Penal power at the border: Realigning state and nation

What is penal power at the border?

Penal power at the border relies on coercive tools such as expulsion, eviction, criminalization, and penalization to respond to mass mobility, which is perceived as a social threat rather than a political expression of rights. These tools are used to control unwanted mobility for specifically nationalistic purposes such as national identity (Bosworth, 2012; Kaufman, 2015), national sovereignty (Bosworth and Guild, 2008; Haney, 2016), and in the Nordic cases, a nationalized welfare state (Barker, 2017; Von Hofer and Tham, 2013). This form of power is coercive since it imposes power over another’s will, autonomy, free movement, and self-determination. Yet, it is specifically penal since it depends on the means of criminal justice to carry it out and render it meaningful. The means of criminal justice—its staff, institutions, legal frameworks, concepts of justice, and particularly its moral weight of censure and sanction—are used to decide who belongs in a country and who does not. Crime control is a means to provide social security, that is, security in social relations and social attachments.

Conventional measures of criminal justice are beginning to capture this transformation but they are not sufficient to grasp the full extent and depth of the phenomenon. In The Borders of Punishment, Katja Aas and Mary Bosworth (2013) set out to redefine such a research agenda as they inspired scholars to look for new forms of punishment and new practices, but also hybrids, mutations, and adaptations, and to pay attention to how old penal forms have been repurposed for the 21st century. With this perspective in mind, we may begin to pay more attention to how and why foreign nationals are overrepresented in almost all European prisons, hovering around 30 percent in the “mild” Nordic penal regimes of Sweden, Denmark, and Norway (World Prison Brief, 2017). Or like Emma Kaufman (2015), we might ask why foreign nationals are being housed in their own wings in British prisons, separated and prepared for deportation rather than reintegration after time served. We might question how a 19th-century Danish prison can be reopened for refugees or how the Netherlands can house refugees in prisons, or ask why Swedish detention centers are surrounded by high concrete walls (Puthoopparambil et al., 2015).

Likewise, we can track the proliferation of detention centers around the world designed to hold and contain migrants under conditions that sometimes mirror imprisonment and sometimes do not. Yet, paradoxically, detention centers can be experienced as more painful and punitive than imprisonment for detainees at a loss for status, certainty, and belonging (Bosworth, 2014; Hasselberg, 2016; Turnbull, 2016). The loss of liberty cuts their attachments to family, loved ones, work, neighborhoods, and is often experienced as punishment for an unknown crime. In the words of one detainee in Sweden: “here, it just [a] prison…they are just doing something to make it…to…give you some nice flavor like detention…but it is prison” (quoted in Puthoopparambil et al., 2015: 79). Detention can be experienced as punishment even if it is not formally defined or even intended as such.

What then is punishment? Katherine Beckett and Naomi Murakawa (2012: 224) answer this best when they flat out reject “official claims about what is and is not punishment”. They ask plainly why would we take state definitions at face value when it is the job of social scientists to set the units of analysis for theoretical and empirical reasons. Instead, they focus on a whole host of legal practices and hybrids that take away liberties and inflict pain, functioning as punishment in all but name, invoking Malcolm Feeley’s (1979) classic text The Process Is the Punishment. Their approach is immensely clarifying and liberating. So how can border control or migration policies be considered punishment? Because they deprive liberty, inflict harm, and impute wrongdoing, discussed in more detail below. Punishment is not the same as justice.

Structural capacity to produce political authority

This mix of penal power and border control is not simply repressive. It is a productive form of penal power that is integral to state craft and its reconstruction (Allen, 2000; Foucault, 1977; Garland, 1996; Spierenburg, 2007). Penal power at the border is not only about tossing particular people out of the polity, which it surely is, it is also about constituting the polity itself. It is a form of power that scholars have long identified as necessary for state formation. As Max Weber (1919) explained, the modern state is in fact defined by its monopoly on violence—violence that is embodied in the rule of law and enacted through criminal punishment (Cover, 1986). Revisiting the classics of political philosophy, Magnus Hörnqvist (2014), likewise, ties the exercise of legitimate forms of violence against lawbreakers to the enactment and display of political authority, the right to rule. Through punishment, Hörnqvist (2014: 531–532) argues, all aspects of state sovereignty are enacted: its supremacy above other authority sources; its self-interest and self-referential nature; its sanctioning if not vanquishing of foes for violating the rules (will) of the state; and its duty to preserve order.

