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.

further readings

Alloy, Jason S. 2002. "158-county Banishment in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel." Georgia Law Review 36 (summer): 1083–1108.

Bleichmar, Javier. 1999. "Deportation as Punishment: A Historical Analysis of the British practice of Banishment and its Impact on Modern Constitutional Law." Georgetown Immigration Law Journal 14 (fall): 115–63.

Borrelli, Matthew D. 2003. "Banishment: the Constitutional and Public Policy Arguments Against this Revived Ancient Punishment." Suffolk University Law Review 36 (winter): 469–86.

Bynum, Russ. 2001. "Banishment a Substitute for Prison." Associated Press Online (October 21).

——. 2001. "Get Out of Town to Stay Out of Jail." Athens Banner-Herald (October 21).

Niiska, Clara. 2002. "Is a Tribal Court's Ex-Parte Banishment Legal or Patently Unconstitutional?" Native American Press/Ojibwe News (March 29).

"Onondaga Nation Banishes Three Law Violators." 1994. Available online at <nativenet.uthscsa.edu/archive/nl/9407/0014.html> (accessed September 8, 2003).

Stephanie Smith. 2000. "Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?" University of Chicago Law Review 67 (fall): 1461–87.

Snider, William Garth. 1998. "Banishment: The History of Its Use and a Proposal for Its Abolition under the First Amendment." New England Journal on Criminal & Civil Confinement 24 (summer): 455–509.

Somers, Terri. 2001. "Native Americans Want to Administer Justice Their Way." Sun-Sentinel (April 24).

Taylor, Justin. 2001. "Georgia's Idea to Exile Criminals Right on Target." Times-Delphic (October 26).

BANISHMENT

BANISHMENT , a form of punishment widely imposed throughout the ancient world. India, the Greek cities, the Roman republic, and the Teutonic peoples all used this practice to rid themselves of undesirables, ranging from criminals to political agitators who threatened the safety of the state and the authority of its rulers. Bereft of his property and prohibited from ever returning home, the victim was reduced to the level of an outcast, a permanent stranger or wanderer in foreign lands. The custom seems to have been known in Canaan, as attested by the *Ugarit texts (Aqhat, 1:152–5: T.H. Gaster, Thespis (1961), 365–6; cf. 366n.). In ancient Israel, too, banishment was not unknown, although it appears almost exclusively as a form of divine punishment. Thus Adam was expelled from the Garden of Eden (Gen. 3:23–24) and Cain was doomed to be a wanderer, hidden from the presence of God (4:14–16). Two notable cases in the Bible are the banishment by Solomon of Abiathar the high priest to his family estate in Anathoth (i Kings 2:26; cf. Jer. 1:1) and the banishment of Amos from the Northern Kingdom of Amaziah the priest (Amos 7:12). Collective banishment, or exile, was considered the ultimate punishment that could be meted out to the entire people for acts of defiance against God (cf. Deut. 28:64 ff.), which were variously interpreted in different times (see *Galut). *Karet was an extreme form of this divine punishment, involving the actual "cutting off" of the individual from life on earth (Lev. 20:2–6; cf. Zimmerli in bibl.). The only form of banishment still in existence in biblical society was that imposed on a man guilty of manslaughter or involuntary homicide, for whom *Cities of Refuge were provided (cf. Num. 35:10 ff.; Deut. 4:41–43; 19:1 ff.; Josh. 20). It has been conjectured that banishment was not otherwise sanctioned as a punishment because residence abroad was viewed as something that cut the victim off entirely from God (Hos. 9:3–5; cf. Gen. 4:14; Ezek. 11:15) and even forced him to worship idols (Deut. 4:27–28; I Sam. 26:19; Jer. 16:13). For this reason too, exile was dreaded (cf. Deut. 28:65; Ezek. 37:11) and deemed to have horrendous consequences. In later centuries, milder forms of banishment from the religious community were resorted to by means of excommunication, though, contrary to the view of some scholars, there does not seem to be any definite evidence of this practice in the Bible (cf. Greenberg in bibl.).

