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April 19 — U.S. Supreme Court justices focused their sparse questioning during oral argument April 19 on an issue of due process not raised in briefs for a domestic violence case that called into question the sovereignty of American Indian tribal courts.
The court heard arguments on whether misdemeanor convictions from tribal courts—which are not subject to the Sixth Amendment right to counsel—could be used for a federal sentencing enhancement under the Violence Against Women Act.
The issue turned on whether a minimum of two misdemeanor domestic violence offenses from a tribal court qualify a defendant for a federal felony under a specific provision of the Violence Against Women Act targeting Native American reservations.
While the issue seems to rest on statutory interpretation, it also called into question sovereignty of tribal courts.
A decision would resolve a circuit split. The U.S. Courts of Appeals for the Eighth and Tenth circuits have found the enhancement permissible, while the Ninth Circuit disagreed.
The government argued a categorical approach to such defendants when deciding whether to treat them as recidivists under VAWA. Yet justices soon steered the argument toward due process, with Justice Anthony Kennedy first comparing tribal misdemeanors to convictions in foreign jurisdictions.
Elizabeth B. Prelogar, assistant to the solicitor general, said a more severe due process question would arise in that context, but because tribal courts are subject to federal review under the Indian Civil Rights Act, an as-applied due process challenge would be inappropriate.
Prelogar also clarified that the defendant did not make a due process claim in his case.
But what if a defendant suffered a due violation during one of the predicate offenses but didn't make a claim before the felony charge under VAWA? asked Chief Justice John G. Roberts Jr. Would the defendant be stuck with that previous conviction?
Yes, Prelogar maintained, citing to Supreme Court precedent holding that not challenging a past conviction—even if the defendant now claims it resulted from a due process violation—means the defendant must still be considered a recidivist under the law.
“It's a basic principle in our criminal justice system that if you do it again, you're going to be treated more harshly,” she said.
Later, Justice Ruth Bader Ginsburg asked why Congress would have limited Sixth Amendment rights to counsel under the ICRA.
“I think that Congress, when it enacted the Indian Civil Rights Act, after years of studying this issue, was sensitive to balancing autonomy for tribes and tribal sovereignty against individual rights,” Prelogar argued. “And I think that Congress must have made the judgment that, given the other protections in the Indian Civil Rights Act, tribal-court defendants could be fairly and reliably adjudicated guilty without the assistance of counsel.”
Arguing for the defendant, Steven C. Babcock, of the Federal Public Defender's Office in Billings, Mont., countered that allowing predicate offenses without representation to become an element of a crime under VAWA ran afoul of the court's recognition of the Sixth Amendment as a fundamental right for more than 50 years.
Throughout the argument, justices kept meandering away from the briefed argument, asking questions regarding the unconstitutionality of the original conviction or the unconstitutionality of the ICRA itself.
Justice Sonia Sotomayor offered an explanation, saying it's not about whether the original conviction is unconstitutional in the tribal courts, but whether using it as an element to establish a later crime in courts where the Constitution guarantees the right to counsel is unconstitutional.
Babcock agreed, arguing that any uncounseled conviction resulting in incarceration used as a predicate offense would be “the epitome of unfairness.”
“How can you challenge the legality of his detention based upon lack of counsel when he possesses no such right?” Babcock asked.
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Full transcript available at: http://src.bna.com/efu.
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