Through a Federal Habeas Corpus Glass, Darkly- Who is Entitled to Effective Assistance of Counsel in Tribal Court Under ICRA and How Will We Know if They Got It?

Part I of this article is a history and analysis of the federal constitutional right to effective assistance of counsel. It explains how federal ineffective assistance of counsel jurisprudence has developed almost exclusively in the context of federal habeas review of state court convictions and rendered most federal ineffective assistance of counsel claims unviable. Part II explains the right to counsel in tribal court and the habeas corpus remedy available to tribal prisoners under ICRA. Part III identifies issues that will need to be addressed now that Congress has created a statutory ineffective assistance of counsel claim for tribal prisoners tied to the federal constitutional standard and subject to federal habeas review under ICRA. I conclude that by creating a right to effective assistance of counsel for TLOA and VAWA 2013 tribal court defendants and specifying that it must be at least equal to that guaranteed by the U.S. Constitution, Congress has unequivocally bound federal court habeas review of tribal prisoners\u27 ineffective assistance of counsel claims to the Strickland analysis.28 at change, I submit, will make most tribal prisoner ineffective assistance of counsel claims a foregone conclusion, as is the case for Strickland claims brought by state prisoners in federal habeas review. To resolve any ambiguities on this point, I propose that Congress take the next logical step and require federal courts to extend tribal court dispositions of tribal prisoners\u27 claims the same high level of deference federal courts are currently required to extend to state court determinations on habeas review. Absent this safeguard, ICRA\u27s new right to effective assistance of counsel can easily and unwittingly become a vehicle for unwarranted heightened scrutiny and micromanagement of tribal court proceedings by federal courts

VAWA 2013\u27s Right To Appointed Counsel On Tribal Court Proceedings- A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants

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\u27s 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. \u27 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.\u27 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.\u27 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. 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\u27 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

The Upside Down Mississippi Problem: Addressing Procedural Disparity Between Federal And State Criminal Defendants In Concurrent Jurisdiction Prosecutions

State constitutional rights and procedural protections, of course, can only be asserted in state criminal prosecutions. As a result, where a defendant is prosecuted in federal court for conduct over which both a state and the federal government have criminal jurisdiction, he or she may be at a distinct disadvantage simply because of the fortuity or misfortune of having attracted the attention of federal prosecutors. And, upon conviction, a defendant will likely face a drastically harsher sentence than that which a state court would have imposed for the same conduct. The cumulative impact, therefore, of Congress\u27s federalization, nationalization and standardization of criminal law and the U.S. Supreme Court\u27s constitutionalization of criminal procedure has been to create categories of crimes for which a defendant could be prosecuted both federally and under state law. The level of procedural protection and severity of punishment the accused receives for the same conduct may vary significantly depending on which sovereign prosecutes the crime. It is this procedural disparity at which this article takes aim. Part II of this article sets out a brief background of the nationalization, federalization and standardization trend that has characterized the development of federal criminal law since the Civil War. Part III describes the state/federal procedural disparity gap created by the lower level of criminal procedural protection available to some defendants prosecuted federally for conduct traditionally within the purview of states and over which states have concurrent jurisdiction with the federal government. Part IV discusses the receding tide of federalism, nationalization, and standardization in the criminal law and explains why rectifying the state/federal procedural disparity gap must be included in that recalibration process. Part V submits that Congress has the obligation to address this state/federal procedural disparity and proposes that Congress enact legislation requiring federal courts to apply state rules of criminal procedure in concurrent jurisdiction prosecutions where a given federal rule does not provide the same level of protection as its state counterpart. A failure to do so, this article asserts, perpetuates an unjustifiable state/federal procedural disparity between defendants who are prosecuted federally for conduct over which a state has a superior historical and political jurisdictional claim

Through a Federal Habeas Corpus Glass, Darkly – Who Is Entitled to Effective Assistance of Counsel in Tribal Court Under ICRA and How Will We Know if They Got It?

