678
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 National 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 restricted 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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