Death or Exile?

The U.S. Supreme Court has held that the American government may not impose exile as a criminal sanction under the Eighth Amendment. Well, okay, technically Trop v. Dulles held that you can't impose loss of citizenship as as punishment, but I'm pretty sure loss of citizenship would be included in any sensible banishment. I mean, the Privileges or Immunities Clause of the Fourteenth Amendment almost certainly means that it must be, as any citizen of the United States could not be denied the right to re-enter the country. So, exile's out. But there's a principle that, in many contexts at least, if the government offers you the choice between a thing it could not constitutionally force upon you and a thing it could validly force on you, that's constitutional. Not in every context, certainly, but in many. So here's my question: would it be constitutional to make exile an available alternative to a more traditional punishment, like imprisonment or death? Could it, in other words, impose some other sentence but give the convicted criminal the option of avoiding that punishment if they agree to leave the country and never come back?


This would make the most sense to me in the context of treason. No other country is sensibly going to want to accept our murderers or thieves. A traitor, in theory, always has a willing home in whatever country they betrayed us to, and perhaps in other places as well. (Now, we might get our allies to agree by treaty not to accept our traitors, and I suppose that if someone couldn't find anywhere to take them in they'd be forced to return here and take their punishment, but that's probably irrelevant to the underlying constitutional issue.) And banishment makes, I think, more sense than imprisonment as the humane alternative to executing traitors. A violent criminal has committed an offense against humanity, and all of humanity must be protected from them, but a traitor has committed an offense only against one political community. That community is entirely within its rights to expel that person, you'd think. Actually, you might even be able to sneak exile and loss of citizenship in as a punishment for treason. People are allowed to renounce their citizenship, and it might hold water to say that an act of treason will be taken as a renunciation of citizenship, at which point exile would be only natural.

But the underlying legal question exists regardless of the crime we're talking about. The argument that this would be okay is basically what I said above: any time you're given a choice, both options must be individually unconstitutional for the choice itself to be prohibited. That doesn't apply in all contexts, of course; as a friend of mine pointed out in our discussion of this topic, he pointed out that you couldn't be allowed to get out of a jail sentence if you agreed to attend such-and-such a church. There are some things the state simply cannot do, even if it does so as the result of a voluntary choice. And the Eighth Amendment commands only that cruel and unusual punishments not be inflicted. That kind of makes it sound like inflicting a cruel and unusual punishment is one of those things the state flatly mayn't do. So if a man sentenced to death wanted, for some bizarre reason, to be drawn and quartered as his means of execution, well, tough, he's out of luck: that's a cruel and unusual punishment, and therefore mayn't be inflicted. The use of the word "inflicted" rather than "imposed" seems to support this reading; you could make a colorable legal argument that one was not imposing a punishment if the punishee had another choice. On the other hand, maybe there's something in the word "inflicted" that would be susceptible to a similar bit of logicking: perhaps an infliction must be against the will of the inflictee, for instance.

The point is, I think this is a genuinely interesting legal question. It's not a very important one; we don't get many traitors, and in few other contexts would it make sense to provide exile as an alternative to more conventional punishments. But there's another quirky thing about it, I think: I'm not sure this law could ever brought before the Supreme Court. Perhaps it couldn't ever be struck down by any court. Think about it: any convicted criminal who preferred exile to their other punishment would just choose exile. They wouldn't appeal. Presumably neither would the government, which might not be able to in any event. And if the defendant preferred the alternative, well, they'd choose it. And it's not clear that they were in any way harmed by having the choice of exile. In any event it's tough to see how they'd appeal the law's unconstitutionality. What would be the point? They'd just be given that alternative punishment anyway, even if they won, right? Unless people who win Eighth Amendment cases get to go free or something, which I'm pretty sure isn't true.

The only way might be if the trial court, of its own initiative rather than at the request of either party, declared the law invalid. The government might appeal that to the Supreme Court, and that might be the only way. I'm not sure if trial courts can do that. Maybe if the defendant chose exile they could refuse to impose that sentence, in which case... would the defendant appeal? That would be weird, a defendant appealing from an Eighth Amendment ruling against the government. This is a weird little spot where the game theory would make it a little difficult to actually get a constitutional ruling on the books. And you'd never be able to persuade anyone to be a test case, since win or lose you'd either be exiled or given some more conventional criminal punishment, like long-term imprisonment or death. Eep. So it's probably a question that will literally never be answered, but it strikes me as interesting nonetheless.

Oh, and for a little context on the title: