Recently, habeas corpus has been on my mind. It is partly because I have started watching season 2 of Making a Murderer. To me, the most interesting part of the second season is the saga of Brendan Dassey’s habeas petition, which is based in part on the involuntariness of his confession. I found the circumstances around Brendan’s confession quite troubling. Several months ago I spoke at an appellate conference that also featured Steven Drizin, one of Brendan’s post-conviction attorneys. Steven’s presentation on false confessions was fascinating.
In season 2 of Making a Murderer, Steven and his colleague Laura Nirider do an excellent job explaining the habeas process in layman’s terms. Because Brendan’s conviction was in Wisconsin state court, he cannot prevail on habeas unless he can show that the state court conviction,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254.
If Brendan had been convicted in federal court, he would have to show “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255.
While it is hard to win on any type of habeas petition, the state standard is extra deferential to the underlying conviction. As Steven explains in season 2, the state standard was modified in 1996 in the wake of the Oklahoma City bombing with the passage of the Anti-terrorism and Effective Death Penalty Act.
So, what does this have to do with Indian law? My appellate advocacy students are currently working on their briefs for my class. Their problem involves a habeas petition from a Tribal court. Under 25 U.S.C. § 1303, “The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” That is it. This provision was passed in 1968, and it hasn’t been modified since. As Prof. Jordan Gloss notes in the American Indian Law Review, this hasn’t been a big issue historically because federal courts have not had to handle a lot of habeas petitions from Tribal courts. This is due, in part, to the limited sentencing capacity that Tribal courts had. However, in 2013, Congress passed the Violence Against Women Reauthorization Act, which, in part, gave Tribes that opted-in to the Act limited jurisdiction over certain non-Indians who committed acts of dating or domestic violence against Tribal members. See 25 U.S.C. § 1304. Additionally, the 2010 Tribal Law and Order Act gives tribes additional sentencing power. Combined, these two acts mean that federal courts will have to handle more habeas petitions from Tribal courts, potentially including Tribal convictions of non-Indians.
I agree with Prof. Gloss that Congress is going to need to step in to clarify what the habeas standard will be for Tribal convictions. If it doesn’t, I am sure that the courts will.