Part I of this article is a history and analysis of the federal constitutional right to effective assistance of counsel. It explains how federal ineffective assistance of counsel jurisprudence has developed almost exclusively in the context of federal habeas review of state court convictions and rendered most federal ineffective assistance of counsel claims unviable. Part II explains the right to counsel in tribal court and the habeas corpus remedy available to tribal prisoners under ICRA. Part III identifies issues that will need to be addressed now that Congress has created a statutory ineffective assistance of counsel claim for tribal prisoners tied to the federal constitutional standard and subject to federal habeas review under ICRA. I conclude that by creating a right to effective assistance of counsel for TLOA and VAWA 2013 tribal court defendants and specifying that it must be at least equal to that guaranteed by the U.S. Constitution, Congress has unequivocally bound federal court habeas review of tribal prisoners\u27 ineffective assistance of counsel claims to the Strickland analysis.28 at change, I submit, will make most tribal prisoner ineffective assistance of counsel claims a foregone conclusion, as is the case for Strickland claims brought by state prisoners in federal habeas review. To resolve any ambiguities on this point, I propose that Congress take the next logical step and require federal courts to extend tribal court dispositions of tribal prisoners\u27 claims the same high level of deference federal courts are currently required to extend to state court determinations on habeas review. Absent this safeguard, ICRA\u27s new right to effective assistance of counsel can easily and unwittingly become a vehicle for unwarranted heightened scrutiny and micromanagement of tribal court proceedings by federal courts

Devil Take the Hindmost: Reform Considerations for States with a Constitutional Right to Bail

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without the concentration and scale of resources to maintain the type of robust pretrial services programs that are the backbone of successful bail reform in large, urban jurisdictions. Moving away from money-bail in some jurisdictions may simply not be financially viable. But ignoring or perpetuating the undisputed negative impacts of moneybail may no longer be an option either, as courts become more willing to entertain constitutional challenges to bail practices that result in the routine pretrial detention of indigent defendants charged with low-level, non-violent offenses. This Article concludes that right-to-bail jurisdictions that rely on secured money-bail as a standard condition of release, but that do not take steps to ameliorate the many hardships money-based bail administration visits on indigent defendants, may find themselves “hindmost” in today’s bail reform world, forced to play catchup to a rapidly evolving jurisprudence and national sensibility

Incorporation By Any Other Name? Comparing Congress\u27 Federalization of Tribal Court Criminal Procedure with The Supreme Court\u27s Regulation of State Courts

This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government’s displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today. Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA’s criminal procedure provisions. In TLOA and VAWA 2013, Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the violence indigenous peoples experience in Indian country within the United States. Part III asks whether Congress’ efforts to further federalize tribal court criminal procedure is aligned with its stated commitment to support tribal self-determination and make Indian country safer. This Article asserts that requiring tribes to adopt even more trappings of Anglo-European justice norms as the exclusive means to access increased authority over wrongdoing in their communities is counterproductive to Congress’ stated goals in two ways. First, it constrains tribes’ ability to adapt their court practices and processes to reflect their individual community’s normative values. This can undermine tribal courts’ internal legitimacy and, ultimately, their effectiveness. Second, Congress’ approach puts residents in low-resource and rural tribal communities at even greater risk of harm. Some of the additional procedures TLOA and VAWA 2013 require tribes to adopt as a pre-condition to exercising increased authority are extremely costly to implement. Thus, the promise of increased authority and restored sovereignty Congress has held out can only be accessed by tribes that have adequate revenue sources to pay for them, that are willing to re-direct funds from other public services to fund TLOA and VAWA 2013 upgrades, or that are situated near urban areas where they can access additional human and institutional resources in neighboring communities. This leaves low-resource, rural tribal communities in an Oliphant world, a world in which all crimes within the tribe’s jurisdiction, no matter how serious, are treated as misdemeanors, and where non-Indians can victimize residents of Indian country with relative impunity

Taking Stock: Open Questions and Unfinished Business Under the VAWA Amendments to the Indian Civil Rights Act