There is a deep and unbroken connection between the exercise of penal power and the establishment, affirmation, and reproduction of political orders, from ancient Greece to the modern era. In The World of Prometheus, philosopher Danielle Allen (2000) explores the meaning structures of Ancient Greece to find the central importance of penal practices to the construction and meaning of citizenship and democracy. Ancient Athenians, she explains were responsible for carrying out justice themselves and to do so legitimately, they had to know the difference between vengeance and desert. They had to know which political power to invoke to make their sanction work against the wrongdoer. These enactments of legitimate sanctions were enactments of their citizenship. In this political order, punishment and democracy were mutually constitutive.

Michel Foucault’s (1977) paradigm shifting Discipline and Punish traced how the forms and functions of punishment changed over time to reflect the changing forms and functions of political authority (see discussion in Garland, 1990). Here Foucault contrasts the graphic displays of public punishments—sanctions which were literally beaten into the bodies of the condemned to showcase the totalizing power of monarchical rule—to the intricate and intrusive disciplining power of the 19th-century prison, which prepared and bent the soul toward the needs and demands of a modernizing society. This work inspired historians, criminologists, and sociologists alike and laid the foundation for a new discipline, the sociology of punishment, filled with accounts of how penal power reflects, sustains, and molds political orders over time and space (Garland, 2013; Lacey, 2008; Miller, 2016; Savelsberg, 1994; Simon, 2009).

Moreover, the exercise of penal power at the border has long historical roots. Penal power has been present at the territorial border as it helped to define, guard it, and make it meaningful. The exercise of penal power was critical in the early modern period as it was deployed to designate cities of law from the lawless frontier (Spierenburg, 2007). And much like contemporary border zones, the space between the frontier and the rule of law was populated by dead bodies, persons who died from lack of protection or who were expelled or perished by it (Spierenburg, 2007; Weber and Pickering, 2011). In Stockholm in the 1600s, state authorities carried out a series of public executions north and south of the city limits. These public executions were filled with symbolic violence as the emergent national state displayed its own power and authority at the same time as it was consolidating it. And of course, they were filled with material violence that was often, but not always, directed at outsiders and those on the margins of society (Sandén, 2014). In this period, mobility was highly regulated in Sweden and those without proper permission, identification, or social ties were similarly subjected to harsh punishments, including hard labor (Sandén, 2014). In tracking similar developments in Britain, Ana Aliverti (2013) called these “crimes of mobility”, a criminalization process that disproportionately impacts the poor, ethnic, and racialized others, and “vagabonds” (Bauman, 2000; Melossi, 2003, 2015; Weber and Bowling, 2008).

I highlight these historical examples not to argue that nothing has changed since early modern Europe, but rather to call attention to the formative role of penal power in making and reproducing state power. Penal power was foundational to the mapping of territory, the marking of people and the governing authority within it. The exercise of penal power came to play a major structuring role in the consolidation of political authority of the modern nation state, its territory and the population within its bounds (Spierenburg, 2007; Weber, 1919), a role similar to warfare and taxation (Tilly, 1990). It helped to hold in place the emergent international state system (Cornelise, 2010) and make justice a property of the domestic realm (Fraser, 2008).

If we move forward to the post-cold war period, once again we can see formative powers of penal authority remaking states. In her fascinating account of post-socialist states in Central Europe, sociologist Lynne Haney (2016) shows how the politics of penal reform, rather than advocating milder punishments as a rejection of a more repressive past, instead embraced a more punitive and law and order approach to respond to transitional and social insecurities. By tracing political discourses around crime and anxieties around migration, she shows how punishment became a preferred tool to settle political crises and threats of Europeanization as politicians were able to “equate punitiveness with national sovereignty and protection” (Haney, 2016: 346). Haney argues that populist demands became more nationalized as punitiveness became an effective way to reestablish political and social attachments to the nation. She calls this process “penal nationalism” to show how penal power is used to help redefine East European states and social relations outside a socialist or EU frame.

