Scott v. Illinois and the Right to Counsel: A Decision in Search of a Doctrine 17 American Criminal Law Review 1979-1980

17 Am. Crim. L. Rev. 71 (1979-1980)
Scott v. Illinois and the Right to Counsel: A Decision in Search of a Doctrine

handle is hein.journals/amcrimlr17 and id is 81 raw text is: Scott v. Illinois and the Right to Counsel:
A Decision in Search of a Doctrine?
LAWRENCE HERMAN*
CHARLES A. THOMPSON**
In Scott v. Illinois, the Supreme Court addressed the issue of
whether the right to counsel applies whenever imprisonment is an
authorized punishment. In this article, Professors Herman and
Thompson first discuss the alternative approaches to resolving this
question. They then analyze the doctrinal and practical soundness of
the approach the Court adopted in Scott and conclude that the Court
wrongly refused to expand further the right to counsel.
I. INTRODUCTION
Notwithstanding the oft-repeated statements that the right to counsel is
the most pervasive right1 and that lawyers in criminal courts are
necessities, not luxuries;2 the United States Supreme Court recently held in
Scott v. Illinois3 that the sixth amendment right to court-appointed counsel
did not apply to a prosecution for a misdemeanor, punishable by confinement
for more than six months, if the defendant was not actually sentenced to
confinement.4 In reaching this result, the five-Justice majority did not write
on a clean slate. Seven years earlier, in Argersinger v. Hamlin,5 the Court
considered the case of a defendant who had been sentenced to ninety days'
imprisonment after having been convicted of a misdemeanor which carried a
maximum sentence of six months' confinement. The Court held that absent a
valid waiver, no person could be imprisoned for any offense unless he had
been represented by counsel. The majority opinion in Argersinger, however,
was ambiguous6 and left unresolved a number of questions, including the
major issue that surfaced in Scott: whether, without regard to actual
confinement, the right to counsel attached to a prosecution for a misdemean-
or that was punishable by more than six months' confinement.
This article will explore Scott's antecedents and analyze the decision and its
implications. It is our judgment that the Scott decision was motivated
primarily by an undifferentiated, and certainly undocumented, fear of the
*Professor of Law, The Ohio State University College of Law; A.B., 1951, LL.B., 1953, University of
Cincinnati.
** Professor of Law and Director of Clinical Programs, The Ohio State University College of Law; B.S.,
1965, Ball State University; J.D., 1969, Indiana University School of Law (Indianapolis); LL.M., 1970,
New York University.
1. Schaefer, Federalism and State Criminal Procedure, 70 HARV. L. REV. 1, 8 (1956).
2. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
3. 99 S. Ct. 1158 (1979).
4. Id. at 1162.
5. 407 U.S. 25 (1972).
6. See Scott v. Illinois, 99 S. Ct. at 1162.

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