Bordered penality: Precarious membership and abnormal justice

The ‘who’ and ‘what’ of punishment: Bordered penality and abnormal justice

In Scales of Justice, Fraser (2008) argues that, in a global age, discourses of justice are gradually moving from a normal to an abnormal frame. Normal justice is imagined and practised territorially, as a domestic relation among fellow citizens where ‘parties frame their disputes as matters internal to territorial states, thereby equating the “who of justice” with the citizenry of a bounded polity’ (Fraser, 2008: 54). There are clear divisions between domestic and international space. Globalization, on the other hand, disturbs this neat Westphalian order of clearly delineated units. It expands both the geographical scope of struggles for justice as well as the question of who is to be counted as the subject of the discourse, and how and where to address the disputes about justice. In the emerging forms of abnormal justice, Fraser claims, participants no longer share common assumptions about the ‘what’, the ‘who’ and the ‘how’ of justice.

While the historic stability and neatness of the Westphalian sovereignty have been put into question by several observers (Benton, 2010), the ‘abnormal’ struggles for justice are receiving considerable attention with regard to human rights issues, international criminal law, humanitarian interventions and struggles for environmental justice, to name a few. However, the issue has been scarcely addressed when it comes to domestic criminal justice. And while Fraser sees the emerging abnormality as potentially liberating, we shall see that when it comes to criminal justice, it produces a particular set of challenges which are not easily grasped with the established conceptual, theoretical and normative frameworks. In what follows, the article outlines a set of challenges which are destabilizing the normal framing of domestic criminal justice and criminal law and raises questions about: (1) who is the subject of criminal justice discourse and practice? (2) What is (just) punishment? What is punitiveness? And (3) how and where to address the issues?

One of the clearest illustrations of the changing ‘who’ of criminal justice are the prison figures presented in Table 1. Although mainly illustrative, Table 1 reveals that in Western Europe in particular, penal power and the state sanctioned use of force are increasingly used over populations of non-citizens. While in most countries across the world, the numbers of foreign prisoners do not exceed 5 per cent of the total prison population, the figures in most Western European countries are well above 20 per cent, reaching a staggering 73.8 per cent in Switzerland.

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Table 1.

Foreign nationals in prison population

Monaco	93.8%	Italy	35.2%
United Arab Emirates	92.2%	Norway	32.4%
Switzerland	73.8%	Spain	32.0%
Saudi Arabia	72.0%	Germany	27.1%
Lichenstein	69.2%	Netherlands	24.6%
Luxembourg	68.8%	France	17.5%
Greece	63.2%	UK (England & Wales)	12.8%
Cyprus	53.8%	USA	6.8%
Israel	52.0%	Japan	6.7%
Austria	48.6%	Russian Federation	4.2%
Belgium	44.2%	Poland	0.7%
		China	0.3%

Reasons for the divergence in the figures are manifold and reflect, among other things, the differences in the percentage of foreign citizens in the general population and their involvement in illegal activities, the differences in immigration law and in law enforcement practices, which may target certain types of offences and offenders. For the purpose of this article, the figures can nevertheless serve as an illustration of the growing diversity of imprisoned populations and of the changing nature of the state sanctioned use of force. Those affected by penal power are increasingly populations of non-citizens. Nevertheless, the normality of the national frame of understanding is perhaps even more entrenched in criminal law and in criminal justice, than in other legal domains. Criminal law has, as Zedner (2013) observes, traditionally been conceptualized as a relation of social contract among citizens. Criminal law is part of public law, where the public has been traditionally thought of as a national public. This conception of the national as the normal crucially affects penal regimes directed at non-citizens. The position of the non-citizen, the foreigner, or the alien is, in such a context, per definition to be different; he or she falls outside the national frame. On the level of political and legal theory, the justifications and legitimacy of the differential treatment of non-citizens have been debated in terms of pros and cons of cosmopolitan, national and communitarian approaches to membership (see, inter alia, Duff, 2010; Honig, 2001; Hudson, 2006; Zedner, 2013). On the level of practice, the differential status of non-citizens stems to a large extent from immigration law. The idea that different substantive and procedural standards apply to non-citizens lies at the heart of immigration law. Non-citizens can be punished for other offences than citizens (Aliverti, 2013). They can be detained on other grounds, their property and belongings can be searched for other reasons and, most importantly, they can be deported, and thus territorially completely excluded from society. While the extent of such use of state power is not always easy to establish, we have seen a clear tendency towards criminalization of immigration offences in most Western societies (Aliverti, 2013; Dauvergne, 2008; Stumpf, 2006).

