In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel. Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts. If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

In United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), the court reviewed Burgett and its progeny, and recognized a basic tension in the caselaw. Some of the Supreme Court decisions focus on the unreliability of uncounseled convictions as the reason why they must not be used against the defendant in later cases. But other (generally more recent) decisions disregard reliability concerns and instead adopt a more formalistic approach: it is because the earlier conviction was unconstitutional that makes its later use improper. Using the older reliability-based approach, any uncounseled conviction should be off-limits. Using the newer constitutionality-based approach, however, uncounseled tribal-court convictions should be fair game.

As the Eighth Circuit noted, the Supreme Court has never satisfactorily addressed the tension in its cases. It is unclear whether the reliability approach has been entirely replaced by the constitutionality approach, or whether both approaches still have a role to play. The Eighth Circuit did not squarely resolve the tension, but ultimately laid great emphasis on the constitutionality approach: “[W]e believe it is necessary to accord substantial weight to the fact that Cavanaugh’s prior convictions involved no actual constitutional violation.” (603-04)

That “substantial weight” proved dispositive in Cavanaugh itself, but the court did leave open the door for a different outcome in future cases in which there were “other allegations of irregularities or claims of actual innocence surrounding the prior convictions.” (605) This suggests there may still be a backdoor by which defendants may press reliability concerns on a case-by-case basis.

By contrast, in United States v. Shavanaux, 2011 WL 3087015 (10th Cir.), the Tenth Circuit adopted a sweeping bright-line rule: “Use of tribal convictions in a subsequent prosecution cannot violate ‘anew’ the Sixth Amendment because the Sixth Amendment was never violated in the first instance.” (*3) In the same spirit, the court also held that “tribal convictions obtained in compliance with the [Indian Civil Rights Act, which has a limited right to counsel] are necessarily compatible with due process of law,” and hence do not violate the Fifth Amendment. (*5) The court did not give any attention to the reliability concerns that so troubled the Eighth Circuit.

However, the Tenth Circuit did raise another issue: comity. The court found “compelling” the concern that “failing to fully recognize convictions from individual tribal courts also risks imposing inappropriately sweeping standards upon diverse tribal governments, institutions and cultures.” (*4) I think the Eighth Circuit was right to dismiss this concern:

Precluding the use of an uncounseled tribal conviction in federal court would in no manner restrict a tribe’s own use of that conviction: it would simply restrict a federal court’s ability to impose additional punishment at a later date in reliance on that earlier conviction.

643 F.3d at 605.

It is not clear whether either court’s decision can be reconciled with an earlier Ninth Circuit decision, United States v. Ant, 882 F.2d 1389 (9th Cir. 1989). The majority in Cavanaugh tried to distinguish Ant, but the dissenting judge found this effort unpersuasive. Meanwhile, Shavanaux squarely rejected the reasoning in Ant.

Both courts also turned aside Equal Protection challenges to the convictions.

Hat tip to Scott Idleman for drawing these cases to my attention.

Cross posted at Life Sentences Blog.