opinion: SCOTT v. ILLINOIS
  No. 77-1177.
  Argued December 4, 1978
  Decided March 5, 1979
  Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 374. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 375. Blackmun, J., filed a dissenting opinion, post, p. 389.
  John S. Elson argued the cause and filed briefs for petitioner.
  Gem Papushkewych, Assistant Attorney General of Illinois, argued the cause for respondent. With her on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.
  Howard B. Eisenberg filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal.
  Mr. Justice Rehnquist
  delivered the opinion of the Court.
  We granted certiorari in this case to resolve a conflict among state and lower federal courts regarding the proper application of our decision in Argersinger v. Hamlin, 407 U. S. 25 (1972). 436 U. S. 925. Petitioner Scott was convicted of theft and fined $50 after a bench trial in the Circuit Court of Cook County, Ill. His conviction was affirmed by the state intermediate appellate court and then by the Supreme Court of Illinois, over Scott's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that Illinois provide trial counsel to him at its expense.
  Petitioner Scott was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both. The petitioner argues that a line of this Court’s cases culminating in Argersinger v. Hamlin, supra, requires state provision of counsel whenever imprisonment is an authorized penalty.
  The Supreme Court of Illinois rejected this contention, quoting the following language from Argersinger:
  “We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U. S., at 37.
  “Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.” Id., at 40.
  The Supreme Court of Illinois went on to state that it was “not inclined to extend Argersinger” to the case where a defendant is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant. 68 Ill. 2d 260, 272, 360 N. E. 2d 881, 882 (1077). We agree with the Supreme Court of Illinois that the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant such as petitioner, and we therefore affirm its judgment.
  In his petition for certiorari, petitioner referred to the issue in this case as “the question left open in Argersinger v. Hamlin, 407 U. S. 25 (1072).” Pet. for Cert. 5. Whether this question was indeed “left open” in Argersinger depends upon whether one considers that opinion to be a point in a moving line or a holding that the States are required to go only so far in furnishing counsel to indigent defendants. The Supreme Court of Illinois, in quoting the above language from Argersinger, clearly viewed the latter as Argersinger’s holding. Additional support for this proposition may be derived from the concluding paragraph of the opinion in that case:
  “The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary where one’s liberty is in jeopardy.” 407 U. S., at 40.
  Petitioner, on the other hand, refers to language in the Court’s opinion, responding to the opinion of Mr. Justice Powell, which states that the Court “need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved . . . for here petitioner was in fact sentenced to jail.” Id., at 37.
  There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense. W. Beaney, The Right to Counsel in American Courts 27-30 (1955). In Powell v. Alabama, 287 U. S. 45 (1932), the Court held that Alabama was obligated to appoint counsel for the Scottsboro defendants, phrasing the inquiry as “whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.” Id., at 52. It concluded its opinion with the following language:
  “The United States by statute and every state in the Union by express provision of law, or by the determination of its courts, make it the duty of the trial judge, where the accused is unable to employ counsel, to appoint counsel for him. In most states the rule applies broadly to all criminal prosecutions, in others it is limited to the more serious crimes, and in a very limited number, to capital cases. A rule adopted with such unanimous accord reflects, if it does not establish, the inherent right to have counsel appointed, at least in cases like the present, and lends convincing support to the conclusion we have reached as to the fundamental nature of that right." Id., at 73.
  Betts v. Brady, 316 U. S. 455 (1942), held that not every indigent defendant accused in a state criminal prosecution was entitled to appointment of counsel. A determination had to be made in each individual case whether failure to appoint counsel was a denial of fundamental fairness. Betts was in turn overruled in Gideon v. Wainwright, 372 U. S. 335 (1963). In Gideon, Betts was described as holding “that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment . . . .” 372 U. S., at 339.
