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 contem-
porary criminal justice systems, banishment
enjoys continued existence and periodic resur-
gence in application. Its use is hard for legal
scholars to track, but banishment is still
employed in at least a handful of states, particu-
larly in the South, as a viable alternative to incar-
ceration.
Banishment—also known as exile or depor-
tation—has its origins in Greek and Roman
times and in worldwide histories of other king-
doms 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 Amer-
ican women were banished from their colony.
In its original form, banishment had a two-
fold 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 impris-
oned because of crimes committed there.
The U.S. Constitution does not prohibit
banishment, as long as the punishment and sen-
tencing meet the substantive and procedural
requirements of DUE PROCESS OF LAW. Banish-
ment is not considered “cruel and unusual pun-
ishment.” 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 “out-
moded form of punishment.” Nevertheless, the
court went on to address the limited circum-
stances under which the punishment may be
used. The court insisted that the purpose of ban-
ishing someone must reasonably resemble the
goals of probation—including that of rehabilita-
tion of the offender—that both the person being
sentenced and the general populace must be
served, and that the defendant’s FIRST AMEND-
MENT, 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 Con-
stitution of the State of Georgia states that “Nei-
ther 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 prosecu-
tors 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 pun-
ishment on constitutional grounds.
Kentucky and Arkansas also continue to use
banishment for certain crimes. Arkansas’s con-
stitution 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 DOMES-
TIC 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 ban-
ishment 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 ofWashington, the Tlin-
git nation banished them to separate islands for
one year. In 1994, the Council of Chiefs of the
Onondaga Nation in New York formally ban-
ished 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, pun-
ishes 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.Mar-
garet 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 reserva-
tion 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 coun-
cil, Penn was constrained in her ability to effec-
tively sue the Standing Rock tribe by limited
federal jurisdiction in the face of SOVEREIGN
IMMUNITY. Relying on a HABEAS CORPUS rem-
edy afforded by the Indian Civil Rights Act, she
filed suit in U.S. district court, expressly request-
ing that the federal court find that it had juris-
diction 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 (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).
