Discomfort with denationalization spans both proceduralist and consequentialist objections. I augment Patti Lenard's arguments against denationalization with an epistemological argument. What makes denationalization problematic for democratic theorists are not simply the procedures used to impose this penalty or its consequences but also the permanence of this type of punishment. Because democratic theory assumes citizens to be subject to developmental processes that can substantially alter a person's character in politically relevant ways, I argue in favor of states imposing only revocable punishments. Penalties removing people's rights and political standing must be accompanied by avenues for periodic reconsideration of such punishments in order to meet Lenard's standard of democratic legitimacy.
Consequentialist Objections to Denationalization
Lenard makes reference to three consequentialist critiques of denationalization. First, she underscores the existing consensus against engendering statelessness for any reason other than when citizenship was acquired by outright fraud. Second, denationalization is regarded as unjustifiable insofar as it cannot be very clearly shown to deter, reduce, or halt terrorist threats to national security or other crimes. Third, forced exile is widely considered a violation of human rights, whether or not it imposes statelessness on anyone, because its consequences are profoundly disruptive. Expulsion from a polity and a society where one has made their home rips families and social networks asunder.Footnote 1
Lenard's consequentialist critiques are morally weighty but empirically vulnerable bases on which to found a case for the rejection of denationalization. I will set aside as uncontroversial the critiques of all forms of denationalization that render people stateless because there is a widespread official consensus that states must not engender statelessness. But the second and third consequentialist arguments leave a troubling space for pro-denationalization retorts. First, the fact that the punishment of criminals may not have a deterrent effect is not a thoroughgoing indictment of using denationalization to punish people. In addition to deterrence, punishment is often imposed by democratic states for reasons of retribution, rehabilitation, incapacitation, and restitution. The absence of a relationship between punishment and the reduction of recidivism does not argue against punishment or preclude punishing people to achieve retribution, incapacitation, and so forth.
Second, forced exile may not actually be any more disruptive or arbitrary than the most widely accepted forms of modern punishment, namely incarceration. The effects of incarceration have come to be regarded as so isolating that scholars of punishment and sentencing have referred to felony sentences as “internal exile.”Footnote 2 People who are punished by incarceration lose fundamental parts of their citizenship, including their right to free movement, important civil rights, and political rights of participation and representation, thus rendering them semi-citizens within their own country.Footnote 3 They are also removed from their entire social context, severing their most intimate ties. Unless one wants to make a radical argument for eliminating all incarceration, the similarities between the consequences of internal and external exile make this part of the consequentialist argument difficult to sustain.
Procedural Objections to Denationalization as Punishment
Lenard offers two proceduralist arguments against denationalization: (a) that denationalization is often carried out without due process protections for the accused and (b) that, because denationalization laws generally apply only to naturalized citizens and dual nationals, they discriminate against such persons and as a result also impose different sentences for the same crime. Her proceduralist argument that people who stand accused of serious crimes are entitled to due process is relatively uncontroversial from the standpoint of procedural justice.Footnote 4 But these violations of due process do not arise because of the penalty (denationalization). They arise because many people suspected of contravening national security frequently do not receive due process regardless of whether they face denationalization or not. Protecting due process requires changes to how crimes against national security are prosecuted rather than changes to penalties.
Lenard's “differential treatment” objection to denationalization is a statement of fact. Citizenship provides few protections to people accused of terrorismFootnote 5 and even fewer to people accused of terrorism in countries where they are naturalized dual citizens. But this is risky ground on which to base a rejection of denationalization because it can actually support a case for extending the penalty to a wider population of people.Footnote 6 Differential denationalization penalties protect a large group of people from potential statelessness. Indeed, discrimination in which differently situated persons are treated differently by the law often exists as a protective measure.Footnote 7
Repudiations of expatriation that center on perceived procedural impropriety and the extreme consequences of denationalization are incontrovertible and important. But they are not sufficient to discount the practice. I will now outline a third category of argument against expatriation that centers on an epistemological theory of democracy in which all citizens are subject to processes of development. The importance of the idea of “processive selves” to democratic theory and practice militates against the imposition of any permanent form of punishment.
Punishment and the Epistemology of Democratic Citizenship
Nearly all persons denationalized by democratic states are rendered so for the purpose of punishment.Footnote 8 In light of what we know about the justifications and consequences of felony punishments, denationalization is not a singular practice but instead an extreme form of a ubiquitous practice. It strips people of civil and political rights and limits their free movement. Like all punishments, denationalization ought to be imposed in accordance with the basic procedural tenets of democratic norms. At the same time, all punishments ought to avoid imposing disproportionate, inappropriate, or inhumane consequences on those subject to them.
There is one quality to denationalization that distinguishes it from most other forms of punishment: it is permanent. Unlike incarceration, which may be meted out in periods of years rather than permanently, and which may be revisited via procedures that allow an inmate to request parole or clemency or even present exonerating evidence of their innocence, there are no contemporary versions of denaturalization that are not permanent. While some scholars compare incarceration to internal exile, as noted above, the permanence of denaturalization actually makes it the equivalent of “civil death.” The only comparable sentences are a life sentence without the possibility of parole and the death penalty, and neither of these is a default or predominant form of punishment in democracies.
