ALABAMA v. SHELTON

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654 OCTOBER TERM, 2001
Syllabus
ALABAMA v. SHELTON
certiorari to the supreme court of alabama
No. 00–1214. Argued February 19, 2002—Decided May 20, 2002
Defendant-respondent Shelton represented himself in an Alabama Circuit
Court criminal trial. The court repeatedly warned Shelton about the
problems self-representation entailed, but at no time offered him assist-
ance of counsel at state expense. He was convicted of misdemeanor
assault and sentenced to a 30-day jail term, which the trial court imme-
diately suspended, placing Shelton on two years’ unsupervised proba-
tion. The Alabama Supreme Court reversed Shelton’s suspended jail
sentence, reasoning that this Court’s decisions in Argersinger v. Ham-
lin, 407 U. S. 25, and Scott v. Illinois, 440 U. S. 367, require provision of
counsel in any petty offense, misdemeanor, or felony prosecution, Arger-
singer, 407 U. S., at 37, “that actually leads to imprisonment even for a
brief period,” id., at 33. The State Supreme Court concluded, inter
alia, that because a defendant may not be imprisoned absent provision
of counsel, Shelton’s suspended sentence could never be activated and
was therefore invalid.
Held: A suspended sentence that may “end up in the actual deprivation
of a person’s liberty” may not be imposed unless the defendant was
accorded “the guiding hand of counsel” in the prosecution for the crime
charged. Argersinger, 407 U. S., at 40. Pp. 660–674.
(a) The controlling rule is that “absent a knowing and intelligent
waiver, no person may be imprisoned for any offense . . . unless he was
represented by counsel at his trial.” Argersinger, 407 U. S., at 37.
Pp. 661–662.
(b) Applying this “actual imprisonment” rule, the Court rejects the
argument of its invited amicus curiae that 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.
Pp. 662–672.
(1) The Sixth Amendment does not permit activation of a sus-
pended sentence upon an indigent defendant’s violation of the terms of
his probation where the State did not provide him counsel during the
prosecution of the offense for which he is imprisoned. A suspended
sentence is a prison term imposed for the offense of conviction. Once
the prison term is triggered, the defendant is incarcerated not for the
probation violation, but for the underlying offense. The uncounseled

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Syllabus
conviction at that point “result[s] in imprisonment,” Nichols v. United
States, 511 U. S. 738, 746; it “end[s] up in the actual deprivation of a
person’s liberty,” Argersinger, 407 U. S., at 40. This is precisely what
the Sixth Amendment, as interpreted in Argersinger and Scott, does not
allow. P. 662.
(2) The Court rejects the first of two grounds on which amicus
resists this reasoning, i. e., amicus’ attempt to align this case with Nich-
ols and with Gagnon v. Scarpelli, 411 U. S. 778. Those decisions do
not stand for the broad proposition that sequential proceedings must be
analyzed separately for Sixth Amendment purposes, with the right to
state-appointed counsel triggered only in proceedings that result in
immediate actual imprisonment. The dispositive factor in Gagnon and
Nichols was not whether incarceration occurred immediately or only
after some delay. Rather, the critical point was that the defendant had
a recognized right to counsel when adjudicated guilty of the felony for
which he was imprisoned. See Nichols, 511 U. S., at 743, n. 9. Here,
revocation of probation would trigger a prison term imposed for a mis-
demeanor of which Shelton was found guilty without the aid of counsel,
not for a felony conviction for which the right to counsel is unquestioned.
See id., at 747; Gagnon, 411 U. S., at 789. Far from supporting amicus’
position, Gagnon and Nichols simply highlight that the Sixth Amend-
ment inquiry trains on the stage of the proceedings corresponding to
Shelton’s Circuit Court trial, where his guilt was adjudicated, eligibility
for imprisonment established, and prison sentence determined. Nich-
ols is further distinguishable because the Court there applied a less
exacting standard allowing a trial court, once guilt has been established,
to increase the defendant’s sentence based simply on evidence of the
underlying conduct that gave rise to his previous conviction, 511 U. S.,
at 748, even if he had never been charged with that conduct, Williams
v. New York, 337 U. S. 241, and even if he had been acquitted of a misde-
meanor with the aid of appointed counsel, United States v. Watts, 519
U. S. 148, 157. That relaxed standard has no application here, where
the question is whether the defendant may be jailed absent a convic-
tion credited as reliable because the defendant had access to counsel.
Pp. 662–665.
(3) Also unpersuasive is amicus’ contention that practical consid-
erations weigh against extension of the Sixth Amendment appointed-
counsel right to a defendant in Shelton’s situation. Based on figures
suggesting that conditional sentences are commonly imposed but rarely
activated, amicus argues that the appropriate rule would permit impo-
sition of a suspended sentence on an uncounseled defendant and require
appointment of counsel, if at all, only at the probation revocation stage,
when incarceration is imminent. That regime would unduly reduce the

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656 ALABAMA v. SHELTON
Syllabus
Sixth Amendment’s domain. In Alabama, the probation revocation
hearing is an informal proceeding, at which the defendant has no right
to counsel, and the court no obligation to observe customary rules of
evidence. More significant, the defendant may not challenge the valid-
ity or reliability of the underlying conviction. A hearing so timed and
structured cannot compensate for the absence of trial counsel and
thereby bring Shelton’s sentence within constitutional bounds. Nor
does this Court agree with amicus that its holding will substantially
limit the States’ ability to impose probation. Most jurisdictions already
provide a state-law right to appointed counsel more generous than that
afforded by the Federal Constitution, while simultaneously preserving
the option of probationary punishment. See 511 U. S., at 748–749, n. 12.
Even if amicus is correct that some States cannot afford the costs of the
Court’s rule, those jurisdictions have recourse to the option of pretrial
probation, whereby the prosecutor and defendant agree to the defend-
ant’s participation in a pretrial rehabilitation program, which includes
conditions typical of post-trial probation, and the adjudication of guilt
and imposition of sentence for the underlying offense occur only if
the defendant breaches those conditions. This system reserves the
appointed-counsel requirement for the few cases in which incarceration
proves necessary, see Gagnon, 411 U. S., at 784, while respecting the
constitutional imperative that no person be imprisoned unless he was
represented by counsel, Argersinger, 407 U. S., at 37. Pp. 665–672.
(c) The Court does not rule on Alabama’s argument that, although
the Sixth Amendment bars activation of a suspended sentence for an
uncounseled conviction, the Constitution does not prohibit, as a method
of effectuating probationary punishment, the imposition of a suspended
sentence that can never be enforced. There is not so much as a hint in
the Alabama Supreme Court’s decision that Shelton’s probation term is
separable from the prison term to which it was tethered. Absent any
prior presentation of the novel position the State now takes, this Court
resists passing on it in the first instance. It is for the State Supreme
Court to consider before this Court does whether the suspended sen-
tence alone is invalid, leaving Shelton’s probation term freestanding and
independently effective. See Hortonville Joint School Dist. No. 1 v.
Hortonville Ed. Assn., 426 U. S. 482, 488. Pp. 672–674.
Affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Breyer, JJ., joined. Scalia, J., filed a dissent-
ing opinion, in which Rehnquist, C. J., and Kennedy and Thomas, JJ.,
joined, post, p. 674.