However, as Aliverti (2013) points out, the legislative fervour to punish so-called crimes of mobility is not necessarily reflected in the actual criminal convictions of immigration offences. Our empirical examination reveals that equally important, in practice, is the possibility of using coercive and investigative powers, embedded in immigration law, in criminal cases. Over half of first-time imprisonment decisions at the Oslo district court are grounded in immigration law (Suominen, 2013). An individual can be first kept in remand through immigration law (for example, on charges of illegal stay and unclear identity), and then kept in the same institution on criminal charges. Police and public prosecutors speak in interviews of ‘changing tracks’ and of the advantages of being able to choose between the criminal and administrative track at their wish, depending on their objectives and the availability of resources. Figure 1 shows results of a police operation directed at the open drug scene in central Oslo. The figures are an illustration of what abnormal justice looks like in practice, both in terms of the categories of persons subjected to police intervention, as well as in terms of the nature of coercive state measures directed at them – the ‘who’ and the ‘what’ of punishment, discussed earlier. The operation has been running over several years and is specifically targeting non-citizens; 531 in total were arrested in 2011. And although the arrests occurred in conjunction with drugs-related activities, by far the most common measure given was a deportation order while criminal charges were brought only against nine individuals. OPEN IN VIEWER

The penality directed at non-citizens is thus a bordered penality. The extent of border control objectives varies, depending on the nature of a case or type of coercive measure in question. For example, Oslo police has also created a special project against pickpockets, where over 90 per cent of the arrested are foreign, primarily Romanian, citizens. However, in their approach, criminal law and immigration law are mostly applied cumulatively – deportation is added to the (increasingly severe) imprisonment sentences – rather than substitutively, as in the case of the campaign against the open drug scene mentioned earlier. As the leader of the pickpocket project explained:

We have an express investigative procedure in order to get the offenders convicted while they are in pre-trial detention. With a conviction, they are transferred to imprisonment, while we start a parallel deportation case. When the prison sentence is served, it is often right out of the country, and they can also get an entry ban of two to five years. (Norsk Politi, 2013: 16)

However, what is in question in the developments presented above is not simply, or not necessarily, the merger of the two spheres, but also the differentiation that is being produced as a consequence. Migrants are not being treated as ‘ordinary’ criminals, as is popularly assumed. Nor are they simply targeted by a punitive turn and becoming part of the ordinary criminal justice, although this certainly is also the case. Instead, we are seeing contours of a parallel penal system, which is guided by a different logic. When deprived of their freedom, non-citizens are increasingly placed in separate institutions, or institutional arrangements, and afforded different procedural treatment and standard of rights than citizens (see, inter alia, Legomsky, 2007). Institutional embodiments of this logic include closed detention centres, and special prisons and prison wings for foreign citizens, which have been established in several European countries, including Norway (see, inter alia, Bosworth, 2012; Cheliotis, 2013; Kaufman, 2013; Ugelvik, 2013; Wicker, 2010).

These spaces of confinement are united by the fact that their inhabitants are not considered members of the society, and are not expected to return to the society which imprisons them. This is particularly significant in a country where the idea of rehabilitation and reintegration has been the pillar of the prison service ideology. A Norwegian prisoner is, at least in principle, seen as returning into the society, and the welfare state is willing to use its substantial muscle power to achieve the objective (Ugelvik, 2013). While few societies can match Scandinavian countries in their commitment to welfare (Pratt and Ericsson, 2013), particularly in light of the late-modern punitive and security turn, elements of the idea of reintegration have nevertheless retained their historic centrality within criminal justice and prison service ideologies. Whether in a hard disciplinary guise, or in softer therapeutic versions, the panoptic discipline and its production of ‘normal’ subjectivity, has essentially a centripetal ² orientation: its ambition is to direct the offender back into the social.

