Possession of Cocaine

by gwydionwilliams

Banishment is alive and well in 21st century America.  While this may come as a surprise to most one need only look through the criminal sentences in many states around the country to see that judges still banish criminals from a particular area as a form of punishment.  There exists considerable support for banishment to continue due to society’s endemic protectionist attitude.  If one group of people can cast their burdens onto the shoulder of another, it is highly unlikely that such practice will change.  It is, however, unacceptable–both from a constitutional standpoint and as a matter of governmental administration–to allow a single party to act in a manner that is injurious to the whole.  Allowing a community, town, or state to act in so selfish a manner that it jettisons all notions of comity, sanctions a practice that tears at the very fabric of our society. This article argues that irrespective of any definable good that may come from banishment, in the long run, society’s use of banishment is a net loss. This article further argues that banishment is a violation of the First Amendment.

Declaring banishment a violation of the First Amendment is meant to encompass all sentences or conditions of banishment irrespective of the reasons for which they were given.  Another danger posed by banishment is that it can be used to undermine democracy and the right of all people in this country to voice support or opposition to the governments.  Only a blanket rule against banishment will prevent someone from determining ad hoc that the crime is not of a political nature and thereby “legally” perpetuating the pernicious effects of banishment.

The use of banishment violates an individual’s rights to freedom of association under the First Amendment.  Freedom of association guarantees to every American the right to associate with his/her fellow citizens for the promotion of political ideas, causes, and concerns.  Violation of a law undermines the will of the people, which was promulgated through the use of the political process.  As such, all crimes, in essence, are political crimes.   From a purely ontological point of view, “all crimes are political crimes inasmuch as all prohibitions with penal sanctions represent the defense of a given value system, or morality, in which the prevailing social power believes.”  To corporately question the validity of a crime, even the most trivial of crimes, is to engage in a tempered form of political protest.  When the political state power expresses its ideology, or value system, through the regulations of the criminal code, it determines the “norm of actions” (norma agendi) and, at the same time, authorizes the executive organs of the state to apply penal sanctions in order to enforce the observance of these norms or, in other words, the acceptance of the value system.

For example, it cannot be said that the issue of sodomy is not a political issue, as the one group that is singled out most frequently under these laws are homosexuals.  As a result, the perpetrator of an act of sodomy could rightly be considered a political criminal.  Bank robbery and rape cases are also political crimes because they evince ideological interest that the state has in protecting other people’s money and in protecting the body or sexual integrity of females.  In the case of rape, one need not look back any further that the middle of the twentieth century to see that rape was all but permissible if it was done within the confines of marriage.  The artificial line drawn between marital and non-marital rape has all but been extinguished in this country.  The act of the crime of rape, however, did not change.  Rather, it was public opinion, as expressed through the political process, which changed the definition of the mens rea necessary to commit the act of rape.  Thus, whether the crime is treason, possession of cocaine, embezzlement, arson, or shoplifting, ultimately, “each is determined to be a crime by the legislator’s philosophical, ideological, and political postures.”

Admittedly, the use of the term “political crime” may seem overbroad, but it is only overbroad relative to the contemporary views of that which is considered a political crime.  For the purpose of this article, a distinction needs to be made between crimes in a democracy that are political because they are promulgated through the political process (derivative political), and a subsection of such crimes that are political expressly because they are an expression of the political language (motivational political).  The problem one runs into when using the expansive definition of political crimes is that in American speech, political crimes are defined in terms of what Americans see other countries doing.  This is so, even though various human rights organizations assert that there are over 300 political prisoners in the United States.

Regardless of the typology used to classify crimes, criminal laws do not distinguish between the layman’s conception of what is an ordinary crime and what is a political crime.  In a democracy that is reasonably free of graft and corruption, violation of any criminal law is violation of the norms and rules that form the basis for a stable political order.  Whether the violation of a criminal law is politically motivated, such that the perpetrator believes his or her actions are justified by individual moral interpretation of the concept of justice, or whether the violation of a criminal law is simply the act of an immature child, in either instance, the right of the government to prosecute both is derived in the form of a mandate from the people.

