Jurisprudence for Jailhouse Lawyers, Part III
Summarizing a millennia-old tradition of Roman law, early modern French jurist Jean Bodin defined jurisprudence thusly: jurisprudence is the art of distributing to each his own, in order to safeguard human society. Journalist Anatole France, who won the 1921 Nobel Prize in literature, satirized this idea in a short story, making a character proclaim: “The august task of the judge is to assure to every man that which belongs to him, to the rich his wealth, to the poor his poverty.”
Another character elaborates, as follows. “[T] he whole structure of social justice rests upon two axioms: robbery is to be condemned; the result of robbery is to be respected. These are the principles which assure the security of individuals and maintain order in the State.” Justice is the ratification of injustice, not its opposite, according to the latter’s extremely cynical view. Anatole France did not give that cynical perspective the last word, however; through re-interpretation, judges can bend the dead law in the direction of living sympathy. This remains possible, even if this power is rarely used in practice.
A century and a half of complacent legal discourse has allowed the Thirteenth Amendment to sanctify involuntary servitude in prison, as if that exception were the price of chattel slavery’s abolition. Recently, some legal scholars have argued that, applying rigorous juridical logic, the exception clause to the Thirteenth Amendment does not justify the forms of compelled incarcerated labor which are currently practiced. The reason is breathtakingly simple: today, almost no one is sentenced to labor, which a century ago was a common punishment (e.g. hard labor) in many states’ penal codes. Accordingly, the typical judicially-pronounced carceral sentence is one to serving time. That being liable to forced labor can be derived through inferential steps from various statutes, regulations, or case decisions doesn’t change the fact that its absence from sentences (and from properly-advised plea deals) is a glaring procedural defect. The ancient principle Nulla poena sine lege – no punishment without a prior law – has as its necessary corollary: no punishment without a sentence. If that is correct, then the modern practice fails to satisfy the Thirteenth Amendment’s exception’s criterion of “a punishment for crime whereof the party shall have been duly convicted.”
In California, on the other hand, we need not place any faith in the judiciary’s sympathetic interpretation. The voters will have the opportunity to unequivocally erase the state constitution’s similar exception clause. May this chance be taken to ratify justice and, for once at least, to disprove the cynic’s wisdom.
Eric C. Sapp, LSPC Staff Attorney
Originally published by All of Us or None
