[Federal Register Volume 79, Number 72 (Tuesday, April 15, 2014)]
[Rules and Regulations]
[Pages 21148-21151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08504]


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LEGAL SERVICES CORPORATION

45 CFR Part 1613


Restrictions on Legal Assistance With Respect to Criminal 
Proceedings

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule updates the Legal Services Corporation (LSC or 
Corporation) regulation on legal assistance with respect to criminal 
proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the 
LSC Act to authorize LSC funds to be used for representation of persons 
charged with any criminal offense in tribal courts. This proposed rule 
will bring the regulations into alignment with the amended provisions 
of the LSC Act. The proposed rule will also revise the conditions under 
which LSC recipients can accept or decline court appointments to 
represent defendants in criminal proceedings.

DATES: The effective date of this rule is May 15, 2014.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007, (202) 295-1563 (phone), (202) 337-6519 (fax), [email protected].

SUPPLEMENTARY INFORMATION:

I. General Authorities and Impetus for Rulemaking

    The Corporation first issued 45 CFR part 1613 in 1976 to implement 
a statutory prohibition on the use of LSC

[[Page 21149]]

funds to provide legal assistance in criminal cases. Section 1007 of 
the LSC Act prohibited the use of LSC funds to provide legal assistance 
``with respect to any criminal proceeding.'' Sec. 1007(b)(2), Public 
Law 93-355, 88 Stat. 383 (42 U.S.C. 2996f(b)(2)). The original section 
1613.2 defined ``criminal proceeding'' as

the adversary judicial proceeding prosecuted by a public officer and 
initiated by a formal complaint, information, or indictment charging 
a person with an offense denominated `criminal' by applicable law 
and punishable by death, imprisonment, or a jail sentence. A 
misdemeanor or lesser offense tried in an Indian tribal court is not 
a `criminal proceeding.'

41 FR 38506, Sept. 10, 1976.

    The following year, Congress amended section 1007(b)(2) of the LSC 
Act to codify the Corporation's exemption of minor crimes in tribal 
courts from the types of criminal proceedings for which LSC funds could 
not be used. Sec. 10(b), Public Law 95-222, 91 Stat. 1620-1623. 
Congress made no further adjustments to the criminal prohibition 
provision until it enacted the Tribal Law and Order Act (TLOA) in 2010.
    The TLOA amended section 1007(b)(2) of the LSC Act to authorize the 
use of LSC funds to provide representation in all criminal proceedings 
before tribal courts. Sec. 235(d), Public Law 111-211, Tit. II, 
Subtitle C, 124 Stat. 2282 (42 U.S.C. 2996f(b)(2)). The TLOA also had 
two major effects on tribal criminal jurisdiction. First, it authorized 
tribal courts to impose longer sentences, increasing the maximum 
duration from up to one year to a total of nine years for multiple 
charges. Sec. 234(a), Public Law 111-211, Tit. II, Subtitle C, 124 
Stat. 2280 (25 U.S.C. 1302(c)(2)). Second, it required tribes 
exercising the expanded sentencing authority ``at the expense of the 
tribal government, [to] provide an indigent defendant the assistance of 
a defense attorney.'' Sec. 234(c)(2), Public Law 111-211, Tit. II, 
Subtitle C, 124 Stat. 2280.
    Congress further expanded tribal court jurisdiction in 2013. 
Through the Violence Against Women Reauthorization Act of 2013 (2013 
VAWA), Congress amended the Indian Civil Rights Act of 1968 to 
authorize tribal courts to exercise special criminal jurisdiction over 
domestic violence cases. Sec. 904(b)(1), Public Law 113-4, 127 Stat. 
120-121 (25 U.S.C. 1304(a)). This ``special domestic violence criminal 
jurisdiction'' is exercised concurrently with state or Federal 
jurisdiction, or both, as applicable. Sec. 904(b)(2), Public Law 113-4, 
127 Stat. 121 (25 U.S.C. 1304(b)(2)). Unlike prior congressional 
enactments, the 2013 VAWA explicitly authorizes tribes to exercise 
jurisdiction over both Indian and non-Indian defendants in certain 
circumstances. Sec. 904(b)(4), Public Law 113-4, 127 Stat. 121-22 (25 
U.S.C. 1304(b)(4)).
    In order for the tribe to assert special domestic violence criminal 
jurisdiction, the alleged act must have occurred within Indian country. 
Sec. 904(c), Public Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(c)). 
``Indian country'' is a term of art defined in 18 U.S.C. 1151. If 
neither the victim nor the accused is Indian, the court may not 
exercise jurisdiction. Sec. 904(b)(4)(A)(i), Public Law 113-4, 127 
Stat. 121 (25 U.S.C. 1304(b)(4)(A)(i)). If only the accused is a non-
Indian, the court may exercise jurisdiction only if the accused resides 
in the Indian country over which the tribe has jurisdiction; is 
employed in the Indian country of the tribe; or is a spouse, intimate 
partner, or dating partner of a member of the tribe or an Indian who 
resides in the Indian country of the tribe. Sec. 904(b)(4)(B), Public 
Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(b)(4)(B)).
    The 2013 VAWA also introduced another set of crimes in Indian 
country for which defendants are entitled to counsel at the tribal 
government's expense. Section 904(d)(2) states that if a sentence of 
any length of time may be imposed, the defendant is entitled to all of 
the rights set forth in section 202(c) of the Indian Civil Rights Act. 
Sec. 904(d)(2), Public Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(d)(2)). 
The TLOA previously amended section 202(c) to require tribes exercising 
expanded criminal sentencing authority to provide counsel to defendants 
facing total terms of imprisonment that would exceed one year. Sec. 
234(a), Public Law 111-211, 124 Stat. 2280 (25 U.S.C. 1302(c)(2)).
    In summary, the TLOA and the 2013 VAWA amended the Indian Civil 
Rights Act to expand both the sentencing authority and the jurisdiction 
of tribal criminal courts. The TLOA also amended the LSC Act to allow 
the use of LSC funds for representation of criminal defendants in 
tribal courts facing sentences of more than a year. LSC grant 
recipients now have the option of using their LSC funds to provide 
criminal representation. Additionally, because tribes must provide 
defendants with counsel at tribal government expense in certain 
circumstances, LSC recipients may be faced with increasing numbers of 
judicial requests for appointments to represent criminal defendants.

