Defending Writers and Freedom of Expression Worldwide – International PEN

The International PEN has taken another step forward in its fight to protect writers. It called for ending insult and defamatory laws. Whilst celebrating the diversity and wealth of its’ members’ work it resolved to continue protecting and defending the freedom to write in all corners of the world.

The U.S. Government was in particular to take greater responsibility for the resulting upsurge in refugee writer escaping from the volatile situation for Iraqi writers, many being forced into hiding or exile and provide more for their protection and resettlement.

Central to PEN’s work is freedom of expression which it is vigorously pursuing as well as defending in all corners of the globe as reflected in 12 resolutions passed condemning the imprisonment of writers in China, Iran, Uzbekistan, Eritrea, Cuba and Vietnam, killings of journalists in Mexico and Afghanistan and the forced closure of a television station in Venezuela. Throughout the year it has been defending Russian PEN from closure by the government, initiating dialogue for peace in the Middle East and assisting threatened writers to resettle in safer countries.

Two courageous writers, each of whom played a vibrant role in promoting free expression in their countries, Anna Politkovskaya, the Russian investigative journalist who was assassinated at her Moscow home in October and Hrant Dink, the Armenian Turkish editor working for reconciliation between the two communities who was killed at his office in Istanbul in January had their lives and works remembered. So too were other writers who have continued to be harassed and threatened due to opinions expressed in their writing. Notable amongst these was Salman Rushdie whose recent knighthood sparked a resurgence of threats on his life. Focus was given to Turkey as well where the issue of insult and defamation laws have been used to silent dissent.

Many Centres had since Anna Politskovkaya’s murder been protesting the killing of the special correspondent for Novaya Gazetta, who had been known and supported by the members of International PEN amongst many other socially-conscious groups for her pioneering reporting and in particular her commitment to the people of Chechnya. Unflinching in her narration of contemporary Russia. PEN members have been marking her death with remembrances including vigils, tributes and events.

The new International Secretary Norwegian writer Eugene Schoulgin in expressing his belief that International PEN has an extremely important role to play in the world today, pledged his ambition ‘to make its voice louder and clearer, to promote literature from every continent..

PEN’s advocacy for freedom to write has a long history from January 1932 when it launched an appeal to “All Governments,” concerning religious and political prisoners.. They protested about two Italian writers in prison, even though the Rome Center assured that the writers were there for their political activities not their writings.

Adolph Hitler became Chancellor of Germany the same month that Galsworthy died, and soon afterward attained the power of dictator. Knowing that the writers of Germany posed the greatest threat of all to his authority propelled him into suppressing them and their writings. Many went on self-exile. The news of the persecution of the German intellectuals disturbed PEN. The German Center tried to soothe the London Committee, telling them not to believe “the alarmist views being put about,” but this time they stood their ground and demanded a statement on those who were reported to be in exile. As alarm grew the committee “met informally. They decided to consult the other centers by telegram, and inform the press on this. Then they issued a strong protest against the treatment of intellectuals by Hitler’s regime and came to the conclusion that ” if German PEN has been reconstructed in accordance with nationalistic ideas, it must be expelled.”

Then, still in 1933, came the Burning of the Books and the German Center failed to protest. Two weeks after that PEN held its congress in Dubrovnik. As The Manchester Guardian reported:

It is ironical that a meeting of writers pledged to stand aside from politics should have been the occasion of one of the stormiest of political demonstrations. The burning of books in Germany and the fact that the greater number of well-known German writers are living in exile cannot be ignored by an association which has always worked for the free interchange of ideas through literature.

Nearly four hundred persons representing twenty-six countries, were present, and it was inevitable that sooner or later the high tension generated by enforced restraint should end in an explosion.

Mr HG Wells, the new president who had just succeeded John Galsworthy, had the almost impossible task of keeping politics out of the discussion, of pacifying the more excitable delegates who were burning to attack the Hitler regime, and of seeing that the German delegates had fair play.

Henry Canby, the only American delegate, had come to the Congress with “a long and carefully worded resolution which reaffirmed the basic international principles of the P.E.N.” The atmosphere worsened when the German Center delegates arrived, clearly having been given their “intstructions:” .Henry Canby read the resolution which opened with a general statement of principle:

Whereas there are again abroad in the world aspects of chauvinism which debase the spirit of man, causing him to persecute his fellow men, robbing him of generosity, of nobility, and understanding; and whereas it is the duty of the artist to guard the spirit in its freedom, so that mankind shall not be prey to ignorance, to malice, and to fear, we… call upon all other centers to affirm once more those principles upon which the structure of this society was raised.

