SUPREME COURT OF THE UNITED STATES
GILBERTO GARZA, Jr., PETITIONER v.
on writ of certiorari to the supreme court of idaho
[February 27, 2019]
Justice Thomas, with whom Justice Gorsuch joins, and with whom Justice Alito joins as to Parts I and II, dissenting.
Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a. Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained. Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se
deficient and per se
prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived. In effect, this results in a “defendant-always-wins” rule that has no basis in Roe
528 U.S. 470
(2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the
Sixth Amendment. I respectfully dissent.
In 2015, in accordance with two plea agreements, Garza entered an Alford
] plea to aggravated assault and pleaded guilty to possession with intent to deliver methamphetamine. Under the terms of the plea agreements, Idaho agreed not to (1) file additional burglary and grand theft charges; (2) refer Garza for federal prosecution on a charge of unlawful possession of ammunition by a felon, see
18 U. S. C. §922(g)(1); or (3) seek a “Persistent violator” sentencing enhancement that would expose Garza to a potential life sentence, see Idaho Code Ann. §19–2514 (2017). In exchange, Garza agreed to “ ‘waiv[e] his right to appeal’ ” and his right to file a motion for correction or reduction of his sentence.[2
at 2. And both parties agreed to specific sentences totaling 10 years of imprisonment, which would be binding on the District Court if it accepted the plea agreements. See Idaho Crim. Rules 11(f )(1)(C) and (f )(3) (2017) (allowing parties to agree to a binding sentence). Thus, the judge could impose no sentence other than the 10 years for which Garza had bargained.[3
The trial court accepted the plea agreements and, as required, sentenced Garza to 10 years’ imprisonment. However, the court noted that if the cases had been “considered individually,” a “harsher sentence” might have been warranted due to Garza’s “history of violent crime” and the “gratuitous aggression” displayed by Garza in the aggravated-assault case. Record 336.
Four months later, Garza filed the petitions for postconviction relief at issue here. Among other things, he claimed that his pleas were not voluntary and that his counsel had been constitutionally ineffective for failing to file an appeal despite repeated requests that he do so. For relief, Garza requested that his sentences “run concurrent.” Id.,
at 207. The trial court appointed counsel to pursue Garza’s collateral challenges. It subsequently dismissed Garza’s claim that his plea was involuntary for “lack of supporting evidence,” but it allowed the ineffective-assistance claim to proceed. App. to Pet for Cert. 3a, 29a.
In response to Garza’s ineffective-assistance claim, Idaho submitted an affidavit from Garza’s trial counsel, which stated, “Garza indicated to me that he knew he agreed not to appeal his sentence(s) but he told me that he wanted to appeal the sentence(s)” anyway. Record 151. The trial counsel explained that he did not honor that request because “Garza received the sentence(s) he bargained for in his [Idaho Criminal Rule] 11(f )(1)(c) Agreement,” and he told Garza “that an appeal was problematic because he waived his right to appeal in his Rule 11 agreements.” Ibid.
Garza, through his newly appointed collateral counsel, admitted that the appeal waiver “was by the book,” that he “received exactly what he bargained for in exchange for his plea,” and that there was “no ambiguity” as to the appropriate sentence. Id.,
at 161–162, 276–277. Garza also conceded that, if forced to identify an issue he would raise on appeal, “[t]he only issue that could be identified is sentencing review.” Id.,
at 176, 371.
The trial court granted summary judgment to Idaho. It explained that Garza needed to identify “non-frivolous grounds for contending on appeal either that (i) the appeal waiver is invalid or unenforceable, or (ii) the issues he wants to pursue on appeal are outside the waiver’s scope.” App. to Pet. for Cert. 38a. The Idaho Court of Appeals and the Idaho Supreme Court affirmed. Notably, the Idaho Supreme Court declined to presume negligent performance because state law imposes a duty on counsel not to file frivolous litigation and to avoid taking actions that will jeopardize the benefit his client gained from the plea bargain. The Idaho Supreme Court also found Flores-Ortega
inapplicable, reasoning that once a defendant waives his appellate rights, he no longer has a right to an appellate proceeding at all.
As with most ineffective-assistance claims, a defendant seeking to show that counsel was constitutionally ineffective for failing to file an appeal must show deficient performance and prejudice. Strickland
466 U.S. 668
, 687 (1984). Relying on Flores-Ortega
, the majority finds that Garza has satisfied both prongs. In so holding, it adopts a rule whereby a criminal defendant’s invocation of the words “I want to appeal” can undo all sworn attestations to the contrary and resurrect waived statutory rights.
