concurring.
While I join the opinion of the Court, I rest also on another ground for reversal.
Nearly 19 years ago the Court held in Betts v. Brady, 316 U. S. 455, that a state court in a criminal case need not appoint counsel to represent an indigent defendant, unless the failure to furnish counsel results in a conviction lacking in “fundamental fairness.” Id., 473. That decision was by a divided Court; and six Justices now sit on the Court who had no hand in fashioning the rule.
I cannot believe that a majority of the present Court would agree to Betts v. Brady were it here de novo, especially in light of our unanimous decision in Chandler v. Fretag, 348 U. S. 3, 9, where we held that the right of a defendant in a state criminal trial “to be heard through his own counsel” is “unqualified.” In that case an accused requested a continuance so that he could obtain a lawyer. We held it was reversible error for a state court to deny the request and to put the defendant to trial without counsel. We said that right to counsel *118turned, not on the nature of the crime charged, but on the importance of the presence of counsel to an accused’s right to a hearing. We relied on Powell v. Alabama, 287 U. S. 45, 68-69:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.” 1
The result of our decisions is to refuse a State the power to force a person into a criminal trial without a lawyer if he wants one and can afford to hire one, but to deny the same protection to an accused who is too poor to retain counsel. This draws a line between rich and poor that is repugnant to due process. The need of counsel is the same, whatever the economic status of the accused. If due process requires that a rich man who wants a lawyer be allowed the opportunity to obtain one before he is tried, why should not due process give the same protection to the accused who is indigent? Even penniless vagrants2 are at times caught in a tangle of laws that only an astute lawyer can resolve, as our own decisions show. Edwards v. California, 314 U. S. 160; Edelman v. California, 344 U. S. 357; Thompson v. Louisville, 362 U. S. 199.
*119Betts v. Brady requires the indigent, when convicted in a trial where he has no counsel, to show that there was fundamental unfairness. We have set aside a number of convictions so obtained, as our recent decision in Cash v. Culver, 358 U. S. 633, 636, n. 6, shows. Yet this is a heavy-burden to carry, especially for an accused who has no lawyer and who cannot afford to hire one. It is a burden placed on an accused solely by reason of his poverty. Its only sanction is Betts v. Brady which is so at war with our concept of equal justice under law that it should be overruled.3 Are we to wait to overrule it until a case arises where the indigent is unable to make a convincing demonstration that the absence of counsel prejudiced him?
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
In 1942, Mr. Justice Black appended to his dissenting opinion in Betts v. Brady, 316 U. S. 455, 477, a compilation of the laws of the States regarding the right to appointment of counsel. This Appendix brings the classification down to date. Thirty-five States provide for appointment of counsel as of course on behalf of an indigent in any felony case; 15 States either make no *120explicit provision for appointment of counsel or make provision therefor only in capital cases or leave appointment of counsel to the discretion of the trial judge.
A. Appointment of counsel for indigents in all felony cases, as of course, by force of the State Constitution, statutes, court rule, or judicial decision.
Alaska: Rules of Criminal Procedure, Rule 39 (b).
Arizona: Rules of Criminal Procedure, Rule 163.
Arkansas: Ark. Stat. § 43-1203.
California: Calif. Penal Code § 987.
Connecticut: Gen. Stat. of Conn. (1958 Rev.) § 54-80. See State v. Reid, 146 Conn. 227, 149 A. 2d 698.
Georgia: Ga. Const., Art. I, § I, Par. V (Ga. Code Ann. § 2-105). See Bibb County v. Hancock, 211 Ga. 429, 86 S. E. 2d 511.
Idaho: Idaho Code Ann. §§ 19-1512,19-1513.
Illinois: Ill. Supreme Court Rules, Rule 26 (2), Ill. Rev. Stat. (1959), c. 110, § 101.26 (2).
Indiana: Ind. Const., Art. I, § 13. See State ex rel. Grecco v. Allen Circuit Court, 238 Ind. 571, 153 N. E. 2d 914.
Iowa: Iowa Code Ann. § 775.4.
Kansas: Gen. Stat. of Kansas (1959 Supp.) § 62-1304.
Kentucky: Ky. Const., § 11. See Calhoun v. Commonwealth, 301 Ky. 789, 193 S. W. 2d 420.
Louisiana: La. Rev. Stat. § 15-143.
Massachusetts: Rule 10, General Rules of the Supreme Judicial Court of Massachusetts, 337 Mass. 813; Ann. Laws of Mass., c. 277, § 47.
Minnesota: Minn. Stat., 1957, § 611.07, as amended by Minn. Laws 1959, c. 383.
Missouri: Mo. Rev. Stat., 1949, § 545.820.
Montana: Rev. Code of Montana § 94-6512.