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657 Cite as: 535 U. S. 654 (2002)
Opinion of the Court
Bill Pryor, Attorney General of Alabama, argued the
cause for petitioner. With him on the briefs were Sandra
Jean Stewart and Stephanie N. Morman, Assistant Attor-
neys General.
Charles Fried, by invitation of the Court, 534 U. S. 987
(2001), argued the cause and filed a brief as amicus curiae
in opposition to the judgment below.
William H. Mills argued the cause and filed a brief for
respondent.
Steven Duke argued the cause for the National Association
of Criminal Defense Lawyers as amicus curiae urging af-
firmance. With him on the brief were Thomas F. Liotti and
David M. Porter.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the Sixth Amendment right of an indi-
gent defendant charged with a misdemeanor punishable by
imprisonment, fine, or both, to the assistance of court-
appointed counsel. Two prior decisions control the Court’s
judgment. First, in Argersinger v. Hamlin, 407 U. S. 25
(1972), this Court held that defense counsel must be ap-
pointed in any criminal prosecution, “whether classified as
petty, misdemeanor, or felony,” id., at 37, “that actually leads
to imprisonment even for a brief period,” id., at 33. Later,
in Scott v. Illinois, 440 U. S. 367, 373–374 (1979), the Court
drew the line at “actual imprisonment,” holding that coun-
sel need not be appointed when the defendant is fined
for the charged crime, but is not sentenced to a term of
imprisonment.
*A brief of amici curiae urging reversal was filed for the State of Texas
et al. by John Cornyn, Attorney General of Texas, Gregory S. Coleman,
Solicitor General, S. Kyle Duncan, Assistant Solicitor General, Carter G.
Phillips, Gene C. Schaerr, Paul J. Zidlicky, and Rebecca K. Smith, and
by the Attorneys General for their respective States as follows: M. Jane
Brady of Delaware, Richard P. Ieyoub of Louisiana, Mike McGrath of
Montana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, and
Randolph A. Beales of Virginia.

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658 ALABAMA v. SHELTON
Opinion of the Court
Defendant-respondent LeReed Shelton, convicted of
third-degree assault, was sentenced to a jail term of 30
days, which the trial court immediately suspended, placing
Shelton on probation for two years. The question pre-
sented is whether the Sixth Amendment right to appointed
counsel, as delineated in Argersinger and Scott, applies to a
defendant in Shelton’s situation. We hold that a suspended
sentence that may “end up in the actual deprivation of a
person’s liberty” may not be imposed unless the defendant
was accorded “the guiding hand of counsel” in the prose-
cution for the crime charged. Argersinger, 407 U. S., at 40
(internal quotation marks omitted).
I
After representing himself at a bench trial in the District
Court of Etowah County, Alabama, Shelton was convicted
of third-degree assault, a class A misdemeanor carrying a
maximum punishment of one year imprisonment and a $2,000
fine, Ala. Code §§ 13A–6–22, 13A–5–7(a)(1), 13A–5–12(a)(1)
(1994). He invoked his right to a new trial before a jury in
Circuit Court, Ala. Code § 12–12–71 (1995), where he again
appeared without a lawyer and was again convicted. The
court repeatedly warned Shelton about the problems self-
representation entailed, see App. 9, but at no time offered
him assistance of counsel at state expense.
The Circuit Court sentenced Shelton to serve 30 days in
the county prison. As authorized by Alabama law, however,
Ala. Code § 15–22–50 (1995), the court suspended that sen-
tence and placed Shelton on two years’ unsupervised pro-
bation, conditioned on his payment of court costs, a $500
fine, reparations of $25, and restitution in the amount of
$516.69.
Shelton appealed his conviction and sentence on Sixth
Amendment grounds, and the Alabama Court of Criminal

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Appeals affirmed.1 That court initially held that an indigent
defendant who receives a suspended prison sentence has a
constitutional right to state-appointed counsel and remanded
for a determination whether Shelton had “made a knowing,
intelligent, and voluntary waiver of his right.” App. 7.
When the case returned from remand, however, the appeals
court reversed course: A suspended sentence, the court con-
cluded, does not trigger the Sixth Amendment right to ap-
pointed 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. Id., at 14.
The Supreme Court of Alabama reversed the Court of
Criminal Appeals in relevant part. Referring to this
Court’s decisions in Argersinger and Scott, the Alabama
Supreme Court reasoned that a defendant may not be
“sentenced to a term of imprisonment” absent provision
of counsel. App. 37. In the Alabama high court’s view, a
suspended sentence constitutes a “term of imprisonment”
within the meaning of Argersinger and Scott even though
incarceration is not immediate or inevitable. And because
the State is constitutionally barred from activating the con-
ditional sentence, the Alabama court concluded, “ ‘the threat
itself is hollow and should be considered a nullity.’ ” App.
37 (quoting United States v. Reilley, 948 F. 2d 648, 654
(CA10 1991)). Accordingly, the court affirmed Shelton’s con-
viction and the monetary portion of his punishment, but in-
validated “that aspect of his sentence imposing 30 days of
1 Shelton also appealed on a number of state-law grounds. The Court
of Criminal Appeals rejected all but one of those challenges, concluding
that most had been procedurally defaulted in the trial court. See App.
14–25. On one such challenge, the court remanded for further proceed-
ings, id., at 23, but affirmed after the trial court ruled against Shelton on
remand, id., at 29.

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660 ALABAMA v. SHELTON
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suspended jail time.” App. 40. By reversing Shelton’s sus-
pended sentence, the State informs us, the court also vacated
the two-year term of probation. See Brief for Petitioner 6.2
Courts have divided on the Sixth Amendment question
presented in this case. Some have agreed with the decision
below that appointment of counsel is a constitutional prereq-
uisite to imposition of a conditional or suspended prison sen-
tence. See, e. g., Reilley, 948 F. 2d, at 654; United States v.
Foster, 904 F. 2d 20, 21 (CA9 1990); United States v. White,
529 F. 2d 1390, 1394 (CA8 1976). Others have rejected that
proposition. See, e. g., Cottle v. Wainwright, 477 F. 2d 269,
274 (CA5), vacated on other grounds, 414 U. S. 895 (1973);
Griswold v. Commonwealth, 252 Va. 113, 116–117, 472 S. E.
2d 789, 791 (1996); State v. Hansen, 273 Mont. 321, 325, 903
P. 2d 194, 197 (1995). We granted certiorari to resolve the
conflict. 532 U. S. 1018 (2001).
II
Three positions are before us in this case. In line with
the decision of the Supreme Court of Alabama, Shelton ar-
gues that an indigent defendant may not receive a suspended
sentence unless he is offered or waives the assistance of
state-appointed counsel. Brief for Respondent 5–27.3 Ala-
2 Justice Maddox dissented, stating that Shelton was not constitutionally
entitled to counsel because he “received only a suspended sentence and
was not incarcerated.” App. 41. Justice Maddox also construed the trial
record as establishing Shelton’s waiver of any right to appointed counsel
he might have enjoyed. Ibid.
3 Shelton also urges this Court to overrule Argersinger v. Hamlin, 407
U. S. 25 (1972), and Scott v. Illinois, 440 U. S. 367 (1979), to the extent
those cases do not guarantee a right to counsel “in all cases where impris-
onment is an authorized penalty.” Brief for Respondent 27–31. We do
not entertain this contention, for Shelton first raised it in his brief on
the merits. “We would normally expect notice of an intent to make so
far-reaching an argument in the respondent’s opposition to a petition for
certiorari, cf. this Court’s Rule 15.2, thereby assuring adequate prepara-
tion time for those likely affected and wishing to participate.” South
Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999).