[David L. Lieber]

Second Temple and Talmud Periods

Banishment was resorted to by the Romans as part of their repressive policies. Thus *Archelaus the son of Herod i was banished by the Romans to Vienne in Gaul and probably remained there until he died. It is possibly to these administrative acts that *Avtalyon refers in his statement, "Ye sages, be heedful of your words lest ye incur the penalty of banishment [galut] and be banished to a place of evil waters" (Avot 1:11). Nevertheless the Pharisees seem also to have exercised this power. Josephus (Wars, 1:111) states that when they were in power they banished and brought back whomsoever they chose. The gravity of the punishment was not only that the victims would be exiled "to a place of evil waters and the disciples who come after you will drink thereof and die" (see above) but that they were also banished from the Divine Presence. On the verse, "For they have driven me out this day that I should not cleave to the inheritance of the Lord" (i Sam. 26:19), the Talmud comments that "he who lives outside the Land of Israel is regarded as worshiping idols" (Ket. 110b), and this sentiment is reflected in the words of the Musaf prayer for festivals: "But on account of our sins we were banished from our land and removed far from our country, and we are unable to appear and prostrate ourselves before Thee and to fulfill our obligations."

[Louis Isaac Rabinowitz]

Middle Ages to 18^th century

In the Middle Ages banishment continued to be one of the punishments imposed on offenders in communities having a measure of criminal jurisdiction over their members (see Judicial *Autonomy) or able to withhold or withdraw domiciliary rights (ḥezkat ha-yishuv). Hence it was imposed most frequently in Spain and Poland and Lithuania, although also occasionally elsewhere. A distinction was drawn between banishment of the offender from the city and from the realm, as also banishment for a limited period and for life. The Spanish kingdoms, especially at the height of Jewish autonomy in the 13^th century, recognized the right of the communal organizations to banish recalcitrants or exclude new members. James I of Aragon (1213–76) gave the communities the right to punish offenders by fine, ban, flagellation, or expulsion. Privileges accorded to the Barcelona community in 1241 and 1272 empowered the communal elders "to eject or expel [recalcitrant members] from the Jewish quarter or the entire city." A similar ordinance for Calatayud Jewry empowered the community in 1229 to expel two individuals of bad repute. In the 1280s the kahal of Alagon banished six butchers from the city for four years and excommunicated all members who ate meat purchased from them. James ii of Aragon, on a complaint from the Valencia community in 1294, instructed the local prefect and judge to prevent influential Christians from concealing offenders condemned by the community to deportation. In 1280 Pedro iii of Aragon, in a basic privilege granted to all Catalonian communities, empowered their elders to punish with incarceration and exile all crimes of assault and battery, libel, and the like, in accordance with Jewish law and their own judgment. The same privilege, granted by John I of Aragon to the Huesca community in 1390, provided that the elders could summarily sentence offenders to death, mutilation, flogging, or exile, without appeal. Offenses for which banishment was imposed included murder for which there was only one witness (Solomon b. Jehiel Luria, Yam shel Shelomo le-Bava Kamma, 8, no. 7), or for which no witness was available but where hearsay was convincing (Resp. Judah b. Asher, no. 58), and attack on a victim who dies after a lapse of a certain time (Resp. sent to Salamanca by Isaac b. Sheshet, no. 251). In Spain in particular banishment was meted out to delators and informers (communal statutes of the delegates of Castile, 1432). R. Menaḥem of Merseburg (early 14^th century) banished a man for two or three years for viciously beating his wife (Nimmukei Maharar Menahem me-Resburk at the end of Resp. Jacob Weill, Venice, 1549). Prostitution and adultery were punished by life banishment by takkanot of Prague of 1612. There is even a report of a man who was excommunicated and "run out" of Ereẓ Israel by the Safed rabbis in 1548 for indulging in unnatural practices with his wife (Eleazar Azikri, Sefer Ḥaredim (1601), part 3, ch. 2). Forfeiture of domiciliary rights throughout Lithuania was applied by the Council of Lithuania to thieves, receivers, and forgers, and could be broadened also to any persons engaged in suspicious or prohibited dealings, infringing ethics, or disturbing the peace of the community. Since the whole community was liable to make good a claim by a gentile for money he had lent to a defaulting Jewish debtor, in Lithuania the Jew wishing to borrow from a gentile had first to obtain permission from the av bet din. A borrower who failed to do so could be banished, and his right of domicile forfeited (Pinkas ha-Va'ad, paras. 163 and 637). The Lithuanian Council also withdrew the right of domicile from and imposed banishment on a person provoking a gentile by quarrels or blows (idem, para. 21). Its regulations of 1623, when itinerant beggary and unlicensed behavior was widespread, lay down expulsion for a beggar, if necessary with the assistance of gentile officers. In 1628 the Lithuanian Council withheld the right of domicile from any Jew absent ten years from his community of origin who had failed to pay his fiscal contribution. Banishment was frequently applied in the Sephardi community of *Hamburg, its governing body (*mahamad) being empowered by the Hamburg senate to expel from the community any of its members infringing morals or engaged in dishonest business dealings, among other offenses. The offender thus sentenced was served with a writ from the beadle (shamash). If he proved unable to travel for lack of funds, the mahamad lent his relatives money to defray the expenses of the journey. Sometimes the offender was sent abroad, mainly to Amsterdam, and if his conduct subsequently improved was permitted to return. This punishment was also meted out to juvenile offenders.

