Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time. Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century. Banishment went the way of the rack and screw, so the thinking goes. Instead, the predominant form of modern punishment is a form of confinement: incarceration. If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.
One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention. This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law.
Banishment, according to the authors, isn’t dead. In fact, it’s reemerging as a significant form of official punishment. The reason it hasn’t been recognized widely is that it doesn’t come packaged as “punishment,” or even “banishment,” for that matter. The forms of banishment that Beckett and Herbert discuss are categorized as civil or administrative remedies, and so are unlikely to be discussed in the same breath as traditional criminal law offenses. Whatever their label, these strategies are best understood as banishment because they constitute formal spatial exclusion.
Beckett and Herbert look at the functions and consequences of modern day banishment, and rely upon empirical data they have collected from Seattle, Washington, considered to be at the “cutting edge of this trend” (P.5). Beckett and Herbert focus on three forms of banishment: parks exclusion orders, which permit the police to ban persons from public parks for minor infractions like being present after hours; trespass admonishments, which permit the police to act as agents of private property owners in restricting access to places normally open to the public; and off-limits orders that prohibit persons from certain geographic areas of a city as a condition of community release and supervision.
Based on interview data with those who have been subject to banishment, Beckett and Herbert contend that the lived experiences of these “alternatives” to criminal punishment are non-criminal in name alone. Using the terminology from Gresham Sykes’ seminal 1958 study of prisoners in The Society of Captives, Beckett and Herbert demonstrate that the pains of punishment that are associated with incarceration have close parallels in the experiences of those banished. Being legally barred from a place one calls “home,” even if an unconventional home, punishes the banished person in ways ranging from the symbolic (psychic pain) to the emotional (loss of contact with friends and family) and the mundane (difficulty in obtaining access to health services, social workers, and food).
This reemergence of banishment should matter to criminal law scholars for a number of reasons. First, it turns out that these civil alternatives are too often a backdoor to the criminal justice system. While each of the forms of banishment studied in Seattle is classified as civil, violations of park exclusion orders, trespass admonishments, and off-limits orders are criminal offenses. Note too that because the initial orders are civil, an individual subject to, say, a parks exclusion order receives nothing like the procedural protections that a conventional criminal defendant does. (In Seattle, the police may exclude a person from a public park without providing any evidence of wrongdoing.) The effects of the orders can be considerable; large swaths of the city can be designated as forbidden to the banished person. In addition, to the extent that Seattle is representative of the trend, these officially noncriminal tools are resulting in increasingly frequent use of the criminal justice system.
Second, the modern forms of banishment discussed by Beckett and Herbert are driven by the same motivations that spurred enthusiasm for “quality of life policing” in the 1990s. Many police departments credited a focus on the enforcement of minor crimes like public urination and open container violations for the drop in crime in major American cities. But later studies cast doubt on this thesis. Was quality of life policing really the key factor in crime decreases? And who defines “disorder,” anyway? This second question is underscored by the authors’ interview data. Banishment tools may seem to city officials and the police like a clear cut method to rid a city of unwanted behaviors, but from the viewpoint of those on the receiving end of these orders, banishment can be a separation from things, places, and persons that individuals hold most dear.
Third, the very focus of this fine article calls out to teachers of criminal procedure everywhere. Remember in scholarship and in teaching that criminal law enforcement is but one aspect of policing. Police do everything from chasing robbers to getting cats out of trees and enforcing civil and administrative codes. This basic insight has important consequences for the perennial questions in policing, like the tool of wide discretion the police enjoy to take care of the problem of disorder in cities. Civil banishment, as the authors suggest, may be too much tool and not enough problem.