Philosophers spend a surprising amount of time thinking about punishment: about what counts as punishment, about what people should and should not be punished for, and about whether and why people should be punished at all. When they do so, they tend to make a lot of assumptions about the kinds of cases of punishment they are interested in: for example, that when the state punishes someone, it is typically because they have been convicted of a genuine crime at the end of a fair trial. One assumption that often gets made in these discussions is that the person being punished is a citizen of the state that is punishing them. But it’s important to realize that states often punish individuals who are not citizens. As I argue in a recent article, this matters, because some of the ways in which we might try to justify punishing citizens don’t seem to make very much sense when we apply them to non-citizens.
Why do states need to punish non-citizens at all? At any given time, a democratic state will have various kinds of non-citizens within their boundaries. This will include tourists, people making short visits for commercial or professional purposes, and long-term residents, including some individuals born in circumstances that mean they do not automatically acquire citizenship, or brought to the country by their parents as young children. A state’s criminal law typically covers actions committed by everyone falling into these categories: it’s hard to imagine a practical alternative.
Why does this matter? There are lots of views about why punishment is justified. Some people think it is to deter people from committing crimes in the future, for example, while others think it is primarily a matter of making sure that people get what they deserve. But one idea that has been important in a lot of recent discussions is that part of what punishment involves is communication. One reason for thinking that punishment does involve a communicative element is that it explains, for example, why we should not think of paying a fine for parking illegally as being like paying a very expensive fee for the privilege of parking where we like.
Suppose that’s right. How is it relevant to justifying punishment? Antony Duff has argued that the communicative element in punishment explains why, despite the huge costs, and dubious benefits of many existing forms of punishment, we should expect punishment of some sort to play a role in a community of equal citizens. He thinks that citizens in a democratic community owe it to their fellows to communicate with them when they have broken the law, and to do so in a way that offers them the opportunity to reflect on their wrongdoing, repent, and become re-integrated into the community. Typical forms of punishment, including incarceration, should allow for precisely this possibility.
Of course, in the real world, punishment often does not work like that. But Duff’s idea is attractive because it offers a model of what punishment could aim at doing in a state that was working reasonably well. One reason why it is attractive is that law-breakers are not seen just as threatening aliens who need to be frightened away by the prospect of having something bad inflicted on them. But this is an explanation of why we are justified in punishing citizens: those who we are already committed to treating as equals via their participation in a law-making process. What, if anything, can it tell us about the punishment of non-citizens?
One answer might be that it can’t tell us very much at all. Perhaps communication doesn’t play an important role in explaining why we are justified in punishing non-citizens. Maybe we have no choice but to regard them as threatening aliens. But if we think there is something dehumanizing about regarding people in this way, this seems fairly unsatisfactory – especially once we bear in mind that non-citizens need not be short-term visitors, but can be people with whom we have much longer-term relationships: as neighbours, as colleagues, as friends and lovers. Or perhaps we shouldn’t think in terms of punishing non-citizens at all: maybe expulsion and/or deportation is an alternative (though it’s hard to explain why these aren’t themselves forms of punishment.)
There’s another possibility to consider here. Citizens might think of non-citizens as being like guests in our political community. The idea here is that citizens have duties to non-citizens in the same way that hosts have duties to guests. These include duties that are like the duties that citizens owe to their fellow citizens and that we discharge when we hold them to account in a criminal trial and (if they are found guilty) subject them to punishment. I think that this is, in fact, a pretty terrible way to think of the relationship between citizens and non-citizens who reside on a given state’s territory. But for now, I’ll just say why I don’t think it really works as a justification of punishment.
It makes sense to say, I think, that hosts owe it to their guests to tell them when they think that they have done something wrong, and to give them a hearing in which they have an opportunity to put their side of the story, to put forward justifications and offer excuses. So, if what we wanted to justify was the practice of submitting non-citizens to the formal criminal processes, the analogy between citizens and non-citizens might be quite appealing. But punishment involves more than this. It involves inflicting hard treatment too.
When a state punishes its citizens, it may be offering them the opportunity to re-integrate themselves into our political community. Perhaps the value of membership in a political community is enough to make the costs involved in maintaining a system of punishment worthwhile. But this is not what it is offering non-citizens; and it is not clear it is offering them anything of comparable value instead. In short, it is unclear what, if anything, justifies punishing them.