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Opinion of the Court
bama now concedes that the Sixth Amendment bars activa-
tion of a suspended sentence for an uncounseled conviction,
but maintains that the Constitution does not prohibit imposi-
tion of such a sentence as a method of effectuating probation-
ary punishment. Reply Brief 4–13. To assure full airing of
the question presented, we invited an amicus curiae (ami-
cus) to argue in support of a third position, one Alabama
has abandoned: Failure to appoint counsel to an indigent de-
fendant “does not bar the imposition of a suspended or proba-
tionary sentence upon conviction of a misdemeanor, even
though the defendant might be incarcerated in the event pro-
bation is revoked.” 534 U. S. 987 (2001).4
A
In Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), we
held that the Sixth Amendment’s guarantee of the right to
state-appointed counsel, firmly established in federal-court
proceedings in Johnson v. Zerbst, 304 U. S. 458 (1938), applies
to state criminal prosecutions through the Fourteenth
Amendment. We clarified the scope of that right in Arger-
singer, holding that an indigent defendant must be offered
counsel in any misdemeanor case “that actually leads to im-
prisonment.” 407 U. S., at 33. Seven Terms later, Scott
confirmed Argersinger’s “delimit[ation],” 440 U. S., at 373.
Although the governing statute in Scott authorized a jail
sentence of up to one year, see id., at 368, we held that the
defendant had no right to state-appointed counsel because
the sole sentence actually imposed on him was a $50 fine, id.,
at 373. “Even were the matter res nova,” we stated, “the
central premise of Argersinger—that actual imprisonment is
a penalty different in kind from fines or the mere threat of
imprisonment—is eminently sound and warrants adoption of
actual imprisonment as the line defining the constitutional
right to appointment of counsel” in nonfelony cases. Ibid.
4 Charles Fried, a member of the Bar of this Court, accepted our invita-
tion and has well fulfilled his assigned responsibility.

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Subsequent decisions have reiterated the Argersinger-
Scott “actual imprisonment” standard. See, e. g., Glover v.
United States, 531 U. S. 198, 203 (2001) (“any amount of ac-
tual jail time has Sixth Amendment significance”); M. L. B.
v. S. L. J., 519 U. S. 102, 113 (1996); Nichols v. United States,
511 U. S. 738, 746 (1994) (constitutional line is “between crim-
inal proceedings that resulted in imprisonment, and those
that did not”); id., at 750 (Souter, J., concurring in judg-
ment) (“The Court in Scott, relying on Argersinger[,] drew
a bright line between imprisonment and lesser criminal pen-
alties.”); Lassiter v. Department of Social Servs. of Durham
Cty., 452 U. S. 18, 26 (1981). It is thus the controlling rule
that “absent a knowing and intelligent waiver, no person
may be imprisoned for any offense . . . unless he was repre-
sented by counsel at his trial.” Argersinger, 407 U. S., at 37.
B
Applying the “actual imprisonment” rule to the case be-
fore us, we take up first the question we asked amicus to
address: Where the State provides no counsel to an indigent
defendant, does the Sixth Amendment permit activation of a
suspended sentence upon the defendant’s violation of the
terms of probation? We conclude that it does not. A sus-
pended sentence is a prison term imposed for the offense of
conviction. Once the prison term is triggered, the defend-
ant is incarcerated not for the probation violation, but for
the underlying offense. The uncounseled conviction at that
point “result[s] in imprisonment,” Nichols, 511 U. S., at 746;
it “end[s] up in the actual deprivation of a person’s liberty,”
Argersinger, 407 U. S., at 40. This is precisely what the
Sixth Amendment, as interpreted in Argersinger and Scott,
does not allow.
Amicus resists this reasoning primarily on two grounds.
First, he attempts to align this case with our decisions in
Nichols and Gagnon v. Scarpelli, 411 U. S. 778 (1973). See
Brief for Amicus Curiae by Invitation of the Court 11–18

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Opinion of the Court
(hereinafter Fried Brief). We conclude that Shelton’s case
is not properly bracketed with those dispositions.
Nichols presented the question whether the Sixth Amend-
ment barred consideration of a defendant’s prior uncoun-
seled misdemeanor conviction in determining his sentence
for a subsequent felony offense. 511 U. S., at 740. Nichols
pleaded guilty to federal felony drug charges. Several
years earlier, unrepresented by counsel, he was fined but not
incarcerated for the state misdemeanor of driving under the
influence (DUI). Including the DUI conviction in the fed-
eral Sentencing Guidelines calculation allowed the trial court
to impose a sentence for the felony drug conviction “25
months longer than if the misdemeanor conviction had not
been considered.” Id., at 741. We upheld this result, con-
cluding that “an uncounseled misdemeanor conviction, valid
under Scott because no prison term was imposed, is also
valid when used to enhance punishment at a subsequent con-
viction.” Id., at 749. In Gagnon, the question was whether
the defendant, who was placed on probation pursuant to a
suspended sentence for armed robbery, had a due process
right to representation by appointed counsel at a probation
revocation hearing. 411 U. S., at 783. We held that counsel
was not invariably required in parole or probation revocation
proceedings; we directed, instead, a “case-by-case approach”
turning on the character of the issues involved. Id., at
788–791.
Considered together, amicus contends, Nichols and Gag-
non establish this principle: Sequential proceedings must be
analyzed separately for Sixth Amendment purposes, Fried
Brief 11–18, and only those proceedings “result[ing] in im-
mediate actual imprisonment” trigger the right to state-
appointed counsel, id., at 13 (emphasis added). Thus, the
defendant in Nichols had no right to appointed counsel in
the DUI proceeding because he was not immediately impris-
oned at the conclusion of that proceeding. The uncounseled
DUI, valid when imposed, did not later become invalid be-

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cause it was used to enhance the length of imprisonment that
followed a separate and subsequent felony proceeding. Just
so here, amicus contends: Shelton had no right to appointed
counsel in the Circuit Court because he was not incarcerated
immediately after trial; his conviction and suspended sen-
tence were thus valid and could serve as proper predicates
for actual imprisonment at a later hearing to revoke his pro-
bation. See Fried Brief 14, 23–24.
Gagnon and Nichols do not stand for the broad proposition
amicus would extract from them. The dispositive factor in
those cases was not whether incarceration occurred immedi-
ately or only after some delay. Rather, the critical point
was that the defendant had a recognized right to counsel
when adjudicated guilty of the felony offense for which he
was imprisoned. See Nichols, 511 U. S., at 743, n. 9 (absent
waiver, right to appointed counsel in felony cases is abso-
lute). Unlike this case, in which revocation of probation
would trigger a prison term imposed for a misdemeanor of
which Shelton was found guilty without the aid of counsel,
the sentences imposed in Nichols and Gagnon were for fel-
ony convictions—a federal drug conviction in Nichols, and a
state armed robbery conviction in Gagnon—for which the
right to counsel is unquestioned. See Nichols, 511 U. S., at
747 (relevant sentencing provisions punished only “the last
offense committed by the defendant,” and did not constitute
or “change the penalty imposed for the earlier” uncounseled
misdemeanor); Gagnon, 411 U. S., at 789 (distinguishing “the
right of an accused to counsel in a criminal prosecution” from
“the more limited due process right of one who is a proba-
tioner or parolee only because he has been convicted of a
crime”).
Thus, neither Nichols nor Gagnon altered or diminished
Argersinger’s command that “no person may be imprisoned
for any offense . . . unless he was represented by counsel at
his trial,” 407 U. S., at 37 (emphasis added). Far from