On the other hand, the rationality behind the institutional arrangements for non-citizens essentially departs from this script. When it comes to detention centres, instead of aiming to produce the normalized subjectivity of a citizen, Bosworth (2012: 130) observes: ‘British immigration removal centres fall short of the familiar justifications of custody, namely rehabilitation, deterrence or punishment … . The centres can only produce what has already been made: non-citizens.’ Rather than to reintegrate them into the national, the purpose of the emerging institutional regimes, and the idiosyncratic therapeutic work conducted in them, is designed to ease and encourage inmates’ return to their presumed land of origin. Departure – whether coerced or voluntary, termed as ‘deportation’, ‘expulsion’ or ‘return’ – is the desired objective towards which the state is directing its intentions, and which is, from the detainees’ perspective, the main cause of stress and resistance (Bosworth, 2012). The intentionality of the state is thus centrifugal, directed outwards, outside state territory (Aas, 2013). The rationality has been described by Bigo (2006) as ban-optic; instead of the panoptic ‘training of souls’ (Foucault, 1977), priority is put on banishment and territorial exclusion (Aas, 2011).

Punishment and the termination of membership

The key difference in treatment of citizens and non-citizens, including the imprisonment regimes, lies in the centrality of deportation and expulsion for the latter. Non-citizens are deportable. They can be potentially completely territorially excluded, for the duration of several years or a life-time, not only from the country but also from the entire European continent. While officially defined as an administrative measure – given as a penalty for immigration violations or an addition to criminal sanctions – Norwegian justice authorities have been promoting an understanding that deportation reduces crime. They have been organizing so-called deportation seminars, where local police authorities are made aware of the ‘deportation potential’ in their criminal registers. The political ‘will to expel’ aims at changing priorities and traditional mentalities, which do not see immigration control as a central aspect of police work and consider it generally unrelated to crime control and prevention. As evident from the following account of a senior officer of the Police Immigration Unit:

Traditionally, I think, police have worked with criminal cases, investigations, order – immigration cases have never had high status within the police … . And when the police have investigated a case and have had someone sentenced, they have tended to think: ‘Now, I have done a good job, I am finished.’ And they have surely done a good job, but the administrative bit has been missing. So what happened after the report that showed that over half of the local districts hadn’t had a single deportation case, is that we recommended to the Police Directorate that the districts should be measured on this. And the Directorate followed up, and the districts are each year measured on deportation cases, and they instigate much more deportation decisions. (Police Immigration Unit, leadership, 1)

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Figure 2.

Deportation decisions in Norway 1991–2012.

What is of interest here is that this is a different form of penal power – a different ‘what’ of punishment – from the one usually discussed in criminological and penological texts and textbooks, in which punishment tends to be inextricably linked to the idea of imprisonment and which takes prison figures as the main indicator of punitiveness. While prisons have the virtue of being ‘visible embodiments of society’s decision to punish’, deportation is, as Travis (2002: 15) points out, an invisible punishment. While not formally defined as punishment, penal traits of deportation are nevertheless evident in the fact that it is increasingly used as a crime preventive measure. As shown earlier, Norwegian authorities often use deportation in addition to or interchangeably with ordinary penalties, and sometimes see it as an economically preferable way of addressing law and order issues. ³ Even if punished, the job is not done yet, before the offender is sent out of the country.

An argument can be therefore made that deportation is a penal intervention. It is given with an explicit political purpose of preventing crime and it is not only intended as a pain (Christie, 1992), but is in many cases also experienced as painful. Like imprisonment, deportation involves severe deprivations, which are often experienced as deeply exclusionary. It entails exclusion from the community as well as a disruption of family life which is, due to geographical separation, often even more drastic than in a prison sentence (see, inter alia, Brotherton and Barrios, 2009; Coutin, 2007; De Genova and Peutz, 2010). Interviews with deportees reveal that it is particularly those with families that are the most affected by the measure and experience it as painful and unfair (to the extent that they would prefer to exchange it for a prison sentence), while others, with weaker ties to the country, may acknowledge its legitimacy (Strømnes, 2013).

Through deportation, punishment gets an additional meaning and dimension for non-citizens. It involves termination of membership. For non-citizens, membership is, as Stumpf (2006) observes, probationary membership and can be revoked through punishment. Although the length of residence, nationality, family ties and so on can to some extent provide protection, their membership is nevertheless precarious. Interestingly, it is precisely in the case of groups, which possess certain forms of formally acknowledged membership and protection (so-called denizenship), that punishment gains particular importance in terms of revocation of membership. Since EU and EEA citizens have, in principle, the right to live and work in other EU and EEA countries, their membership can only be revoked through criminal sanctions and on security grounds. In practice, the offences leading to deportation do not have to be considerable and can even involve fines. Nevertheless, the interchangeability of immigration law and criminal law, discussed earlier, is in these cases limited. While non-EU citizens can be expelled solely through the use of immigration law, EU citizens need to be punished first. And it is precisely for EU and EEA citizens that we have seen a particular growth of expulsion orders linked to criminal sanctions, while for non-EU nationals, immigration law represents a more frequently applied form of social exclusion (see Figures 2 and 3). Romanian citizens are one of the largest categories of the expelled and the third largest group of foreign inmates, which furthermore indicates that economic status, social class, ethnicity and race remain important issues for understanding bordered penality. Formal membership can be thus more precarious due to other forms of social exclusion. OPEN IN VIEWER

