middendorf henry argued january decided march together henry et al middendorf secretary navy et also certiorari uniform code military justice ucmj provides four methods disposing cases involving servicemen offenses general special summary disciplinary punishment pursuant art ucmj general special may impose substantial penalties resemble judicial proceedings nearly always presided lawyer judges lawyer counsel sides article punishment conducted personally accused commanding officer administrative method dealing minor offenses summary lying informal art procedure judicial procedures general special designed exercise justice promptly relatively minor offenses informal proceeding conducted single commissioned officer acting judge factfinder prosecutor defense counsel jurisdiction noncommissioned officers enlisted personnel impose maximum sentences days confinement hard labor days hard labor without confinement two months restriction specified limits reduction lowest enlisted pay grade forfeiture pay one month accused consent trial summary case either referred special general dismissed various enlisted members marine corps hereinafter plaintiffs charged part unauthorized absences brought class action district challenging authority military try summary without providing counsel plaintiffs consented writing tried summary without counsel advised tried special counsel provided apprised maximum sentences imposable two procedures district entered judgment plaintiffs appeals vacated judgment remanded case reconsideration light opinion daigle warner wherein held right counsel sixth amendment summary absolute fifth amendment due process right every case military defendant might imprisoned line gagnon scarpelli counsel required accused makes request based timely colorable claim defense mitigating circumstances assistance counsel necessary order adequately present defense held sixth amendment right counsel summary since proceeding criminal prosecution term used amendment pp even civilian context fact proceeding result loss liberty ipso facto mean proceeding criminal prosecution sixth amendment purposes gagnon scarpelli supra gault taken account summary occurs military rather civilian community considerations supporting conclusion criminal prosecution least strong factors held dispositive cases charges plaintiffs counterpart carry little popular opprobrium penalties comparable civilian sanctions pp summary unlike criminal trial adversary proceeding pp due process clause fifth amendment require counsel provided accused summary proceeding pp though loss liberty may result summary implicates due process question whether embodies right counsel depends upon analysis interests accused regime subject making analysis deference must given congress determination art constitution counsel provided type proceeding supporting congress decision fact presence counsel convert brief informal hearing may readily convened concluded attenuated proceeding time military personnel thus consuming military resources unwarranted degree see ex rel toth quarles pp accused feels counsel essential situation envisaged appeals reliance daigle warner supra may elect trial counsel provided special proceeding though thus expose possibility greater penalties decision involving kind choice often occurs civilian criminal cases constitutionally decisive pp rehnquist delivered opinion burger white blackmun powell joined powell filed concurring opinion blackmun joined post stewart filed dissenting statement post marshall filed dissenting opinion brennan joined post stevens took part consideration decision cases harvey stone argued cause pro hac vice petitioners respondents reargument deputy solicitor general frey argued cause parties original argument stone brief solicitor general bork assistant attorney general petersen harriet shapiro sidney glazer merlin staring robertson max halliday nathan zahm reargued cause petitioners respondents briefs wirin fred okrand david addlestone thomas geisler justice rehnquist delivered opinion february plaintiffs enlisted members marine corps brought class action district central district california challenging authority military try summary without providing counsel five plaintiffs charged unauthorized absences violation art ucmj convicted summary sentenced inter alia periods confinement ranging days hard labor three plaintiffs two charged inter alia unauthorized absence one assault art ucmj ordered stand trial summary convened convicted provided counsel awaiting trial informed counsel provided convicted plaintiffs informed prior trial afforded counsel refuse trial summary desired event refusal cases referred special counsel provided plaintiffs consented writing proceed trial summary without counsel plaintiffs records reviewed approved staff judge advocate pursuant art ucmj plaintiffs file petition review judge advocate general navy pursuant art ucmj district plaintiffs brought class action seeking habeas corpus release confinement injunction future confinement resulting uncounseled summary convictions order vacating convictions previously convicted district allowed suit proceed class action expunged plaintiffs convictions released plaintiffs members class confinement issued worldwide injunction summary without counsel disposition case merits occasion reach question whether fed rule civ proc providing class actions applicable petitions habeas corpus see harris nelson whether district properly determined remedial order entitled enforced outside territorial limits district sat appeals vacated judgment district remanded case reconsideration light appeals opinion daigle warner daigle held sixth amendment right counsel summary likewise held absolute fifth amendment due process right counsel every case military defendant might imprisoned however citing gagnon scarpelli hold counsel required accused makes request based timely colorable claim defense mitigating circumstances assistance counsel necessary order adequately present defense mitigating circumstances daigle made exception general rule cases counsel reasonably available instance required granted certiorari ucmj provides four methods disposing cases involving offenses committed servicemen general special summary disciplinary punishment administered commanding officer pursuant art ucmj general special resemble judicial proceedings nearly always presided lawyer judges lawyer counsel prosecution defense general authorized award lawful sentence including death art ucmj special may award discharge six months