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Opinion of the Court
supporting amicus’ position, Gagnon and Nichols simply
highlight that the Sixth Amendment inquiry trains on the
stage of the proceedings corresponding to Shelton’s Circuit
Court trial, where his guilt was adjudicated, eligibity for im-
prisonment established, and prison sentence determined.
Nichols is further distinguishable for the related reason
that the Court there applied a “less exacting” standard “con-
sistent with the traditional understanding of the sentencing
process.” 511 U. S., at 747. Once guilt has been estab-
lished, we noted in Nichols, sentencing courts may take into
account not only “a defendant’s prior convictions, but . . . also
[his] past criminal behavior, even if no conviction resulted
from that behavior.” Ibid. Thus, in accord with due proc-
ess, Nichols “could have been sentenced more severely based
simply on evidence of the underlying conduct that gave rise”
to his previous conviction, id., at 748 (emphasis added), even
if he had never been charged with that conduct, Williams v.
New York, 337 U. S. 241 (1949), and even if he had been ac-
quitted of the misdemeanor with the aid of appointed coun-
sel, United States v. Watts, 519 U. S. 148, 157 (1997) (per
curiam). That relaxed standard has no application in this
case, where the question is whether the defendant may be
jailed absent a conviction credited as reliable because the
defendant had access to “the guiding hand of counsel,” Ar-
gersinger, 407 U. S., at 40 (internal quotation marks omitted).
Amicus also contends that “practical considerations
clearly weigh against” the extension of the Sixth Amend-
ment appointed-counsel right to a defendant in Shelton’s sit-
uation. Fried Brief 23. He cites figures suggesting that
although conditional sentences are commonly imposed, they
are rarely activated. Id., at 20–22; Tr. of Oral Arg. 20–21
(speculating that “hundreds of thousands” of uncounseled de-
fendants receive suspended sentences, but only “thousands”
of that large number are incarcerated upon violating the
terms of their probation). Based on these estimations, ami-

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cus argues that a rule requiring appointed counsel in every
case involving a suspended sentence would unduly hamper
the States’ attempts to impose effective probationary punish-
ment. A more “workable solution,” he contends, would per-
mit imposition of a suspended sentence on an uncounseled
defendant and require appointment of counsel, if at all, only
at the probation revocation stage, when incarceration is im-
minent. Fried Brief 18, 23–24.
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 re-
sult 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. See id., at 24 (raising, but not
endeavoring to answer, several potential questions about the
nature of the revocation hearing amicus contemplates). In
Alabama, however, the character of the probation revocation
hearing currently afforded is not in doubt. The proceeding
is an “informal” one, Buckelew v. State, 48 Ala. App. 418, 421,
265 So. 2d 202, 205 (Crim. App. 1972), at which the defendant
has no right to counsel, and the court no obligation to ob-
serve customary rules of evidence, Martin v. State, 46 Ala.
App. 310, 311, 241 So. 2d 339, 340 (Crim. App. 1970).
More significant, the sole issue at the hearing—apart from
determinations about the necessity of confinement, see Ala.
Code § 15–22–54(d)(4) (1975)—is whether the defendant
breached the terms of probation. See Martin, 46 Ala. App.,
at 312, 241 So. 2d, at 341 (“All that is required in a hearing
of this character is that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion that
the defendant has violated a valid condition upon which the
sentence was suspended.” (internal quotation marks omit-
ted)). The validity or reliability of the underlying convic-
tion is beyond attack. See Buckelew, 48 Ala. App., at 421,

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265 So. 2d, at 205 (“a probation hearing cannot entertain a
collateral attack on a judgment of another circuit”).
We think it plain that a hearing so timed and structured
cannot compensate for the absence of trial counsel, for it does
not even address the key Sixth Amendment inquiry: whether
the adjudication of guilt corresponding to the prison sentence
is sufficiently reliable to permit incarceration. 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 sub-
jected to “the crucible of meaningful adversarial testing,”
United States v. Cronic, 466 U. S. 648, 656 (1984). The Sixth
Amendment does not countenance this result.
In a variation on amicus’ position, the dissent would limit
review in this case to the question whether the imposition
of Shelton’s suspended sentence required appointment of
counsel, answering that question “plainly no” because such a
step “does not deprive a defendant of his personal liberty.”
Post, at 676. Only if the sentence is later activated, the dis-
sent contends, need the Court “ask whether the procedural
safeguards attending the imposition of [Shelton’s] sentence
comply with the Constitution.” Ibid.
Severing the analysis in this manner makes little sense.
One cannot assess the constitutionality of imposing a sus-
pended sentence while simultaneously walling off the proce-
dures that will precede its activation. The dissent imagines
a set of safeguards Alabama might provide at the probation
revocation stage sufficient to cure its failure to appoint coun-
sel prior to sentencing, including, perhaps, “complete retrial
of the misdemeanor violation with assistance of counsel,”
post, at 677. But there is no cause for speculation about
Alabama’s procedures; they are established by Alabama stat-
ute and decisional law, see supra, at 666 and this page, and
they bear no resemblance to those the dissent invents in its
effort to sanction the prospect of Shelton’s imprisonment on

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668 ALABAMA v. SHELTON
Opinion of the Court
an uncounseled conviction.5 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 hold-
ing will “substantially limit the states’ ability” to impose
probation, Fried Brief 22, or encumber them with a “large,
new burden,” post, at 680. Most jurisdictions already pro-
vide a state-law right to appointed counsel more gener-
ous than that afforded by the Federal Constitution. See
5 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 677. That option is the functional
equivalent of pretrial probation, as to which we entertain no constitutional
doubt. See infra, at 670–672, and n. 12.
Regarding the dissent’s suggestion that other “means of retesting (with
assistance of counsel) the validity of the original conviction” might suffice,
post, at 678, n. 3, we 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 rec-
ord.” Argersinger, 407 U. S., at 41 (Burger, C. J., concurring in result).
“[A] large number of misdemeanor convictions take place in police or jus-
tice courts which are not courts of record. Without a drastic change in
the procedures of these courts, there would be no way” for the defendant
to demonstrate error in the original proceeding or reconstruct evidence
lost in the intervening period. Nichols v. United States, 511 U. S. 738,
748 (1994). But we need not here decide whether or what procedural
safeguards “short of complete retrial” at the probation revocation stage
could satisfy the Sixth Amendment, post, at 678; the minimal procedures
Alabama does provide are plainly insufficient.
6 Charging that we have “miraculously divined how the Alabama justices
would resolve a constitutional question,” post, at 676, the dissent forgets
that this case is here on writ of certiorari to the Alabama Supreme Court.
That court ruled in the decision under review that Shelton’s sentence vio-
lates the Sixth Amendment. The Alabama Supreme Court has thus al-
ready spoken on the issue we now address, and in doing so expressed not
the slightest hint that revocation-stage procedures—real or imaginary—
would affect the constitutional calculus.