II. Procedural Background

    On January 25, 2013, the Operations and Regulations Committee 
(Committee) of the LSC Board of Directors (Board) voted to recommend 
that the Board authorize rulemaking to conform Part 1613 to the 
amendments to the LSC Act and to address recipients' concerns regarding 
criminal appointments. On January 26, 2013, the Board authorized the 
initiation of rulemaking.
    In response to the statutory changes described above, LSC sought 
input from experts in tribal law, including tribal court officials and 
practitioners, and the public to determine whether the Corporation 
needed to amend its regulations. LSC published a Request for 
Information (RFI) regarding the restrictions on legal assistance with 
respect to criminal proceedings in tribal courts. 78 FR 27341, May 10, 
2013. Additionally, during its July 22, 2013 meeting of the Board of 
Directors, the Committee heard from a panel of five experts in tribal 
law representing a variety of perspectives.
    Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a 
proposed rule amending Part 1613 with an explanatory rulemaking options 
paper. On October 22, 2013, the Board approved the proposed rule for 
publication in the Federal Register for notice and comment. The NPRM 
was published in the Federal Register on November 4, 2013. 78 FR 65933, 
Nov. 4, 2013. The comment period remained open for thirty days and 
closed on December 4, 2013.
    On April 7, 2014, the Committee considered the draft final rule and 
recommended that the Board approve its publication. On April 8, 2014, 
the Board approved the final rule for publication.
    All of the comments and related memoranda submitted to the LSC 
Board regarding this rulemaking are available in the open rulemaking 
section of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those 
materials will appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking.

III. Discussion of Comments and Regulatory Provisions

    LSC received seven comments on the NPRM. Five comments were 
submitted by law students, one was submitted by the court clerk for the 
Snoqualmie Tribal Court, and one was submitted by Jonathan Asher, 
Executive Director of Colorado Legal Services, an LSC recipient.

[[Page 21150]]

    Three of the commenters supported the revisions to part 1613. One 
commenter opposed the revisions, and the other three commenters 
provided comments without expressing support for or opposition to the 
revisions to part 1613. LSC will address only the substantive comments 
in this preamble. All of the comments received are posted on the 
rulemaking page of LSC's Web site: www.lsc.gov/about/regulations-rules.

Section-by-Section Discussion of Comments and the Final Rule

1613.1 Purpose.

    The Corporation proposed to revise this section to state that LSC 
grant recipients may not represent individuals in criminal proceedings 
unless authorized by part 1613. The LSC Act has been amended twice to 
authorize criminal representation in tribal proceedings since the 
regulation was originally enacted in 1976, and the Corporation proposed 
to amend part 1613 to be consistent with those statutory amendments. 
LSC received no comments on this section of the proposed rule.

1613.2 Definition.

    LSC proposed to amend the definition of ``criminal proceeding'' to 
remove the exclusion of misdemeanors or lesser offenses in Indian 
tribal courts from the definition. The Corporation received no comments 
on this section of the proposed rule.

