Can Cities or States Banish People?

Answers to your questions about the news.
Jan. 24 2013 6:26 PM

Can States Exile People?

“I hereby sentence you to life in Virginia, without parole.”

Anit-abortion protester Rives Grogan is escorted out after causing a distrubance.
Anti-abortion protestor Rives Grogan is escorted by Capitol Police in the Senate basement, after causing a disruption in December 2012.

Photo by Drew Angerer/Getty Images

A Washington, D.C. judge ordered a man to stay out of the District of Columbia as a condition of his release from jail on Tuesday. Rives Miller Grogan was arrested for climbing a tree near the Capitol as part of a protest during President Obama’s inauguration. Can you be banished from a state?

Probably not. Sixteen states have constitutional provisions prohibiting banishment, and appeals courts in many others have outlawed the practice. Although it remains on the books in a handful of states—the Tennessee Constitution permits exile, and Maryland’s Constitution specifically prescribes banishment as a punishment for corruption—appeals courts usually overturn sentences of exile. There has been only one recent case of banishment from a state: In 2000, a Kentucky judge banished a domestic abuser from the state for one year. (The case never reached the state’s high court.) The District of Columbia has no constitution, and its statutes don’t mention banishment, so the legality of Grogan’s exile is unclear. Judges typically get wider discretion in prescribing conditions of bail than in sentencing, but there is a strong trend toward invalidating interstate banishment under any circumstances.

In the view of many legal scholars, the permissibility of banishment depends on its geographic breadth. Banishment from the country is decidedly unconstitutional, at least for U.S. citizens. Chief Justice Earl Warren described denationalization of army deserters as “a form of punishment more primitive than torture.” Banishment from areas around schools or day care facilities, however, is an increasingly popular punishment for sex crimes. Gang members are occasionally banished from their home towns to keep them from bad influences. Appeals courts sometimes approve these sanctions as long as they don’t result in a functional banishment. For example, a Georgia law prohibiting sex offenders from living within 1,000 feet of a bus stop was declared unconstitutional in 2007. Legislators made clear that they intended to exile sex offenders from the state, and the restrictions left virtually nowhere to live.

Advertisement

There are several arguments against interstate banishment: It’s cruel and unusual punishment; it takes away a citizen’s right to travel; and it’s arguably a form of double jeopardy. The more practical concern is that it could lead to a dance of the lemons, as each state tries to turn its neighbor into a prison colony, thereby avoiding the expense of imprisonment.

That’s exactly what happened in the early days of English settlement in North America. Great Britain exiled as many as 50,000 convicts to the New World prior to U.S. independence. The Puritans of the Massachusetts Bay Colony also sent their undesirables away. In their first year, the Puritans banished up to 10 people, or 1 percent of their population, and continued to cast people off for decades, until the crown ordered them to stop.

The Puritans employed banishment for all sorts of crimes. Adultery, sodomy, and bestiality often resulted in exile. A Capt. Stone was sent away for telling a magistrate that he was more a “just ass” than a justice. The Puritans also banished religious heretics, including Anne Hutchinson and Roger Williams, who went on to found Rhode Island. Hutchinson and other heretics were never charged with heresy, per se, but with crimes such as disturbing the peace because the Puritans feared King Charles I wouldn’t allow them to banish people for minor religious disagreements. Rives Miller Grogan, the protester exiled from D.C. on Tuesday, was charged under laws that require D.C. authorities to “preserve the peace and secure the Capitol from defacement.”

Got a question about today’s news? Ask the Explainer.

Explainer thanks attorney Matthew D. Borrelli, Nan Goodman of the University of Colorado at Boulder, author of Banished: Common Law and the Rhetoric of Social Exclusion in Early New England, and Colin Miller of the University of South Carolina School of Law, author of the Evidence Prof Blog. Thanks to reader Frank Vargas for asking the question.

TODAY IN SLATE

Doublex

Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Votes to Remain in U.K.

There’s a Way to Keep Ex-Cons Out of Prison That Pays for Itself. Why Don’t More States Use It?

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

Can Democrats Keep Counting on Republicans to Offend Women as a Campaign Strategy?

Culturebox

Theo’s Joint and Vanessa’s Whiskey

No sitcom did the “Very Special Episode” as well as The Cosby Show.

Television

The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Cliff Huxtable Explains the World: Five Lessons From TV’s Greatest Dad

Why Television Needs a New Cosby Show Right Now

  News & Politics
The World
Sept. 19 2014 11:36 AM Breaking Up Countries Is Still Hard to Do
  Business
Business Insider
Sept. 19 2014 11:37 AM Why Urban Outfitters and Other Brands Troll Their Customers
  Life
Lexicon Valley
Sept. 19 2014 11:32 AM Why Do Pirates Talk Like That?
  Double X
The XX Factor
Sept. 19 2014 11:33 AM Planned Parenthood Is About to Make It a Lot Easier to Get Birth Control
  Slate Plus
Behind the Scenes
Sept. 18 2014 1:23 PM “It’s Not Every Day That You Can Beat the World Champion” An exclusive interview with chess grandmaster Fabiano Caruana.
  Arts
Brow Beat
Sept. 18 2014 4:33 PM The Top 5 Dadsplaining Moments From The Cosby Show
  Technology
Future Tense
Sept. 19 2014 11:40 AM Apple Invented the Perfect Way to Handle Your Giant New Phone
  Health & Science
Bad Astronomy
Sept. 19 2014 11:33 AM The Curious Incident of the Supernova in the Nighttime
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.