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Opinion of the Court
Nichols, 511 U. S., at 748–749, n. 12. All but 16 States,
for example, would provide counsel to a defendant in Shel-
ton’s circumstances, either because he received a substantial
fine 7 or because state law authorized incarceration for the
charged offense 8 or provided for a maximum prison term of
one year.9 See Ala. Code §§ 13A–6–22, 13A–5–7(a)(1), 13A–
5–12(a)(1) (1994). There is thus scant reason to believe that
a rule conditioning imposition of a suspended sentence on
provision of appointed counsel would affect existing practice
7 See N. J. Stat. Ann. § 2A:158A–5.2 (1985); State v. Hermanns, 278 N. J.
Super. 19, 29, 650 A. 2d 360, 366 (1994); N. C. Gen. Stat. § 7A–451(a)(1)
(1999); Vt. Stat. Ann., Tit. 13, § 5201 (1998).
8 See Alexander v. Anchorage, 490 P. 2d 910, 913 (Alaska 1971) (inter-
preting Alaska Const., Art. I, § 11, to provide counsel when punishment
may involve incarceration); Tracy v. Municipal Court for Glendale Judi-
cial Dist., 22 Cal. 3d 760, 766, 587 P. 2d 227, 230 (1978) (Cal. Penal Code
Ann. § 686 (West 1985) affords counsel to misdemeanor defendants); Del.
Code Ann., Tit. 29, § 4602 (1997); D. C. Code Ann. § 11–2602 (West 2001);
Haw. Rev. Stat. § 802–1 (1999); Ill. Comp. Stat., ch. 725, § 113–3 (1992);
Brunson v. State, 182 Ind. App. 146, 149, 394 N. E. 2d 229, 231 (1979) (right
to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I,
§ 13); Ky. Rev. Stat. Ann. §§ 31.100(4)(b), 31.110(1) (West 1999); La. Const.,
Art. I, § 13; 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) (West 1993); Okla. Stat., Tit. 22, § 1355.6.A (West Supp. 2002);
Ore. Rev. Stat. Ann. § 135.050(4) (Supp. 1998); Tenn. Sup. Ct. Rule 13(d)(1)
(2001); Tex. Code Crim. Proc. Ann., Art. 26.04(b)(3) (Vernon Supp. 2002);
Va. Code Ann. §§ 19.2–159, 19.2–160 (2000); Wash. Super. Ct. Crim. Rule
3.1(a) (2002); W. Va. Code § 50–4–3 (2000); Wis. Stat. § 967.06 (1998); Wyo.
Stat. Ann. § 7–6–102 (2001).
9 See Idaho Code §§ 19–851(d)(2), 19–852(a)(1) (1997); Iowa Rule Crim.
Proc. 26 (2002); Wright v. Denato, 178 N. W. 2d 339, 341–342 (Iowa 1970);
Md. Ann. Code, Art. 27A, §§ 2(h)(2), 4(b)(2) (1997 and Supp. 2000); Nev.
Rev. Stat. §§ 178.397, 193.120 (2001); N. H. Stat. Ann. §§ 604–A:2(I),
625:9(IV)(a)(1) (West Supp. 2001); N. M. Stat. Ann. §§ 31–16–2(D), 31–16–
3(A) (2000); Ohio Rules Crim. Proc. 2(C), 44(A) (2002); Pa. Rule Crim.
Proc. 122(A) (2002); 18 Pa. Cons. Stat. § 106(c)(2) (1998); S. D. Codified
Laws §§ 23A–40–6, 23–40–6.1, 22–6–2(1) (1998); see also Conn. Gen. Stat.
§ 51–296(a) (Supp. 2001) (imposition of a “suspended sentence of incarcera-
tion with a period of probation” necessitates appointment of counsel).

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670 ALABAMA v. SHELTON
Opinion of the Court
in the large majority of the States.10 And given the cur-
rent commitment of most jurisdictions to affording court-
appointed counsel to indigent misdemeanants while simulta-
neously preserving the option of probationary punishment,
we do not share amicus’ concern that other States may lack
the capacity and resources to do the same.
Moreover, even if amicus is correct that “some courts and
jurisdictions at least [can]not bear” the costs of the rule we
confirm today, Fried Brief 23, those States need not abandon
probation or equivalent measures as viable forms of punish-
10 That ten States in this majority do not provide counsel to every de-
fendant who receives a suspended sentence hardly supports the dissent’s
dire predictions about the practical consequences of today’s decision, see
post, at 679–681, and n. 4. The circumstances in which those States cur-
rently allow prosecution of misdemeanors without appointed counsel are
quite narrow. In Pennsylvania, for example, all defendants charged with
misdemeanors enjoy a right to counsel regardless of the sentence imposed,
Pa. Rule Crim. Proc. 122(B) (2002); only those charged with “summary
offenses” (violations not technically considered crimes and punishable
by no more than 90 days’ imprisonment, 18 Pa. Cons. Stat. § 106(c)(2)
(1998)) may receive a suspended sentence uncounseled. Pa. Rule Crim.
Proc. 122(A) (2002); Commonwealth v. Thomas, 510 Pa. 106, 111, n. 7, 507
A. 2d 57, 59, n. 7 (1986). (Typical “summary offenses” in Pennsylvania
include the failure to return a library book within 30 days, 18 Pa. Cons.
Stat. § 6708 (1998), and fishing on a Sunday, 30 Pa. Cons. Stat. § 2104
(1998).) Gaps in the misdemeanor defendant’s right to appointed counsel
in other States that extend protection beyond the Sixth Amendment are
similarly slight. See, e. g., S. D. Codified Laws §§ 23A–40–6.1, 22–6–2(2)
(1998) (defendant charged with misdemeanor enjoys absolute right to ap-
pointed counsel unless offense punishable by no more than 30 days’ impris-
onment); Tex. Code Crim. Proc. Ann., Art. 26.04(b)(3) (Vernon Supp. 2002)
(counsel must be appointed to all misdemeanor defendants except those
tried before a judge who knows sentence will not include imprisonment).
More typical of the situation that results in a suspended sentence, we
think, is a case like Shelton’s—a prosecution before a jury for third-degree
assault, arising out of a fistfight that followed a minor traffic accident, see
App. 15, n. 2. Far from “quite irrelevant,” post, at 679, that 34 States
already provide an attorney in this situation strongly suggests that the
added requirement of providing counsel routinely in suspended sentence
cases will not prove unduly onerous.