This resolution ended with an open attack on the German Center which had been removing from its membership all Jews, liberals, and writers of any kind who did not support the new German state:

The International Congress was called upon to take definite steps to prevent the individual centers of the P.E.N., founded for the purpose of fostering good will and understanding between the races and nations, from being used as weapons of propaganda in the defence of persecution inflicted in the name of chauvinism, racial prejudice and political ill will.

All centers were also implored to reaffirm the principles of the charter. Other delegates framed a more explicit resolution which the Germans refused to accept on the grounds that it was political. It was amended;. The German delegates stated that they would now support the motion on condition that there was no discussion. Mr Wells refused to bargain.

H. G. Wells chose the resolution from among many to present at the opening of the Congress. It passed unanimously, the German delegates voting with the rest.

Ernst Toller, a Jew, a radical, a former Communist, and also a very fine playwright, was one of the writers exiled from Germany. He had been invited to speak at the Congress and his name was on the agenda. The German delegation was determined that he should not be permitted to speak. Enst Toller’s appearance provoked enthusiastic applause, as he asked if he might speak after the resolution had been passed. The German delegation objected and when H.G. Wells upheld his right to speak, they withdrew their support for the resolution and walked out, leaving the meeting in uproar.

The Manchester Guardian’s correspondent ended his account: ‘It is the prevailing opinion that this year the PEN has entered upon a new phase. The gracious, astute, steadying presidency of John Galsworthy has given place to the highly stimulating but more provocative presidency of HG Wells.’

This blatant attempt to silence Toller was evidence of just how effective the Nazi movement was at infiltrating the ideals of those who belonged to an organization like P.E.N.. The Congress erupted into chaos. However, Wells, unruffled by the commotion, put the question of Toller to vote. Toller was permitted to speak by majority rule.

Toller’s speech, which was appropriately on the subject of fear, evoked both hissing and cheering, and the German delegates walked out.

PEN formally expelled the German Center at its next international meeting and turned its attention to the needs of the exiled German writers who were flocking to London. The committee organized parties. Humbert Woolfe, the poet, offered to look after those in distress. The refugees formed the first of PEN’s exile centers: The German-speaking Writers Abroad.The Austrian and Italian PENs were both in a state of upheaval. H.G. Wells was driven to emphasize PEN’s determination to champion freedom of literary expression. The committee wrote to the Italian Centre on this subject and about yet another Italian writer in prison. They protested to the German government on behalf of Ludwig Renn, also in prison.

As the thirties progressed and Europe seemed to be rejecting PEN’s ideals, HG Wells suggested launching a special fund for writers persecuted by their governments.Then in 1936 another blow fell as the Italian PEN announced itself solidly in favour of the Italian government and maintained that they were defending civilization and justice in Ethiopia. But as H. G. Wells, growing old, resigned, the decision on their expulsion was postponed.

In 1937 Arthur Koestler, in Spain on behalf of the News Chronicle, was arrested in Malaga and condemned to death. A hasty cable was sent to General Franco, appealing for Koestler’s release and bearing the names of some forty writers,including E.M Forster and Aldous Huxley. The protests worked and inJune 1937, Koestler wrote to PEN:

Arriving in London after more than three months imprisonment in Seville, I want to express my deep gratitude for the unstinted help your organisation gave in obtaining my release. I am fully aware that it was no personal merit of my own, but in the deeper interests of the free expression of opinion, which is the life-blood of democracy and humanity that this help was given.That a free public opinion should have thus proved so strong is as much to me as my own personal liberty.

The next congress held in Prague. had the treatment of the Jews in Poland and the war between Japan and China on the agenda. Japan was to be asked to spare China’s cultural monuments and universities. In London they were collecting money for Austrian and Czechoslovakian writers, sending food parcels to those in Catalonia.

In 1938 Storm Jameson became the first woman president and had immediately to protest to Italian PEN. as their Bulletin had contained a poem glorifying the exploits of Italy in destroying the Abyssinians, who were described as ‘black ants.’ Her letter received no reply.

Soon after the outbreak of war, the Home Office appointed PEN as an adviser on internees and, led by Storm Jameson, the committee worked hard to provide the information needed to obtain the release of the German writers, establishing their identities and proving that they were not spies or members of the fifth column who wished to claim release under CAT 20 to write to the Secretary of PEN.