1613.4 Authorized representation.

    The Corporation proposed to revise Sec.  1613.4(a) to allow 
recipients to undertake criminal appointments after a determination 
that such appointment ``will not impair the recipient's primary 
responsibility to provide civil legal services.'' Under the current 
rule, recipients must determine that accepting a criminal appointment 
will be ``consistent with'' its primary responsibility to provide civil 
legal services. The Corporation believed the current standard does not 
provide meaningful guidance because any representation of a defendant 
in a criminal case could be characterized as not ``consistent with'' a 
recipient's primary responsibility to provide civil legal services. The 
Corporation believed that changing the standard to impairment of the 
recipient's primary responsibility to provide civil legal services 
would provide more meaningful guidance by permitting recipients to 
consider the impact of accepting a criminal appointment on a 
recipient's financial and human resources.
    Comments: The Executive Director of Colorado Legal Services 
expressed concern about the proposed change in the standard for 
declining a criminal appointment in both tribal and non-tribal courts. 
He stated that ``[c]hanging the standard from `inconsistent' to 
`impair' may inadvertently further limit and further complicate a 
grantee's ability to provide representation to defendants in criminal 
cases in Tribal Court rather than ease the decision . . . A decision to 
accept a criminal case, arguably, would always `impair' the grantees' 
ability to provide civil legal assistance.'' He further stated that 
while the Corporation may expect that its interpretations and analysis 
would apply to the revised standard, ``it is inevitable that issues and 
new questions will arise and need to be addressed.'' He requested that 
LSC consider either eliminating the standard for exercising discretion 
to accept or decline court appointments in criminal cases or, 
alternatively, amend the regulation to require that recipients be able 
to document a ``rational basis'' for exercising their discretion.
    One of the law student commenters suggested that the standard for 
accepting or declining a court appointment in a criminal case should 
turn not on whether acceptance would impinge upon a recipient's ability 
to provide civil legal services, but whether acceptance is necessary to 
avoid injustice. The commenter asserted that the proposed change to the 
standard ``encumbers'' the goal of promoting equal access to justice 
``because [it does] not contemplate equal access to justice as being a 
relevant factor for a recipient to consider in determining whether to 
represent a criminal defendant in Indian tribal court.'' The commenter 
proposed that recipients should consider many factors in deciding 
whether to accept a criminal appointment, including the availability of 
other competent counsel to defend the accused, the necessity of a 
background in Tribal criminal law, the complexity of the case, 
expertise in criminal law, the financial resources of the accused, and 
whether the accused is out on bond or being held in pretrial detention.
    Response: LSC will retain the language from the proposed rule. LSC 
continues to believe that the revised standard would provide more 
meaningful guidance by permitting recipients to consider the impact of 
accepting a criminal appointment on a recipient's financial and human 
resources. The revised standard is not intended to impose greater 
limitations on recipients' decisions regarding court appointments. To 
the contrary, the Corporation intends the revised standard to create 
greater flexibility to exercise discretion. Nothing in the proposed 
rule prevents recipients from considering any of the factors noted by 
the student commenter, including whether representation is necessary to 
promote equal justice, when deciding whether to accept or decline a 
court appointment to represent a criminal defendant.

1613.5 Criminal representation in Indian tribal courts.

    The comments discussed in Sec.  1613.4 immediately preceding 
(addressing representation in criminal proceedings generally) were also 
applicable by their terms to proposed Sec.  1613.5. For the reasons 
stated in the preceding discussion, LSC is retaining the language from 
the proposed rule in Sec.  1613.5.

List of Subjects in 45 CFR Part 1613

    Crime, Grant programs--law, Legal services, Tribal.

    For the reasons stated in the preamble, and under the authority of 
42 U.S.C. 2996g(e), the Legal Services Corporation amends 45 CFR part 
1613 as follows:

PART 1613--RESTRICTIONS ON LEGAL ASSISTANCE WITH RESPECT TO 
CRIMINAL PROCEEDINGS

0
1. The authority citation for part 1613 is revised to read as follows:

    Authority: Sec. 234(d), Public Law 111-211, 124. Stat. 2282; 42 
U.S.C. 2996f(b)(2); 42 U.S.C. 2996g(e).


0
2. Section 1613.1 is revised to read as follows:


Sec.  1613.1  Purpose.

    This part is designed to ensure that Corporation funds will not be 
used to provide legal assistance with respect to criminal proceedings 
unless such assistance is authorized by this part.

0
3. Section 1613.2 is revised to read as follows:


Sec.  1613.2  Definition.

    Criminal proceeding means the adversary judicial process prosecuted 
by a public officer and initiated by a formal complaint, information, 
or indictment charging a person with an offense denominated 
``criminal'' by applicable law and punishable by death, imprisonment, 
or a jail sentence.

0
4. In Sec.  1613.4, paragraph (a) is revised to read as follows:

[[Page 21151]]

Sec.  1613.4  Authorized representation.

    * * *
    (a) Pursuant to a court appointment made under a statute or a court 
rule of equal applicability to all attorneys in the jurisdiction, if 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.
* * * * *

0
5. Section 1613.5 is added to read as follows:


Sec.  1613.5  Criminal representation in Indian tribal courts.

    (a) Legal assistance may be provided with Corporation funds to a 
person charged with a criminal offense in an Indian tribal court who is 
otherwise eligible.
    (b) Legal assistance may be provided in a criminal proceeding in an 
Indian tribal court pursuant to a court appointment only if the 
appointment is made under a statute or a court rule or practice of 
equal applicability to all attorneys in the jurisdiction, and is 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.

    Dated: April 10, 2014.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2014-08504 Filed 4-14-14; 8:45 am]
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