On the relevance of citizenship in criminal law: Implications for proportionality, equality, and justice

This article addresses the relevance of citizenship in criminal law and criminal justice and its consequences in terms of producing disparate rationalities, outcomes and systems of rights. Although seldom addressed in scholarly writing and textbooks, offenders’ formal membership status has profound consequences for the state’s sanctioning practices. The article first broadly outlines the developments that have in recent years made issues of membership more relevant to criminal justice practice. By examining a recent judgement by the Supreme Court of Norway, and drawing on the ECtHR jurisprudence, the article then proceeds to discuss the legal and normative implications of membership status for criminal law and the unequal criminal justice outcomes. It concludes that due to its silence on, and lack of awareness of, the relevance of citizenship, criminal law runs an inherent risk of inequality and disproportional treatment that is built into its very structure. Although considered normal and legitimate in current legal doctrine and everyday practice, this approach raises a question about the law’s ability to adapt to social change and to maintain its commitment to equality as a normative ideal. How does who you are matter for how you are punished and what kind of sanctions are imposed as a consequence of your infractions of criminal law? Normative theories of criminal law have a long-standing concern with how offenders’ personal and social circumstances should inform sentencing and proper aims of punishment. The perennial balancing act between adjusting punishments, on the one hand, to individual characteristics of offenders and, on the other hand, to the objectives of sentencing consistency, is further compounded by the growing awareness of the need to combat prejudices in terms of racial and socio-economic background. However, who you are matters in criminal law not only in terms of actual personal and socio-economic differences among offenders but, importantly, it matters in a formal sense. Although seldom addressed in scholarly writing and textbooks, offenders’ formal membership status (i.e. whether he or she is a citizen or an alien) has profound consequences for the state’s sanctioning practices. This article addresses the relevance of citizenship and membership status in criminal law and criminal justice and its consequences in terms of producing disparate rationalities, outcomes and systems of rights. It draws on the growing body of scholarship about the blurring boundaries between criminal law and civil law, and the transformation of criminal justice due to growing salience of immigration control objectives. The article aims to contribute to a conversation on the relevance of membership in criminal law, which is particularly ripe in Norway due to a number of social developments that have been taking place in the country in the past decade and more. The article first broadly outlines the theoretical intersections of criminal justice and citizenship and then proceeds to present several developments that have, in recent years, made issues of membership more relevant to criminal justice practice. By examining a recent judgement by the Supreme Court of Norway, and drawing on the ECtHR jurisprudence, the article discusses the legal and normative implications of membership status for criminal law and for the unequal criminal justice outcomes. It argues that questions of membership present a normative problem for criminal law and have profound implications for principles of equality and proportionality that have, so far, not been properly addressed. Due to the silence on, and lack of awareness of, the relevance of citizenship, criminal law runs an inherent risk of inequality and disproportional treatment that is built into its very structure. Although considered normal and legitimate in current legal doctrine and everyday practices, this approach raises a question about the law’s ability to adapt to social change and to maintain its commitment to equality as a normative ideal