Membership, boundaries and the Northern penal state

Bordered penality is intrinsically connected to issues of membership. It is directed at non-members, and it disturbs the normal frame of criminal justice, by radically transforming the ‘who’ and the ‘what’ of punishment. In the emerging forms of abnormal justice the ‘who’ are increasingly non-citizens, and the ‘what’ of punishment, in addition to ordinary penalties, also involves termination of membership. Critics have pointed out that non-members are, consequently, punished harsher than members and that the principles of proportionality apply differently to this group (Legomsky, 2007; Stumpf, 2006). When, for a citizen, a penalty of a certain duration of months or years in prison is considered proportionate to the offence, a non-citizen has deportation added to it. Moreover, in the course of the past decade, the Norwegian Supreme Court in several judgments considerably raised sentencing levels for pickpocketing and for so-called mobile property offenders, which are in practice all but synonymous with foreign citizens. In procedural terms, the emerging forms of abnormal justice depart from the ordinary script by intertwining and interchanging criminal law and immigration law. As a consequence, non-citizens often do not enjoy the same rule of law protections as citizens, such as the privilege against self-incrimination and eligibility for legal aid in deportation cases (see also Pauw, 2000; Stumpf, 2006; Vazquez, 2012).

The ‘abnormality’ of the bordered penality is also evident in the fact that it is not part of the legitimating discourse, which mostly addresses ordinary criminal justice practices (Bosworth, 2013). In the Norwegian context, the developments described in this article are marked by a surprising scarcity of written documents. ⁴ These practices are in a sense invisible, somehow under the radar of legal and normative debates about punishment, yet very much part of the everyday practice of the police and the courts. There can however be no doubt that the practices are a result of an intentional political strategy, which is evident in the systematic nature of deportation seminars and in the fact that deportation has become one of key police performance indicators.

Finally, the penality directed at non-citizens departs from the ordinary by having an additional meaning and purpose, which at times seems to take over as its predominant purpose. Penal intervention not only aims to guard society’s moral boundaries but also its territorial boundaries. It functions as border control in an extended sense and it defines, and defends, the boundaries of membership. The primary focus is therefore not on moral censure as such, but on who has the right to be here. Our interviews reveal that the objective is not only to expel the undesirable groups and individuals, but to prevent them from coming back to the country. For example, the maximum penalty for breaches of the entry ban quadrupled in 2014 from six months’ to two years’ imprisonment.

Those subjected to state control and punished for what Aliverti (2013) terms crimes of mobility, are so not only for the severity of the acts committed, but for who they are. Bordered penality is about identity and citizenship issues, which are of vital concern in immigration law. In recent years, growing importance has been placed on identity in police work (Weber and Bowling, 2011), in addition to criminalization of various aspects of identity-related issues (Aliverti, 2013), as well as rapid development of technological and administrative identification practices (Lyon, 2009). While space restrictions prevent a detailed discussion, it needs to be pointed out that the kind of knowledge of the individual that is being sought is not the biopolitical knowledge – an expression of penal or therapeutic power that wishes to know the offender’s soul (Foucault, 1977). Instead, the state seeks to gain knowledge about identity in a formal sense of establishing citizenship, which can then facilitate its ultimate goal – deportation. By establishing the connection between an individual and another state (i.e. citizenship of another state), an individual can be placed in the global mobility regime and allocated to his ‘proper sovereign’. The state in question is obliged to take back its citizen, while the deporting state is relieved of responsibility. The question for the authorities is therefore not ‘where do you feel you belong?’, or ‘who are you?’ in terms of experienced identity, but ‘which state are you the citizen of?’ The colour of the passport thus becomes of vital importance for criminal justice.