confinement hard labor forfeiture pay per month six months case enlisted member reduction lowest pay grade art ucmj article punishment conducted personally accused commanding officer administrative method dealing minor offenses parker levy summary occupies position informal nonjudicial disposition art procedure general special purpose exercise justice promptly relatively minor offenses simple form procedure manual mcm informal proceeding conducted single commissioned officer jurisdiction noncommissioned officers enlisted personnel art ucmj presiding officer acts judge factfinder prosecutor defense counsel presiding officer must inform accused charges name accuser call witnesses accused desires call mcm accused must consent trial summary trial may ordered special general maximum sentence elements may imposed summary one month confinement hard labor days hard labor without confinement two months restriction specified limits reduction lowest enlisted pay grade forfeiture pay one month art ucmj ii question whether accused constitutional right counsel much debated never squarely resolved see reid covert dicta ex parte milligan wall said framers constitution doubtless meant limit right trial jury sixth amendment persons subject indictment presentment fifth ex parte quirin said cases arising land naval forces expressly excepted fifth amendment deemed excepted implication sixth find unnecessary case finally resolve broader aspects question since conclude even sixth amendment held applicable proceedings summary provided cases criminal prosecution within meaning amendment conclusion course answer ultimate question whether plaintiffs entitled counsel summary proceeding shift frame reference sixth amendment guarantee counsel criminal prosecutions fifth amendment prohibition deprivation life liberty property without due process law argersinger hamlin held sixth amendment provision assistance counsel extended misdemeanor prosecutions civilian courts conviction result imprisonment summary may impose days confinement hard labor doubtless military equivalent imprisonment yet fact outcome proceeding may result loss liberty even civilian life mean sixth amendment guarantee counsel applicable gagnon scarpelli respondent faced prospect sent prison result revocation probation held revocation proceeding nonetheless criminal proceeding took pains case observe critical differences criminal trials probation parole revocation hearings society probationer parolee stakes preserving differences criminal trial state represented prosecutor formal rules evidence force defendant enjoys number procedural rights may lost timely raised jury trial defendant must make presentation understandable untrained jurors short criminal trial system adversary proceeding unique characteristics revocation hearing hand state represented prosecutor parole officer orientation described formal procedures rules evidence employed members hearing body familiar problems practice probation parole mean indicate hearing held must conform requirements criminal trial even usual administrative hearing hold hearing must measure essentials due process fair treatment summary noted one four types proceedings military imposes discipline punishment remove holding argersinger civilian context apply require counsel summary proceeding simply loss liberty may result proceeding seem inescapable counsel likewise required lowest level military proceeding dealing minor offenses even art nonjudicial punishment may imposed administratively commanding officer may result imposition upon enlisted man correctional custody hard labor consecutive days think analysis made cases gagnon gault well considerations peculiar military counsel mechanical application argersinger admittedly gagnon distinguishable defendant earlier sentenced close orthodox criminal prosecution gault distinguishable juvenile faced possible initial confinement result proceeding question nevertheless based conclusion counsel required due process clause fourteenth amendment rather determination hearing criminal prosecution within meaning sixth amendment seems us indisputably clear therefore even civilian context fact proceeding result loss liberty ipso facto mean proceeding criminal prosecution purposes sixth amendment fact confinement imposed first instance result proceeding make criminal prosecution consider addition fact summary occurs military community rather civilian community believe considerations supporting conclusion criminal prosecution least strong held dispositive gagnon gault dissent points post gault gave weight rehabilitative purpose juvenile proceedings involved factor present summary undoubtedly gault gagnon factually distinguishable summary proceeding together surely stand proposition even civilian community proceeding may result deprivation liberty nonetheless criminal proceeding within meaning sixth amendment elements sufficiently distinguish traditional civilian criminal trial summary proceeding likewise different traditional trial many respects important occurs within military community latter factor long line decisions every bit significant every bit entitled given controlling weight fact gagnon defendant previously sentenced fact gault proceeding rehabilitative purpose recently noted difference diverse civilian community much tightly regimented military community parker levy said ucmj equated civilian criminal code various versions articles war preceded regulate aspects conduct members military civilian sphere left unregulated civilian criminal code carves relatively small segment potential conduct declares criminal uniform code military justice essays varied regulation much larger segment activities tightly knit military community ibid much conduct proscribed military criminal conduct civilian sense word example plaintiffs charged solely unauthorized absence offense counterpart carries little popular opprobrium conviction offense likely consequences accused beyond immediate punishment meted military unlike conviction civilian misdemeanors vagrancy larceny carry stamp bad character conviction token penalties may meted summary limited one month confinement hard labor days hard labor without confinement two months restriction specified limits sanctions may imposed affecting property interest limited reduction grade attendant loss pay forfeiture detention portion one month pay finally summary procedurally quite different criminal trial first place adversary proceeding yet adversary nature civilian criminal proceedings one touchstones