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This is why some U.S. judges banish convicts from their home communities

- March 16, 2017
A Confederate and U.S. flag being flown close to Camp David (Michael S. Williamson/The Washington Post)

Recently, CNN covered the story of two white Georgia residents who received lengthy prison sentences after brandishing a weapon, making threats, and hurling racial slurs at the mostly black attendees of a child’s birthday party. Some reports have centered on the role of the Confederate flag, which the defendants and their associates displayed from their vehicles during the incident. But the case is also notable because Torres and Norton were sentenced to banishment from Douglas County, Ga., after they complete their prison terms.

This may seem strange to modern readers. Banishment sounds like something from ancient Greece or perhaps a totalitarian dictatorship rather than a contemporary U.S. state. But banishment in Georgia is a common practice. Here is how it works, and what it means.

Banishment is within states, not between them

U.S. states like Georgia and Mississippi don’t banish people so that they have to leave the state altogether. Instead, they typically banish people from specific localities. Most often, the areas from which people are banished are relatively small, such as judicial districts, counties or municipalities. While banishment from the state would invite federal constitutional challenges, the state’s own constitution merely forbids banishment from the state — a provision that Georgia jurists have taken to mean that banishment within the state is permissible. Houston County, for instance, has banished more than 500 people since 1998.

While Georgia courts impose far more sentences of banishment than other states, Georgia officials are not alone in using the machinery of law and government to expel particularly disfavored members from their home communities. Explicitly sentencing offenders to banishment is rare outside of Georgia and Mississippi, however, imposing banishment as a condition of parole, pardon or probation is a surprisingly common practice across the nation.

Why do courts banish people

Banishment raises questions given contemporary constitutional norms. So why banish? After all, the prison system is supposed to control and punish people who break the law.

One answer to this question involves the nature of the offenses for which people are banished. Among the most common are sex offenses, drug-related crimes, and “person” offenses like stalking, domestic assault or assault and battery. Generally, banishment is reserved for people who have committed offenses that are not merely prohibited by the law, but are considered malum in se, or bad in themselves. People are banished when they commit offenses that are regarded as particularly morally blameworthy.

Banishment, even in the jurisdictions where it is employed most often, is not standardized, nor is it imposed in all possible cases. It is not simply one penalty among many, but is reserved for special cases. Banishment goes beyond the traditional aims of punishment, like deterrence, restraint, rehabilitation or retribution. As in the ancient world, it sends a strong message by radically changing the relationship between the expelled member and the community that he or she was expelled from. It expresses the community’s rejection of both the offense and the offender. Banishment is not merely a penalty, but a tool to control membership of the community.

Banishment is not a legal curiosity

Georgia and Mississippi (the states that most often openly impose banishment) have begun to establish some broad rules for its use, primarily through parole and probation guidelines. However, even in those places, how and when to use banishment is largely left to the discretion of judges. This suggests that when judges banish someone, it is because they are interpreting the norms of the community — in some rough and ready way — regarding who should be considered a member. In other words, banishment isn’t a curious leftover from an earlier age. More even than other forms of punishment, it is fundamentally political. It controls community membership and reinforces existing ideas about what kind of person is or is not eligible to belong to a given polity.

This can have reprehensible results. Few people know that the decision on mixed-race marriage that ultimately led to the U.S. Supreme Court case Loving v. Virginia included a provision that would have allowed the Lovings to avoid imprisonment on the condition that they left the state of Virginia for 25 years. In that instance, the use of banishment reflected Virginia’s commitment to racist values. If banishment operates as a method of defining the intolerable, however, then this recent case sends a very different message. By banishing Norton and Torres for committing acts of racist intimidation against their black neighbors, the Douglas County court sent a strong message about what membership in that community is expected to entail and what is incompatible with belonging to that community.

It’s hard to see how banishment can be supported in a liberal democracy committed to allowing different people to adhere to different values. Banishment raises the question of whether the government should use its coercive power to enforce moralized decisions about community membership based on an ill-articulated, contestable vision of the good.

Even so, banishment can tell us important things about the principles of community membership in the places that use it. It suggests that those principles are changing. Practices that were once regarded as abhorrent — people of different races and ethnicities making their lives together — are now regarded as acceptable, while racist practices that used to be treated as acceptable are now abhorrent.

Briana McGinnis is a postdoctoral student at McGill University.