Should our criminal justice system expand its ability to hold criminals accountable by reviving and expanding exile, a form of punishment as old as history itself?

Although prison systems based on punishments existed since antiquity, through the 17th century “Prison tended to be a place where people were held before their trial or while awaiting punishment. It was very rarely used as a punishment in its own right.” Should we then look for alternatives to incarceration in prison to hold criminals accountable?

Whether referred to as banishment, ostracism or exile, this form of punishment has been imposed since before history, in antiquity, and in the 20th century. The Bible tells us that Adam and Eve were “banished” from the Garden of Eden. Ostracism was used by Ancient Greece, where any citizen could be expelled for 10 years.

ADVERTISEMENT

Caesar gave a speech discussing “…the Porcian law and other laws, which allowed the condemned the alternative of exile.” In the "History of Roman Exile" we are informed that “…exilium was a voluntary act through which a citizen could avoid legal penalty by quitting the community.”

During the Middle Ages those guilty of felony crimes deserving of severe corporal punishment or death could be permanently exiled from England to France. Later France had its Devil's Island, which operated into WW II, while in the 1700’s England sent criminals to Australia and the American colony in Georgia.

Justices in Georgia, Mississippi, Arkansas, Florida and Kentucky still have intra-state exile as options during sentencing. Although the Court of Appeals for Mississippi has said exile must reasonably resemble the goals of probation including rehabilitation and the defendant’s constitutional rights must not be violated. Some states find that exile benefits a criminal by separating them from association with other criminal friends in their home county. Exile is also still used by various Native American tribes to banish criminals from the reservations.

Doesn’t our Criminal Justice system currently impose a form of exile as punishment? Incapacitation as a form of punishment refers to the removal of criminals from society and confining them in prisons so they cannot engage in committing future crimes. Isn’t this an internal exile by confining a criminal within a restricted environment and removing them, exiling them, from society?

The United States should adopt a form of exile based on the Roman "exilium." There were three levels of what we would call exile in Roman laws. The relegatio, shorter duration without loss of civil rights associated with citizenship; the aquae et ignis interdictio, similar to relegatio, shorter duration but with loss of citizenship rights; and the deportatio, forced banishment usually of a foreigner to a fixed location for life for committing a crime or illegal status.

Criminals convicted of non-violent crimes should be afforded the opportunity to voluntarily exile themselves for the duration of the maximum sentence that can be imposed under the law, very similar to the relegatio under Roman law. This self-exile would afford the convicted criminal the ability to choose their own location for the exile, the exile would be voluntary, and this would not result in the loss of citizenship. After completion of the time for the self-exile, one would be able to return to the United States.

Federal Courts already have a form of “voluntary” agreements with criminals on charges and sentencing. Benjamin Weiser for the New York Times reported that in 2015, about 98 percent of federal defendants entered into a plea agreement. These plea agreements are a voluntary admission of guilt to a lesser charge for a modified sentence.

ADVERTISEMENT

This could never be considered to be “cruel and unusual” punishment. A form of exile is authorized and continues to be imposed under various state laws. The external exile from society would be voluntary as an alternative to the internal exile from society in a prison. The convicted exile would retain the civil rights of citizenship. The convicted exile would be allowed to reenter the society within the United States similar to those imprisoned who are allowed to reenter society after serving time excluded from society while exiled in prison.

The United States should adopt a form of exile guided by the Roman relegatio as an alternative to incarceration in a prison for someone who is convicted of a crime.

John M. DeMaggio is a retired Special Agent in Charge for the U.S. Postal Service Inspector General. He is also a retired Captain in the U.S. Navy, where he served in Naval Intelligence. The above is the opinion of the author and is not meant to reflect the opinion of the U.S. Navy or the U.S. Government.