Banishment in Georgia: a New Approach to Domestic Violence
| Publication year | 2010 |
Georgia State University Law Review
3-13-2012
Banishment in Georgia: A New Approach to Domestic Violence
Cameron Carpino
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Recommended Citation
Carpino, Cameron (2010) "Banishment in Georgia: A New Approach to Domestic Violence," Georgia State University Law Review: Vol. 27: Iss. 4, Article 13.
Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/13
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BANISHMENT IN GEORGIA: A NEW APPROACH TO DOMESTIC VIOLENCE
The word banishment conjures up images of kings, knights, and scepters. It is hard to imagine that such a seemingly quaint punishment would have contemporary relevance. However, in a few states in America, banishment is still used as a punishment for
attention for its use of banishment.
An offender may be banished from a certain county or counties, or from an entire judicial circuit, which often comprises several counties.4 Many states prohibit banishment,5 focusing on its lack of
* J.D. Candidate, May 2011, Research Editor 2010-2011 Georgia State University Law Review. The author would like to thank Chittam Thakore, Kevin Bradberry, and most importantly, her family, especially Ruby Carpino.
1. See Vesna Jaksic, A New Type of Sentence for Criminal Offenders: Exile, Broward Daily Bus. Rev. (Mass.), Dec. 14, 2007, at 9 (banishing offenders from a Massachusetts county and noting that a New Hampshire court had also banished an offender); Milo Ippolito, Judge Rules: 'Banned in Buckhead', Atlanta J.-Const., Dec. 11, 2003, at B5; see, e.g., Cobb v. State, 437 So. 2d 1218 (Miss. 1983) (banishing an offender from a Mississippi county). For an example of another country using banishment, see also Alistair Munro, Thug is Nicked Strolling Down Runway Drunk in Airport Alert, Daily Rec. (Glasgow, Scotland), Sept. 27, 2008, at 30, available at 2008 WLNR 18350062.
2. Russ Bynum, Giving Criminals the Boot—Georgia Prosecutor Favors Banishing Wrongdoers, N.J. Rec., Oct. 22, 2001, at A4, available at 2001 WLNR 9646287 ("Nationwide, banishment—which used to be . . . popular . . . has pretty much vanished from the scene . . . . Probably there's more [banishment] in Georgia than any other state."). Most of the discussion relating to banishment in Georgia has been focused on the state's aggressive sex offender legislation. For thorough coverage of this issue, see Jacqueline Canlas-LaFlam, Has Georgia Gone Too Far—or Will Sex Offenders Have To?, 35 Hastings Const. L.Q. 309 (Winter 2008); Amanda West, The Georgia Legislature Strikes with a Vengeance! Sex Offender Residency Restrictions & the Deterioration of the Ex Post Facto Clause, 57 Cath. U. L. Rev. 239 (2007). For an interesting account of the personal experiences of one offender affected by the new Georgia sex-offender registry laws, see Lori Sue Collins, My Life Before and After HB 1059, 42 Harv. C.R.-C.L. L. Rev. 501 (2007).
3. See, e.g., Ga. Code Ann. § 42-8-35 (2008).
4. See, e.g., Georgia County Selection Map, U.S. Census Bureau, http://quickfacts.census.gov/qfd/maps/georgia_map.html (last visited Mar. 17, 2011).
5. See Peter D. Edgerton, Banishment and the Right to Live Where You Want, 74 U. Chi. L. Rev. 1023, 1030 (2007). But see McVey v. State, 863 N.E.2d 434, 448 (Ind. Ct. App. 2007) ("Conditions of probation that reduce the access to potential victims are reasonable." (citing Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999))).
Cameron Carpino
Contemporary Use of an Ancient Punishment
804 GE ORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:4
rehabilitative value6 and potentially damaging public policy
implications, including "convict dumping." However, while banishment has negative aspects, it still retains value as a penal tool, especially in domestic violence situations. 9
Part I of this Note will discuss the history of banishment,10 specifically the use of banishment in Georgia,11 and introduce the
12
basic theories of domestic violence. Part II will analyze the strengths and weaknesses of banishment, focusing on where banishment is and is not effective in preventing crime. Finally, Part III of this Note will propose that banishment should be reserved for only the most egregious repeat domestic violence offenders through the use of a multi-factor approach.
I. Understanding Banishment and Domestic Violence
A. Historical Context
Banishment has been defined as "a punishment . . . that forces a
criminal to leave a city, place, or state for a period of time." Used as a punitive criminal measure since the formation of the United States,14 banishment has been considered an extreme punishment
6. Joy Archer Yeager, The Propriety of Conditioning Parole on Defendant's Not Entering Specified Geographical Area, 54 A.L.R. 5th 743 § 2(b) n.6 (1997) (citing McCreary v. State, 582 So. 2d 425 (Miss. 1991)); see discussion infra Part II.A.
