Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.
What comes to mind when you hear the phrase 'banishment'? A royal decree from a Dark Ages-era king? Or perhaps a famous scene from a Shakespeare tragedy? Whatever the answer, the modern justice system is probably something that 'isn't' easily associated with the seemingly archaic concept of 'banishment'.
But in reality, banishment as a punishment for a crime is 'alive and well' in the modern criminal justice system. Banishment is a form of legal punishment imposed upon a defendant (a person charged with committing a crime) that requires them to stay out of a specified city, county, or state. The practice of banishing a defendant is sometimes referred to as exile or deportation.
Banishment as a punishment for wrongdoing has roots in virtually all of the ancient world cultures. The ancient application of banishment was particularly effective because it ensured that a criminal would be removed from his family and doomed to wander the wilderness. The threat of being exiled to a place far away from any civilized villages or kingdoms served as a powerful deterrent to criminal activity.
The early American colonists also relied on banishment as a method of legal punishment. Often, colonists were exiled from an area for religious reasons. For example, colonist Roger Williams was banished from the highly religious Massachusetts Bay Colony in 1635 for expressing his displeasure with the practice of taking Native American lands. This position angered the religious and political leaders of the colony, who believed that Williams was spreading 'dangerous ideas' that threatened the church's power. Williams went on to form his own colony, which later became Rhode Island.
The use and extent of banishment as a punishment varies from jurisdiction to jurisdiction. Some states (like Mississippi) permit banishment as a punishment so long as the defendant can be rehabilitated through the banishment and the population as a whole benefits as a result. In these jurisdictions, banishment is designed to replicate probation, which is an alternative to incarceration where a defendant must follow specific rules of conduct to avoid being placed in prison.
States like Kentucky, Arkansas, and Florida reserve banishment as a punishment for certain crimes, like domestic violence and prostitution. Georgia does not banish defendants from the state, but permits intrastate exile as a viable punishment. This means that a county or city may banish a defendant to another county or city within the boundaries of the state.
The Constitution of the United States does not outlaw banishment. In fact, the practice will pass constitutional muster so long as it conforms to other constitutional considerations, such as Due Process.
The District of Columbia, which does not have a constitution of its own, has imposed banishment as a punishment for criminal conduct as recently as 2013. One example involved Rives Grogan, an antiabortion activist, who was arrested and convicted five times since 2009 for disorderly conduct and disobeying the police. He did this in a series of episodes where he attempted to disrupt political events-- including the 2013 Presidential Inauguration. As a result, Grogan was banished from the District.
Many states have outlawed the practice of banishment entirely. A handful of state constitutions prohibit banishment, while other state appeals courts simply refuse to enforce banishment as a punishment.
Banishment is a form of legal punishment where a defendant is required to leave a city, county, or state. The application of banishment as a punishment varies from jurisdiction to jurisdiction. While some states have outlawed the practice, other states still permit banishment as a punishment so long as it does not infringe on a defendant's constitutional rights.
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