Kelly Burke proudly points to the list on his Web site containing the names of 62 criminals convicted of crimes from shoplifting to stalking, drunken driving to drug dealing.
Some have served time. Many haven’t. Burke, district attorney for Houston County near Macon, puts them all under one heading: “BANNED.” These are the bad guys he’s uprooted and banished from the county.
“I do it all the time. I love it,” Burke said. “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 to the ancient Greeks and Romans.
Now, legalized exile is largely considered an anachronism, a pseudo-solution that merely makes one jurisdiction’s convict somebody else’s problem. Still, it persists in Georgia and a few other states.
“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.”
Marc Mauer of the Sentencing Project, a Washington-based group that advocates alternatives to prison, also said few states still use banishment. “It’s 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.”
Though it’s unknown how many Georgia offenders have been banished, the practice isn’t common in most areas, said Rick Malone, executive director of Georgia’s Prosecuting Attorneys Council.
Normally judges and prosecutors use banishment to get rid of minor criminals, such as shoplifters, or to keep domestic abusers away from their victims. Banishment generally lasts for the length of the offenders’ probation.
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 local customers and contacts they need to stay in business.
“A Warner Robins drug dealer can’t go up to Macon and just start selling dope, because the guys in Macon will shoot him,” Burke said. “I’m not trying to put a drug dealer on somebody else. I’m trying to disrupt this guy’s ability to be a drug dealer.”
And, he said, banishment makes it easier for police, who can arrest an offender for simply showing his face in the county.
Since 1877, Georgia’s constitution has specifically prohibited two types of punishment for offenders--whipping and banishment “beyond the limits of the state.”
The interpretation by prosecutors and judges has long been that banning offenders from parts of the state--whether one county or 158 of Georgia’s 159 counties--is perfectly legal.
The Georgia Supreme Court upheld that view in 1974, ruling against a woman who challenged her banishment from seven counties for a year.
Justice Hiram K. Undercofler, the lone dissenter, warned that banishment permits “one county to relegate its criminals to another county and thereby create dissension and provoke retaliation.”
Exiled offenders rarely challenge banishment in court, 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 as part of a plea bargain or as a condition of probation, 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.
Bretz, accused of domestic violence against his wife, argued that banishment violated his constitutional rights. Although he at first agreed to the punishment, Bretz said his back was against the wall: “It was the only way I could get out of jail.”
After a hearing on Bretz’s case was canceled last year, it vanished altogether. Dennis Burke, a Kentucky public defender who represented Bretz, said Bretz had to contend with new legal problems that caused him to abandon the banishment challenge.
Though Georgia prohibits banishment from the state, prosecutors in DeKalb County have long banned offenders from all of the state’s 159 counties but one.
Echols County, sandwiched between Valdosta and the Okefenokee Swamp at the Florida state line, has just one town and one red light.
Schneider said DeKalb County prosecutors have been banishing offenders to Echols County throughout his 23 years as a public defender.
While DeKalb prosecutors did not return phone calls seeking comment, Schneider said he suspects their intention is to get petty criminals to leave the state without violating Georgia’s constitution.
“These are shoplifters and drug addicts. What are they going to do in farm country and tree-cutting country?” Schneider said. “No one really expects them to go to Echols County, and I’d be astounded if they went there.”
Mauer of the Washington-based Sentencing Project notes that banishment was a dire punishment in the Colonial period not only because it heaped shame on offenders but also because communities were more spread out and travel was limited.
But just because moving to the next county is now as easy as renting a U-Haul doesn’t mean banning criminals should 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.”