VAWA 2013's right to appointed counsel in tribal court proceedings - a rising tide that lifts all boats or a procedural windfall for non-Indian defendants?

• Author: Gross, Jordan
• Position: Violence Against Women Reauthorization Act of 2013

Contents Introduction I. Federal Constitutional Right to Counsel at Public Expense A. Sixth Amendment Right, to Counsel B. Actual v. Authorized Incarceration Trigger II. Making Sense of the Right Why Does the Constitution Require Appointed Counsel for Poor People Charged with Misdemeanors Only When They are Actually Incarcerated? III. Statutory Right to Counsel in Tribal Court Proceedings A. Selective Codification--Imposition of Federal Constitutional Rights to Tribal Court Proceedings B. ICRA General Provisions--No Right to Counsel at Public Expense or Explicit Right to Effective Assistance of Counsel for Indian Defendants Sentenced to One Year or Less C. TLOA Right to Effective Assistance of Bar-Licensed Counsel at Public Expense for Indigent Indian Defendants Sentenced to More than One Year Incarceration D. VA WA 2013--Right to Effective Assistance of Bar-Licensed Counsel at Public Expense if Incarceration of Any Length May be Imposed IV. Interpreting ICRA's Right to Counsel Provisions Does ICRA Impose a Higher Appointed Counsel Obligation on Tribal Courts Than the Constitution Places on State Courts? A. Right to Counsel Independent of the Sixth Amendment B. Co-extensive with the Sixth Amendment Conclusion INTRODUCTION

This Article addresses a question that seems like it would be easy to answer, but is actually quite complex--when is an indigent defendant entitled to counsel at the public's expense in the United States? The answer is complex because it depends on what the indigent is charged with, what sentence he receives, and who prosecutes him. The Sixth Amendment guarantees an accused the assistance of counsel in "all criminal prosecutions." (1) The Supreme Court has said that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the right to appointed counsel at public expense for indigent defendants. (2) But the Supreme Court has also said that the right to appointed counsel for indigents does not extend to "all criminal prosecutions," just prosecutions for felonies and prosecutions for misdemeanors for which a trial court imposes a sentence of incarceration or a suspended sentence of incarceration. (3) Thus, even if a charging statute authorizes incarceration as a punishment, an indigent charged with a misdemeanor is not constitutionally entitled to appointed counsel unless the conviction actually results in a sentence of incarceration or a suspended sentence of incarceration.

Who prosecutes the indigent matters because courts in different jurisdictions are subject to different rules. Both state and federal courts, of course, must meet the federal constitutional standard for appointment of counsel, but federal statutory law is more generous than the Constitution in providing appointed counsel to indigents in federal court. The Constitution does not apply in Indian country. (4) The right to appointed counsel in tribal court, therefore, is governed by tribal code and federal law, not the federal constitutional standard.

The Indian Civil Rights Act (ICRA) is the federal statute that lays down the minimum procedural guarantees tribal courts must extend to defendants, much as the U.S. Constitution sets the floor in state and federal court prosecutions. (5) ICRA provides for a different right to appointed counsel than the Sixth Amendment for some tribal court defendants depending on the crime charged, whether the crime carries a term of imprisonment and, if it does, how long that term is. Tribal courts have plenary criminal jurisdiction over Indians (6) who commit crimes in Indian country. Under ICRA's general provisions, which only apply to Indian defendants, a tribal court does not need to provide indigent defendants with counsel at tribal expense when it imposes a sentence of incarceration of one year or less on that defendant. (7) Under amendments to ICRA made by the Tribal Law and Order Act of 2010, a tribal court cannot impose a sentence of incarceration over one year unless the defendant is provided effective assistance of counsel, as defined by the federal constitution, and, if indigent, a licensed attorney at tribal expense. (8)

Federal law does not recognize tribal courts' criminal jurisdiction over non-Indians who commit crimes in Indian country except in very limited circumstances--under amendments to ICRA made by the Violence Against Women Act Reauthorization of 2013 (VAWA 2013), tribes can only prosecute non-Indians who have some connection to the reservation community for certain domestic violence offenses committed in Indian country against an Indian victim. (9) To exercise this limited criminal jurisdiction over non-Indians under VAWA 2013, tribes must ensure that VAWA 2013 defendants are provided with effective assistance of bar-licensed counsel; (10) and, if a defendant is indigent, they must also provide that counsel at tribal expense if a term of imprisonment of any length may be imposed. (11)