bibliography:

in bible:

Mak. 2:6; Sif. Num. 60; Jos., Ant., 4:172–3; Philo, Spec., 3:123; F. Rundgren, in: vt, 7 (1957), 400–4; W. Zimmerli, in: zaw, 66 (1954), 10–19; M. Greenberg, in: jbl, 78 (1959), 125–23. middle ages: S. Assaf, Ha-Onashin Aḥarei Ḥatimat ha-Talmud (1922), 35–38; Baron, Community, index; Baer, Spain, 1 (1961), 430.

56. Banishment

1. Acadians America’s lost tribe; suffered expulsion under British. [Am. Hist.: Jameson, 2; Am. Lit.: “Evangeline” in Hart, 263]
2. Adam and Eve banished from the Garden of Eden for eating forbidden fruit. [O.T.: Genesis 3:23–24]
3. anemone ordered from Flora’s court. [Gk. Myth.: Flora Symbolica, 172]
4. Bolingbroke, Henry banished, along with Mowbray, by King Richard. [Br. Lit.: Shakespeare Richard II ]
5. Cain cast out from homeland for murdering Abel. [O.T.: Genesis 4:12]
6. Devil’s Island former French penal colony off French Guiana. [Fr. Hist.: NCE, 754]
7. Elba site of Napoleon’s first exile (1814). [Fr. Hist.: NCE, 854]
8. fire and water Roman symbol of exile. [Rom. Hist.: Brewer Note-Book, 451]
9. Hagar and Ishmael Sarah orders Abraham to drive them out. [O.T.: Genesis 21:9–13]
10. Ivanhoe disinherited by father, Cedric the Saxon. [Br. Lit.: Ivanhoe ]
11. Jenik banished by jealous stepmother. [Czech. Opera: Smetana, Bartered Bride, Westerman, 404]
12. Nolan, Philip treasonous man sentenced to live remainder of life at sea. [Am. Lit.: Man Without a Country ]
13. Oedipus exiles himself for killing father and marrying mother. [Gk. Lit.: Oedipus Rex ]
14. Patmos island of exile for St. John. [N.T.: Revelation 1:9]
15. Posthumus marries Cymbeline’s daughter; Cymbeline banishes him. [Br. Lit.: Cymbeline ]
16. Pride’s Purge Cromwell’s ejection of royalist MPs (1648). [Br. Hist.: Brewer Handbook, 871]
17. Rosalind her sylvan exile sets scene for comedy. [Br. Lit.: As You Like It ]
18. Saint Helena place of Napoleon’s second exile (1815). [Fr. Hist.: NCE, 2397]
19. Siberia place of banishment and exile. [Geography. NCE, 2509–2510]
20. Trail of Tears forced march of 18,000 Cherokees westward to Indian Territory (Oklahoma); 4,000 die of disease and exposure (winter, 1838–1839). [Am. Hist.: EB, 2: 808]
21. Tristram expelled from Cornwall by King Mark for ten years. [Br. Lit.: Le Morte d’Arthur ]
22. Untouchables lowest caste in India; social outcasts. [Ind. Culture: Brewer Dictionary, 1118]

34. Banishment

expatriation

the process of abandoning one’s native land or of being exiled. —expatriate, n., adj., vb.

ostracism

1. a casting out from social or political society.

2. the ancient Athenian process of temporary banishment by popular vote, using potsherds or tiles for ballots.

petalism

the banishing of a citizen for five years if judged guilty of dangerous influence or ambition, as practiced in ancient Syracuse; olive leaves were used for ballots.