Justice Scalia, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting.
In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), we held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense … unless he was represented by counsel at his trial.” (Emphasis added.) Although, we said, the “run of misdemeanors will not be affected” by this rule, “in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit” of appointed counsel. Id., at 40 (emphasis added). We affirmed this rule in Scott v. Illinois, 440 U.S. 367 (1979), drawing a bright line between imprisonment and the mere threat of imprisonment: “[T]he 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.” Id., at 373 (emphasis added). We have repeatedly emphasized actual imprisonment as the touchstone of entitlement to appointed counsel. See, e.g., Glover v. United States, 531 U.S. 198, 203 (2001) (“any amount of actual jail time has Sixth Amendment significance” (emphasis added)); M. L. B. v. S. L. J., 519 U.S. 102, 113 (1996) (“right [to appointed counsel] does not extend to nonfelony trials if no term of imprisonment is actually imposed” (emphasis added)); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 26 (1981) (the Court “has refused to extend the right to appointed counsel to include prosecutions which, though criminal, do not result in the defendant’s loss of personal liberty” (emphasis added)).
Today’s decision ignores this long and consistent jurisprudence, extending the misdemeanor right to counsel to cases bearing the mere threat of imprisonment. Respondent’s 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty. The Court holds that the suspended sentence violates respondent’s Sixth Amendment right to counsel because it “may ‘end up in the actual deprivation of [respondent’s] liberty,’ ” ante, at 1—2 (emphasis added), if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation, Ala. Code §15—22—54(d)(1) (1995), and if the court determines that no other punishment will “adequately protect the community from further criminal activity” or “avoid depreciating the seriousness of the violation,” §15—22—54(d)(4). And to all of these contingencies there must yet be added, before the Court’s decision makes sense, an element of rank speculation. Should all these contingencies occur, the Court speculates, the Alabama Supreme Court would mechanically apply its decisional law applicable to routine probation revocation (which establishes procedures that the Court finds inadequate) rather than adopt special procedures for situations that raise constitutional questions in light of Argersinger and Scott. Ante, at 10—11. The Court has miraculously divined how the Alabama justices would resolve a constitutional question.
But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether “imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant’s Sixth Amendment right to counsel.” Pet. for Cert. i. Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions, Hayburn’s Case, 2 Dall. 409 (1792), particularly with respect to constitutional questions (as to which we seek to avoid even non-advisory opinions, Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)), I am amazed by the Court’s conclusion that it “makes little sense” to limit today’s decision to the question presented (the constitutionality of imposing a suspended sentence on uncounseled misdemeanants) and to avoid a question not presented (the constitutionality of the “procedures that will precede its activation”). Ante, at 12.