Monday, July 29, 2019

On Exile

Given the state of education in America these days, it’s likely that precious few students today have ever read the once-classic story, “The Man Without A Country” – therefore most people today would be surprised to learn that “exile” was once a serious part of American law.  The assumption was, “If you can’t live with our society, live without it”.  The early American colonists relied on “banishment” as a legal punishment for civil or religious infractions.  For example, Roger Williams was banished from the Massachusetts Bay colony in 1635 for complaining about the colonists’ practice of stealing land from the local Indians.  Cast out, Williams went to the Indians and took care to buy land from them, on which he founded the colony of Rhode Island.  

As I recall, the laws concerning application of that particular sentence are still on the books, and I think it’s time we considered them again.

At present, only non-citizens can be deported from the US.  Citizens can be exiled only for engaging in war or espionage against the US – in other words, treason.  Technically, “engaging in private diplomacy” may get you exiled and stripped of US citizenship, though that has never been invoked.  Exile or “banishment” from a state is a little more complicated.  Sixteen states have constitutional provisions prohibiting banishment, and others have banned the practice through appeals courts decisions, on the grounds that citizens have a right to live where they choose.  It remains on the books in a handful of states, and Maryland prescribes it as punishment for “corruption”, but such sentences are usually overturned on appeal. 

Still, a lot of prosecutors are arguing for a restoration of the practice – among other things, noting that federal courts already have a form of voluntary exile as part of the plea-agreement system.  In effect, the crook is given a suspended sentence so long as s/he stays out of the country for a particular number of years – but if s/he returns before then, the axe drops.  It’s generally assumed that banishment can’t be open-ended but must have a term-limit – generally the same length of time that the convicted would otherwise spend in prison.
Whether or not people have a right to live wherever they want to – and whole countries, as well as states and cities might argue with that – not even the ACLU can claim that banishment/exile is either unusual or more cruel than locking people up in prison.  The legal justification for incarceration, besides keeping proven criminals away from the rest of society, is to “rehabilitate” them.  This is why prisons in the US offer all sorts of educational programs to inmates, not to mention the reliable chaplains.  This hasn’t proved nearly as useful as the legal theorists hoped;  all too often prisoners pick up criminal tactics and contacts in prison – not to mention a taste for Jihadist terrorism – which they put to bad use when they’re released.  And never mind the sheer cost of keeping such a large portion of our population in prison.  It would be cheaper, as well as more merciful, to banish/deport/exile our convicted felons – citizens or not – to whatever other country will have them, and let them work out their own rehabilitation on their own time and at their own expense. 

Who knows?  The exiles might actually do a decent job of it.  Historically, gangs of exiles, thrown out on their own resources, have founded not only successful colonies – like Rhode Island – but successful whole countries, such as the USA, Australia, and ancient Rome.  When considering mass rehabilitation, one could do a lot worse.

So yes, it’s time to seriously consider widening the laws on exile – under any name.

--Leslie <;)))>< 


Paradoctor said...

Any proposer of new (or renewed) penalties ought to consider the question: what if this penalty were applied to me? Second question: what if it were applied to me unjustly?

Paradoctor said...

Athens had the custom of ostracism, or temporary exile mandated by popular vote. These votes were submitted on pottery shards - 'ostrakon' - hence the name.

I heard this tale; that Aristides the Just once saw an illiterate struggling with an ostrakon. He asked to help; learned that the illiterate wanted to exile Aristides the Just! Aristides did not mention his own name, which he wrote on the ostrakon. Then he asked, "Why exile Aristides? How has he wronged you?" The illiterate said, "I don't trust anyone who lets himself be called 'The Just'."

The cream of the jest, to me, is the fact that we know this tale; which means that Aristides must have told it. So how do we know it's true?

Another, perhaps better-attested tale: Aristides was showing some friends around Athens. They asked him, "Why is there no statue of you?" His answer; "Better to have no statue and have people wonder why not, than to have a statue and have people wonder why."

Technomad said...

Relocating criminals can work. Sometimes. Other times, they find new friends of the same kidney as their old friends, and soon they're right back in The Life.

Leslie Fish said...

Hi, Nat. I have thought of that, and -- justly or unjustly -- I'd rather be exiled/banished/deported than locked up in prison.

Hi, Nomad. Quite true, but going back into The Life also gives them more opportunities to be Shot In The Act. Also, a Three Strikes law could apply here, too.

Eric Wilner said...

Been a while since I read any Icelandic sagas, but I seem to recall that Viking-era Icelandic courts only had the power to impose two kinds of penalties: (1) restitution, and (2) outlawry.
Outlawry (greater, being for life, or lesser, being for some specified term) wasn't exactly exile, but it did deny the subject legal protections, so he'd have to be very careful not to annoy anyone nor to cross paths with any old enemies, hence self-exile was generally the safest course of action.
This is from dim memory, so probably fairly inaccurate.

Leslie Fish said...

"Outlawry" also has precedent in American law, and also might not be a bad idea to revive.

Eric Wilner said...

The trouble with trying to revive outlawry, or exile, in modern-day America is that the population has outrun our ability to recognize people.
In a traditional community, where the population is not-too-many-monkeyspheres, outlaws can be readily identified as such. But in a city with a population that exceeds Dunbar's number by a factor of a thousand or more, hundreds of outlaws can easily hide among the teeming mass of strangers.
(Yes, there may be technological ways to address this, but they're downright dystopian. Papers, please! We need to check you out through E-Verify to see that you have permission to breathe.)

This puts me onto another train of thought: the limited (by human cognitive abilities) size of a meaningful community means that any large city isn't really a community... but world leaders are a community unto themselves. This has of course been the case as long as there have been world leaders, and is how England could end up with a German-speaking king and Russia with a French-speaking tsar. It's important that they're members of the international community of royalty, and no connection to the (ugh) commoners over whom they rule is needed, nor desirable.

Leslie Fish said...

Hi, Eric. Yes, a lot of people have noticed that. It's why cities are internally divided -- socially, into "neighborhoods", and legally into "wards". Even these often get too big for effective social recognition.

Oh yes, definitely, the ruling class is a society all by itself! That leads to the tempting concept of identifying and exterminating all of them. Class warfare!

Reziac said...

I'm not a fan of prison, for the reasons stated. When I become dictator, there will be four possible responses to criminal behavior:


Exile works if there's no means of support other than for the exiled to support themselves with their own hands, so they have to learn better like it or not. (See also Australia.) Exile does not work so well if some foreign power offers support; then the exiled ferments and foments, and usually returns as a 'revolutionary'.

The main problem is we've run kinda short of handy middles-of-nowhere to exile 'em to, at least that will take 'em. Maybe Russia can be convinced to open up the arse end of Siberia to colonization...