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Case W. Res. L. Rev.


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."' 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.' 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.' 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' 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.