“FOREMOST AMONG THE PREROGATIVES OF SOVEREIGNTY”: THE POWER TO PUNISH AND THE DEATH OF COMITY IN AMERICAN CRIMINAL LAW

• Published date: 09 December 2003
• Date: 09 December 2003
• Pages: 33-50
• DOI: https://doi.org/10.1016/S1059-4337(03)30002-X
• Author: Karl B Shoemaker

“FOREMOST AMONG THE

PREROGATIVES OF SOVEREIGNTY”:

THE POWER TO PUNISH AND THE

DEATH OF COMITY IN AMERICAN

CRIMINAL LAW

Karl B. Shoemaker

ABSTRACT

This essay explores a radical shift in how the relationshipbetween the power

to punish and sovereignty has been conceived in modern American law;

specifically focusing on the quiet death of comity as an operative principle

in the exercise of criminal jurisdiction. While this essay attends to certain

legal issues arising from historical intersections of federal, state and Indian

sovereignty in the field of criminal law,this essay is not an attempt to directly

evaluate the history of federal policies applied to Indian tribes or tribal lands.

Nor is this essay in any strict sense a legal history of federal-tribal relations,

or federal penal policy in relation to Indian tribes. Rather, I am concerned

here with a series of liminal moments in the American legal tradition in

which the power to punish came to be understood ever more one-sidedly, as

an atomizing attribute of sovereignty rather than an identifying feature of

community within a pluralistic legal framework.

Punishment, Politics, and Culture

Studies in Law, Politics, and Society,Volume 30, 33–50

Copyright © 2004 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(03)30002-X

33

34 KARL B. SHOEMAKER

INTRODUCTION

In Supreme Court jurisprudence, the power to punish has been represented both as

a centerpiece of sovereignty and as a marker for membership in distinct sovereign

communities. As the Court recently pronounced in the context of federalism, “the

power to create and enforce a criminal code” stands “foremost among the prerog-

atives of sovereignty” (Heath v.Alabama, 474 U.S. 82 (1985)). As a historical

concomitant, American law has also characterized the power to punish as closely

linked to, and limited by, the boundaries of community membership. Hence, the

power to punish not only signals a core feature of sovereignty, but also signals

the contours of a sovereign political community. In punishing, a community

distinguishes itself both as capable of “exercising its own sovereignty” (United

States v.Wheeler 435 U.S. 313 (1978)), and as capable of claiming those who

belong to it.

Not surprisingly, this understanding of sovereignty has figured prominently

in legal conflicts between Indian tribes, states, and the federal government over

matters of criminal jurisdiction. First, through a series of federal treaties, Supreme

Court decisions, and congressional legislation stretching back to the end of

the eighteenth century, the power to punish has been a basis for support of (or

challenges to) Indian sovereignty. Forexample, in early nineteenth-century cases,

several Supreme Court justices specifically treated the power to punish as a sine

qua non of sovereignty. At numerous points in those decisions, Indian tribes were

determined to possess (or lack) sovereignty based on their capacity to punish

their own members. Second, early treaties with Indian tribes were sometimes

preoccupied with the question “who could punish whom?” The possibility that

Indian tribes might exercise criminal jurisdiction over white settlers, or white

settlers over Indians, was a cause of some anxiety in the late-eighteenth and

early-nineteenth centuries. Community membership checked, at least in principle

if not always in practice, the exercise of penal power over non-members. The

power to punish at once anchored claims of sovereignty and limited the reach of

sovereign power exercised by federal, state, and tribal communities respectively.

A venerable tradition of political thought conceives the relationship between

sovereignty and the power to punish in much the same terms. After all, the word

“sovereign” – derived from the Latin verb superare (to overcome, to vanquish,

and, tellingly, to survive) – speaks already the intimate link between dominion

and sanction. Machiavelli, for instance, understood the power to punish as a

constituent element of sovereignty, and named that power necessary for the

continued survival of a healthy republic (1970). Hobbes was equally explicit,

listing the power to punish in his catalogue of “Rights” necessary for the

“Institution of a Commonwealth” (1988, p. 90).