sixth amendment right counsel extended petty offenses argersinger hamlin argersinger relied gideon wainwright held adversary system criminal justice person haled assured fair trial unless counsel provided seems us obvious truth governments state federal quite properly spend vast sums money establish machinery try defendants accused crime lawyers prosecute everywhere deemed essential protect public interest orderly society accused extended right witness summary aid accused accused desires ask questions suggested accused behalf accused obtain attendance witnesses administer oath examine obtain evidence may tend disprove negative guilt charges explain acts omissions charged show extenuating circumstances establish grounds mitigation determining findings explain accused right testify merits remain silent give accused full opportunity exercise election mcm iii appeals likewise concluded sixth amendment right counsel summary proceedings applying due process standards fifth amendment adopted standard gagnon scarpelli made right counsel depend upon nature serviceman defense unable agree appeals properly applied gagnon military context recognize plaintiffs either convicted due appear summary may subjected loss liberty property consequently entitled due process law guaranteed fifth amendment however whether process embodies right counsel depends upon analysis interests individual regime subject wolff mcdonnell making analysis must give particular deference determination congress made authority regulate land naval forces art counsel provided summary held burns wilson rights men armed forces must perforce conditioned meet certain overriding demands discipline duty civil courts agencies must determine precise balance struck adjustment framers especially entrusted task congress omitted given one member military appeals took issue claim military necessity taking latter chief judge darden statements applying least equal force members left congress previous determination counsel required thus need decide whether factors militating favor counsel summary extraordinarily weighty overcome balance struck congress first consider effect providing counsel summary observed gagnon scarpelli supra introduction counsel proceeding alter significantly nature proceeding counsel provided accused state turn normally provide counsel lawyers training disposition advocates bound professional duty present available evidence arguments support clients positions contest vigor adverse evidence views observed ex rel toth quarles primary business armies navies fight ready fight wars occasion arise trial soldiers maintain discipline merely incidental army primary fighting function extent responsible performance primary function diverted necessity trying cases basic fighting purpose armies served ilitary tribunals probably never constituted way kind qualifications constitution deemed essential fair trials civilians federal courts timely colorable claim defense mitigating circumstances assistance counsel necessary order adequately present defense mitigating circumstances true exercising option accused subjects greater possible penalties imposed special proceeding however find possible detriment constitutionally decisive frequently approved much difficult decision daily faced civilian criminal defendants plead guilty lesser included offense brady case defendant gives right counsel right trial furthermore elects exercise right trial stands convicted serious offense likely bear increased penalties choices necessary part criminal justice system criminal process like rest legal system replete situations requiring making difficult judgments course follow mcmann richardson although defendant may right even constitutional dimensions follow whichever course chooses constitution token always forbid requiring choose mcgautha california reversed justice stewart dissents believing due process clause fifth amendment requires defendant accorded assistance counsel summary proceeding footnotes including two among original six plaintiffs later intervened one plaintiffs also charged several offenses including assault superior noncommissioned officer art uniform code military justice ucmj plaintiffs informed consented pursuant terms navy staff judge advocate memorandum force el toro marine corps air station plaintiffs stationed record example plaintiff henry following entry appears record accused advised tried summary represented appointed military counsel instead summary officer thoroughly impartially inquire sides matter assure interests government accused safeguarded case referred special sic provided counsel addition accused informed maximum punishment imposable case summary sic special sic foregoing statutory rights counsel special sic least one plaintiff mclean found guilty certain charges summary upon review supervisory authority level guilty findings certain charges upon convicted reversed plaintiffs arguably failed exhaust military remedies however defendants urge exhaustion required practice judge advocate general defer consideration petitions issue pending completion litigation issue federal courts since exhaustion requirement designed protect military undue interference federal courts schlesinger councilman military waive requirement feels review federal courts necessary see sosna iowa class included members navy marine corps required date order stand trial summary afforded counsel supp features mandatory general special may seldom convened without military judge cases senior member presides appointed defense counsel special required attorney unless attorney obtained physical conditions military exigencies addition appointed counsel general special accused may retain civilian counsel expense may represented military lawyer selection lawyer reasonably available arts ucmj maximum punishments may imposed art days correctional custody days restriction specified limits days extra duties forfeiture one month pay per month two months detention one month pay per month three months reduction grade enlisted members attached embarked vessel may sentenced three days confinement bread water diminished rations correctional custody necessarily confinement intended served way allows normal performance duty together intensive counselling persons serving correctional custody however may confined art see department navy secnav inst corrections manual june department army pamphlet correctional custody june department air force reg correctional custody additionally officer must inform accused right remain silent