  Several Terms later the Court held in Duncan v. Louisiana, 391 U. S. 145 (1968), that the right to jury trial in federal court guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment. The Court held, however: “It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses . . . .” Id., at 159 (footnote omitted). In Baldwin v. New York, 399 U. S. 66, 69 (1970), the controlling opinion of Mr. Justice White concluded that “no offense can be deemed 'petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”
  In Argersinger the State of Florida urged that a similar dichotomy be employed in the right-to-counsel area: Any offense punishable by less than six months in jail should not require appointment of counsel for an indigent defendant. The Argersinger Court rejected this analogy, however, observing that “the right to trial by jury has a different genealogy and is brigaded with a system of trial to a judge alone.” 407 U. S., at 29.
  The number of separate opinions in Gideon, Duncan, Baldwin, and Argersinger, suggests that constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another. The process of incorporation creates special difficulties, for the state and federal contexts are often different and application of the same principle may have ramifications distinct in degree and kind. The range of human conduct regulated by state criminal laws is much broader than that of the federal criminal laws, particularly on the “petty” offense part of the spectrum. As a matter of constitutional adjudication, we are, therefore, less willing to extrapolate an already extended line when, although the general nature of the principle sought to be applied is clear, its precise limits and their ramifications become less so. We have now in our decided cases departed from the literal meaning of the Sixth Amendment. And we cannot fall back on the common law as it existed prior to the enactment of that Amendment, since it perversely gave less in the way of right to counsel to accused felons than to those accused of misdemeanors. See Powell v. Alabama, supra, at 60.
  In Argersinger the Court rejected arguments that social cost or a lack of available lawyers militated against its holding, in some part because it thought these arguments were factually incorrect. 407 U. S., at 37 n. 7. But they were rejected in much larger part because of the Court’s conclusion that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense, regardless of the cost to the States implicit in such a rule. The Court in its opinion repeatedly referred to trials “where an accused is deprived of his liberty,” id., at 32, and to “a case that actually leads to imprisonment even for a brief period,” id., at 33. The Chief Justice in his opinion concurring in the result also observed that “any deprivation of liberty is a serious matter.” Id., at 41.
  Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings. Even were the matter res nova, we believe that 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. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. The judgment of the Supreme Court of Illinois is accordingly
  Affirmed.
  Compare, e. g., Potts v. Estelle, 529 F. 2d 450 (CA5 1976); State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N. W. 2d 791 (1977), with Sweeten v. Sneddon, 463 F. 2d 713 (CA10 1972); Rollins v. State, 299 So. 2d 586 (Fla.), cert. denied, 419 U. S. 1009 (1974).
  Ill. Rev. Stat., ch. 38, § 16-1 (1969). The penalty provision of the statute, at the time in question, provided in relevant part:
  “A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. . . .”
  Brief for Respondent in Argersinger v. Hamlin, O. T. 1971, No. 70-5015, p. 12.
  We note that the line drawn in Argersinger was with full awareness of the various options. Both the petitioner in that case and the Legal Aid Society of New York, as amicus curiae, argued that the right to appointed counsel should pertain in any case in which imprisonment was an authorized penalty for the underlying offense. Brief for Petitioner in Argersinger v. Hamlin, O. T. 1971, No. 70-5015, p. 4; Brief for Legal Aid Society of New York as Amicus Curiae in Argersinger v. Hamlin 5-11. Respondent Florida and the amici States urged that the line be drawn as it had been in Baldwin for purposes of the jury trial guarantee. See, e. g., Brief for Respondent in Argersinger v. Hamlin 12. The Solicitor General argued for the standard that was finally adopted — that of actual imprisonment. Brief for United States as Amicus Curiae in Argersinger v. Hamlin 22-24.
  Unfortunately, extensive empirical work has not been done. That which exists suggests that the requirements of Argersinger have not proved to be unduly burdensome. See, e. g., Ingraham, The Impact of Argersinger—One Year Later, 8 Law & Soc. Rev. 615 (1974). That some jurisdictions have had difficulty implementing Argersinger is certainly not an argument for extending it. S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases 1-18 (1976).
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