Banishment a Substitute for Prison

By Russ Bynum

Associated Press Writer

Sunday, October 21, 2001; 12:59 PM

SAVANNAH, Ga. –– Some on prosecutor Kelly Burke's list of 62 criminals have served jail time. Many have not. But he proudly puts them all under one heading: "BANNED."

Legalized exile is largely considered an anachronism, a pseudo-solution that merely makes one jurisdiction's convict somebody else's problem. Still, banishment persists in Georgia and Kentucky and possibly other states – legal scholars don't keep track.

"I do it all the time. I love it," said Burke, district attorney for Houston County, near Macon. "We banish people frequently. You need to have a logical reason why you're doing it. Legally, I can do it whenever the judge agrees with me."

Banishing criminals from their home communities has been a part of crime and punishment since the beginnings of written law, dating back to the ancient Greeks and Romans.

"Nationwide, banishment – which used to be a very popular punishment – has pretty much vanished from the scene," said Donald E. Wilkes, a law professor at the University of Georgia. "Probably there's more of this in Georgia than any other state."

Those on Burke's list, which is on his Web site, are currently banned from his county. They have been convicted of crimes ranging from shoplifting to stalking, drunken driving to drug dealing.

It is not known how many Georgia offenders have been banished. The punishment generally lasts for the length of an offender's probation.

Marc Mauer of The Sentencing Project, a Washington-based group that advocates alternatives to prison, said banishment is "pretty far out there in terms of normal practice."

"You go back to the Colonial period where you had the stocks and whipping posts, you also had people banished from the community to show its outrage," Mauer said. "Just because it was used 250 years ago doesn't mean it's a good idea today."

In Houston County, Burke advocates banishment as a positive alternative to prison that gives the offender a chance to start fresh. He's particularly fond of banning drug dealers, saying it takes away the customers and contacts they need to stay in business.

"I'm not trying to put a drug dealer on somebody else," Burke said. "I'm trying to disrupt this guy's ability to be a drug dealer."

Banishing criminals shouldn't be taken lightly, said Spencer Lawton Jr., Chatham County's district attorney of 21 years.

"It has potentially serious consequences to the defendant – putting up hurdles to any effort he might make to rehabilitate himself," Lawton said. "He's going to suddenly find himself miles and miles from anybody he knows, any prospect of employment, continuing an education, whatever. It's uprooting."

Since 1877, Georgia's constitution has specifically prohibited two types of punishment – whipping and banishment "beyond the limits of the state."

The interpretation has long been that banning offenders from parts of the state – whether one county or 158 of Georgia's 159 counties – is legal. The Georgia Supreme Court upheld that view in 1974, ruling against a woman who challenged her banishment from seven counties for a year.

Exiled offenders rarely challenge banishment, said Larry Schneider, public defender in DeKalb County near Atlanta. Stuck with a choice between going to jail or leaving town, defendants usually agree to be banished, he said.

"I don't particularly like it," said Schneider, one of the attorneys who challenged banishment before the Supreme Court 27 years ago. "If a terribly egregious case comes up, we could challenge it again. But nobody complains about it."

Eric Bretz of Corbin, Ky., did complain last year after a Kentucky judge banished him from the entire state. Accused of domestic violence against his wife, Bretz argued that banishment violated his constitutional rights but agreed to the punishment to stay out of jail. He abandoned his challenge to the banishment because of new legal problems.

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On the Net:

Houston County Banishment Registry: http://www.houstonda.org/BanishmentRegistry/BanishedRegister.htm

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