allow witnesses summary officer accused may testify present evidence behalf accused found guilty may make statement sworn unsworn extenuation mitigation mcm record trial reviewed convening officer art ucmj thereafter judge advocate art ucmj sentence elements may imposed one sentence enlisted persons fourth enlisted pay grade may sentenced confinement hard labor summary reduced except next inferior grade mcm compare wiener bill rights original practice harv rev finds historic precedent application right counsel henderson constitution original understanding harv rev concludes original intent framers apply sixth amendment right counsel military compare daigle warner betonie sizemore since brother marshall analysis sixth amendment applies military appear right counsel right jury trial likewise guaranteed amendment come duncan louisiana right presumably obtain cases summary short periods confinement may impose surely apply special general empowered impose sentences far excess held duncan maximum imposed without jury whatever may merits selective incorporation fourteenth amendment sixth amendment makes absolutely distinction right jury trial right counsel chief judge darden dissenting alderman made similar observation may argued counsel required summary since constitute criminal convictions article proceedings nonjudicial corrective nature effect confinement former correctional custody latter difficult distinguish see gault consequently difficulty sustaining position counsel must provided summary may dispensed article proceedings may result correctional custody section provides commanding officer grade major lieutenant commander may impose inter alia consecutive days correctional custody ii duty hours may include hard labor brother marshall argues post nn military considers summary conviction criminal admiral hearn navy judge advocate general describe convictions criminal state commanding officer decision utilize summary opposed art administrative punishment might turn judgment best interests service begin put record infractions serviceman accumulated several art punishments type offense joint hearings military justice subcommittee constitutional rights senate committee judiciary special subcommittee senate committee armed services hearings army assistant judge advocate general pointed one advantage summary held accused art proceeding latter adjudged company commander nominal accuser whereas summary knows nothing case ibid dissent also refers us army acknowledgment collateral consequences flowing summary conviction post quoted text portion army written response following question effects serviceman career conviction summary special disjunctive question makes impossible tell whether portion quoted addressed special summary finally whatever conclusions may drawn author article rev cited dissent post impact summary conviction little aid present considerations article written inception ucmj operation year discusses sentencing terms interaction code corresponding manual course undergone substantial revision intervening years lightly assumed author conclusions drawn time valid respect present ucmj mcm manner currently implemented various services brother marshall notes post technically even serious noncapital ucmj offenses may tried summary little practical effect upon serviceman accused given ceilings punishments imposed art seem inconceivable serious charge striking commissioned officer art ucmj general impose sentence ever prosecuted impose maximum confinement hard labor one month occurred accused charged summary doubt delighted good fortune fact dissent notes post summary conducted navy nonmilitary offenses regard figure substantial sense dissent apparently held johnson zerbst sixth amendment embodies realistic recognition obvious truth average defendant professional legal skill protect brought tribunal power take life liberty wherein prosecution presented experienced learned counsel one factors discussed nature proceedings offenses punishments necessarily dispositive rather three combine distinctive nature military life discipline lead conclusion dissent discussing factors independently attempting demonstrate factor stand force come grips analysis judge quinn broad view applicability bill rights members military well established concurring culp stated protections run armed forces unless excluded directly necessary implication provisions constitution see also jacoby prior enactment ucmj positive law suggested summary abolished congress rejected suggestion instead provided person tried summary objected thereto unless previously refused art punishment stat prior amendments code elimination summary proposed rejected subcommittee constitutional rights senate committee judiciary summary report hearings constitutional rights military personnel instead art exception right refuse eliminated compromise favoring retention summary abolish thus apparent congress considered matter depth period confinement may imposed summary stands marked contrast period confinement minimum three years imposed juvenile proceeding gault article ucmj provides pertinent part person respect summary jurisdiction may brought trial summary objects thereto article ucmj provides accused right represented defense general special civilian counsel provided military counsel selection reasonably available defense counsel detailed section title dissent criticizes failure discuss gault supra point gault inapposite contrary assertion dissent post gault tried adult courts subject maximum sentence two months rather six years actually received speculate result gault waiver available adult sentence greater rather less juvenile means follows dissent suggests post result obtain system civilian context gideon wainwright argersinger hamlin held sixth amendment right counsel applicable context reasoning jackson one penalized exercising constitutional right come play however held constitutional right counsel summary issue penalized exercise right presented justice powell justice blackmun joins concurring agree substance holding opinion join write separately emphasize factor view distinguishes case argersinger hamlin one sentence expresses fundamental basis distinction long recognized military necessity specialized society separate civilian society parker levy laws traditions governing military discipline long history founded unique military exigencies powerful past contemporary vitality repeatedly recognized congress recognize course one constitutional rights surrendered upon entering armed services