As much as it is fashionable to associate globalization with notions of fluidity and hybridity, with identities that are multiple and complex, penal practices outlined in this article strive for precisely the opposite: for the fixity and rigidity of identity. Identity is considered to be a binary issue; either you are a citizen or not. It is not about values nor social or national sense of belonging. Deportees can be socially integrated, with deep family and community ties. They may have grown up in the deporting state, and may feel and act like nationals (Brotherton and Barrios, 2009; Coutin, 2007). Legal origin as citizen is thus elevated over other measures of belonging (Coutin, 2010: 356). Citizenship, in a formal sense, has the power to trump other, socially and personally experienced forms of belonging, and simply cancel them. Norwegian authorities, for example, choose to expel despite the fact that an individual has an established family life, including children and a spouse who may be citizens, and not withstanding their legal obligation to take into account an individual’s ‘attachment to the country’ (Strømnes, 2013). Similarly, over 60 per cent of pre-trial detainees are foreign citizens due to the fact that the courts regularly see lack of citizenship as a ‘lack of attachment to the country’ and a danger of absconding (Arentzen, 2013).

While the examples above reveal the centrality of citizenship for the domestic penal order (see also Bosworth and Guild, 2008), it is important to keep in mind that citizenship is, in its essence, a global regulatory technique. Bordered penality is an expression of a normative ideal – the sovereign territorial ideal (Cornelisse, 2010: 108) – which mobilizes national and international policing efforts towards the ‘compulsory allocation of subjects to their proper sovereigns’ (Walters, 2010: 90). Through the centrality of citizenship, domestic penality becomes part of the global mobility regime (Aas, 2013; Dauvergne, 2008; Guild, 2009), and is inscribed with the unequal global geopolitical relations. While the intersections of punishment and social inequality are a perennial interest within criminological and sociological studies, in the case of bordered penality, this inequality is globalized. It is primarily about what could be termed geographical privilege rather than national privilege in terms of class, race and ethnicity, although the treatment of Romanian Roma citizens shows that the latter clearly remain salient. Defended through the joint forces of immigration law and criminal law, the border daily reinstates the centrality of territory and territorial membership, and keeps geographical distance in place. It is thus one of the mechanisms which regulate access to wealth and maintain the present, economically stratified, global order.

The techniques of bordered penality are marked by the geo-political context of the state executing them: the Northern penal state with the ability to externalize its ‘domestic’ control functions and export its crime control agenda (Aas, 2013). Domestic penal regimes in Europe, and other countries of the global North, are not only internally processing populations of non-citizens. The ‘abnormality’ of bordered penality extends into the international domain, with extraterritorial forms of policing, prisoner transfers, investments in prisons abroad and such like. Northern states are for example consciously sending general preventive messages abroad. Deterrence has thus become an international crime preventive strategy as well as a domestic one, while deportation is part of an international regime for policing of aliens (Walters, 2010; Weber and Bowling, 2008). By breaking up the conflation of criminal justice and state territoriality (Aas, 2013), the rationality of ‘abnormality’ creates spaces and practices which fall outside the nation state’s territorial boundaries and constitutional protections. This is by no means a historic novelty, since it has clear analogies to transportation of convicts (Benton, 2010; Walters, 2010). The trend has been, in recent years, most evocatively exemplified by Guantanamo and the extraordinary rendition of terror suspects. However, the outsourcing of border control in the Australian Pacific solution, Frontex strategies in Northern Africa and others, represent equally salient everyday examples (Mitsilegas and Ryan, 2010; Pickering and Weber, 2013).

Conclusion

Bordered penality creates a need for new frames of understanding, and a reconsideration of some of the central assumptions about punishment, which are deeply rooted in the established conceptions of ‘normal penality’. In other words, it requires a change of perspective within the studies of punishment and criminal justice from the social science of the normal to the science of the abnormal (see also Fraser, 2008; Kuhn, 1996). As pointed out above, conventional measures of punitiveness are generally poorly suited for recognizing punitive and exclusionary aspects of Scandinavian societies precisely because the punitive nature of the bordered is not immediately apparent through the traditional criminal justice frame (see also Barker, 2013). Prison figures therefore clearly need to be seen in conjunction with deportation measures and immigration detention.