This rule is neither compelled by precedent nor consistent with the use of appeal waivers in plea bargaining. In my view, a defendant who has executed an appeal waiver cannot show prejudice arising from his counsel’s decision not to appeal unless he (1) identifies claims he would have pursued that were outside the appeal waiver; (2) shows that the plea was involuntary or unknowing; or (3) establishes that the government breached the plea agreement. Garza has not made any such showing, so he cannot establish prejudice. Furthermore, because Garza’s counsel acted reasonably, Garza also cannot establish deficient performance. I would therefore affirm.
The majority relies on Flores-Ortega
to create its new rule, but if anything, that decision undermines the majority’s per se
approach. In Flores-Ortega
, the defendant pleaded guilty to second-degree murder without waiving any
of his appellate rights. 528 U. S., at 473–474. On federal collateral review, the defendant alleged that his counsel was ineffective for failing to file a notice of appeal after she promised to do so. Id
., at 474. The record contained conflicting evidence as to whether the defendant had communicated his desire to appeal, and the District Court concluded that he failed to carry his burden. Id.,
at 475. The Ninth Circuit reversed, reasoning that “a habeas petitioner need only show that his counsel’s failure to file a notice of appeal was without the petitioner’s consent.” Id.,
This Court reversed. We first concluded that the Ninth Circuit’s rule “effectively impose[d] an obligation on counsel in all cases either (1) to file a notice of appeal, or (2) to discuss the possibility of an appeal with the defendant, ascertain his wishes, and act accordingly.” Id.,
at 478. We rejected “this per se
rule as inconsistent with Strickland
’s holding that ‘the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’ ” Ibid.
(quoting 466 U. S., at 688). We also faulted the Ninth Circuit for “fail[ing] to engage in the circumstance-specific reasonableness inquiry required by Strickland
.” 528 U. S., at 478. We concluded that this failure “alone mandates vacatur and remand.” Ibid.
We further explained that counsel’s failure to consult with the client about an appeal constitutes deficient performance only when counsel should
have consulted. Id.
at 479. The Court was clear: “We cannot say, as a constitutional
matter, that in every case counsel’s failure to consult with the defendant about an appeal is necessarily unreasonable.” Ibid.
In determining whether counsel has a duty to consult, we stated that “a highly relevant factor in this inquiry will be whether the conviction follows a trial or guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.” Id.
at 480. Finally, “[e]ven in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Ibid.
We rejected the argument that choosing not to consult was outside the scope of valid, strategic decisionmaking, as “we have consistently declined to impose mechanical rules on counsel.” Id.
, at 481. In sum, we “reject[ed] a bright-line rule that counsel must always consult with the defendant regarding an appeal” and instructed courts to evaluate whether the decision to consult was “reasonable” under the circumstances. Id.
, at 480–481.
We also rejected the Ninth Circuit’s “per se
prejudice rule” because it “ignore[d] the critical requirement that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.” Id.,
at 484. We held that, “to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Ibid.
After the defendant makes that showing, we held that he was entitled to a presumption of prejudice because he was denied counsel during the entire appellate proceeding, rendering it presumptively unreliable. Id.,
The Court purports to follow Flores-Ortega
, but glosses over the important factual and legal differences between that case and this one. The most obvious difference is also the most crucial: There was no appellate waiver in Flores-Ortega
. The proximate cause of the defendant’s failure to appeal in that case was his counsel’s failure to file one. Not so here. Garza knowingly waived his appeal rights and never expressed a desire to withdraw his plea. It was thus Garza’s agreement to waive his appeal rights, not his attorney’s actions, that caused the forfeiture of his appeal. Thus, Flores-Ortega
does not control cases involving defendants who voluntarily waive their appeal rights, this case should be resolved based on a straightforward application of Strickland
. Under that framework, Garza has failed to demonstrate either (1) that his counsel was deficient or (2) that he was prejudiced in any way by that alleged deficiency.