rights applied often held light unique military exigencies necessarily govern many aspects military service see parker levy supra recognition since founding republic congress enacted special legislation applicable armed services including current provisions uniform code military justice summary art ucmj find basis holding constitution compels equating purposes requiring counsel provided military summary courts civilian criminal courts noted opinion relatively petty offenses customarily come summary often involve military offenses unknown civilian society case example plaintiffs charged unauthorized absence sure courts also try offenses violations civilian criminal law typically petty offenses committed defendants subject military discipline occasion case address whether constitution requires providing counsel special general proceedings serious civil felonies often charged indeed armed services required statute provide counsel cases art ucmj schlesinger councilman referring uniform code said congress attempted balance military necessities governing discipline equally significant interest ensuring fairness servicemen charged military offenses formulate mechanism often competing interests adjusted result congress created integrated system military courts review procedures recently held absent waiver person may imprisoned offense whether classified petty misdemeanor felony unless represented counsel trial argersinger hamlin today refuses apply argersinger holding defendants summary proceedings assuming purposes opinion sixth amendment applies general holds special characteristics summary particular simply criminal prosecutions within meaning sixth amendment right counsel therefore inapplicable dissent preliminarily summary aside clear citizen surrender right appointed counsel enters military inconceivable example conclude defendant general proceeding sentences severe life imprisonment may imposed entitled protection constitution affords civilian defendant facing even day imprisonment see argersinger hamlin supra surely sworn risk lives defend constitution derive benefit right counsel right become even firmly entrenched jurisprudence past several generations see gideon wainwright powell alabama question might arise whether general guarantee counsel defendants placed fifth amendment sixth amendment conviction sixth amendment guarantee amendment provides explicit guarantee counsel criminal prosecutions since recently observed convened adjudicate charges criminal violations military law parisi davidson seem criminal prosecutions sixth amendment therefore applies face legitimate dispute among scholars true whether framers expressly intended sixth amendment right counsel apply military see ante historical evidence somewhat ambiguous reading sources suggests sixth amendment right counsel intended framers apply even historical evidence plainly showed contrary certainly determinative contemporary scope sixth amendment chief justice hughes observed statement constitution meant time adoption means intended say great clauses constitution must confined interpretation framers conditions outlook time placed upon statement carries refutation home bldg loan assn blaisdell short belief sixth amendment demands defendants ordinarily accorded counsel special characteristics summary particular deprive status criminal prosecutions sixth amendment inapplicable cases us today course proposition major part opinion addressed turn ii conclusion summary criminal prosecutions face surprising one less case summary directed adjudicating charges criminal violations military law conviction summary lead confinement one month nevertheless finds conclusion mandated combination four factors limitations punishment meted summary nature offenses defendant tried nature summary proceeding distinctive nature military life discipline ante totally unpersuaded considerations others whether taken singly combination justify denying summary defendants right assistance counsel one safeguards sixth amendment deemed necessary insure fundamental human rights life liberty johnson zerbst course true summary may adjudge confinement excess one month manual mcm argersinger held length confinement wholly irrelevant determining applicability right counsel aware prospect imprisonment however short time seldom viewed accused trivial petty matter baldwin new york plurality opinion held argersinger fact confinement duration determinative right counsel insofar today uses ceiling summary defendant sentence support holding much finding argersinger inapplicable rejecting basis argersinger holding support holding observes uch conduct proscribed military criminal conduct civilian sense word ante intimates conviction many offenses normally tried summary consequences beyond immediate punishment meted military ante observations misleading irrelevant summary generally designed deal relatively minor offenses see mcm statutory matter summary proceeding used try noncapital offense triable general special art ucmj see moore offense plaintiffs tried unauthorized absence counterpart substantial proportion offenses actually tried summary offenses larceny assault also constitute criminal offenses committed civilian indeed one servicemen cases charged assault therefore misleading suggest fundamental difference type conduct chargeable summary type conduct deemed criminal civilian sector implication summary conviction consequences beyond immediate punishment ante also inaccurate one central distinctions art nonjudicial punishment summary conviction latter regarded criminal conviction criminal conviction collateral consequences military civilian life army readily acknowledged conviction creates criminal record color consideration subsequent misconduct soldier noncommissioned officer may survive one summary without reduction effected unlikely one conviction record survive second trial retain status conviction officer devastating aftereffect upon career described cases sentence passover promotion list may serve basis initiation administrative elimination action man fact criminal conviction record handicap civilian life may interfere job opportunities may counted difficulty civilian law enforcement agency general tends marked man therefore wholly unrealistic suggest impact summary conviction lies exclusively immediate punishment meted summary convictions carry potential stigma injury career increased punishment future offenses way convictions civilian criminal trials convictions general special quite apart flimsy factual basis