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Opinion of the Court
ment. Although they may not attach probation to an im-
posed and suspended prison sentence, States unable or
unwilling routinely to provide appointed counsel to misde-
meanants in Shelton’s situation are not without recourse to
another option capable of yielding a similar result.
That option is pretrial probation, employed in some form
by at least 23 States. See App. to Reply Brief for National
Association of Criminal Defense Lawyers as Amicus Curiae
1a–2a (collecting state statutes). Under such an arrange-
ment, the prosecutor and defendant agree to the defendant’s
participation in a pretrial rehabilitation program,11 which in-
cludes conditions typical of post-trial probation. The adjudi-
cation of guilt and imposition of sentence for the underlying
offense then occur only if and when the defendant breaches
those conditions. Ibid.; see, e. g., Conn. Gen. Stat. § 54–56e
(2001); Pa. Rules Crim. Proc. 310–320, 316 (2002) (“The con-
ditions of the [pretrial rehabilitation] program may be such
as may be imposed with respect to probation after conviction
of a crime.”); N. Y. Crim. Proc. Law § 170.55(3) (McKinney
Supp. 2001) (pretrial “adjournment in contemplation of dis-
missal” may require defendant “to observe certain specified
conditions of conduct”).12
Like the regime urged by amicus, this system reserves
the appointed-counsel requirement for the “small percent-
11 Because this device is conditioned on the defendant’s consent, it does
not raise the question whether imposition of probation alone so restrains
a defendant’s liberty as to require provision of appointed counsel. See
Brief for National Association of Criminal Defense Lawyers as Amicus
Curiae 8; cf. Brief for Respondent 13–16.
12 There is thus only one significant difference between pretrial proba-
tion and the “sensible option” urged by the dissent, i. e., “complete retrial
of the misdemeanor violation with assistance of counsel” upon a defend-
ant’s violation of probation terms, post, at 677. Pretrial probation is sub-
stantially less expensive: It permits incarceration after a single trial,
whereas the dissent’s regime requires two—one (without counsel) to place
the defendant on probation, and a second (with counsel) to trigger
imprisonment.

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672 ALABAMA v. SHELTON
Opinion of the Court
age” of cases in which incarceration proves necessary, Fried
Brief 21, thus allowing a State to “supervise a course of reha-
bilitation” without providing a lawyer every time it wishes
to pursue such a course, Gagnon, 411 U. S., at 784. Unlike
amicus’ position, however, pretrial probation also respects
the constitutional imperative that “no person may be impris-
oned for any offense . . . unless he was represented by coun-
sel at his trial,” Argersinger, 407 U. S., at 37.
C
Alabama concedes that activation of a suspended sentence
results in the imprisonment of an uncounseled defendant “for
a term that relates to the original offense” and therefore
“crosses the line of ‘actual imprisonment’ ” established in
Argersinger and Scott. Reply Brief to Amicus Curiae Pro-
fessor Charles Fried 8. Shelton cannot be imprisoned, Ala-
bama thus acknowledges, “unless the State has afforded him
the right to assistance of appointed counsel in his defense,”
Scott, 440 U. S., at 374; see Reply Brief 9. Alabama main-
tains, however, that there is no constitutional barrier to im-
position of a suspended sentence that can never be enforced;
the State therefore urges reversal of the Alabama Supreme
Court’s judgment insofar as it vacated the term of probation
Shelton was ordered to serve.
In effect, Alabama invites us to regard two years’ proba-
tion for Shelton as a separate and independent sentence,
which “the State would have the same power to enforce [as]
a judgment of a mere fine.” Tr. of Oral Arg. 6. Scott, Ala-
bama emphasizes, squarely held that a fine-only sentence
does not trigger a right to court-appointed counsel, Tr. of
Oral Arg. 6; similarly, Alabama maintains, probation uncou-
pled from a prison sentence should trigger no immediate
right to appointed counsel. Seen as a freestanding sentence,
Alabama further asserts, probation could be enforced, as a
criminal fine or restitution order could, in a contempt pro-

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673 Cite as: 535 U. S. 654 (2002)
Opinion of the Court
ceeding. See Reply Brief 11–12; Reply Brief to Amicus
Curiae Professor Charles Fried 10–13; Tr. of Oral Arg. 7.
Alabama describes the contempt proceeding it envisions
as one in which Shelton would receive “the full panoply of
due process,” including the assistance of counsel. Reply
Brief 12. Any sanction imposed would be for “post-
conviction wrongdoing,” not for the offense of conviction.
Reply Brief to Amicus Curiae Professor Charles Fried 11.
“The maximum penalty faced would be a $100 fine and five
days’ imprisonment,” Reply Brief 12 (citing Ala. Code § 12–
11–30(5) (1995)), not the 30 days ordered and suspended by
the Alabama Circuit Court, see supra, at 658.
There is not so much as a hint, however, in the decision of
the Supreme Court of Alabama, that Shelton’s probation
term is separable from the prison term to which it was teth-
ered. Absent any prior presentation of the position the
State now takes,13 we resist passing on it in the first instance.
Our resistance to acting as a court of first view instead of one
of review is heightened by the Alabama Attorney General’s
acknowledgment at oral argument that he did not know of
any State that imposes, postconviction, on a par with a fine,
a term of probation unattached to a suspended sentence.
Tr. of Oral Arg. 8. The novelty of the State’s current po-
sition is further marked by the unqualified statement in
Alabama’s opening brief that, “[b]y reversing Shelton’s
suspended sentence, the [Supreme Court of Alabama] corre-
spondingly vacated the two-year probationary term.” Brief
for Petitioner 6.
13 Not until its reply brief did the State convey that, as it comprehends
Argersinger and Scott, “there is no possibility that Shelton’s suspended
sentence will be activated if he violates the terms of his probation.”
Reply Brief 9. Before the Supreme Court of Alabama, the State’s posi-
tion coincided with the position now argued by amicus. See State’s Brief
and Argument on Petition for Writ of Certiorari to the Alabama Court of
Criminal Appeals, p. 31, and State’s Brief and Argument in Support of its
Application for Rehearing, in No. 1990031 (Ala. Sup. Ct.), p. 32.

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674 ALABAMA v. SHELTON
Scalia, J., dissenting
In short, Alabama has developed its position late in this
litigation and before the wrong forum. It is for the Alabama
Supreme Court to consider before this Court does whether
the suspended sentence alone is invalid, leaving Shelton’s
probation term freestanding and independently effective.
See Hortonville Joint School Dist. No. 1 v. Hortonville Ed.
Assn., 426 U. S. 482, 488 (1976) (“We are, of course, bound to
accept the interpretation of [the State’s] law by the highest
court of the State.”). We confine our review to the ruling
the Alabama Supreme Court made in the case as presented
to it: “[A] defendant who receives a suspended or probated
sentence to imprisonment has a constitutional right to coun-
sel.” App. 40 (emphasis added); see Brief for Petitioner 6.
We find no infirmity in that holding.
* * *
Satisfied that Shelton is entitled to appointed counsel at
the critical stage when his guilt or innocence of the charged
crime is decided and his vulnerability to imprisonment is de-
termined, we affirm the judgment of the Supreme Court of
Alabama.
It is so ordered.
Justice Scalia, with whom The Chief Justice, Justice
Kennedy, and Justice Thomas join, dissenting.
In Argersinger v. Hamlin, 407 U. S. 25, 37 (1972), we held
that “absent a knowing and intelligent waiver, no person
may be imprisoned for any offense . . . unless he was repre-
sented by counsel at his trial.” (Emphasis added.) Al-
though, we said, the “run of misdemeanors will not be af-
fected” by this rule, “in those that end up in the actual
deprivation of a person’s liberty, the accused will receive
the benefit” of appointed counsel. Id., at 40 (emphasis
added). We affirmed this rule in Scott v. Illinois, 440 U. S.
367 (1979), drawing a bright line between imprisonment and

