758
Blackmun, J., dissenting
conviction sufficiently reliable to justify additional jail time imposed under an enhancement statute? Because imprisonment is a punishment "different in kind" from fines or the threat of imprisonment, Scott, 440 U. S., at 373, we consistently have read the Sixth Amendment to require that courts decrease the risk of unreliability, through the provision of counsel, where a conviction results in imprisonment. That the sentence in Scott was imposed in the first instance and the sentence here was the result of an enhancement statute is a distinction without a constitutional difference.
The Court also defends its position by arguing that the process of sentencing traditionally is "less exacting" than the process of establishing guilt. Ante, at 747. This may be true as a general proposition,2 but it does not establish that
2 In support of its position, the majority cites several cases that refer to a sentencing judge's traditional discretion. The cases provide scant, if any, support for the majority's rule sanctioning the use of prior uncounseled convictions as the basis for increased terms of imprisonment. None even addresses the Sixth Amendment guarantee of counsel.
In McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court held 5 to 4 that a state statute defining visible possession of a firearm as a sentencing consideration that could be proved by a preponderance of the evidence, rather than as an element of the crime that must be proved beyond a reasonable doubt, did not violate due process. McMillan did not involve the use of a prior conviction in a subsequent proceeding. Additionally, McMillan involved only felony convictions, in which the defendants were entitled to counsel at every step of the proceedings to assist in proving or disproving the facts to be relied on in sentencing. The Court also noted that the "risk of error" in the challenged proceeding was "comparatively slight" because visible possession was "a simple, straightforward issue susceptible of objective proof." Id., at 84. The same cannot be said for the reliability of prior uncounseled misdemeanors. See Argersinger v. Hamlin, 407 U. S. 25, 34 (1972) (observing that the volume of misdemeanor cases "may create an obsession for speedy dispositions, regardless of the fairness of the result"); id., at 35 (noting that " '[t]he misdemeanor trial is characterized by insufficient and frequently irresponsible preparation,' " quoting Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970)). Moreover, a finding of visible possession did not expose a defendant to a greater or
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007