The constitutive nature of penal power can also be read in Juliet Stumpf’s (2006) seminal work on “crimmigration”, what she identified as the merger of crime control and immigration law. In this configuration, migrants have become increasingly subject to criminalization for what once were considered administrative immigration violations. Likewise, immigration law has taken on more of a policing and punitive role, as domestic police are now routinely tasked with checking identification and carrying out border control duties. The proliferation of immigrant detention centers further speaks to this trend. Turning to membership theory, Stumpf argued that both criminal law and immigration law, particularly when they overlap, function as key mechanisms to sort and classify membership in the polity. Who belongs and who does not belong in the polity? Here I take Stumpf’s focus on membership and connect it to the proceeding discussion of political authority and sovereignty. As Catherine Dauvergne (2004: 588) states: migration law is the “new last bastion of sovereignty” in the absolute sense of controlling who enters the territory. Who is the population or demos that make up the nation? Who makes up the body politic that the sovereign governs? Who makes up the population that gives legitimacy to political authority?

These are increasingly fraught questions in a period of mass mobility and transnational movements and conflicts over national identity and national belonging. Mary Bosworth’s (2012) and Emma Kaufman’s (2015) individual and collaborative work have demonstrated the extent to which penal power at the border has been implicated in the affirmation of British national identity both for those subject to its powers and for governing authorities seeking legitimacy.

These tensions over belonging and membership are particularly acute in the Nordic welfare states (Aas, 2014; Johansen, 2013; Ugelvik, 2013) where the legitimacy and moral authority of the government hinges upon its capacity to protect the material and social well-being of its members. Penal power at the border is routinely used to settle claims on access to material and symbolic resources. It seeks to preserve these precious goods for those with the right set of attachments, identities, and citizenship. It is a kind of welfare chauvinism (Eger and Valdez, 2015; Kitschelt with McGann, 1995) expressed in penal form. Shahram Khosravi (2009) has documented the extraordinary difficulties paperless migrants in Sweden have in securing the bare necessities, let alone a sense of membership or claims on the polity. The Roma, fellow EU citizens who travel from Romania and Bulgaria to Sweden to ask for money on the streets, have been subjected to an ongoing public and legislative debate about how best to respond to their destitution. As foreign nationals and ethnic “others”, the government claims very little responsibility for their material well-being in terms of access to health care, education, labor markets, and housing—instead the government exports foreign aid to their home countries—this group has been subject to public order complaints, evictions, and removals from the country (Barker, 2017). Since “[n]o one should have to beg in Sweden” (Löfven quoted in Government of Sweden, 2016: 13), they can beg elsewhere.

I take up the specific case of Sweden and its growing reliance on penal power at the border in a new book (Barker, forthcoming). The book places these developments in the history and logic of the welfare state and its ambivalent relationship with immigration. It shows that the promises of the welfare state, its economic and social security, are not based on universal foundations but on particular ones meant for specific and worthy members. At the same time, however, I argue that the current situation was not a preordained outcome but the result of a particular and turbulent political context. In the fall of 2015, the Red Green government (i.e. Social Democrats in coalition with the junior Green Party) feared a “system collapse” in the face of the country’s largest humanitarian effort in which Sweden admitted over 160,000 asylum seekers from Syria, Afghanistan, Iraq, Eritrea, and other conflict zones but was under prepared and overwhelmed at reception to process and integrate new arrivals (SOU 2017/12). This capacity question became a perceived threat to the sustainability of the welfare state and its associated social security for those on the inside. These contingencies coupled with the limits of the EU to govern as a supranational entity created the conditions under which the government responded swiftly and firmly with penal power. The Red Green government expanded its apparatus to restrict and block entry and detain and remove unwanted migration. This approach had been slowly growing across the EU and in Sweden for well over 10 years and was readily available. What is critical about the Swedish case is its particular meaning and rationale. The expansion of penal power is not celebrated as a populist law and order campaign but rather as a practical response to an unwieldy situation, all done in the name of welfare state preservation, glossing over its violent and rough edges. Penal power is mobilized here to guarantee and uphold the security of the welfare state, not as a substitute for it.

The Swedish case is a complicated story of change and continuity. What I want to highlight here is that increased penalization of migration is not a break with a more open and tolerant past but, rather, part of a long-term pattern of exclusion to uphold the welfare state for insiders. Yet, as indicated, current conditions—the refugee crisis and globalization—have accelerated and made this more exclusionary trajectory more likely. What is distinctive is the expansive use of criminal justice tools, personnel, institutions, and moral authority for explicitly nationalistic purposes against outsiders. This represents a shift in how justice works and how it relates to democratic governance, a point I return to in the discussion. For now, I highlight the salient and structural capacity of penal power to accomplish these goals of government.