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675 Cite as: 535 U. S. 654 (2002)
Scalia, J., dissenting
the mere threat of imprisonment: “[T]he central premise of
Argersinger—that actual imprisonment is a penalty different
in kind from fines or the mere threat of imprisonment—is
eminently sound and warrants adoption of actual imprison-
ment as the line defining the constitutional right to appoint-
ment of counsel.” Id., at 373 (emphasis added). We have
repeatedly emphasized actual imprisonment as the touch-
stone of entitlement to appointed counsel. See, e. g., Glover
v. United States, 531 U. S. 198, 203 (2001) (“any amount of
actual jail time has Sixth Amendment significance” (empha-
sis added)); M. L. B. v. S. L. J., 519 U. S. 102, 113 (1996)
(“right [to appointed counsel] does not extend to nonfelony
trials if no term of imprisonment is actually imposed” (em-
phasis added)); Lassiter v. Department of Social Servs. of
Durham Cty., 452 U. S. 18, 26 (1981) (the Court “has refused
to extend the right to appointed counsel to include prosecu-
tions which, though criminal, do not result in the defendant’s
loss of personal liberty” (emphasis added)).
Today’s decision ignores this long and consistent jurispru-
dence, extending the misdemeanor right to counsel to cases
bearing the mere threat of imprisonment. Respondent’s
30-day suspended sentence, and the accompanying 2-year
term of probation, are invalidated for lack of appointed coun-
sel even though respondent has not suffered, and may never
suffer, a deprivation of liberty. The Court holds that the
suspended sentence violates respondent’s Sixth Amendment
right to counsel because it “may ‘end up in the actual depri-
vation of [respondent’s] liberty,’ ” ante, at 658 (emphasis
added), if he someday violates the terms of probation, if a
court determines that the violation merits revocation of pro-
bation, Ala. Code § 15–22–54(d)(1) (1995), and if the court
determines that no other punishment will “adequately pro-
tect the community from further criminal activity” or “avoid
depreciating the seriousness of the violation,” § 15–22–
54(d)(4). And to all of these contingencies there must yet

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676 ALABAMA v. SHELTON
Scalia, J., dissenting
be added, before the Court’s decision makes sense, an ele-
ment of rank speculation. Should all these contingencies
occur, the Court speculates, the Alabama Supreme Court
would mechanically apply its decisional law applicable to rou-
tine probation revocation (which establishes procedures that
the Court finds inadequate) rather than adopt special proce-
dures for situations that raise constitutional questions in
light of Argersinger and Scott. Ante, at 666–668. The
Court has miraculously divined how the Alabama justices
would resolve a constitutional question.1
But that question is not the one before us, and the Court
has no business offering an advisory opinion on its answer.
We are asked to decide whether “imposition of a suspended
or conditional sentence in a misdemeanor case invoke[s] a
defendant’s Sixth Amendment right to counsel.” Pet. for
Cert. i. Since imposition of a suspended sentence does not
deprive a defendant of his personal liberty, the answer to
that question is plainly no. In the future, if and when the
State of Alabama seeks to imprison respondent on the pre-
viously suspended sentence, we can ask whether the proce-
dural safeguards attending the imposition of that sentence
comply with the Constitution. But that question is not be-
fore us now. Given our longstanding refusal to issue advi-
sory opinions, Hayburn’s Case, 2 Dall. 409 (1792), particu-
larly with respect to constitutional questions (as to which we
seek to avoid even non-advisory opinions, Ashwander v.
TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)),
I am amazed by the Court’s conclusion that it “makes little
1 The Court says that the Alabama Supreme Court has already resolved
this question, since, in finding that respondent’s sentence violated the
Sixth Amendment, it “expressed not the slightest hint that revocation-
stage procedures . . . would affect the constitutional calculus.” Ante, at
668, n. 6. Indeed it did not, and that was precisely its error. It did not
answer (because it did not consider) the question whether procedures
attending the probation revocation proceeding could cure the absence of
counsel at trial.

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Scalia, J., dissenting
sense” to limit today’s decision to the question presented (the
constitutionality of imposing a suspended sentence on
uncounseled misdemeanants) and to avoid a question not
presented (the constitutionality of the “procedures that will
precede its activation”). Ante, at 667.
Although the Court at one point purports to limit its deci-
sion to suspended sentences imposed on uncounseled misde-
meanants in States, like Alabama, that offer only “minimal
procedures” during probation revocation hearings, see ante,
at 668, n. 5, the text of today’s opinion repudiates that limita-
tion. In answering the question we asked amicus to ad-
dress—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.” Ante, at 662. Thus, when the Court
says it “doubt[s]” that any procedures attending the reimpo-
sition of the suspended sentence “could satisfy the Sixth
Amendment,” ante, at 668, n. 5, it must be using doubt as a
euphemism for certitude.
The Court has no basis, moreover, for its “doubt.” Surely
the procedures attending reimposition of a suspended sen-
tence would be adequate if they required, upon the defend-
ant’s request, complete retrial of the misdemeanor violation
with assistance of counsel. By what right does the Court
deprive the State of that option? 2 It may well be a sensible
2 The Court asserts that pretrial probation, which its opinion permits, is
the “functional equivalent” of post-trial probation with later retrial if the
suspended sentence is to be activated. Even if that were so, I see no
basis for forcing the State to employ one “functional equivalent” rather
than the other. But in fact there is nothing but the Court’s implausible
speculation to support the proposition that pretrial probation will “yiel[d]
a similar result,” ante, at 671. That would certainly be a curious coinci-
dence, inasmuch as pretrial probation has the quite different purpose of
conserving prosecutorial and judicial resources by forgoing trial. See,
e. g., 3a U. S. Dept. of Justice, United States Attorneys’ Manual § 9–22.000
(1988); H. Abadinsky, Probation and Parole: Theory and Practice 348–349
(3d ed. 1987) (pretrial probation programs “use the fact that an arrest has

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678 ALABAMA v. SHELTON
Scalia, J., dissenting
option, since most defendants will be induced to comply with
the terms of their probation by the mere threat of a retrial
that could send them to jail, and since the expense of those
rare, counseled retrials may be much less than the expense
of providing counsel initially in all misdemeanor cases that
bear a possible sentence of imprisonment. And it may well
be that, in some cases, even procedures short of complete
retrial will suffice.3
occurred as a means of identifying defendants in need of treatment or, at
least, not in need of criminal prosecution”). Moreover, pretrial probation
is generally available only for minor offenses, App. to Reply Brief for Na-
tional Association of Criminal Defense Lawyers as Amicus Curiae 1a, and
is available in States (e. g., Alabama) that also employ post-trial probation,
id., at 3a. 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.
3 The Court quotes Chief Justice Burger’s concurrence in Argersinger v.
Hamlin, 407 U. S. 25 (1972), 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, 407 U. S., at 41.” Ante, at 668,
n. 5. But that passage was addressing the limited benefits of “[a]ppeal
from a conviction after an uncounseled trial,” Argersinger, supra, at 41
(emphasis added), and was doubtless correct in light of the uniformly re-
stricted scope of appellate review. But it makes no sense to transfer the
Chief Justice’s concerns to unknown and unknowable forms of probation
revocation proceedings, which may provide various means of retesting
(with assistance of counsel) the validity of the original conviction. The
Court notes that a “large number of misdemeanor convictions take place
in police or justice courts which are not courts of record,” making it quite
difficult for a defendant “to demonstrate error in the original proceeding.”
Ante, at 668, n. 5 (internal quotation marks omitted). But it is entirely
irrelevant whether a “large number of misdemeanor convictions” take
place in police or justice courts. What matters is whether a record is
available in misdemeanor convictions that result in a suspended prison
sentence (a presumably small fraction of all misdemeanor convictions).
We have no reliable information on that point other than the experience
of the present case—which shows that Alabama does provide a record
which counsel can comb for substantive and procedural inadequacy. Re-

