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In this answer the wrote the phrase

punishing those behaviors with deportation

Someone commented that we shouldn't refer to deportation as "punishment" because it's an administrative process, not a criminal punishment.

I realize we should strive for legal precision, but I think it's clear in this context that it's intended to have its common meaning. Do we really have to avoid using casual terms that happen to be the same as legal terms, to avoid any possibility of ambiguity? Surely we can refer to a parent/teacher disciplining their child/student as "punishment" (and there are many questions about this), even though no criminal process is involved.

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The onus is on the writer to clearly communicate their intention

All words are subject to interpretation based on context.

The context here is that this is a site specifically about the law. The writer should bear that in mind when using words that have one meaning in a legal context and a different one in general usage. Or for that matter, a different meaning in other specialized contexts like economics, science, or the arts.

Punishment is such a term - legally it means a punitive measure imposed by the state, generally it can refer to many situations the law would not consider punishment - contract damages, tort damages, deportation, administrative detention etc. A writer using that term is introducing something ambiguous - it’s on them to clarify that ambiguity.

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  • I agree with the general rule, but I'm still confused by the application here, as I don't think I've ever seen a court adopt this narrow definition of "punishment." Black's Dictionary defines it as "any sanction" for violating the law, which would include tort damages, contract damages, deportation, etc. (but maybe not administrative detention). Maybe it's a U.S. thing? Do other countries actually use a different definition?
    – bdb484
    Commented Mar 14 at 4:36
  • @bdb484 “Sanction” doesn’t include any of those things either (except punitive damages). A sanction is a punishment for violating the law - it has to be punitive in intent. While damages and deportation can feel like punishment to the party, that’s not their intent - damages are restoration for the harmed party and deportation is the removal of a privilege.
    – Dale M Mod
    Commented Mar 14 at 15:05
  • Yeah, I get the argument, but I'm just saying that it's incorrect as a legal matter. For instance, the Federal Rules of Civil Procedure provide various mechanisms for imposing sanctions, all of which “must be compensatory rather than punitive in nature.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017).
    – bdb484
    Commented Mar 14 at 16:05
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Punishment infringes on one's rights - right of freedom (prison terms), right of property (fines and penalties), and various additional limitations (e.g.: right to vote, restrictions on where one may reside [sex offenders], etc). Immigration violations are essentially a contract matter: they came voluntarily and agreed to the conditions of their stay which they then violated.

Children being punished in a similar fashion: their freedom is taken away (grounded), their property is taken away (taking their phones/computer access/toys), their body is being violated (spanking etc, a crime on its own of course, but still happens).

Foreigner's presence in a country is not a right, it's a privilege. Host countries are sovereign and restricting that privilege is their sovereign right, not a punishment towards the foreigners. There are many foreigners being deported for many various violations of their conditions of stay even if these wouldn't be violations, and thus not punishable, for citizens.

Considering deportation to be punishment would bring into question considerations of jury trials, double jeopardy, burden of proof and the level of argument, etc.

While people may colloquially consider it to be punishment, the reality (not just "de jure", the actual reality) is that it is not. Foreigners are guests, even when they're permanent residents, and while they sometime forget that they are - they still are. Deportation is the restoration of order: before the offending guests came there was no offense. The guest offended and was asked to leave to restore a state without offense. The guest's rights are not infringed. Their liberty is not restricted (other than ensuring their departure), and their property is still theirs. They can say whatever they want, so their freedom of speech is similarly retained. Just say it elsewhere.

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  • I checked my dictionary definition of punishment, it doesn't say anything about rights. "infliction or imposition of a penalty for an offense".
    – Barmar
    Commented Mar 12 at 20:17
  • Please note that my question is more general than just the word "punishment", it's about the language we're expected to use on the site in general. Are answers to be read as if they're legal briefs or law review articles?
    – Barmar
    Commented Mar 12 at 20:18
  • "Are answers to be read as if they're legal briefs or law review articles?" - my answers are frequently downvoted and I receive comments precisely because they were not. In fact the same poster to which I commented is frequently commenting to my answers expressing their dissatisfaction of the level of precision. So my impression that the answer to your question seems to be a resounding "yes".
    – littleadv
    Commented Mar 12 at 20:20
  • Re infliction or imposition of a penalty for an offense: nothing is inflicted or imposed on the guest, the state is restored for the host. The guest can leave on their own just as well.
    – littleadv
    Commented Mar 12 at 20:21
  • If your parent takes away a toy because you did something bad, that's a punishment, but AFAIK children don't have a "right" to their toys.
    – Barmar
    Commented Mar 12 at 20:21
  • @Barmar children most definitely have property rights. But if the toy belongs to the parent and they restrict access to it - then legally they didn't infringe on any right of the child. The decision to allow access to the toys is the parents' and is a privilege for the child. The child may feel being punished, and the parent may present it as a punishment, but it's the parent's right to restrict access to their property.
    – littleadv
    Commented Mar 12 at 20:21
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    They feel they're being punished, and the parent intends it as a punishment. What else does it take to actually be a punishment? Words mean what we intend them to mean.
    – Barmar
    Commented Mar 12 at 20:25
  • @Barmar but we're not talking about children and parents, we're talking about laws. The laws explicitly differentiate between criminal and civil actions, and in civil actions between damages and punitive components. The processes are different, the rights are different, and the consequences are different.
    – littleadv
    Commented Mar 12 at 20:28
  • I'm just using it as an example of a word that has an easily recognized common meaning, different from its legal meaning.
    – Barmar
    Commented Mar 12 at 20:29
  • But you're asking about laws. The whole discussion is about laws. Deportation is essentially a contractual matter. A visitor came agreeing to certain conditions of stay and violated these conditions. Is enforcing a contract considered "punishment"?
    – littleadv
    Commented Mar 12 at 20:31
  • If I were forced to go from a relatively free country to one where I'm in serious danger (as many deportees are) I would considered it effectively to be a punishment that doesn't fit the "crime". I might be safer being put in prison.
    – Barmar
    Commented Mar 12 at 20:35
  • @Barmar the law providers for that. A deportee may remain in detention until it is safe for them to be deported. If that's the choice - then it is available. In fact, the law (as I referenced in one of my answers) even allows paroles in such a case.
    – littleadv
    Commented Mar 12 at 20:37
  • Would anyone argue that being in prison is not punishment? It may be lesser punishment than being deported in some cases.
    – Barmar
    Commented Mar 12 at 20:59
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    There's an argument here that makes enough sense, but it pretty clearly has everything to do with one person's personal opinion rather than any actual law. I therefore agree that no one here should endeavor to align their answers with it.
    – bdb484
    Commented Mar 12 at 23:55
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    It means that people shouldn't change their answers because one user (you) has one person has a incorrect definition of a word. Answers should be based on actual laws, rather than personal feelings.
    – bdb484
    Commented Mar 13 at 12:44

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