Nor do the established explanatory models of punitiveness necessarily hold in this case. The rise of punitiveness has been, in the Anglo-American context, frequently linked to neo-liberalism (Cavadino and Dignan, 2006), the demise of the welfare state (Wacquant, 2009), the diminishing state power under conditions of globalization and the state trying to cover up the demise of sovereignty by acting out on issues of crime (Garland, 2001). The argument has been extended to explain the recent prominence of immigration law within criminal justice. According to Stumpf (2006: 38), the state’s expression of moral condemnation is the same in immigration law as in criminal law and it is now used, jointly, to reassure the public of its commitment to controlling crime. And while practices of mass imprisonment disproportionately target African-American populations, 94 per cent of those removed for criminal violations in the United States are Latinos, which have become the paradigmatic ‘criminal alien’ (Vazquez, 2013).

In the European context, punitive attitudes towards non-members have been linked to the resurgence of nationalism. Expulsion and denial of access thus serve to revitalize the nation state which, as Bauman (1992) observed, needs nationalism for the primitive accumulation of authority. Border control and the nation state have been, throughout history, mutually reinforcing categories (Donnan and Wilson, 1999). When national identity appears threatened under conditions of globalization and when, what Beck (2003) termed, the ‘zombie state’ needs to reassert its authority, the daily re-enacted divisions between natives and (criminal) aliens gain a particular political prominence (Schinkel, 2009).

While the explanations above undoubtedly hold much purchase, they also bring to attention the importance of national and local difference and the need to avoid generic descriptions. What is of particular interest in the Norwegian context is that the state in question is by no means a hollowed out, neo-liberal ‘zombie state’, but rather one of the most ambitious and wealthiest welfare states in the world. In this case, the joint forces of criminal and immigration law do not simply aim to cover up the state’s emptiness and declining sovereignty. Rather, bordered penality has an additional dimension, which also becomes apparent if we take a look at its historic origins. As Walters (2010: 91) points out, contemporary practices of deportation have clear affinities with the historic poor law, and involve ‘a certain reconstruction of its logic on a regional, and today a global scale’ (see also Weber and Bowling, 2008). By re-enacting fixed and rigid conceptions of membership, deportation is ‘an instrument to defend and promote the welfare of a nationally defined population’ (Walters, 2010: 86).

Bordered penality is therefore not simply about revitalizing national identity and keeping out the foreign and culturally different – although this clearly is a salient aspect – but about keeping out those who wish to make claim on the resources; about the protection of welfare rights for citizens. It is about the ‘right to be here’ and hence about access to welfare and Northern wealth. Barker (2013: 17) terms the phenomenon welfare nationalism: ‘a place where the welfare state must be preserved and made sustainable for those on the inside by limiting access from the outside’. Similarly, Ceuppens and Geschiere’s (2005: 397) descriptions of struggles over autochthony in the Netherlands – yet another traditionally tolerant society with an exclusive edge – reveal ‘attempts to reserve the benefits of the welfare state to those who really belong’. Through the daily dynamics of defence and re-articulation, borders are constituted both as material forces as well as structures of imagination. Norwegian police officers, for example, compare the country to a ‘pot of honey’ and see themselves as its guardians. The practices of bordered penality are thus ‘deeply rooted in collective identifications and the assumption of a common sense of belonging’ (Balibar, 2010: 316), which structure the punitive attitudes towards non-members.

The discussion raises questions about some central criminological assumptions pertaining to the nature of penal tolerance, as well as the connections between welfare and punitiveness. Bordered penality reveals the intrinsic boundedness of the welfare state, where its normative framework of social equality and inclusion reveals itself to be ‘universal’ exclusively within the boundaries of citizenship. Consequently, there is a tendency, observed within social democracies, to create a double-faced penal culture which is mild towards insiders and punitive towards outsiders (Barker, 2013; Lacey, 2008; Ugelvik, 2013). It is therefore worth remarking that Norway in the 2012 trial of the Utøya assassin Anders Behring Breivik delivered an almost textbook example of normal criminal justice for the most exceptional crime in its history.

However, while the reality of contemporary criminal justice is deeply ‘abnormal’, it is still by and large read through the normal frame in epistemological and in normative terms. The tendency to see penal culture as a unitary national phenomenon has so far prevented a comprehensive acknowledgement of the differentiation which is being produced along the lines of citizenship. Several observes have pointed out that by being theoretically and normatively grounded in the national, social sciences treat the nation state as ontologically privileged (see, inter alia, Held, 2010), while leaving the underlying assumptions about the framing of the political space and membership unexamined, with the result of producing ‘the injustice of misframing’ (Fraser, 2009: 287). By explicitly theorizing the border, this article aims to bring to attention the centrality of membership, and to present ‘the question of the frame as a question of justice’ (Fraser, 2009: 287, emphasis in original).

