Saturday, July 1, 2017

No Enhanced Penalty For Prior Kickapoo Nation Offense

A decision from the Kansas Court of Appeals

Alvin P. Horselooking, Jr., appeals his sentence following his convictions of aggravated battery and driving under the influence of alcohol (DUI). The district court assigned Horselooking a criminal history score of B based in part on his Kickapoo Nation tribal conviction of residential burglary, which the district court scored as a person felony for criminal history purposes. However, the Kickapoo Nation Tribal Code does not designate burglary as being either a felony or a misdemeanor offense. As his sole issue on appeal, Horselooking claims the district court erred when it scored his prior Kickapoo tribal conviction as a felony for criminal history purposes. Because we agree with Horselooking's claim, we vacate his sentence and remand for the district court to resentence Horselooking using the correct criminal history score.

In response to a dissent

The dissent concludes that the Kickapoo Nation views burglary as a serious crime based on the availability of banishment as a punishment. However, we do not know whether other tribal codes draw this same distinction between serious crimes and minor crimes. We do not believe that a sentencing judge, in calculating a defendant's criminal history score, should be expected to review and interpret tribal codes and traditions in order to ascertain whether a tribal conviction is for a "serious or major crime" and thus is the "equivalent of a felony." Moreover, we cannot be certain that this solution is what our legislature has intended. The KSGA fails to explain how a sentencing court is to classify an out-of-state conviction as either a felony or a misdemeanor when the convicting jurisdiction does not designate the offense as either a felony or a misdemeanor. As our Supreme Court has instructed, in a situation like this one, the wisest course of action is to defer to the legislature to act to fix the problem. 

Justice Atcheson dissented

The Kickapoo Nation's overarching philosophy of criminal justice differs significantly from those systems, including Kansas', with antecedents in English common-law and Anglo-Saxon jurisprudence. With respect to punishment, Kansas identifies four primary policy objectives: deterrence, incapacitation, retribution, and rehabilitation. See State v. Mossman, 294 Kan. 901, 911, 281 P.3d 153 (2012). Those objectives similarly inform punishment in the federal criminal process and in states across the country. See Graham v. Florida, 560 U.S. 48, 71, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In marked contrast, the Kickapoo Nation has an explicit policy that criminal sentences should "strive toward restitution and reconciliation of the offender and the victim and Tribe." Kickapoo Nation Tribal Code, Title 11, Criminal Procedure § 403. And "the paramount goal" of the criminal justice process includes "restor[ing] the offender to harmony with" the victim and the Tribe. Kickapoo Nation Tribal Code, Title 11, Criminal Procedure § 403. To that end, sentences typically include restitution to the victim and, when appropriate, to the Tribe. A convicted defendant may receive a mitigated sentence if he or she "recognizes the wrong he [or she] has committed[] and earnestly repents of such wrong." Kickapoo Nation Tribal Code, Title 11, Criminal Procedure § 403(b).

The dissent analyses the punishment of banishment for burglary. (Mike Frisch)

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