The next Congress took place in the last days before World War II with its basic rationale being “the necessity of reaffirming the right to speak and to differ in a world where it seemed to be vanishing.”

There were many exiled writers at the Congress of 1939, such as Ernst Toller and Thomas Mann of Germany. These and other writers like Jules Romains, the International President of P.E.N, spoke eloquently on the tyranny that existed then in Europe versus the freedom of the human spirit. These speeches were broadcast over the radio

After the war, refugee writers in distress abounded and the funds ran out.. In the late forties appeals and protests were being sent to the Greek government which was ill-treating its writers. Chile was asked to allow the poet, Pablo Neruda, to leave the country. In 1950 a protest was made to Iran, where the political prisoners were enduring great hardship.

During the 1950s an Hungarian writer, Paul Labori, joined the English Centre and suggested an International Writers in Prison Committee to investigate the cases of writers imprisoned solely for their writings and opinions and to co-ordinate the actions of the centres. The Committee was formed in 1960 .

Amnesty International was not founded until the following year.

There was, however, a bitter conflict that arose at this Congress regarding the Hungarian P.E.N. Center. The Hungarians had been in the forefront of the uprising against Communist rule in October 1956. When this revolt failed, the Austrian P.E.N. Center in Vienna found itself struggling with the pouring in of refugees. The American Center sent twelve hundred dollars to Vienna to help the Hungarians there to find food and shelter. Some Hungarian writers got to the United States and work was found for them through various sponsoring organizations. The American Center sent a letter to each refugee to learn of his or her individual special needs through a small grant from the Fairfield Foundation.

When Tibor Dry, a Hungarian novelist who resisted both the Nazis and the Communists, was sentenced to prison along with twenty-three others, the Hungarian P.E.N. Center made no protest. A resolution was on the agenda which stated that the Hungarian Center had violated the P.E.N. Charter by “its tacit support of the current regime and should be suspended.” The President of the Hungarian Center had written a three-page justification of its positiom..Meanwhile, the International P.E.N. had continued to struggle for the release of Tibor D ry and Julius Hay, keeping up a constant pressure. In 1959, the American Center issued its own “call to conscience:” an open letter to the Hungarian government with 259 signatures. This letter was forwarded in December, 1959, to the United States delegate at the United Nations, and it received very wide publicity abroad. Not only was there no answer from Hungary, but the Hungarian government clearly stated that the P.E.N. would do well not to push for the release of prisoners.

In 1960, however, news came that Dry and Hay were released. The Hungarian Center and its new president were permitted to attend the Congress that year in Rio de Janeiro.The Congress in Rio de Janeiro set up a permanent Writers in Prison Committee. It also passed a manifesto urging that released writers be permitted to return to work, as part of a general effort “to re-establish the freedom of writing wherever it is suppressed.” Elmer Rice who cared so much about the subject. was the delegate to this Congress. Back in 1958, Rice was elected unanimously and with great enthusiasm to become a Vice President of International P.E.N., the first time for an American to hold that post

One of the basic principles of P.E.N.is that writers should never be judged by the activity of their governments,. So PEN worked relentlessly with the State Department.so that in June of 1965, they were officially informed that the Department would not object to the participation of a Cuban delegation at the Congress.There had been concern that the Cuban Center would be refused entry since it was a Communist country and a deeply mistrusted enemy ever since the Cuban missile crisis..An invitation went out to the Cuban Center in the normal way, with a second invitation sent to its President the same day. No reply was received in either case..

At the Congress, the American Center sponsored a resolution which was passed unanimously. It put the P.E.N. on record as disapproving of “measures taken by any government which have the effect of preventing P.E.N. members from leaving their own country or entering a foreign country” in order to attend a P.E.N. meeting. The free movement of writers could sometimes be as important as the movement of free books, and with each victory came the greater possibility of subsequent ones.

The international tone of the New York Congress was largely due to Arthur Miller being the International President. He understood what the P.E.N. stood for, and he emphasized a vital point in his opening address on June 13th: “None of us comes here as a representative of his country. None of us is obliged to speak here as an apologist for his culture or his political system.”

The Congress of 1966 put the P.E.N. charter into action: “the unhampered transmission of thought within each nation and between all nations.” The whole ideology of the P.E.N. rested on this, as was later demonstrated in an incident involving Carlos Fuentes, a Mexican novelist who had been invited as an observer to the Congress. Fuentes was both shocked and impressed by what he saw there: “the improbable spectacle of 500 writers~conservatives, anarchists, communists, liberals, socialists~meeting, not to underline their differences or to enunciate their dogmas, but to….bear witness to the existence of a community of the spirit while accepting the diversity of intentions.” In 1969, Fuentes was at first denied permission to enter the United States because his name was on a list of foreigners who were considered “undesirable.” The American Center protested immediately to the State Department; Fuentes sent his “profound gratitude,” noting that “once more P.E.N. has proved its immense value as an active force in defense of the freedom of writers.”

When Boll turned to the subject of the struggle to free writers from prison, he could only advise P.E.N. never to be discouraged. One of the most constructive acts of the past year had been the establishment of an emergency fund by the Dutch Center to be used for both the families of writers in prison and the writers themselves if censorship had taken away their livelihood. Individuals and Centers make donations to this fund.

P.E.N.’s devotion to the struggle to free writers from prison continued unabated into the Seventies and Eighties, with the Freedom to Write program as one of its prime examples. The committee included Edward Albee, Allen Ginsberg, Arthur Miller, Bernard Malamud, and Ken McCormick. This Committee was responsible for investigating cases of imprisoned writers in many different countries around the world, including Chile, Czechoslovakia, Korea, the Philippines, Poland, Puerto Rico, Romania, Taiwan, South Africa, Turkey, the USSR, and virtually anywhere else on the planet where writers were incarcerated. P.E.N. would then protest these cases along with other human rights organizations.. For example, an inquiry from the American Center went out to the Dutch P.E.N. Center on September 28, 1976, concerning a Dutch journalist Peter Custers, who was imprisoned in Bangladesh. He was released shortly afterwards. On October 7, 1976, a letter was sent by the American Center to the U.N. Mission, congratulating the Bangladesh government on the release of Custers and requesting information on the status of other writers imprisoned in Bangladesh. A similar approach was taken with all other cases, and it was partly due to P.E.N.’s aggressive and relentless pursuit of each individual case which resulted in the release of many prisoners.

P.E.N. during the same time implemented its Prison Writing Program. Each year, P.E.N. accepted and reviewed original writing entries from convicted prisoners in various genres and categories. P.E.N. would then award first prize, second prize, and two honorable mentions to entrants in each category. This program was aimed at recognizing and fostering the creative urge in individuals typically cut off and shunned from society. It was also meant as a vehicle for rehabilitation.

P.E.N. always had been, and remains deeply interested in the subject of censorship. In the Seventies and Eighties, the repression of writers’ freedom of speech was going on everywhere in the world, and P.E.N. was deeply involved in these domestic problems as it was overseas. P.E.N. kept close watch on individual cases of harassment across the United States. One good example is its involvement in the protection of the underground press when it was being politically harassed in the Seventies. The American Center kept track of scores of cases of small struggling newspapers which were continually threatened out of existence by the government. At the hub of all this was Allen Ginsberg, who did much to keep the fight going for the underground press.

One of the largest, most publicized, censorship struggles P.E.N. faced was the 1981 case of Island Trees Union Free School District Board of Education versus Steven A. Pico, a student. Pico and four other students, with their parents, charged that the Board had violated their constitutional rights by “improperly removing” from its school library shelves nine books, which personally offended the Board’s sensibilities. Four of these nine books were authored by P.E.N. members: The Fixer by Bernard Malamud; Slaughterhouse Five by Kurt Vonnegut; Down These Mean Streets by Piri Thomas; and A Hero Ain’t Nothin’ but a Sandwich by Alice Childress. The other five works were A Reader for Writers, edited by Jerome Archer; The Naked Ape by Desmond Morris; Best Short Stories by Negro Writers, edited by Langston Hughes; Soul on Ice by Eldridge Cleaver; and Go Ask Alice by an anonymous author. Unfortunately for P.E.N., the Board was upheld by Judge George C. Pratt of U.S. District Court of the Eastern District of New York in Westbury, Long Island, stating that, although it could be construed as a “misguided” educational decision, the Board did not directly violate the First Amendment, and that the board of any educational institution had a responsibility to uphold the values and morals of the community in which it was based

Banishment is Harmful to the Fundamental Values of American Democracy

Banishment is alive and well in 21st century America. While this may come as a surprise to most one need only look through the criminal sentences in many states around the country to see that judges still banish criminals from a particular area as a form of punishment. There exists considerable support for banishment to continue due to society’s endemic protectionist attitude. If one group of people can cast their burdens onto the shoulder of another, it is highly unlikely that such practice will change. It is, however, unacceptable–both from a constitutional standpoint and as a matter of governmental administration–to allow a single party to act in a manner that is injurious to the whole. Allowing a community, town, or state to act in so selfish a manner that it jettisons all notions of comity, sanctions a practice that tears at the very fabric of our society. This article argues that irrespective of any definable good that may come from banishment, in the long run, society’s use of banishment is a net loss. This article further argues that banishment is a violation of the First Amendment.

Declaring banishment a violation of the First Amendment is meant to encompass all sentences or conditions of banishment irrespective of the reasons for which they were given. Another danger posed by banishment is that it can be used to undermine democracy and the right of all people in this country to voice support or opposition to the governments. Only a blanket rule against banishment will prevent someone from determining ad hoc that the crime is not of a political nature and thereby “legally” perpetuating the pernicious effects of banishment.

The use of banishment violates an individual’s rights to freedom of association under the First Amendment. Freedom of association guarantees to every American the right to associate with his/her fellow citizens for the promotion of political ideas, causes, and concerns. Violation of a law undermines the will of the people, which was promulgated through the use of the political process. As such, all crimes, in essence, are political crimes. From a purely ontological point of view, “all crimes are political crimes inasmuch as all prohibitions with penal sanctions represent the defense of a given value system, or morality, in which the prevailing social power believes.” To corporately question the validity of a crime, even the most trivial of crimes, is to engage in a tempered form of political protest. When the political state power expresses its ideology, or value system, through the regulations of the criminal code, it determines the “norm of actions” (norma agendi) and, at the same time, authorizes the executive organs of the state to apply penal sanctions in order to enforce the observance of these norms or, in other words, the acceptance of the value system.

For example, it cannot be said that the issue of sodomy is not a political issue, as the one group that is singled out most frequently under these laws are homosexuals. As a result, the perpetrator of an act of sodomy could rightly be considered a political criminal. Bank robbery and rape cases are also political crimes because they evince ideological interest that the state has in protecting other people’s money and in protecting the body or sexual integrity of females. In the case of rape, one need not look back any further that the middle of the twentieth century to see that rape was all but permissible if it was done within the confines of marriage. The artificial line drawn between marital and non-marital rape has all but been extinguished in this country. The act of the crime of rape, however, did not change. Rather, it was public opinion, as expressed through the political process, which changed the definition of the mens rea necessary to commit the act of rape. Thus, whether the crime is treason, possession of cocaine, embezzlement, arson, or shoplifting, ultimately, “each is determined to be a crime by the legislator’s philosophical, ideological, and political postures.”

Admittedly, the use of the term “political crime” may seem overbroad, but it is only overbroad relative to the contemporary views of that which is considered a political crime. For the purpose of this article, a distinction needs to be made between crimes in a democracy that are political because they are promulgated through the political process (derivative political), and a subsection of such crimes that are political expressly because they are an expression of the political language (motivational political). The problem one runs into when using the expansive definition of political crimes is that in American speech, political crimes are defined in terms of what Americans see other countries doing. This is so, even though various human rights organizations assert that there are over 300 political prisoners in the United States.

Regardless of the typology used to classify crimes, criminal laws do not distinguish between the layman’s conception of what is an ordinary crime and what is a political crime. In a democracy that is reasonably free of graft and corruption, violation of any criminal law is violation of the norms and rules that form the basis for a stable political order. Whether the violation of a criminal law is politically motivated, such that the perpetrator believes his or her actions are justified by individual moral interpretation of the concept of justice, or whether the violation of a criminal law is simply the act of an immature child, in either instance, the right of the government to prosecute both is derived in the form of a mandate from the people.

Admittedly, history has demonstrated that the easiest way to rid oneself of a political agitator is to imprison them for life. One may argue, therefore, that since the United States Supreme Court has held that there is a necessary diminution of rights while in prison, should the incarcerator(s) truly wish to see the agitator silenced they could simply incarcerate them for life. Once in prison, the agitator would find it difficult to gain an audience of likeminded confederates willing to challenge the status quo. But the reality is that many times life imprisonment is not feasible due to statutory limitations, or, as with parole, the need to free up bed space. The vehicle of banishment would well serve an individual or cadre seeking to permanently disentangle itself from its political opposition. For this reason, Russia banished its offending citizens to remote geographical regions as an attempt to prevent an individual from returning to the community and forming associations. Moreover, whether the associations run afoul of probationary and parole conditions which forbid associating with the criminal element in the community, is a question that should be presented in the community where the putative crimes were committed. Failure to do so, due to the use of banishment, unconstitutionally preempts both the individual’s and the community’s rights to the freedoms of speech and association.

As explained above, the punishment of banishment is most easily justified by claiming that banishment protects the community from an indisputably dangerous man. Instead of a convicted child molester, imagine the City of Birmingham banishing the Rev. Dr. Martin Luther King, Jr. Had Dr. King been told by the State of Alabama, the civil rights struggle would have been challenged even more so. Arguably, while sitting in the Birmingham jail, Dr. King could have been considered a political prisoner, and to many people outside the south such an appellation would have been deserved. It is doubtful, however, that many people in Alabama would have considered Dr. King a political prisoner. Regardless of whether he was a political prisoner, the fact of the matter is that he was in jail for breaking a law that was promulgated through legitimate political processes. If Dr. King was a man of lesser moral timber or lesser notoriety, it is unknown whether he would have entered into a Faustian bargain for banishment had it been offered to him. Very few individuals have either of those resources in their well from which to draw, and as a consequence the individual must, in many instances, choose either continued incarceration or banishment.

Since the discretionary nature of banishment does not allow for an exact figure on the number of people banished each year, the racial makeup of those banished is also not readily available. If, however, one extrapolates from the total number of incarcerated individuals, over fifty percent of those banished are African-American, even though African-Americas only comprise twelve percent of the general population. Under the logic that racism plays a part in the high percentage of black males caught up in the criminal justice system, facially, it is much harder to accept the argument that racism does not play a major role in the banishment of African-Americans. Even if the numbers of those banished do not correlate directly with the incarceration figures, the fact remains that people are being denied their right to associate after having been convicted of violating a law. If the numbers do correlate, however, a particularly disturbing view of our criminal justice system is presented. No matter how vigorous the proponents of the notion that racism has been eradicated in out country are, if there is any correlation, such pronouncements seem to be premature.

Any discussion on race and the criminal justice system must necessarily begin with the ineluctable reality that race has sometimes “been a critical factor in determining whether prosecutions are initiated or terminated, whether the jury returns verdict of guilty or not guilty, whether certain judicial instructions are given to the jury, whether witnesses are or are not believed, and in determining the formulation of ultimate judicial rulings.” Next, add to the historical reality of racism in our criminal justice system, the neutral demographic fact that African-Americans are in the minority in the majority of voting districts in this country. The minority status of African-Americans is particularly important to the banishment argument because banishment facilitates the redistribution of political votes. Thus, banishment has the potential to be used as a means of effecting the political makeup of a town, county, or state, through the use of the criminal justice system.

Finally, take into consideration Professor Martha Duncan’s theory that a community banishes because the banished embody a contagious evil that is a contaminate in the community. A person who banished based on racial animus, more than likely believes that the banished individual is a contaminate to the community. Thus, banishment affords the racist a vehicle through which he/she can carry out his/her racial re-segregation of our country. Though in isolation none of the above are dispositive of racist motivations in banishment, in aggregation these three “pieces of evidence” inexorably point in the direction that banishment is used as a vehicle of racial discrimination in certain cases. Though it would be unfair to cast the net so broadly such that all of the officials who are charged with the judicial and/or executive maintenance of the communities are branded as racists, as Justice Holmes once said “the life of the law has not been logic; it has been experience.” In the case of banishment, experience militates strongly in favor of concluding that, in certain instances, banishment is racially motivated and selectively enforced.

Though without a reliable sample size, admittedly, it would be quite difficult to make out a prima facie case for racial discrimination on a system-wide basis. On an individual case by case basis, and in theorizing from extrapolated data, however, the conclusion that racial discrimination occurs, at least to a limited degree, is quite logical. Even if racism is the motivation in only “selected contexts,” the system as a whole is tainted and in need of reform.