As to deficiency, “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel.” Strickland
, 466 U. S., at 688–689. Accordingly, “[ j]udicial scrutiny of counsel’s performance must be highly deferential” and focus on “the reasonableness of counsel’s challenged conduct on the facts of the particular case.” Id.,
Counsel’s choice not to appeal Garza’s sentence—the only issue Garza asked his counsel to challenge—was not only not deficient, it was the only professionally reasonable course of action for counsel under the circumstances. That is because filing an appeal would have been worse than pointless even judging by Garza’s own express desires; it would have created serious risks for Garza while having no chance at all of achieving Garza’s stated goals for an appeal. Garza had pleaded guilty under Rule 11, expressly waived his right to appeal his sentence, and stated that his desire in appealing was to have his consecutive sentences “r[u]n concurrent.” Record 207. But that kind of appeal challenges the defining feature of a Rule 11 plea: the agreed-upon sentence from which the trial court has no discretion to deviate. Here, that sentence includes the consecutive sentences that Garza agreed to, then sought to challenge. Had Garza’s counsel reflexively filed an appeal and triggered resentencing, Garza might have faced life in prison, especially in light of the trial court’s concern that the agreed-upon sentence (from which it could not deviate under Rule 11) might have been too lenient. And Garza’s admissions at the plea hearings and his written plea form could have been (and thus likely would
been) used against him if he had proceeded to trial on any additional charges filed by the State after breaching the plea agreements. See id.,
at 104 (“[S]hould the court reinstate a plea of not guilty on his behalf, the State will use Defendant’s testimony during his entry of plea of guilty and his written plea form, during the State’s case at trial”); id.,
at 92 (same).
Under these circumstances, it is eminently reasonable for an attorney to “respec[t] his client’s formal waiver of appeal” and uphold his duty “to avoid taking steps that will cost the client the benefit of the plea bargain.” Nunez
v. United States
, 546 F.3d 450, 453, 455 (CA7 2008) (Easterbrook, C. J.). And because filing an appeal places the defendant’s plea agreement in jeopardy, an attorney’s decision not to file in the face of an appellate waiver does not amount to the failure to perform “a purely ministerial task” that “cannot be considered a strategic decision.” Flores-Ortega
, 528 U. S.,
at 477. Even where state law or a plea agreement preserves limited appeal rights, an attorney does not fail to “show up for appeal” by declining to challenge a waived issue. Nunez
, at 454.
The deficiency analysis in this case would likely be different if Garza had informed his counsel that he desired to breach the plea agreements and file an appeal—despite the waiver and in full awareness of the associated risks— for the sake of an identified goal that had any hope of being advanced by the filing of an appeal. But the record shows that Garza simply sought a more lenient sentence. Since that goal could not be advanced by an appeal in this case, counsel had no duty to file one. The Constitution does not compel attorneys to take irrational means to their client’s stated ends when doing so only courts disaster.
Garza ultimately faults his plea-stage attorney for failing to put his plea agreements in jeopardy. But I have no doubt that if a similarly situated attorney breached a plea agreement by appealing a waived issue and subjected his client to an increased prison term, that defendant would argue that his counsel was ineffective for filing the appeal. What Garza wants—and what the majority gives him—is a per se
deficiency rule ensuring that criminal defendants can always blame their plea-stage counsel on collateral review, even where they did not ask counsel to appeal nonwaived claims or breach the plea agreement for the sake of some further (achievable) goal. Declining to file an appeal under these circumstances is reasonable, not deficient.
As for prejudice, Garza cannot benefit from a presumed-prejudice finding since he cannot establish that his counsel caused the forfeiture of his appeal, as Flores-Ortega
requires. Garza knowingly and voluntarily bargained away his right to appeal in exchange for a lower sentence. If any prejudice resulted from that decision, it cannot be attributed to his counsel.
It does not matter that certain appellate issues—specifically, (1) the voluntariness of the plea agreement and (2) a breach of the agreement by the State—are not waivable. Garza did not ask his counsel to appeal those issues. In fact, Garza has not identified any nonwaived issue that he would have brought on direct appeal; he simply identified “sentencing review” as his primary objective. Moreover, declining to file an appeal raising these nonwaivable claims is unlikely to be prejudicial; this Court has repeatedly stated that collateral review is a better avenue to address involuntariness and ineffective-assistance claims, as these claims often require extra- record materials and present conflicts with counsel. See generally Massaro
v. United States
538 U.S. 500
The Court’s decision in McCoy
, 584 U. S. ___ (2018), does not change the analysis. McCoy
acknowledges that some decisions are “reserved for the client,” including the decision whether to “forgo an appeal.” Id.,
at ___ (slip op., at 6). But Garza exercised his right to decide whether to appeal. He chose not to when he entered the plea agreements. Like many constitutional and statutory rights, the right to appeal can be waived by the defendant, and once that choice is finally made, the defendant is bound by the decision and cannot fault his attorney for the self-inflicted prejudicial effects that he suffers. For instance, a defendant cannot waive his right against self-incrimination by testifying at his trial, and then claim that his attorney prejudiced him by not moving to strike his damaging testimony from the record. Nor can a defendant waive his right to a jury trial, and then later claim prejudice when his attorney declines to seek a mistrial on the ground that the judge found him guilty. In the same way, Garza was not prejudiced by his attorney’s refusal to file an appeal challenging his sentence, a right that he had expressly waived. The lack of prejudice is especially pronounced in this case, as Garza’s instruction to appeal did not acknowledge that he wanted to challenge or rescind the plea agreements.
There is no persuasive reason to depart from an ordinary Strickland
analysis in cases involving an attorney’s decision to honor his client’s agreement to waive his appeal rights. Garza contends that it is unfair to require pro se
defendants to identify the issues they would have raised on appeal. But pro se
defendants always bear the burden of showing ineffective assistance of counsel; I see no reason why this kind of ineffective-assistance claim should be any different. Regardless, Garza’s fairness argument rings hollow because Garza has been represented by counsel at every stage of this collateral litigation and has yet to articulate a single nonfrivolous, nonwaived issue that he would have raised on appeal. His inability to identify any issues that he preserved simply underscores the fact that he waived them all.
The Court’s rule may be easy to “administ[er],” ante
, at 13, but it undermines the finality of criminal judgments—a primary purpose of plea agreements—and disadvantages the public by allowing defendants to relitigate issues that they waived in exchange for substantial benefits. The Court’s rule also burdens the appellate courts that must address the new, meritless appeals authorized by today’s decision. And, ironically, the Court’s rule may prejudice the defendants it is designed to help, as prosecutors may understandably be less willing to offer generous plea agreements when courts refuse to afford the government the benefit of its
bargain—fewer resources spent defending appeals.
Finally, because Garza’s requested relief is categorically barred by the plea agreements, the majority offers Garza an appeal he is certain to lose. And should Garza accept the majority’s invitation, he could give up much more. If Garza appeals his sentence and thereby breaches his plea agreements, Idaho will be free to file additional charges against him, argue for a “Persistent violator” sentencing enhancement that could land him in prison for life, and refer him for federal prosecution. It simply defies logic to describe counsel’s attempt to avoid those consequences as deficient or prejudicial.
In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the
Sixth Amendment. The
Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That provision “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Padilla
559 U.S. 356
, 389 (2010) (Scalia, J., dissenting). Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective
counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area.
Sixth Amendment right to the assistance of counsel grew out of the Founders’ reaction to the English common-law rule that denied counsel for treason and felony offenses with respect to issues of fact, while allowing counsel for misdemeanors. See 4 W. Blackstone, Commentaries on the Laws of England 349–350 (1769); 1 J. Stephen, A History of the Criminal Law of England 341 (1883); Powell
287 U.S. 45
, 60 (1932) (“Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest”). It was not until 1696 that England created a narrow exception to this rule for individuals accused of treason or misprision of treason—by statute, Parliament provided both that the accused may retain counsel and that the court must appoint counsel if requested. 7 & 8 Will. 3, ch. 3, §1. Only in 1836 did England permit all criminally accused to appear and defend with counsel, and even then it did not require court-appointed counsel at government expense. 6 & 7 Will. 4, ch. 114, §1. It would be another 67 years—112 years after the ratification of the
Sixth Amendment, and 35 years after the ratification of the
Fourteenth Amendment—before England provided court-appointed counsel for all felonies. Poor Prisoners’ Defence Act, 1903, 3 Edw. 7, ch. 38, §1.
The traditional common-law rule that there was no right to assistance of counsel for felony offenses received widespread criticism. As Blackstone noted, this rule “seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law.” 4 Blackstone, Commentaries on the Laws of England, at 349; see ibid.
(“[U]pon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass”). The founding generation apparently shared this sentiment, as most States adopted some kind of statutory or constitutional provision providing the accused the right to retain counsel. W. Beaney, The Right to Counsel in American Courts 14–22 (1955). In fact, at least 12 of the 13 States at the ratification of the Constitution had rejected the English common-law rule, providing for the right to counsel in at least some circumstances. See Powell
, 287 U. S., at 64–65; id.,
at 61–64 (surveying the States’ right-to-counsel provisions); see also Betts
316 U.S. 455
, 465–467 (1942) (discussing early state constitutional provisions), overruled by Gideon
372 U.S. 335
(1963). Read against this backdrop, the
Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.