Political excommunication was not always permanent. Ostracism, a forerunner to current practices, was meted by ancient democracies in sentences as short as a year.Footnote 9 Similarly, the practice of banishment in early modern France preserved the idea of term-limited ostracism.Footnote 10 Eventually the use of banishment declined, not because it was considered inhumane or because of a commitment to the permanence of citizenship status, but because resistance developed to the admission of people who had been banished elsewhere.Footnote 11 Only once international treaties started requiring states to repatriate any of their own nationals who were ejected by another nation could the practice of banishment, and eventually denationalization, be revived.Footnote 12
The epistemological case against denaturalization is grounded in an often unarticulated and yet pervasively important view that any person living in a democracy is subject to forces that can fundamentally transform their character over time. Democracy is predicated on a belief in a nonstatic, developmental conception of human character, which suggests that political decisions of all sorts need to be periodically revisited. The idea that people's characters change over time as a result of their experiences and accumulated wisdom can be traced back to ancient democratic theory. Aristotle posited that a person could only come to embody phronesis (excellence of character and wisdom that is essential to democratic politics) after accumulating sufficient experience and having the chance to reflect upon that experience. Developmental democracy is integral to contemporary democratic theories such as Seyla Benhabib's “iterative democracy,” which relies on the repetition of deliberative and decision-making procedures as a means of building knowledge and moving toward accord. But the most pointed argument that the self is never static comes from Hannah Arendt. Arendt writes of the self that it is only truly knowable once a life has been led to its conclusion.Footnote 13 Patchen Markell characterizes Arendt as believing that our identities are the results of actions rather than antecedent to them.Footnote 14 This has implications for the politics of recognition, but also for democratic norms more generally. Indeed, there are very few attributes of democratic politics that imply that a person—even a fully mature adult—is a static being with views and characteristics that never change. All kinds of character development processes can be expected to occur in difficult-to-predict ways as people go about their lives.
One of the most important acknowledgments of the processive nature of political subjects is expressed in the rules governing citizenship itself. The naturalization of nonnatural-born citizens is almost universally subject to waiting periods during which processes that transform foreign-born residents into citizens take place. During the waiting period, they may be expected to shed other loyalties, acquire new attachments, become patriotic, or experience any number of other transformations. Similarly, natural-born citizens must wait until the age of maturity to be granted the full rights of citizenship. They too are expected to undergo transformations of character during these waiting periods.
It is a like-minded belief that underlies modern iterations of punishment that assume, or at least allow for, the possibility that any of punishment's five goals—deterrence, retribution, rehabilitation, incapacitation, and restitution—can be met in a period of time. Good behavior, religious conversion, remorsefulness, and various other states of being can develop over time and indicate that a person's punishment has been successful and that her rights ought to be restored. Conversely, instances of societal change—such as the recent acknowledgment that many harshly punished drug crimes are actually minor offenses—can also trigger the restoration of rights for people convicted of certain crimes.
If democratic theory never assumes the current state of a person's character to be permanent, then the idea of permanent punishment is fundamentally undemocratic. Policy analysts and philosophers who specialize in questions of punishment have expressed dismay at the idea that punishments for serious crimes can be imposed in ways that fail to account for the fact that the perpetrators will be subject to processes that inevitably change their character.Footnote 15 To wit: recidivism almost always declines with age.Footnote 16
Societies change too. McCarthyism was a high-water mark in American anti-communist prosecutions, many of which have now been reconsidered. What now appears to many to be treasonous behavior on the part of Edward Snowden may later come to be seen as far less malign or even noble, as has occurred in the 1971 case of Daniel Ellsberg and the Pentagon Papers. Change could be the result of new information that triggers a public retrial, but it could also come about because norms—related to security, government power, and so on—change. For these reasons it makes sense for any democracy to ensure the periodic revisiting of highly consequential punishments such as denationalization. This remains true whether the punishment is inflicted for purposes of deterrence, retribution, incapacitation, rehabilitation, or restitution.
Rethinking Denationalization
If one accepts the developmental theory of democratic citizenship, then denationalization as a permanent punishment is deeply undemocratic and the practice must be revised. The most acceptable penalty for a violation of national security from the consequentialist, proceduralist, and epistemological perspectives is internal confinement that provides periodic opportunities for a procedurally fair revisiting of the penalties. Internal confinement better meets the goals of punishment: to incapacitate, exact retribution, rehabilitate, and restore. Conversely, denationalization allows people to continue to contribute to national security threats from outside the state and offers no guarantees that they will make restitution, experience retributive justice, or be rehabilitated. A receiving state that has no stake in punishing the violation or may even have a stake in furthering the activities in question will be poorly positioned to meet these goals. Finally, by choosing internal confinement rather than denationalization a democracy can ensure that the accused receives procedurally democratic treatment at each stage of punishment and also allow for periodic reevaluation of the character development, as well as of society's consensus regarding the crime committed.Footnote 17 This, in turn, will help guarantee that any restriction on the civil and political rights of the person convicted of a crime remains proportionate and appropriate.