7. Crabtree v. State, 112 P.3d 618, 621 (Wyo. 2005); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1953) ("It is not sound public policy to make other states a dumping ground for our criminals."); People v. Baum, 231 N.W. 95, 96 (Mich. 1930).
8. Rick Hirsch, City Counterattacks for Convict Dumping, Miami Herald, May 10, 1985, at 1C,
available at 1985 WLNR 283387.
9. See, e.g., Houston County District Attorney, 5 Reasons for Banishment, http://www.houstonda.org/houston-county-law-school/5-reasons-for-banishment.html (last visited Mar. 17, 2011) ("If Tom's main problem is that he harasses Suzy, and Suzy is glad to see him out of her hair by being banished, why not do that instead of prison?").
10. See infra Part I.A.
11. See infra Part I.B-C.
12. See infra Part I.D.
13. Matthew D. Borrelli, Banishment: The Constitutional and Public Policy Arguments Against this Revived Ancient Punishment, 36 Suffolk U. L. Rev. 469, 471 (2003).
14. Id. at 469. Banishment was also used in the ancient world. See United States v. Abushar, 761 F.2d 954, 959 (3d Cir. 1985) (quoting Gerald R. Miller, Banishment—A Medieval Tactic in Modern Criminal Law, 5 Utah L. Rev. 365, 365 (1957)); Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979); Robert Frank Meier, Crime and Society 356 (1989).
2011] BANISHMENT IN GEORGIA 805
throughout history.15 Originally, the isolated nature of colonial villages and settlements made banishment a harsh sentence, as it was very difficult to relocate. If a person tried to join a new community without references, they would "likely be alienated and rejected."16 Banishment was only used for the worst offenders who were
considered a continuing threat to society. For various kinds of crimes, public shaming through the stocks or whipping was also used.18
B. Uses of Banishment
The use of banishment in Georgia dates back at least to 1782 when a statute that penalized treason was enacted.19 A subsequent statute passed in 1787 stated that "felons transported or banished from another state or . . . country could be arrested and removed beyond
the limits of the state, not to return on penalty of death." In contemporary times, banishment is typically used as a condition of
21
probation or as a condition of a suspended sentence.21 In Georgia, the
period of banishment cannot be unlimited, but courts have imposed
as much as a fifty-year banishment sentence. While on probation, an offender does not have the same rights and expectations of
15. Arthur Shapiro, Everybody Belongs: Changing Negative Attitudes Toward Classmates with Disabilities 146 (1999) ("[T]he severest form of punishment in ancient times was not execution but banishment."); see, e.g., State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1953) ("Through the ages the lot of the exile has been hard."); Herbert L. Osgood, The American Colonies in the Seventeenth Century 282-83 (Peter Smith ed., Columbia Univ. Press1957) (1904).
16. Andrea E. Yang, Historical Criminal Punishments, Punitive Aims and Un- "Civil" Post-Custody Sanctions on Sex Offenders: Reviving the Ex Post Facto Clause as a Bulwark of Personal Security and Private Rights, 75 U. Cin. L. Rev. 1299, 1308 (Spring 2007).
17. Id. at 1307-08.
18. Id.
19. Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 14-15 (1800) (quoting the Georgia law enacted in 1782 which provided "that all . . . persons . . . [found guilty of treason] are banished from said state").
20. United States v. Atienzo, No. 2:04-CR-00534 PGC, 2005 WL 3334758, at *3 (D. Utah Dec. 7,
2005).
21. Sanders v. State, 577 S.E.2d 94, 96 (Ga. Ct. App. 2003) ("Banishment is authorized in Georgia only as a reasonable condition of probation or suspension of a sentence.").
22. See id.; Kerr v. State, 387 S.E.2d 355, 359 (Ga. Ct. App. 1989).
23. Presha v. State, 469 S.E.2d 293, 294-95 (Ga. Ct. App. 1996); see also Adams v. State, 527 S.E.2d 911, 912 (Ga. Ct. App. 2000) (affirming a thirty year banishment); Edwards v. State, 327 S.E.2d 559, 560-61 (Ga. Ct. App. 1985) (affirming a ten year banishment).
806 GE ORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:4
freedom that a non-offender would have, so Georgia courts have resisted constitutional challenges to the reasonableness of banishment as well as attempts to classify it as cruel and unusual punishment
under the state constitution. The Supreme Court of Georgia has also refused to prohibit banishment, noting: "[I]f it is to be absolutely prohibited, it must be done by the legislature."26
Banishment has been used for crimes such as drug possession or
sale, burglary, stalking, assault or battery, child
molestation, prostitution, and making terroristic threats to a judge.34 Some applications of banishment have allowed limited entry
into prohibited areas,...
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