observations nature offenses tried summary lack collateral consequences convictions already determined argersinger irrelevant applicability sixth amendment right counsel argersinger teaches right counsel triggered potential confinement regardless trivial petty offense may seem see logic therefore preclude suggestion right counsel activated potential confinement deactivated absence collateral consequences conviction nature summary proceeding proceeding nonadversary nature relatedly protective functions presiding officer third factor according helps make unnecessary provision counsel accused reliance without substantial foundation characterizes summary nonadversary offers little explanation characterization advances contention right counsel inapplicable argument simply furnishing counsel transform proceeding adversary proceeding argument simply observation argument must either something peculiar goal summary proceeding makes right counsel inapplicable elements conduct proceeding render counsel unnecessary extent characterization summary nonadversary meant convey something goal purpose proceeding totally unpersuasive sense summary proceeding far less nonadversary juvenile delinquency proceedings held right counsel applicable gault gault dispute proper purpose juvenile justice system rehabilitative rather punitive parties juvenile delinquency proceeding might striving adjudication disposition best interests child traditional notion kindly juvenile judge highly appropriate one see yet gault confronted reality however beneficial goal delinquency proceedings potential result confinement individual institution ibid factor mandated accused juvenile offenders entitled representation counsel distinguished situation gault summary special rehabilitative purpose rather central immediate purpose discipline violated ucmj goals juvenile delinquency proceedings insufficient justification denial counsel follows fortiori goals summary similarly insufficient second possible meaning conveyed characterizing summary nonadversary presence elements conduct proceeding render independent counsel unnecessary reflected observation function presiding officer quite different participant civilian trial ante responsibility presiding officer act judge jury prosecutor defense counsel combined intimates presiding officer duty advise accused rights ability help accused assemble facts examine witnesses accusers make defense counsel unnecessary particularly light absence formal prosecutor proceeding find argument unpersuasive powell alabama rejected notion judge effectively discharge obligations counsel accused largely judge participate necessary conferences counsel accused sometimes partake inviolable character confessional true powell unrepresented defendant opposed traditional prosecutor gault supra prosecutor participants delinquency proceedings juvenile mother probation officers judge participants presumably interested welfare juvenile yet held matter protective judge participants might juvenile entitled independent counsel irreconcilable conflict among roles summary presiding officer inevitably prevents functioning effectively substitute defense counsel instance defendant right remain silent testify see art ucmj mcm intelligent decision whether exercise right requires consultation whether testifying hurt help case inevitably involves sharing confidences counsel full consultation possibly take place defense counsel also playing role judge prosecutor defense counsel also serves prosecutor judge effectively unavailable many necessary conferences counsel accused powell alabama supra well making implementation critical tactical strategic trial decisions helpful presiding officer might defendant inconsistent roles bar adequate substitute independent defense counsel sum nothing assertedly nature summary either terms goals alternative safeguards renders unnecessary assistance counsel finally draws notions military necessity justify conclusion right counsel inapplicable summary proceedings concerns discipline obedience occasion true justify imposing restrictions military unconstitutional civilian context see parker levy denials traditional rights group approved without examination especially group comprises members military engaged endeavor national service frequently fraught danger sacrifice examination persuaded denial right counsel summary justified military necessity substance asserted justification discipline efficiency morale demand utilization expeditious disciplinary procedure relatively minor offenses seem however art nonjudicial punishment speedily imposed commander carry stigma criminal conviction provides procedure indeed amendments art greatly expanded availability nonjudicial punishment resulted sharp decrease utilization summary therefore pressing need streamlined summary proceeding order supply expeditious disciplinary procedure moreover means clear guaranteeing counsel summary defendants result significantly longer time periods preferral charges punishment fairly conducted proceedings absence counsel timesaving enjoyed might well result presiding officer something less adequate substitute independent defense counsel especially difficult accept federal parties claim military necessity view fact well decision argersinger services allowed summary defendants retain counsel expense given fact federal parties argument reduced contention defendants afford retain counsel must matter military necessity denied counsel summary proceedings sustaining contention means defeat principles equality justice military sworn defend fundamental notions fairness subverted rights poor alone sacrificed cause military necessity also significant military appeals uscma body recognized expertise dealing military problems applied argersinger summary without giving hint military necessity posed problem alderman indeed judge duncan explicitly noted record contains evidence convinces application argersinger rule followed system military necessity concurring part dissenting part even alderman decided air force army applied argersinger summary rather advancing theoretically available military necessity argument see priest leads doubt whether even military opinion military necessity dictated denial counsel virtually ignoring factors cast doubt justification defers asserted congressional judgment counsel provided summary ante congress evaluation military necessity clearly entitled deference departure position past suggest need come conclusion validity argument based military necessity see robel parker