Admittedly, history has demonstrated that the easiest way to rid oneself of a political agitator is to imprison them for life.  One may argue, therefore, that since the United States Supreme Court has held that there is a necessary diminution of rights while in prison, should the incarcerator(s) truly wish to see the agitator silenced they could simply incarcerate them for life.  Once in prison, the agitator would find it difficult to gain an audience of likeminded confederates willing to challenge the status quo.  But the reality is that many times life imprisonment is not feasible due to statutory limitations, or, as with parole, the need to free up bed space.  The vehicle of banishment would well serve an individual or cadre seeking to permanently disentangle itself from its political opposition.  For this reason, Russia banished its offending citizens to remote geographical regions as an attempt to prevent an individual from returning to the community and forming associations.  Moreover, whether the associations run afoul of probationary and parole conditions which forbid associating with the criminal element in the community, is a question that should be presented in the community where the putative crimes were committed.  Failure to do so, due to the use of banishment, unconstitutionally preempts both the individual’s and the community’s rights to the freedoms of speech and association.

As explained above, the punishment of banishment is most easily justified by claiming that banishment protects the community from an indisputably dangerous man.  Instead of a convicted child molester, imagine the City of Birmingham banishing the Rev. Dr. Martin Luther King, Jr.  Had Dr. King been told by the State of Alabama, the civil rights struggle would have been challenged even more so.  Arguably, while sitting in the Birmingham jail, Dr. King could have been considered a political prisoner, and to many people outside the south such an appellation would have been deserved.  It is doubtful, however, that many people in Alabama would have considered Dr. King a political prisoner.  Regardless of whether he was a political prisoner, the fact of the matter is that he was in jail for breaking a law that was promulgated through legitimate political processes.  If Dr. King was a man of lesser moral timber or lesser notoriety, it is unknown whether he would have entered into a Faustian bargain for banishment had it been offered to him.  Very few individuals have either of those resources in their well from which to draw, and as a consequence the individual must, in many instances, choose either continued incarceration or banishment.

Since the discretionary nature of banishment does not allow for an exact figure on the number of people banished each year, the racial makeup of those banished is also not readily available.  If, however, one extrapolates from the total number of incarcerated individuals, over fifty percent of those banished are African-American, even though African-Americas only comprise twelve percent of the general population.  Under the logic that racism plays a part in the high percentage of black males caught up in the criminal justice system, facially, it is much harder to accept the argument that racism does not play a major role in the banishment of African-Americans.  Even if the numbers of those banished do not correlate directly with the incarceration figures, the fact remains that people are being denied their right to associate after having been convicted of violating a law.  If the numbers do correlate, however, a particularly disturbing view of our criminal justice system is presented.  No matter how vigorous the proponents of the notion that racism has been eradicated in out country are, if there is any correlation, such pronouncements seem to be premature.

Any discussion on race and the criminal justice system must necessarily begin with the ineluctable reality that race has sometimes “been a critical factor in determining whether prosecutions are initiated or terminated, whether the jury returns verdict of guilty or not guilty, whether certain judicial instructions are given to the jury, whether witnesses are or are not believed, and in determining the formulation of ultimate judicial rulings.”  Next, add to the historical reality of racism in our criminal justice system, the neutral demographic fact that African-Americans are in the minority in the majority of voting districts in this country.  The minority status of African-Americans is particularly important to the banishment argument because banishment facilitates the redistribution of political votes.  Thus, banishment has the potential to be used as a means of effecting the political makeup of a town, county, or state, through the use of the criminal justice system.

Finally, take into consideration Professor Martha Duncan’s theory that a community banishes because the banished embody a contagious evil that is a contaminate in the community.  A person who banished based on racial animus, more than likely believes that the banished individual is a contaminate to the community.  Thus, banishment affords the racist a vehicle through which he/she can carry out his/her racial re-segregation of our country.  Though in isolation none of the above are dispositive of racist motivations in banishment, in aggregation these three “pieces of evidence” inexorably point in the direction that banishment is used as a vehicle of racial discrimination in certain cases.  Though it would be unfair to cast the net so broadly such that all of the officials who are charged with the judicial and/or executive maintenance of the communities are branded as racists, as Justice Holmes once said “the life of the law has not been logic; it has been experience.”  In the case of banishment, experience militates strongly in favor of concluding that, in certain instances, banishment is racially motivated and selectively enforced.

Though without a reliable sample size, admittedly, it would be quite difficult to make out a prima facie case for racial discrimination on a system-wide basis.  On an individual case by case basis, and in theorizing from extrapolated data, however, the conclusion that racial discrimination occurs, at least to a limited degree, is quite logical.  Even if racism is the motivation in only “selected contexts,” the system as a whole is tainted and in need of reform.