Within legal and criminal justice scholarship, the usual strategy to address the injustice of misframing has been to draw on discourses and notions of rights which transcend the national, as evident in the growing salience of the human rights discourse (Van Zyl Smit and Snacken, 2009). However, the case of bordered penality also reveals the limitations of such an approach. Norway and Scandinavian countries in general put a fair amount of pride in their humanitarian profile. There is an acknowledgement of human rights as the ultimate limit and corrector to state power, and unlike in the UK and several other countries, the legitimacy of this order is generally not put into question by the authorities. This is not to deny the constant challenges that the objectives of territorial exclusion present for migrants’ rights (see also Dembour and Kelly, 2011). However, rather than being seen as undeserving of basic human rights, non-members are seen as undeserving of certain standards of equality and justice, such as equal prison conditions, penal leniency and sentiments of solidarity and social inclusion (including the right to stay and to reintegrate), which underpin treatment of national offenders. Not least because penal leniency, exemplified by media depictions of prisons with flat screen TVs, is in popular and political discourse seen as potential attraction for unwanted migrants and thus interfering with the purpose of border control.

Rather than by the general punitiveness of a society, the condition of the alien within criminal justice is determined by his or her lack of membership, and a related conception of justice (espoused by so-called membership theories) ‘as a relation among fellow members of a “people” organized as a domestic political community’ (Fraser, 2009: 288; see also Stumpf, 2006; Walzer, 1983). Being detained before trial for weeks and months, simply because they lack citizenship, seeing domestic prisoners housed in different wings, with access to various benefits, non-members are treated according to different standards and may, justifiably, feel punished for being foreign (see also Bosworth, 2012; Ugelvik, 2013). Even when afforded decent humanitarian standards, the differential treatment ultimately serves as a constant re-enactment of the border and a reminder that they do not belong.

Although salient when it comes to improving conditions in detention and putting certain limits on the state power to expel (Dembour and Kelly, 2011), human rights nevertheless seem inapt to put limits on forms of penal power which have to do with notions of severity and parsimony and ultimately stem from popular expressions of sovereignty and the conditions of ‘democratic closure’ (Benhabib, 2004). Consequently, the work of addressing the complexities of abnormal justice lies in developing alternative conceptions of membership, which are open to renegotiation and can take in ‘abnormal’ situations and populations. While a certain level of closure is inevitable, it can be mitigated by ongoing attention to and renegotiation of issues of membership. As Benhabib (2004: 21, emphasis in original) points out:

While the paradox that those who are not members of the demos will remain affected by its decisions of inclusion and exclusion can never be completely eliminated, its effects can be mitigated through reflexive acts of democratic iteration by the people who critically examines and alters its own practices of exclusion.

Bordered penality forces us to reflect on the fraught dialectics of democracy and social exclusion, and on the centrality of the marginal for self-identity. How relevant is punishment of non-members for how a society punishes? Can Scandinavian societies be described as inclusive and tolerant, while having hidden pockets of social exclusion? By showcasing the liberal regime of the Bastøy prison to foreign visitors, the authorities are presenting a story about Norwegian tolerance and inclusiveness and celebrating the achievements of the welfare state. These are the ideals which to a large extent also permeate the official political discourse. Deportation, on the other hand, does not feature prominently as an official penal strategy nor is it addressed by normative theories of criminal justice. Judging by governmental white papers and criminal law text books, it is essentially irrelevant to how the society punishes. Not being part of the democratic community, criminal non-members are thus excluded without disturbing the society’s humane and inclusive self-perception. Borders are, as Balibar (2010: 316) observes, ‘a place where the antinomies of the political are in a sense manifested and become an object of politics itself’. How these antinomies are played out in different national contexts varies and still awaits comparative analysis. While Norway, for example, puts explicit priority on deportation it is, unlike the UK and Greece, far more restrictive in the use of immigration detention. Cultural embeddedness shapes specific punitive orientations (Melossi, 2001). There is nevertheless growing evidence (Aas and Bosworth, 2013; Stumpf, 2006; Weber, 2013) that border control objectives are fundamentally reshaping the nature of penal power in most Western societies.