Posted by Maggie on January 7, 2008
Usually when people talk about legal loopholes, they’re talking about defense attorneys. The public loves to bash defense attorneys for exploiting “technicalities.” But most defense attorneys know prosecutors are just as bad at finding that little thing to make your client miserable.
On Monday, the Georgia Supreme Court will hear argument in a case considering a court’s ability to banish a defendant. It’s not unusual for a defendant to be banished from a store if they’re a shoplifter, or a county if they’re violating a protective order, or even the county of conviction if they’re an out-of-towner. These are generally considered reasonable steps, though I find them onerous at times. But what we’re talking about in this case is a particularly nasty prosecutorial loophole.
The Constitution of Georgia forbids banishment from the state as punishment. So what they do instead is to banish a defendant from every county except 1. And they pick one in the middle of nowhere. Generally near the Florida border. I can’t think of any real justification for this kind of thing. If there’s something specific they want to keep the person away from, then do targeted banishment. This kind of thing stinks of nastiness for no reason. And I don’t even want to hear the claim that it’s to protect the citizenry. You’re moving them from one place to another. There are still people there. People can still commit crimes there. If anything, it seems like a slight to the people living in those counties.
The defendant challenging his case had his parole set back 8 years because he couldn’t attend a work-release program in Fulton County. He has a problem keeping away from his ex-wife, but again, this is exactly the kind of situation where a targeted banishment would be effective. Even if it covered a handful of surrounding counties.
This kind of treatment is similar to what we’re seeing with sex-offender registry restrictions. In fact, that’s where most banishment issues are discussed. Perhaps the Court will be more understanding when we’re talking about a non-sexual offense.
Update: Some general banishment info. Crimlaw has a post on Virginia’s outlook on banishment. He links to a news story on Georgia’s Houston County DA who has banished 401 people. (I’m positive there are counties with more.) It’s a relatively common practice in Georgia, in my experience. The Houston DA’s website doesn’t seem to have the list up that he uses in the news story, but it does have a helpful article by the DA himself about why he uses banishment. He seems to avoid the ugly tactic used above, and says it’s not used for first-time offenders. If you’re unfamiliar with the use of it, you can see the justifications from the DA’s side.
Update #2: Coverage from the Daily Report today on yesterday’s oral argument. The most hideous part of it is here:
According to Stokes, Emerson told the prosecutor to “pick a county” where Terry could go, and the prosecutor picked Toombs, although there was no real connection between Terry and that county. A DeKalb County judge told the Daily Report in 1997 that he would sometimes pick Toombs as the sole permissible county because “I like the way it sounds.”
I’ve been to Toombs County, and there are certainly worse counties you could pick. I think there are big risks of creating some serious enmity between counties. In the oral argument, the Judges picked one particular issue to nitpick the problem: how was the guy going to get to Toombs County in the first place?
Reading through the articles and the appellant’s brief, it looks like the real problem the State is going to face (besides the fact that it’s just plain wrong) is the fact that it’s affecting parole, and Judges don’t have the power to set conditions on parole.