Communicative capacity

The nation state turns to penal power because this form of state power produces meaning and status backed by violence, on a scale and register unavailable to other public authorities (apart from the military). Even in acts of civil disobedience protestors recognize the authority of the law as they seek to circumvent it, they may even align with it. In the Durkheimian tradition, penal power is embodied with a kind of ritualistic and quasi-religious power to ordain meaning and status (Durkheim, 1902/1983; Garland, 1990). In his classic text, Harold Garfinkel (1956) outlined the “conditions of successful degradation ceremonies” in which the power of public denunciation has been used to explain the force of punishment practices (Whitman, 2003). Anthony Duff’s (2001) highly influential theory of penal law as essentially expressive lends further weight to the communicative powers of penal practices to signal wrongdoing and uphold community norms, values, and, I would add, state authority.

From Pierre Bourdieu’s lectures On the State (2014), we can see how the state’s power to name and classify, its symbolic violence, creates new meaning, status, and confers legitimacy where there was none. Bourdieu gives the example of a diploma that certifies a newly earned degree, expertise, and authority. The power to name and classify is a constitutive force as it makes things, relations, and hierarchies where none existed before (also see Sutton, 2000). As Bourdieu (in Schinkel, 2015: 220) explains, it is the “power to legitimate the representation of reality”. We can see this power in criminal courts when a plea-bargain transforms assumed innocence into presumed guilt. Or when a parole board declares an offender officially rehabilitated and ready for reentry. We can see this power in immigration law when a state makes a migrant illegal. By blocking legal channels of entry, refusing to renew a residency permit, or by denying asylum, the state through its immigration law creates illegality where none existed before (Dauvergne, 2008). It turns a migrant into a wrongdoer, subject to sanction, voiding sympathy, and depressing rights. This kind of classification process is both an expression and exercise of state violence.

The symbolic violence of the state cannot be underestimated. Taking the symbolic violence of the state seriously prompts us to ask different sorts of questions rather than take the status quo for granted. We might ask: why is it that doctors, lawyers, school teachers, social workers, nurses, librarians, tax agents, engineers, housing authorities, political parties, and employment agencies are not there at the border to meet migrants and refugees? These professions and other core institutions of society surely have a vested interest in the makeup of the population and nation. Yet, it is almost exclusively the police and other national security forces at the border, at that moment of exchange when status, meaning, and hierarchy are communicated and conferred. Nancy Wonders (2006) calls this moment of exchange the “performance” of the border, a dramaturgical display where the players follow and enact the script, asking for papers, checking IDs, submitting passports and fingerprints. When volunteers or groups from civil society such as Refugees Welcome are at the border, their presence is noticeable, remarkable, off-script, something to discuss, a presence in need of an explanation. But not the police; their presence is obvious, and that is why we should question it, as sociologists and as public criminologists.

Legal theorist Lucia Zedner (2016) further elaborates the communicative character of punishment. She explains how punishment is an essence of the infliction of harm on others by the state, and as such, is tainted by wrongdoing itself and therefore, it must be justified. Punishment is intended to be hurtful or “burdensome or painful” (Zedner, 2016: 7) as these inflictions are meant to communicate moral wrongdoing or censure for violations of law, underlying societal values, for breaking the social contract. Following from this penal theory, punishment can be understood then, despite its social complexity, as entailing censure and sanction (Duff, 2001; Zedner, 2016). Punishment communicates wrongdoing and imposes some kind of burden or deprivation to make that wrongdoing known. To Zedner, without the proper justification, the blurred boundaries of punishment, as evidenced by the expansion of penal power through administrative law and the emergence of hybrid institutions and practices, endanger basic legal principles of fairness, due process, and justice.

I want to highlight the analytical leverage censure and sanction provide. These basic elements can help us recognize a range of state practices—the imposition of harms, deprivations, and pain in response to perceived wrongdoing—whether or not these activities have been officially defined as punishment. These elements clarify what is penal about border control. Placing refugees in detention centers becomes a critical example, but also tasking the domestic police with border control and identification checks in the city center, or evicting migrants on public order grounds, all signal censure for some kind of suspected wrongdoing and ensure some kind of sanction, ranging from temporary detainment by authorities to longer-term deprivation or degradation.