`Banishment needs to abolished, not merely monitored, such that its usage is not disproportionately used on African-Americans. To do so would be to engage in “leveling up,” in the context of racial discrimination in the implementation of the death penalty. The problem with such an argument is that banishment on any “level” is unconstitutional because it allows the redistribution of political interests through the operation of the criminal justice system. Whether banishment is used to redistribute the political influence of white supremacists is Idaho, or whether it is used to dilute the voting strength of Latino-Americans in central California, banishment should be per se unconstitutional. Banishment is a cancer on our democracy, and only its complete extirpation from our criminal justice system will ensure that its perniciously seductive appeal does not metastasize to other communities.

Both the banishing community and the entire country are presented with a quandary when the banished individual is a member of a minority. No longer is the question of community protection straightforward. In fact, it is arguable that the banishment is an intentional obfuscation of the facts necessary to determine from whom the community needs to be protected, the government or the governed. It is also arguable whether the federal government needs to intercede and ensure that the rights guaranteed to all citizens of the United States are being protected. Admittedly, it would be unfair to characterize all political sub-divisions in such a nefarious light. Twentieth century history shows, and our forefathers have warned us, that when the legal system enforces laws that obstruct the free-flow of information to and from the government and the governed, totalitarianism and mistrust of government arise commensurably. Judge Frank H. Easterbrook has written that, “we would be terrified by legislation limiting political associations that are necessary to keep representative government healthy; therefore judges must ensure that legislators cannot get away with passing obnoxious laws restricting freedom of association. Though it can be argued that convicted criminals should not be entitled to the same set of rights and freedoms as those who have not been similarly convicted, banishing someone does not further a “healthy government.” When laws that sanction banishment are passed by legislators, when judges acting sua sponte impose probationary conditions of banishment, or when executive branch imposes parole conditions of banishment, society is passing through a terrifying juncture in history. Without some type of absolute constitutional governor to control the invidious effects of banishment, banishment for political purposes is not only possible, but also frighteningly real. On the other hand, should banishment be considered to an infringement on the constitutional right to associate, then “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced.”

Such lofty aspirations are never realized, however, when banishment is employed to preempt the dialogue. Thus because banishment is most often used as a bargaining chip within the probation and parole framework, the potential for abuse is high. Few defendants have the wherewithal, either emotionally or financially, to turn down the benefit of parole or probation when offered to them. This is so, even though they may be agreeing to a condition of banishment, which is unquestionably not in their best interest. Hence, it is imperative that wherever it may occur and whatever form it may materialize, banishment needs to be ruled unconstitutional, irrespective of whether the offender was banished for political reasons or not. Only be ruling every banishment condition unconstitutional can society ensure that no where is banishment being used as a means of controlling the open dialogue on political issues.

The banishing of a criminal may well serve to protect the physical, mental, and spiritual well-being of a community. The ultimate question turns on the practical cost of banishment to society. Unless one is a member of the community doing the banishing, the thought of having a convicted criminal thrust upon society is disturbing. It is particularly disturbing because the banished individual probably has little in terms of start-up capital to get himself established, and will more than likely fall into the legion of homelessness or get caught back up in the law of easy money in the criminal underworld. Either scenario bodes ill for the country struggling to get a handle on its crime problem. Moreover, banishment is antithetical to many of the purposes behind probation and parole because it is an alteration of the model paradigm into which the probationer or parolee was to be released.

Though the raison d’etre for the freedom of association argument may be the potential abuse of banishment for political purposes, the situation that is most likely to recur, and the one that in aggregation will do more to cripple our society, is where the banishment of a criminal leads to inter-community strife. The freedom of association argument seeks to eradicate all usage of banishment, and it endeavors to do so without regard to this inter-community strife, which is the most destructive result of banishment. Those who employ the First Amendment analysis in their argument against banishment must do so with equal vigor to those cases where it is clear that the banishment was not politically or racially motivated. Then, and only then, can we be certain that the insidious effects of banishment are forever extirpated from the American legal landscape. In the words of Dr. King, “[i]njustice anywhere is a threat to justice everywhere.”

From a historical perspective, banishment has had the unintended consequence of the fortuitous peopling of many parts of our world. Gone are the days when the lives of those disrupted by the effects of banishment are so easily dismissed and disregarded. When a narrowly tailored sentence of banishment is micro-managed, then, and only then, will the benefits of banishment outweigh the costs. Barring such a scenario, the use of banishment undermines the very foundation of our constitutionally federated republic. The mistrust of the average American and of the local, state, and federal governments are produced by the use of banishment. Banishment is a punishment whose time has long since passed and the criminal justice system is no longer enhanced by banishment, but rather is debased by it.