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

Abstract

This essay explores a radical shift in how the relationship between 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.

Citation

Shoemaker, K.B. (2003), "“FOREMOST AMONG THE PREROGATIVES OF SOVEREIGNTY”: THE POWER TO PUNISH AND THE DEATH OF COMITY IN AMERICAN CRIMINAL LAW", Sarat, A. and Ewick, P. (Ed.) Punishment, Politics and Culture (Studies in Law, Politics, and Society, Vol. 30), Emerald Group Publishing Limited, Leeds, pp. 33-50. https://doi.org/10.1016/S1059-4337(03)30002-X