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Paradox of democracy: differential treatment for non-members

Democracy itself poses barriers to mobility. As fundamentally bounded communities, democracies reaffirm the naturalness of population and territory, shoring up the idea that people and place belong together in a coherent fixed map ofthe world. Democracies rely on borders to distinguish between insiders and outsiders, members from non-members, to make clear distinctions between those who have access to rights and benefits and those who do not. In reality, these lines can be blurred: those on the inside can be marginalized and those without citizenship can be treated as partial members or as denizens (see Hammar 1990; Somers 2008). Bordering seeks to clarify and reaffirm distinctions. Moreover, the historical fusion between population and territory, particularly as it was nationalized and democratized, has established and legitimated the differential treatment of non-members, outsiders, and foreigners. While all democracies determine membership and access to the territory, this prerogative does not necessitate the differential treatment of non-members once they have accessed the territory.

In her legal analysis of immigration law and citizenship in the United States, Linda Bosniak (2006) asserts that personhood as distinct from membership or citizenship should guarantee rights. Democracies, after all, are meant to promote and protect principles of equal treatment regardless of race, religion, gender, sexual orientation, or place of origin. Yet, by maintaining the legal categories of citizen, resident, and alien, democracies maintain differential treatment and differential rights for citizens and non-citizens. This distinction creates a legal hierarchy of rights and protections that counter-pose democracy’s equality principle (Bosniak 2006). Although the historical trend has been toward equalizing the rights of noncitizens, there are important areas where this legal distinction remains and has a major negative impact on non-citizens’ equality and life chances, namely voting rights and deportation (Koopmans et al 2005). Voting rights are not superfluous to civil or social rights but are indeed the most basic rights to self-determination and freedom; these are denied to non-citizens. In addition, all democracies retain the right to deport non-citizens (with the exception of refugees facing torture or death upon return—the non-refoulement principle). All democracies engage in deportation to a lesser or greater scale.

The deportation of criminal aliens dramatically captures the paradox of democracy. The reason a criminal alien is deported is because of his or her alienage, because of his or her status as a non-citizen. Citizens who commit the same crime and serve the same time in the criminal justice system are not then subject to deportation; this sanction is reserved for non-nationals. Deportation, or expulsion, is one of the most extreme forms of state power—the state effectively cuts off all ties, connection, and any obligation to the person: deportation is a kind of civic death (on the historical development, see Gibney, Chapter 12 in this volume). Deportation, as Anderson et al (2011) explain, is a public act, a form of degradation ceremony, where the state forcefully removes a person’s residency status denying the possibility of membership, forgiveness, or mercy. In the European Union, if a person is deported from one Member State, he or she is effectively expelled from all 27 countries within the EU. Some commentators see this as a double punishment (exclusively used against non-citizens)—the first served through a criminal justice sanction and the second through administrative sanction. In some countries, compulsory deportation for certain crimes is becoming the norm—‘we are getting stricter on those who don’t play by the rules’ (UK Prime Minister in Anderson et al 2011: 550), while in others it is subject to intense debate because it is inherently discriminatory.

For example, paralleling the ‘open and secure’ policy of the European Union where Europe is open for some migrants but secured against others, immigration policy in Sweden has become more open in certain areas—such as labour migration (Ministry of Justice 2011)—but more restrictive in asylum policy and deportation. It has become much more selective in who it allows in and who it excludes. And, like many other EU Member States, Sweden has come to rely more on criminalization and deportation to produce and manage a more ‘sustainable’ and ‘efficient’ immigration policy (Ministry of Justice 2011). The Alliance-governing coalition made up of centre-right parties, including the Moderates and Liberal Parties, has taken credit for speeding up the deportation process (Ministry of Justice 2011; Migrationsverket 2012). Criminal aliens now make up the largest category of deportees from Sweden (Westfelt 2008).

A recent Parliamentary Commission report on migration and asylum policy provides insight into the debate about compulsory deportation for criminal aliens. Although these particular motions eventually failed, the debate makes visible the reasoning and motivation behind the practice. It is also instructive because the discourse was manifested in a controversial application of the Swedish Aliens Act, which led to the swift arrest and same day deportation of over 26 Roma from Sweden (discussed below). During the debate, the far-right party pushed for the compulsory deportation of criminal aliens: ‘Expulsions should be the rule rather than the exception’ (Socialfdrsakringsutskottets 2010/2011: SfU6).

Jimme Akesson, the young leader who spearheaded the Sweden Democrats’ historic electoral success in 2000 by running on an explicitly anti-immigrant and neo-nationalist platform, insisted upon the differential treatment ofnon-nationals. In his motion (Sf385 claim 17:01) he stated that those without Swedish citizenship who were guilty of serious offences or repeated offences of a less serious nature ‘should have their permits revoked and be deported’ (2010/11: SfU6). His fellow party members in Parliament echoed his demands. Kent Ekeroth and Thoralf Alfsson stated:

The issue of deportation will be a mandatory part of the court to consider in criminal cases where the accused holds the nationality of a country other than Swedish or are stateless. We do not think it is legitimate for an alien to have the privilege to stay in Sweden if he or she cannot respect Swedish laws and regulations. (2010/11: SfU6)

They continued: ‘the courts should not consider foreigners’ living conditions or how long the foreigners have been in Sweden’ as is current practice. And finally: ‘A criminal alien’s connection to Sweden must be considered to weigh less heavily than the need to provide victims with redress’ (2010/11: SfU6).

This last construction is the familiar and effective zero-sum trope that pits criminals, in this case, criminal aliens—who are doubly unworthy both as criminals and as non-nationals—against worthy, honourable victims, and by extension Swedish society. The discourse on crime victims as a means to legitimate more punitive sanctions so effective in the US context has also had some traction in Sweden and elsewhere (Garland 2001; Simon 2007; Ljungwald 2011). In the Swedish context of criminal aliens, this construction differentiates between who belongs and who does not, demonstrating once again how criminalization legitimates the exclusion of foreigners.

Despite the government’s support and increased use of deportation, Parliament nevertheless rejected all the motions for compulsory deportation of criminal aliens proposed by the Sweden Democrats. The government did not reject differential treatment of non-nationals; they merely wanted to maintain control and discretion over the system to allow certain aliens to remain while others could be deported.

We should also note that the Alliance preferred to frame the policies and practices of mobility control in terms of managerial efficiency and sustainability rather than reduce it to crude neo-nationalistic impulses toward expulsion—even though both approaches often lead to similar results.

Deportation, particularly of criminal aliens, reflects and reaffirms the fine distinctions between citizens and non-citizens, embodying the differential treatment of non-nationals and undercutting the equality principle so central to democracies. Here the criminalization process takes on an added weight as a powerful sorting mechanism, helping democracies overcome, if not legitimate, these internal inconsistencies.

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