Nebraska: Rev. Stat. of Nebraska (1943) § 29-1803, as amended by Laws 1957, c. 104, § 1, c. 107, § 6.
*121Nevada: Nev. Rev. Stat. § 174.120.
New Jersey: N. J. Const., Art. I, ¶10; Rev. Rules, § 1:12-9.
New Mexico: N. M. Stat. Ann. (1953 Comp.) § 41-11-2. Cf. Const., Art. II, § 14; see State v. Garcia, 47 N. M. 319, 142 P. 2d 552.
New York: N. Y. Code of Criminal Procedure § 308.
North Dakota: N. D. Century Code § 29-01-27.
Ohio: Ohio Rev. Code § 2941.50.
Oklahoma: 22 Okla. Stat. § 464.
Oregon: Ore. Rev. Stat. § 135.320.
South Dakota: S. D. Code § 34.3506; S. D. Code (1960 Supp.) § 34.1901.
Tennessee: Tenn. Code §§ 40-2002, 40-2003.
Texas: Vernon’s Texas Code of Criminal Procedure § 494, as amended by Acts 1959, 56th Leg., p. 1061, c. 484, § 1.
Utah: Utah Code Ann. § 77-22-12.
Virginia: Code of Va. § 19.1-241.
Washington: Rev. Code of Wash. § 10.01.110.
West Virginia: Rules of Practice for Trial Courts, Rule IV.
Wisconsin: Carpenter v. Dane County, 9 Wis. 274. See Wis. Stat. Ann. § 957.26.
Wyoming: Wyo. Stat. § 7-7.
B. States not making provision for appointment of counsel for indigents in all felony cases.
Alabama: Code of Ala., Tit. 15, §318 (capital cases). See Gilchrist v. State, 234 Ala. 73, 173 So. 651.
Colorado: Colo. Rev. Stat. § 39-7-29. See Kelley v. People, 120 Colo. 1, 206 P. 2d 337.
Delaware: Superior Court Rules — Criminal Rule 44 (capital cases and “any other case in which the court deems it appropriate”).
Florida: Fla. Stat. §909.21 (capital cases). See Watson v. State, 142 Fla. 218, 194 So. 640.
*122Hawaii: Rev. Laws of Hawaii (1955) §253-5, as amended by Laws 1957, Act 239 (in force after statehood, see Const., Art. XVI, § 2).
Maine: Me. Rev. Stat., c. 148, § 11 (capital cases and where sentence of life imprisonment may be imposed, otherwise permissive).
Maryland: Md. Rules of Procedure, Criminal Causes, Rule 723, § b (in all capital cases and other “serious cases”).
Michigan: Mich. Comp. Laws, 1948, § 775.16, as amended by Public Acts 1957, No. 256. See People v. Williams, 225 Mich. 133, 195 N. W. 818.
Mississippi: Miss. Code Ann. (rec. 1956) § 2505 (“capital crime”).
New Hampshire: N. H. Rev. Stat. §§ 604:1, 604:2 (capital crimes or other cases where “injustice may be done if provision is not made therefor”).
North Carolina: N. C. Gen. Stat. § 15-4.1. See State v. Davis, 248 N. C. 318, 103 S. E. 2d 289.
Pennsylvania: Purdon’s Pa. Stat., Tit. 19, §§ 783, 784 (capital cases).
Rhode Island: Gen. Laws of Rhode Island § 12-15-3. See State v. Hudson, 55 R. I. 141, 179 A. 130; Lee v. Kindelan, 80 R. I. 212, 95 A. 2d 51.
South Carolina: S. C. Code of Laws § 17-507 (capital cases). See State v. Hollman, 232 S. C. 489, 102 S. E. 2d 873.
Vermont: 13 Vt. Stat. Ann. § 6503. See State v. Gomez, 89 Vt. 490, 96 A. 190.
For a scholarly account of an attempt in a contemporary society to abolish procedural safeguards and provide “simple” judicial systems see Hazard, Settling Disputes in Soviet Society (1960).
The manner of administration of vagrancy laws and their harshness, due in part to the denial to the drifters in our midst of the procedural protections which others obtain, is vividly shown in Foote, Vagrancy-Type Law and Its Administration, 104 U. of Pa. L. Rev. 603.
In Erie R. Co. v. Tompkins, 304 U. S. 64, Mr. Justice Brandéis, writing for the Court, overruled Swift v. Tyson, 16 Pet. 1. Mr. Justice Butler, speaking for himself and Mr. Justice McReynolds, strenuously objected, pointing out that the question had never been raised or argued, 304 U. S., at 82, 87, and asking that, before Swift v. Tyson was overruled, the case be put down for reargument. “It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it.” 304 U. S., at 88. But the problems created under the regime of Swift v. Tyson were as abundantly clear to the Court from its screening of hundreds of cases as are those which Betts v. Brady has spawned.