Thus, in non-VAWA 2013 tribal court prosecutions (limited, by statute, to prosecutions against Indian defendants), under federal law a tribal court need only provide an indigent defendant with appointed counsel if it imposes a sentence of a year or more. In contrast, under Sixth Amendment case law, indigent federal and state court defendants cannot be incarcerated for any length of time if they have not been provided counsel at public expense. (12) In VAWA 2013 tribal court prosecutions (the only criminal prosecutions that can be brought against a non-Indian by tribal authorities for crimes committed in Indian country), a tribal court must provide appointed counsel to indigent defendants who are exposed to a term of incarceration of any length. (13) In contrast, indigent state and federal court defendants are not constitutionally entitled to appointed counsel for misdemeanors unless they are actually incarcerated, as opposed to exposed to incarceration. (14)

ICRA's tiered right to appointed counsel provisions can only be fully appreciated against the backdrop of two major bodies of law. The first is the Supreme Court's long slog towards its current conceptualization of the constitutional right of poor criminal defendants to counsel at public expense in state criminal prosecutions. The second is Congress' and the federal courts' tortured journey towards the current status of tribal court jurisdiction over non-Indians. Part I of this Article explains how the Supreme Court arrived at a constitutional rule that requires state trial courts to provide counsel at public expense to poor defendants in all felony cases, but not--in misdemeanor cases unless the defendant is actually incarcerated for the offense. Part II offers an explanation of how the federal constitutional right to appointed counsel became so convoluted. Part III examines the various right to counsel provisions in ICR A and analyzes how they do, or do not, track the federal constitutional right to appointed counsel. Part IV asks what Congress has done. Did Congress really create a right to appointed counsel for the benefit of non-Indian tribal court defendants superior to that required by the Constitution in state and federal courts? Or did it mean to create a right to appointed counsel under VAWA 2013 that is co-extensive with the Sixth Amendment?

This Article concludes, reluctantly, that Congress did indeed create a more robust right to appointed counsel in tribal court under VAWA 2013 than that required by the Constitution in state and federal court, and one greater than that enjoyed by Indian defendants in tribal court. It is a reluctant conclusion because, if Congress did in fact create a right to appointed counsel under VAWA 2013 beyond that required by the Constitution in state and federal courts and beyond that required for Indian defendants in tribal courts, it could be interpreted as a determination that non-Indian defendants need more procedural protection in tribal court than they would be constitutionally entitled to if they were tried in state or federal court to ensure a fair proceeding. Absent some proof that tribal courts are any less capable than state or federal courts in dealing fairly with indigent defendants, Congress' differential and preferential treatment of indigent VAWA 2013 defendants, this Article submits, is indefensible because it results in an unwarranted procedural windfall for non-Indian tribal court defendants.

1. FEDERAL CONSTITUTIONAL RIGHT TO COUNSEL AT PUBLIC EXPENSE

   1. Sixth Amendment Right to Counsel

      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." (15) The Sixth Amendment has always been understood to guarantee federal court defendants the assistance of counsel in criminal proceedings unless the right is waived. (16) The Supreme Court eventually extended this right to state court defendants under the Fourteenth Amendment. (17) The primary Sixth Amendment constitutional question, thus, is not whether a defendant is entitled to have counsel present to aid in his defense in a criminal prosecution, but rather whether and when the government must provide counsel to indigent defendants to ensure they are not deprived of assistance of counsel because they cannot afford to pay for an attorney. The Supreme Court, of course, answered this question in 1963 in Gideon v. Wainright, where it held that the Sixth Amendment requires courts to provide counsel at public expense to poor people prosecuted with serious offenses. (18) In a federal system in which most crimes are prosecuted on the state level and most defendants prosecuted by the states are poor, this holding had (and continues to have) substantial resource implications for states. (19)

      Indigent defendants in federal prosecutions have had the right to appointed counsel at public expense in federal felony cases since 1938, (20) in federal capital cases since 1940, (21) and in federal non-petty...