levy cf new york times regardless weight properly accorded clear congressional determination military necessity determination case congressional action referred congress refusal abolish summary altogether concurrent extending serviceman opportunity reject trial summary refers action evidence congress considered depth matter whether counsel required summary ante evidence offered detailed congressional consideration specific question feasibility providing counsel summary importantly indication congress made judgment military necessity requires denial constitutional right counsel summary defendants congress lack discussion military necessity enough throw substantial doubt inferences timing congressional action cited certainly action occurred substantially decision argersinger thus even assume congress decision retain summary represents considered conclusion counsel provided judgment made time even civilian defendants subject prison terms less six months recognized constitutional right counsel therefore little reason congress undertake detailed consideration necessary make finding military necessity concluding counsel need provided summary defendants sum simply indication congress ever made clear determination military necessity precludes applying sixth amendment right counsel summary proceedings indeed characterizes congressional determination vaguest terms never expressly claims congress made determination military necessity thus read opinion grant almost total deference act congress dealing military iii rejects even limited holding appeals provision counsel summary proceedings evaluated matter due process basis accused defense particular case explains summary defendants counsel appointed refusing trial summary proceeding trial special acknowledged consequence exposure greater possible penalties given conviction summary criminal prosecution sixth amendment unnecessary deal detail due process question event however special option may offered additional support treatment sixth amendment issue shall briefly assess significance analogizes decision whether expose oneself special counsel proceed summary without counsel decision faced civilian defendant whether proceed trial plead guilty lesser included offense according right given civilian defendant right counsel right trial ante analogy flawed one civilian defendant pleads guilty necessarily gives whatever rights might thereafter accorded enable protect claim innocence conditions pleading guilty logically mandated ones contrast condition military defendant opting tried summary denial counsel imposed one must therefore viewed suspicion indeed force analogy entirely dissipated fact civilian defendant pleads guilty forfeits much right counsel necessary consequence plea fully entitled counsel process leading plea including negotiations government possibility plea actual decision plead defendant also entitled counsel sentencing proceeding might follow making plea doubt scheme acceptance guilty pleas conditioned full abandonment right counsel unconstitutional contrast today approves denial counsel summary defendant stages purposes including least regards sailors marines decision whether reject trial summary accused opts summary parallel accepted guilty plea right counsel either adjudicative sentencing phase proceeding conditioning provision counsel defendant subjecting risk additional punishment suffers defect scheme disapproved jackson right trial jury conditioned defendant subjecting possibility capital punishment analysis correct applied sixth amendment argersinger guarantee counsel trial offense carrying potential imprisonment reduced nullity state constitutionally establish two levels imprisonment offense lower tier defendants willing proceed trial without counsel higher one insist assistance counsel inconceivable sixth amendment tolerate result iv right counsel termed pervasive rights accorded accused result action today accused persons protected constitution federal defendants state defendants juveniles adults civilians soldiers enlisted men tried summary imprisoned without accorded right counsel expected result based justifications far substantial relied respectfully dissent argue framers intend sixth amendment right counsel apply point congressional proceedings seem assume right applicability see henderson constitution original understanding harv rev materials cited therein fact traditional late century allow accused serviceman legal assistance take opposite position point inter alia contemporary treatises see wiener bill rights original practice harv rev materials cited therein lack mention right counsel first military codes constitution fact counsel appear military proceedings allowed limited role given case whether sixth amendment right trial jury course determinative whether sixth amendment right counsel indeed argersinger stated reject therefore premise since prosecutions crimes punishable imprisonment less six months may tried without jury may also tried without lawyer compare duncan louisiana indicated fifth amendment express exemption military requirement indictment grand jury also exempts military inferentially sixth amendment right trial jury parker reason assume inferences fifth amendment exemption drawn regard sixth amendment right counsel even federal parties suggest settling issue regard military ipso facto settled sixth amendment issues well even pure due process analysis used however counsel mind still required many factors analyzed sixth amendment context see part ii infra fully relevant due process analysis see gagnon scarpelli morrissey brewer gagnon adopts approach right counsel probation revocation proceedings fact dealing trial result criminal conviction mandates counsel made available every case see gagnon supra looks analysis gagnon scarpelli supra support distinctions draws criminal prosecutions sixth amendment summary find reliance questionable say least intimates ante holding gagnon probation revocation hearing part criminal prosecution based factors relating manner hearings conducted factors absence prosecutor informality proceedings however inaccurate reflection said gagnon gagnon conclusion stated early opinion probation revocation hearing stage criminal prosecution dependent manner proceedings conducted rather held follow conclusion morrissey brewer supra revocation parole part criminal prosecution following analysis morrissey held determinative parole arises end criminal prosecution including imposition sentence revocation deprives individual absolute