Historical Commentary

Community Exclusion as Criminal Penalty

Geronimo (Goyathlay, 1820–1909), a Chiricahua ...

Geronimo (Goyathlay, 1820–1909), a Chiricahua Apache; full-length, kneeling with rifle , 1887 (Photo credit: Wikipedia)

“The Apaches had no prisons as white men have.  Instead of sending their criminals into prison they sent them out of their tribe.” – Geronimo’s Story of His Life, edited by S.M. Barrett.

Geronimo’s Story provides another example of community exclusion as a traditional criminal penalty.  Similar exclusionary penalties might be effective  in nascent voluntary law societies, if not in entirely stateless populations including multiple co-existing voluntary law societies.  One of the outcomes of exclusionary penalties is the tendency for outlaws to band together and form their own “tribe.”  Geronimo noted that “the life of an outlaw Indian was a hard lot, and their bands never became very large; besides, these bands frequently provoked the wrath of the tribe and secured their own destruction.”  This outcome was in an area where the Apache tribes predominated and there were few opportunities for outlaw Apaches.  The crimes that made an Apache susceptible to banishment were not at all like modern crimes: “If an Apache had allowed his aged parents to suffer for food or shelter, if he had neglected or abused the sick, if he had profaned our religion, or had been unfaithful, he might be banished from the tribe.”  Id.

Members of voluntary law societies would be free to select the penalties imposed for various types of lawbreaking.  It is expected that most societies would favor restitutionary and exclusionary penalties, because  institutionalization would increase the costs of law enforcement services in societies that rely on it besides being generally counterproductive if not inhumane in most cases.  However, a restitutionary system could use self-funded institutionalization via indentured servitude in extreme cases.  For a more detailed treatment, see “The Structure of Liberty” by Randy Barnett, among others.