Banishment

• Author: Jeffrey Lehman, Shirelle Phelps

Page 462

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)...