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.
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.”
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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.