680
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 punishment 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 likelihood 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, discarding the rule of Argersinger, brings suspended sentences within this prescription.
The Court asserts that the burden of today's decision on these jurisdictions 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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