Samuel P. Newton

"25 Most whites simply turned a blind eye to kidnappings of a whole race of people in their back yard.26 By the late nineteenth century, enterprising criminals started to kidnap the children of rich white people and hold them hostage.27 These cases generated torrents of publicity and prompted the public and political officials to demand action, which usually involved reactionary legislative expansions of kidnapping's definition or punishment.28 Conversely, near silence occurred when large numbers of blacks were taken and even lynched.29 In many of these cases, the perpetrators of violence were part of the very establishment charged with enforcing kidnapping statutes.30 Over the next several decades, usually after the publicized kidnapping of a white child, states continued to incrementally broaden the offense.31 But the floodgates opened with the landmark kidnapping of Charles Lindbergh's baby in 1932.32 The case and its extensive publicity sent federal and state governments on an emotionally charged quest to augment kidnapping's definition to such an extent that it came to encompass "a wide and ill-defined range of behavior" and now "elude [s] meaningful definition. When defendants have raised constitutional challenges to kidnapping statutes, the courts have remained sadly silent and have turned a blind eye-like they have in previous centuries-to these real problems.43 Time and again, courts have largely refused to give these constitutional provisions any remedial power.44 To this end, in Part II, I propose two simple solutions.45 First, legislatures should drastically restrict kidnapping ' s definition so that it no longer overlaps with so many other criminal offenses, like has been done with the Model Penal Code.46 The definition should make the offense unique again, requiring things like transportation a significant distance or hostage taking. [...]courts should be willing to strike down kidnapping statutes for vagueness, and for violating the Double Jeopardy, Cruel and Unusual Punishment, and Equal Protection Clauses. Because kidnapping has virtually no boundaries, prosecutors can improperly discriminate and defendants could never prove otherwise.

[...]longstanding Supreme Court jurisprudence has held the Bill of Rights and the Constitution do not apply to Indian tribes like they do to the states.2 Therefore, under United States law, Indians do not have a right to a courtappointed attorney in tribal courts where the possible sentence will not be more than one year.3 A defendant on trial in tribal court only has the right to an attorney at his or her own expense.4 The lack of the right to appointed counsel may make sense when tribal courts sentence Native Americans to tribal sentences, but a serious issue arises when convictions or pleas (hereinafter referred to collectively as "convictions") made in tribal courts, without the benefit of counsel, are introduced in subsequent federal cases and used to support convictions which carry significant prison terms under federal statutes. "7 In 1963, the Supreme Court made the Sixth Amendment right to counsel applicable to the states through the Fourteenth Amendment in Gideon v. Wainwright,8 What the right to counsel actually entailed was interpreted in different ways through the following three decades, with the Court eventually settling on the constitutional principle that a person may not be imprisoned without having an attorney or validly waiving the right to counsel.9 Further, the Court determined that an uncounseled misdemeanor conviction, which does not result in imprisonment, is valid and may be used to enhance a subsequent conviction.10 Underlying these constitutional principles, and important to the cases at issue in this Note, are the concepts of the validity of convictions and the reliability of uncounseled versus counseled convictions.11 Therefore, this section will examine the constitutional principles articulated by the Court regarding right to counsel and the permissible uses of convictions obtained without counsel in subsequent proceedings. 1. No Criminal Defendant May Be Sentenced to Incarceration Unless , They Were Afforded the Protection of Counsel or Waived the Right Gideon v. Wainwright is the landmark case for right to counsel.12 In 1963, Clarence Gideon was charged with breaking and entering a pool hall, but his request for an attorney to represent him at trial was denied.13 Thereafter, Gideon was convicted and sentenced to five years in prison.14 Relying on earlier decisions in Powell v. Alabama15 and Johnson v. Zerbst,16 the Court held the right to the assistance of counsel was essential to life and liberty.17 Anchoring its holding was the fact that state and federal governments spent large amounts of money on lawyers prosecuting criminals, and those who are accused and can afford it similarly spent large amounts of money on hiring lawyers who advocate for them in court.18 Thus, the Court reasoned, attorneys are essential to receiving a fair trial.19 Reason and reflection also demonstrated that having counsel is important in criminal cases because one "cannot be assured a fair trial unless counsel is provided. The Court eventually decided valid uncounseled decisions (i.e., those which did not result in incarceration) were sufficiently reliable and could be used in subsequent proceedings, but invalid uncounseled convictions could not be used for any purpose.32 The Court first confronted the use of uncounseled convictions in Burgett v. Texas, where a Tennessee state felony conviction was entered into evidence during trial in Texas state court even though the Tennessee convictions did not show the defendant was provided counsel or had waived the right during the earlier trials.33 The Court held "[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against [the defendant] either to support guilt or enhance punishment for