For The Purposes Of Criminal Law

This morning I found it interesting that a Supreme Court case was decided that stated that for the purposes of criminal law, eastern Oklahoma was counted as reservation territory because although the state of Oklahoma (and the United States) violated numerous terms of the treaties given to the civilized tribes of the Southeastern United States when they were removed from their homes there and placed in Oklahoma, the treaties were never formally cancelled and thus they remain in force.  Not long after that I read someone complaining about the slave labor of California convicts that was used to fight fires for extremely low wages, people who might be gaining vocational training except for the fact that their criminal record prevents them from finding jobs as firefighters after their release, despite the experience that they have in fighting fires.  This is a just complaint.  Yet rather than engage merely in political pontificating about such matters, I would like to comment on the way that it shows the way that the past lives on into the present by framing the expectations and legal requirements under which we live.

The treaties between the United States and the Creek, Choctaw, Chickasaw, Cherokee, and Seminole peoples of the American Southeast in the early to mid 19th century were typically based on encouraging them to leave their prime real estate that was in the way of settlement by slaveowners seeking to increase profits on land that had not been denuded of its nutrients by the abusive farming practices of tobacco and cotton plantations and go to a land that was not wanted (yet) for such settlement [1].  It should be noted that as little as these treaties have been followed by future generations that they have the force of law and occasionally (as was the case today), a majority of the Supreme Court can be found that is willing to make decisions that are in accordance with this law even if the repercussions in other areas are potentially immense.  This is an understanding of law I can certainly relate to and agree with.  Like some other people I believe that old laws remain in effect even if their repercussions are challenging to contemporary sensibilities, and that the endurance of law requires us to be cautious about how we put it into practice in the first place.

Similarly, I have long [2] found the thirteenth amendment and its exception for criminal law to be of deep interest.  In prohibiting slavery, the thirteenth amendment exclusively carves out of that prohibition a defense of convict slave labor:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction [3].”  Obviously, it was this carve-out that has long allowed convict labor to be an interest that served both public and private purposes.  American prisons have long been a place where those who are insufficiently socialized to avoid dependency on drugs, or a dedication to hard work rather than theft as a source of one’s livelihood or to avoid the use of violence as a way of solving difficulties find that their labor is exploited to benefit public and private interests and that significantly harm the ability of the person to achieve success outside of prison.  Nevertheless, I do not see why there should not be efforts made to allow those criminals who have an interest in being rehabilitated through the acquisition of skills and a dedication of service to the well-being of others to have a chance to clean their slate and be able to turn their newfound skills and passion for service into a chance to earn an honorable living outside of prison.  There is no sense in imprisoning people because of their past, even if I do not have a problem in people being subject to economic exploitation because of their wickedness as part of the wages of crime so long as they do tasks that are dangerous but worthwhile and thus save the lives and health of law-abiding citizens.

Criminal law is not an easy matter.  There is a class of people who is devoted to breaking the law and whose interests are directly antithetical to those of ordinary people who I have little or no personal sympathy towards.  There are others who commit crimes out of weakness or ignorance but who at least have the potential to be redeemed and thus should have some sort of road to redemption available for them.  There are still others who are corrupt but who have not suffered for their corruption, so a robust system of criminal law offers the hope of righting such injustices by bringing them to account for their wrongdoing at some point.  It is hard for criminal law to do things right, not least because it is hard to keep the punishment in line with the real severity of the crime, and hard to keep criminal law from being too entangled in negative social trends that completely fail to recognize the heart of criminality in the native rebelliousness of all mankind against God and against His ways.  But at least we can all try to overcome our nature and live according to the straight and narrow way.

[1] See, for example:

[2] See, for example:


About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American History, History, Musings and tagged , . Bookmark the permalink.

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