liberty every citizen entitled conditional liberty properly dependent observance special parole restrictions mcm prescribed executive order september supplement uniform code military justice ucmj attempts evade argersinger clear mandate relying decisions gagnon scarpelli supra gault gagnon already observed supra lends support sixth amendment analysis case gault true held juvenile delinquency proceedings even though might result confinement criminal prosecutions sixth amendment mckeiver pennsylvania see opinion brennan however conclusion undoubtedly based predominantly rehabilitative purpose juvenile justice system factor shown infra manifestly present summary context gault apply sixth amendment course hold due process right counsel applicable juvenile delinquency proceedings pose threat confinement course punishment ceilings imposed summary applicable matter offense tried popular opprobrium resulting conviction serious crime factor places considerable stock ante likely severe whatever magnitude punishment popular opprobrium course significant practical effect ante serviceman future see figures supplied federal parties indicate summary conducted navy nonmilitary offenses brief federal parties see also fidell summary proposal harv legis see also joint hearings military justice subcommittee constitutional rights senate committee judiciary special subcommittee senate committee armed services hereinafter cited hearings senate testimony judge advocate general navy observed serviceman convicted summary opposed one punished art begins acquire record convictions hearings see also subcommittee constitutional rights senate committee judiciary summary report hearings constitutional rights military personnel hearings constitutional rights military personnel subcommittee constitutional rights senate committee judiciary see also fidell supra feld martial sentence fair foul rev intimates decision gault might different gerald gault faced period confinement significantly less three years duration ante however opinion contained hint limitation held right counsel applicable whenever juvenile faced proceedings may result commitment institution juvenile freedom curtailed general military trial marked manifest destiny retributive justice ilitary law always continues primarily instrument discipline justice glasser justice captain levy columbia forum parker differences advanced distinguish punishment imposed art confinement result summary see shamel quinn number summary per year armed services dropped percentage total military caseload dropped fidell supra chief explanation phenomenon lies expansion nonjudicial punishment powers accomplished according federal parties cases average time period preferral charges final review summary increased days since military appeals applied argersinger military alderman supp mem federal parties parties concede possible ascribe changed experience exclusively injection counsel summary proceedings ibid nothing offered federal parties indicate average time summary proceeding lengthened result providing counsel defendants see hearings testimony brig kenneth hodson asst judge adv military justice department army testimony manss judge adv air force testimony rear wilfred hearn judge adv navy letter june chairman senate committee armed services acting general counsel department treasury indeed acknowledging provision either law regulation appointment counsel summary department treasury indicated six years argersinger decided treasury department policy coast guard military counsel summary supplied upon request reasonably available moreover following exchange took place letter senate subcommittee constitutional rights navy judge advocate general corps question defendants permitted official defense department service policy regulation counsel assist summary courts answer lthough right individual representation extended accused summary policy regulation general practice naval service accord representation request accused question man requests appointment counsel legal otherwise practice grant requests answer yes dependent upon reasonable availability requested counsel see schlesinger councilman noyd bond decisions uscma final indeed ironic federal parties statutorily barred appealing alderman secured rejection lawsuit originally brought federal servicemen seeking protections later accorded alderman see also daigle warner cert pending appeals ninth circuit noted hile navy argues vigor naval discipline suffer severely appointed counsel required summary scant support record relying previously stated views judge quinn one members alderman majority judge quinn failure alderman opinion explicitly mention argument declines view alderman rejection argument disagree priest decided months alderman uscma recognized albeit another context military necessity may affect application traditional constitutional rights members military parties alderman briefed argument great detail judge quinn concurred priest opinion factors plus judge duncan explicit reference argument lead read alderman rejection argument alderman supra duncan concurring part dissenting part seem however serviceman option subjecting possibility special lends little support due process analysis held gault decision left unmentioned treatment fifth amendment question matter due process accused offenders absolute right counsel juvenile delinquency proceedings surely holding different case juvenile given opportunity voluntarily subject adult criminal proceedings counsel subject harsher punishment neither ucmj mcm contains indication serviceman must provided counsel assist making determination whether consent object trial summary internal army guidelines appear allow consultation counsel making determination see military justice handbook guide summary trial procedure department army pamphlet navy guidelines contain provision assuming option scheme presents serviceman sort realistic choice availability also substantially undercuts federal parties argument see supra federal parties argue matter military necessity minor offenses must disposed summary proceedings without giving defendants benefit counsel yet option scheme serviceman assured counsel simply rejecting trial summary thus scheme render unattainable goal claimed matter military necessity sustained kentucky system due process double jeopardy attacks colten kentucky careful note system defendant face realistic threat prison sentence inferior without help counsel schaefer federalism state criminal procedure harv rev officers subject summary