This understanding—that the
Sixth Amendment did not require appointed counsel for defendants—persisted in the Court’s jurisprudence for nearly 150 years. See United States
v. Van Duzee
140 U.S. 169
, 173 (1891) (“There is, however, no general obligation on the part of the government [to] retain counsel for defendants or prisoners”); Bute
333 U.S. 640
, 661, n. 17 (1948) (“It is probably safe to say that from its adoption in 1791 until 1938, the right conferred on the accused by the
Sixth Amendment . . . was not regarded as imposing on the trial judge in a Federal court the duty to appoint counsel for an indigent defendant”). Nor evidently was there any suggestion that defendants could mount a constitutional attack based on their counsel’s failure to render effective assistance.[4
The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. Powell
, at 71. Soon thereafter, the Court held that the
Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson
304 U.S. 458
, 462–463 (1938). And in 1963, the Court applied this categorical rule to the States through the
Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon
at 344. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right . . . to have the Assistance of Counsel.” Amdt. 6.
After the Court announced a constitutional right to appointed counsel rooted in the
Sixth Amendment, it went on to fashion a constitutional new-trial remedy for cases in which counsel performed poorly. The Courts of Appeals had initially adopted a “farce and mockery” standard that they rooted in the Due Process Clause. This standard permitted a defendant to make out an ineffective-assistance claim only “where the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice.” Diggs
, 148 F.2d 667, 670 (CADC 1945); see Bottiglio
v. United States
, 431 F.2d 930, 931 (CA1 1970) (per curiam
, 354 F.2d 698, 704
(CA5 1965); Frand
v. United States
, 301 F.2d 102, 103 (CA10 1962); O’Malley
v. United States
, 285 F.2d 733, 734 (CA6 1961); Snead
, 273 F.2d 838, 842 (CA4 1959); Cofield
v. United States
, 263 F.2d 686, 689 (CA9), vacated on other grounds,
360 U.S. 472
v. United States
, 254 F.2d 239, 240 (CA8 1958); United States ex rel. Feeley
, 166 F.2d 976, 980–981 (CA7 1948); United States
, 176 F.2d 376, 379 (CA2 1949).
Beginning in 1970, the Courts of Appeals moved from the “farce and mockery” standard to a “reasonable competence” standard. See Trapnell
v. United States
, 725 F.2d 149, 151–152 (CA2 1983) (collecting cases).
That same year, this Court similarly held that defendants are “entitled to the effective assistance of competent counsel,” defined as receipt of legal advice that is “within the range of competence demanded of attorneys in criminal cases.” McMann
397 U.S. 759
, 771 (1970).
Then, in Strickland
, the Court crafted the current standard for evaluating claims of ineffective assistance of counsel. Without discussing the original meaning of the
Sixth Amendment, the Court stated that “[t]he
Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” 466 U. S.,
at 685. The Court thus held that, to succeed on an ineffective-assistance claim, the defendant must show (1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.,
at 688, 694. The Court applies this standard in most situations, but, as it does today, it has also created an increasing number of per se
rules in lieu of applying Strickland
’s fact-specific inquiry, thereby departing even further from the original meaning of the
There are a few problems with these precedents that should cause us to pause before extending them. First, the ineffective-assistance standard apparently originated not in the
Sixth Amendment, but in our Due Process Clause jurisprudence. See McMann
, at 771, n. 14. Second, “[t]he Constitution, by its terms, does not mandate any particular remedy for violations of its own provisions.” United States
548 U.S. 140
, 157 (2006) (Alito, J., dissenting); cf. Collins
, 584 U. S. ___, ___–___ (2018) (Thomas, J., concurring) (slip op., at 2–5) (explaining that the exclusionary rule is not required by the
Fourth Amendment). Strickland
does not explain how the Constitution requires a new trial for violations of any right to counsel.
Third, our precedents seek to use the
Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney. The structural protections provided in the
Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.
The Court should hesitate before further extending our precedents and imposing additional costs on the taxpayers and the Judiciary.[5
] History proves that the States and the Federal Government are capable of making the policy determinations necessary to assign public resources for appointed counsel. The Court has acknowledged as much. Betts
, 316 U. S., at
471 (declining to extend the right to counsel to the States because “the matter has generally been deemed one of legislative policy”). Before the Court decided Gideon
, the Court noted that “most of the States have by legislation authorized or even required the courts to assign counsel for the defense of indigent and unrepresented prisoners. As to capital cases, all the States so provide. Thirty-four States so provide for felonies and 28 for misdemeanors.” Bute
, 333 U. S., at 663 (internal quotation marks omitted). It is beyond our constitutionally prescribed role to make these policy choices ourselves. Even if we adhere to this line of precedents, our dubious authority in this area should give us pause before we extend these precedents further.