The primary statutory tool for federal regulation of Tribal court criminal procedure is the Indian Civil Rights Act of 1968 (ICRA). ICRA replicated most of the procedural protections in the Bill of Rights applicable to the States, as then interpreted by the Supreme Court. ICRA also sets out procedures Tribes must extend to criminal defendants in their courts, caps their sentencing authority, and defines their criminal jurisdiction. Some parts of Indian country are the most dangerous places in the United States today, particularly for indigenous women and girls. They are exposed to a higher level of personal violence than any other women in the United States, mostly at the hands of non- Indians. This situation is due, in large measure, to jurisdictional voids in Indian country created by federal law. Congress has amended ICRA four times since 1968. In 2010 it amended ICRA with the Tribal Law and Order Act (TLOA). TLOA authorized Tribes to exercise expanded sentencing authority if they adopt and implement additional criminal procedural protections beyond those required under the 1968 version of ICRA. Congress amended ICRA again in 2013 with the Violence Against Women Re-Authorization Act (VAWA 2013). These amendments provide Tribes a pathway for re-asserting criminal jurisdiction over non-Indians for the first time in generations. VAWA 2013 recognizes Tribes’ inherent authority to exercise jurisdiction over all persons who commit crimes in Indian country, but limits the reach of that jurisdiction to crimes involving dating or domestic violence or violations of protection orders. This is labeled “special domestic violence criminal jurisdiction” (SDVCJ). To exercise SDVCJ, a Tribe must adopt the procedural protections required by TLOA, and additional procedural protections required by VAWA 2013. VAWA 2013 cabins SDVCJ in three ways, it: (1) creates an exception for crimes that only involve non-Indians as victims and perpetrators, (2) creates an exception for non- Indian defendants who lack ties to the Tribal community in which they commit their crimes, and (3) limits the offenses to which SDVCJ extends. These exceptions and limitations incorporate facts and circumstances that are often referred to as “jurisdictional.

Devil Take The Hindmost: Reform Considerations for States with a Constitutional Right to Bail

There is no federal constitutional right to bail. This means the question of who is bailable in state court is left entirely to state law. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail. The trial court can impose conditions of release, including requiring “sufficient sureties.” But it cannot detain bailable defendants for any reason other than a failure to post bail. It cannot, for example, detain a defendant to prevent him from fleeing justice or to protect the community. Most states have abandoned the traditional right to bail and embraced risk-based pretrial release and detention practices that mirror federal court practice. Like the federal courts, most states now permit preventive pretrial detention without bail for some non-capital defendants. Today fewer than half of states continue to recognize an absolute constitutional right to bailability by sufficient sureties for most defendants. Under early English law, from which American bail law derives, bail was a mechanism for transferring custody of an accused to a third party – a surety – who promised to produce him for trial. Historically, the surety was a person with a social connection to the accused, like a relative or employer. In the U.S., one of only two countries in which it is legal to collect a fee for securing a criminal bail bond, a surety can also be a commercial entity. In most states that retain the traditional right to bail, commercial bail bonding is a mainstay of bail administration. The routine use of secured money bail as a condition of release in modern U.S. bail administration has resulted in the routine pretrial detention of millions of Americans each year who cannot afford bail. These defendants are disproportionately non-white, and most are accused of non-violent misdemeanor offenses. Defendants who spend time in jail pretrial pay a steep price – they may lose housing, employment, and other opportunities; their ability to assist in their defense is hampered; and they are more likely to plead guilty and be convicted at trial. Those who post bail may end up in debt to a bondsman. The devastating effects of money bail on poor defendants and their communities, with no corresponding public safety benefit, are well-documented. Bail reform has received an extraordinary amount of media and scholarly attention in the last several years. The focus has been primarily on the undisputed negative aspects of money-based bail administration. Relatively little attention has been given to understanding why a state may continue to embrace traditional bail administration practices notwithstanding the many downsides of money bail. A great deal of the complexity surrounding the law and history of bail is often lost in the process. To fill that gap, this Article identifies practical, legal, and philosophical reasons that may prevent or discourage states from abrogating the traditional right to bail in favor of risk-based bail administration. This Article cautions, however, that right to bail jurisdictions that do not move to eliminate the routine use of money bail as a condition of release for low-level offenses risk ending up on the wrong side of a rapidly-evolving federal equal protection and due process jurisprudence aimed at the hardships state money bail practices visit on poor defendants

The Upside Down Mississippi Problem: Addressing Procedural Disparity Between Federal and State Criminal Defendants in Concurrent Jurisdiction Prosecutions

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