`Banishment needs to abolished, not merely monitored, such that its usage is not disproportionately used on African-Americans.  To do so would be to engage in “leveling up,” in the context of racial discrimination in the implementation of the death penalty.  The problem with such an argument is that banishment on any “level” is unconstitutional because it allows the redistribution of political interests through the operation of the criminal justice system.  Whether banishment is used to redistribute the political influence of white supremacists is Idaho, or whether it is used to dilute the voting strength of Latino-Americans in central California, banishment should be per se unconstitutional.  Banishment is a cancer on our democracy, and only its complete extirpation from our criminal justice system will ensure that its perniciously seductive appeal does not metastasize to other communities.

Both the banishing community and the entire country are presented with a quandary when the banished individual is a member of a minority.  No longer is the question of community protection straightforward.  In fact, it is arguable that the banishment is an intentional obfuscation of the facts necessary to determine from whom the community needs to be protected, the government or the governed.  It is also arguable whether the federal government needs to intercede and ensure that the rights guaranteed to all citizens of the United States are being protected.  Admittedly, it would be unfair to characterize all political sub-divisions in such a nefarious light.  Twentieth century history shows, and our forefathers have warned us, that when the legal system enforces laws that obstruct the free-flow of information to and from the government and the governed, totalitarianism and mistrust of government arise commensurably.  Judge Frank H. Easterbrook has written that, “we would be terrified by legislation limiting political associations that are necessary to keep representative government healthy; therefore judges must ensure that legislators cannot get away with passing obnoxious laws restricting freedom of association.  Though it can be argued that convicted criminals should not be entitled to the same set of rights and freedoms as those who have not been similarly convicted, banishing someone does not further a “healthy government.”  When laws that sanction banishment are passed by legislators, when judges acting sua sponte impose probationary conditions of banishment, or when executive branch imposes parole conditions of banishment, society is passing through a terrifying juncture in history.  Without some type of absolute constitutional  governor to control the invidious effects of banishment, banishment for political purposes is not only possible, but also frighteningly real.  On the other hand, should banishment be considered to an infringement on the constitutional right to associate, then “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced.”

Such lofty aspirations are never realized, however, when banishment is employed to preempt the dialogue.  Thus because banishment is most often used as a bargaining chip within the probation and parole framework, the potential for abuse is high.  Few defendants have the wherewithal, either emotionally or financially, to turn down the benefit of parole or probation when offered to them.  This is so, even though they may be agreeing to a condition of banishment, which is unquestionably not in their best interest.  Hence, it is imperative that wherever it may occur and whatever form it may materialize, banishment needs to be ruled unconstitutional, irrespective of whether the offender was banished for political reasons or not.  Only be ruling every banishment condition unconstitutional can society ensure that no where is banishment being used as a means of controlling the open dialogue on political issues.

The banishing of a criminal may well serve to protect the physical, mental, and spiritual well-being of a community.  The ultimate question turns on the practical cost of banishment to society.  Unless one is a member of the community doing the banishing, the thought of having a convicted criminal thrust upon society is disturbing.  It is particularly disturbing because the banished individual probably has little in terms of start-up capital to get himself established, and will more than likely fall into the legion of homelessness or get caught back up in the law of easy money in the criminal underworld.  Either scenario bodes ill for the country struggling to get a handle on its crime problem.  Moreover, banishment is antithetical to many of the purposes behind probation and parole because it is an alteration of the model paradigm into which the probationer or parolee was to be released.

Though the raison d’etre for the freedom of association argument may be the potential abuse of banishment for political purposes, the situation that is most likely to recur, and the one that in aggregation will do more to cripple our society, is where the banishment of a criminal leads to inter-community strife.  The freedom of association argument seeks to eradicate all usage of banishment, and it endeavors to do so without regard to this inter-community strife, which is the most destructive result of banishment.  Those who employ the First Amendment analysis in their argument against banishment must do so with equal vigor to those cases where it is clear that the banishment was not politically or racially motivated.  Then, and only then, can we be certain that the insidious effects of banishment are forever extirpated from the American legal landscape.  In the words of Dr. King, “[i]njustice anywhere is a threat to justice everywhere.”

From a historical perspective, banishment has had the unintended consequence of the fortuitous peopling of many parts of our world.  Gone are the days when the lives of those disrupted by the effects of banishment are so easily dismissed and disregarded.  When a narrowly tailored sentence of banishment is micro-managed, then, and only then, will the benefits of banishment outweigh the costs.  Barring such a scenario, the use of banishment undermines the very foundation of our constitutionally federated republic.  The mistrust of the average American and of the local, state, and federal governments are produced by the use of banishment.  Banishment is a punishment whose time has long since passed and the criminal justice system is no longer enhanced by banishment, but rather is debased by it.

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