Banishment

A form of punishment imposed on an individual, usually by a country or state, in which the individual is forced to remain outside of that country or state.

Although it is decidedly archaic in contemporary criminal justice systems, banishment enjoys continued existence and periodic resurgence in application. Its use is hard for legal scholars to track, but banishment is still employed in at least a handful of states, particularly in the South, as a viable alternative to incarceration.

Banishment—also known as exile or deportation—has its origins in Greek and Roman times and in worldwide histories of other kingdoms and countries such as China, Russia, and England. In ancient times, banishment was an effective punishment because it contemplated that offenders leaving a settled community would necessarily wander in the wilderness, shamed by their loved ones and unwelcome in other settlements. During England's colonial times, banishment and "transportation" were common forms of punishment. Transportation involved the relocation of criminals to one of the colonies. In colonial America, Englishmen who married African American or Native American women were banished from their colony.

In its original form, banishment had a twofold efficacy. Not only was physical survival a challenge outside of one's protected community, but the psychological and emotional damage from the scourge and condemnation of family, neighbors, and community was equally dreaded. However, as settlements and communities grew closer together, banishment meant the freedom to move to another location and to perpetrate the same crimes against an unknowing and unsuspecting community.

In contemporary populous societies, the effect is lost. One community's exile becomes the neighboring community's problem. In the 1980s, California "banished" a parolee, giving him a one-way bus ticket to Florida, where he later murdered a woman. Cuba exiled much of its criminal prison population to the United States, where many of the exiles were imprisoned because of crimes committed there.

The U.S. Constitution does not prohibit banishment, as long as the punishment and sentencing meet the substantive and procedural requirements of DUE PROCESS OF LAW. Banishment is not considered "cruel and unusual punishment." As recently as 2000, the Court of Appeals for the State of Mississippi addressed banishment in Hamm v. Mississippi, 758 So. 2d 1042 (Miss App. 2000), referring to it as an "outmoded form of punishment." Nevertheless, the court went on to address the limited circumstances under which the punishment may be used. The court insisted that the purpose of banishing someone must reasonably resemble the goals of probation—including that of rehabilitation of the offender—that both the person being sentenced and the general populace must be served, and that the defendant's FIRST AMENDMENT, FIFTH AMENDMENT, and FOURTEENTH AMENDMENT rights not be violated.

Other states have been known to make at least limited use of the punishment in recent years. Section I of the Bill of Rights of the Constitution of the State of Georgia states that "Neither banishment beyond the limits of the state nor whipping shall be allowed as punishment for a crime." Intrastate banishment, on the other hand, is permitted in Georgia. Georgia prosecutors find banishment particularly effective in drug cases because it removes the offenders from the community that most likely contains their customers and suppliers. In 1974, the Georgia Supreme Court upheld prosecutors' use of banishment from seven Georgia counties against a woman who had challenged the punishment on constitutional grounds.

Kentucky and Arkansas also continue to use banishment for certain crimes. Arkansas's constitution prohibits banishment "from the state," but it allows intrastate banishment. In 2000, a Corbin, Kentucky, judge exiled from the entire state a person who had been convicted of DOMESTIC VIOLENCE. Florida judges have been known to address prostitution by meting out a five-year banishment sentence and buying the convicted prostitute a one-way ticket out of town.

Perhaps nowhere is the punishment of banishment still employed in the continental United States as much as on Indian reservations. Tribes administering their own justice to their own members often employ the use of banishment as the ultimate humiliation. When two teenagers robbed and beat a pizza delivery man with a baseball bat in the state of Washington, the Tlingit nation banished them to separate islands for one year. In 1994, the Council of Chiefs of the Onondaga Nation in New York formally banished three members for gross violations of tribal laws. The men were formally stripped of their citizenship in the Onondaga Nation; were severed from their community and families; and had their rights, property, and protection under the ancient Iroquois Law of Onondaga territory extinguished. The Native Village of Venetie Tribal Government near Fairbanks, Alaska, punishes offenders who are caught drinking alcohol with a $50 fine. Repeat offenders are subject to banishment from the village.

An interesting case of tribal banishment occurred in 1998, in Penn v. United States. Margaret Penn, a non-Indian tribal prosecutor and part-time grantwriter on the Standing Rock Reservation of the Sioux Tribe in South Dakota, brought charges against a tribal court chief judge for unethical conduct. She was terminated from her employment, and she then sued for wrongful termination. During the pendency of that suit, she was served an ex parte order from the tribal judge, banishing her from the reservation on false charges. She was given 45 minutes to gather her personal belongings and was escorted off the reservation within two hours.

Despite $17 million in 1998 federal funding for the tribal court, reservation, and tribal council, Penn was constrained in her ability to effectively sue the Standing Rock tribe by limited federal jurisdiction in the face of SOVEREIGN IMMUNITY. Relying on a HABEAS CORPUS remedy afforded by the Indian Civil Rights Act, she filed suit in U.S. district court, expressly requesting that the federal court find that it had jurisdiction to hear "any CAUSE OF ACTION arising out of … the banishment order."

The tribe responded by vacating the banishment order. In January 1999, the federal district court dismissed Penn's case as moot because the banishment order had been canceled. In March 2002, the court ruled on Penn's suit against the Bureau of Indian Affairs (BIA) and the County Sheriff who has effected service of the facially invalid banishment order. Penn v. United States, Case No. A1–00–93. The court ruled in Penn's favor, defeating the defendants' claims of sovereign or qualified IMMUNITY. The two key issues involved were the "routine denial of fundamental constitutional rights by tribal governments and courts" and "holding the BIA and County Sheriff responsible for enforcing an [ex-parte] order that violated constitutional protections and issued by a [tribal] court with no jurisdiction over Maggie Penn." An appeal to the Eighth Circuit Court of Appeals was expected.