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679 Cite as: 535 U. S. 654 (2002)
Scalia, J., dissenting
Our prior opinions placed considerable weight on the prac-
tical consequences of expanding the right to appointed coun-
sel beyond cases of actual imprisonment. See, e. g., Scott,
440 U. S., at 373 (any extension of Argersinger would “im-
pose unpredictable, but necessarily substantial, costs on 50
quite diverse States”); see also Argersinger, 407 U. S., at
56–62 (Powell, J., concurring in result) (same). Today, the
Court gives this consideration the back of its hand. Its ob-
servation that “[a]ll but 16 States” already appoint counsel
for defendants like respondent, ante, at 669, is interesting
but quite irrelevant, since today’s holding is not confined
to defendants like respondent. Appointed counsel must
henceforth be offered before any defendant can be awarded
a suspended sentence, no matter how short. Only 24 States
have announced a rule of this scope.4 Thus, the Court’s deci-
spondent was tried before a judge in State District Court, a court of
record; he subsequently exercised his right, under Ala. Code § 12–12–71
(1995), to trial de novo before a jury in State Circuit Court, a higher court
of record. See Ex parte Maye, 799 So. 2d 944, 947 (Ala. 2001).
4 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 sus-
pended sentence. Six States guarantee counsel only when the authorized
penalty is at least three or six months’ imprisonment. See Idaho Code
§§ 19–851(d)(2), 19–852(a) (1948–1997); 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. §§ 31–16–2, 31–16–3 (2000); State v. Woodruff, 124 N. M.
388, 396, n. 3, 951 P. 2d 605, 613, n. 3 (1997); Ohio Rules Crim. Proc. 2(C),
44(A) (2002); 18 Pa. Cons. Stat. § 106(c) (1998); Pa. Rules Crim. Proc.
122(A), (B) (2002); Commonwealth v. Thomas, 510 Pa. 106, 111, n. 7, 507
A. 2d 57, 59, n. 7 (1986). South Dakota does not provide counsel where
the maximum permissible sentence is 30 days’ imprisonment, S. D. Codi-
fied 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 confine-
ment,” Tex. Code Crim. Proc. Ann., Art. 26.04(b)(3) (Vernon Supp. 2002),
but the state courts have construed this provision to require appointment
only “when the court knows that the punishment it will assess includes

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680 ALABAMA v. SHELTON
Scalia, J., dissenting
sion imposes a large, new burden on a majority of the States,
including some of the poorest (e. g., Alabama, Arkansas, and
Mississippi, see U. S. Dept. of Commerce, Bureau of Census,
imprisonment or when the trial is before the jury and the possible punish-
ment includes imprisonment.” Fortner v. State, 764 S. W. 2d 934, 935
(Tex. App. 1989) (emphasis added). Thus, nothing in Texas law assures
counsel in a misdemeanor bench trial resulting in a suspended sentence.
Finally, in two of the States that appoint counsel when imprisonment is
“likely” to be imposed, the courts have not yet decided whether the likeli-
hood of a suspended sentence qualifies, but the answer—as has been held
with respect to the similarly phrased Pennsylvania statutes cited supra—
is probably no. N. J. Stat. Ann. § 2A:158A–5.2 (1985); Rodriguez v.
Rosenblatt, 58 N. J. 281, 295, 277 A. 2d 216, 223 (1971); N. C. Gen. Stat.
§ 7A–451(a)(1) (1999); State v. McCoy, 304 N. C. 363, 370, 283 S. E. 2d 788,
791–792 (1981).
The District of Columbia must also be numbered among the jurisdictions
whose law is altered by today’s decision. District of Columbia Code Ann.
§ 11–2602 (West 2001) guarantees counsel in “all cases where a person
faces a loss of liberty and the Constitution or any other law requires the
appointment of counsel.” (Emphasis added.) Today’s decision, discard-
ing the rule of Argersinger, brings suspended sentences within this
prescription.
The Court asserts that the burden of today’s decision on these juris-
dictions is small because the “circumstances in which [they] currently
allow prosecution of misdemeanors without appointed counsel are quite
narrow.” Ante, at 670, n. 10 (emphasis added). But the narrowness of
the range of circumstances covered says nothing about the number of
suspended-sentence cases covered. Misdemeanors punishable by less
than six months’ imprisonment may be a narrow category, but it may well
include the vast majority of cases in which (precisely because of the minor
nature of the offense) a suspended sentence is imposed. There is simply
nothing to support the Court’s belief that few offenders are prosecuted for
crimes in which counsel is not already provided. The Court minimizes
the burden on Pennsylvania by observing that the “summary offenses”
for which it permits uncounseled suspended sentences include such rarely
prosecuted crimes as failing to return a library book within 30 days and
fishing on Sunday. Ibid. But they also include first-offense minor retail
theft, driving with a suspended license, and harassment (which includes
minor assault). See Thomas, supra, at 109, 507 A. 2d, at 58; 75 Pa. Cons.
Stat. § 1543(b)(1) (Supp. 2002); 18 Pa. Cons. Stat. §§ 2709(a), (c)(1) (2000).
Over against the Court’s uninformed intuition, there is an amicus brief

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681 Cite as: 535 U. S. 654 (2002)
Scalia, J., dissenting
Statistical Abstract of the United States 426 (2001)). That
burden consists not only of the cost of providing state-paid
counsel in cases of such insignificance that even financially
prosperous defendants sometimes forgo the expense of hired
counsel; but also the cost of enabling courts and prosecutors
to respond to the “over-lawyering” of minor cases. See
Argersinger, supra, at 58–59 (Powell, J., concurring in re-
sult). Nor should we discount the burden placed on the mi-
nority 24 States that currently provide counsel: that they
keep their current disposition forever in place, however im-
prudent experience proves it to be.
Today’s imposition upon the States finds justification nei-
ther in the text of the Constitution, nor in the settled prac-
tices of our people, nor in the prior jurisprudence of this
Court. I respectfully dissent.
filed by States that include 2 of the 10 with exceptions that the Court calls
“narrow,” affirming that the rule the Court has adopted today will impose
“significant burdens on States.” Brief for Texas, Ohio, Montana, Ne-
braska, Delaware, Louisiana, and Virginia as Amici Curiae 22.