The criminalization of migration illustrates this aspect of censure. For over 10 years, scholars have documented changes in the legal frameworks and criminal justice practices to track this trend in which administrative violations become subject to criminal sanction (Chacón, 2009; Mitsilegas, 2014; Stumpf, 2006). In this new paradigm, migration has become a public order problem to be managed and sanctioned rather than a labor issue to be regulated or social integration problem to be solved. Unwanted mobility has been construed as a crime problem, a public order nuisance, and/or a threat to security (Huysmans, 2006) rather than an expression of rights and self-determination.

For those migrants subjected to this criminalization process, they reject this assigned wrongdoing. In their in-depth investigation into the migrant experience in Sweden, researchers at Malmö University found that many of their respondents felt criminalized in their interactions with various Swedish authorities and civil servants. One such respondent in a detention center explained: “[t]hey don’t respect you and they’re like [treating me as if]…I’m quite a dangerous killer” (Kader quoted in Debono et al., 2015: 169). Another explained his experience in detention: “[t]hat is difficult for me because I am not a criminal, I am an asylum seeker” (Teka quoted in Debono et al., 2015: 169). Their report goes on to document the negative social and psychological impacts on their respondents as they move through detention and eventual deportation.

The conflation of certain forms of mobility with wrongdoing is a shift in how democratic societies have understood, facilitated, and regulated migration in the postwar period.

We can see this break during the height of the refugee crisis in Sweden in the fall of 2015. At this moment, the government dropped its humanitarian approach in favor of a security frame; the need for domestic security and restoration of order for the national population became a driving concern that would outweigh the insecurity and rights of people fleeing death and destruction. Such overriding security concerns spilled over into civil society. For example, Abby Peterson (2016) found that volunteers in Malmö who had been working with MSB, the government civil defense agency coordinating local and state responses to the refugee crisis, suddenly found themselves under threat of criminal prosecution for transporting refugees to reception centers. What was a case of volunteers legally transporting refugees to reception centers now became a case of human smugglers illegally transporting migrants across the border, stunning some volunteers by their own illegality and perceived wrongdoing.

Likewise, REVA (Rättssäkert och effektivt verkställighetsarbete), a controversial police and migration board joint operation serving deportation orders in 2013, certainly communicated wrongdoing to those who were stopped by the police and asked for identification to demonstrate their right to remain in the country. As local police officers were tasked with border control, checking papers and IDs, they did so in the city centers at major transportation hubs and tended to ask “foreign looking” passengers (Sincic, 2014). As they stopped commuters for ID, this highly visible operation communicated wrongdoing to anyone who was asked for their documents, but just as importantly, in the Durkheimian sense, it communicated wrongdoing to all the onlookers, the third parties, watching this public spectacle unfold during their daily routines in the cities of Stockholm and Malmö. The public nature of these checks added moral weight to the censure of those who did not have a legal right to remain in Sweden but it also caught a number of legal residents and citizens in this scene, a major breach in the social contract that generated public protest.

Moreover, penal power at the border crucially entails sanctions, often the deprivation of liberty and the infliction of harm. Critical migration scholars have argued that deportation goes well beyond its administrative designation into the punitive realm (Macías-Rojas, 2016). When it is imposed in response to violations of criminal law those links are clearly visible. When deportation, removal, or refusal of entry is imposed for immigration violations it nevertheless signals perceived moral wrongdoing and entails censure. It signals wrongdoing for legal status, indicates the wrong kind of membership, and places the weight of justice on the perceived threats to social security, which in the Swedish case, are oriented around a sense of order and security, national identity, and welfare preservation. Penal power at the border also imposes a sanction in the imposition of pain and deprivation as removal separates the person from family, and lowers his or her status (Anderson et al., 2011). Deportation imposes long-term if not lifelong incapacitation (Brotherton and Barrios, 2009; Coutin, 2010), as the person is effectively banished from the country, exiled from the territory and excommunicated from the community. It breaks the full range of social attachments. Deportation then serves a number of functions we usually associate with contemporary forms of punishment (Demleitner, 2002), along with its collateral damage, all glossed over by the technical language of administrative law.

Penal power at the border is a powerful communicative device that enables governing authorities to ascribe wrongdoing and signal worthiness at once. Censure and sanction work by sorting certain people into the polity and sorting others, often ethnic and racialized others, out. It clarifies who is and who is not a citizen and subject of state responsibility, backing up these classifications with legitimate state violence.