional bounds. [6]
Nor do we agree with amicus or the dissent that our holding will “substantially limit the states’ ability” to impose probation, Fried Brief 22, or encumber them with a “large, new burden,” post, at 6—7. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. ”

“ Amicus observes that probation is “now a critical tool of law enforcement in low level cases.” Id., at 22. Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment’s domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. ”

“ Reply Brief 4—13. To assure full airing of the question presented, we invited an amicus curiae (“amicus”) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant “does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked.” ”

“ A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is “evidence in the record that the [defendant] has actually been deprived of liberty.” Id., at 13. Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. ”

“ Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton’s circumstances faces incarceration on a conviction that has never been subjected to “the crucible of meaningful adversarial testing,” United States v. ”

“ Alabama, 526 U.S. 160, 171 (1999) .
↑ . Charles Fried, a member of the Bar of this Court, accepted our invitation and has well fulfilled his assigned responsibility.
↑ . In any event, the dissent is simply incorrect that our decision today effectively “deprive [s] the State of th [e] option” of placing an uncounseled defendant on probation, with incarceration conditioned on a guilty verdict following a trial de novo. Post, at 4. That option is the functional equivalent of pretrial probation, as to which we entertain no constitutional doubt. See infra, at 15—16, and n. 12. ”

“ Mass. Rule Crim. Proc. 8 (2001) ; Minn. Rule Crim. Proc. 5.02 (1) (2001) ; Neb. Rev. Stat. §29—3902 (1995) ; N. Y. Crim. Proc. Law §170.10 (3) (c) (1993) ; Okla. Stat., Tit. 22, §1355.6.A (Supp. 2002) ; Ore. ”