In considering the sentencing of convicted persons, Georgia judges sometimes consider a condition of probation which banishes the person from some or most of Georgia. A condition which banished the person from the entire state would violate the state constitution.
"Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime." Ga. Const. art. I, § 1, ¶ XXI Â
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However, banishments from less than the entirety of the state has been upheld as not violating the constitutional protection. Wilson v. State, 151 Ga. App.. 501, 504 (1979) approved a sentence banishing a person from the county. Edwards v. State, 173 Ga.App. 589, 590-591 (1985) approved banishment from a judicial circuit.
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How far can a court stretch the authority to restrict where a probationer may be in the state to fall short of the constitutional barrier?
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Any banishment from even a part of the state must related logically to the rehabilitative purposes of the sentence. So, the court has approved a banishment from the area for a drug offense has been approved as removing the probationer from proximity to his or her sources of drugs. Wyche v. State, 197 Ga.App. 148, 149 (1990) It was seen as reasonably related to the probationer's rehabilitation. On the other hand, bansihment for a battery offense was rejected as not having a logical relationship to the rehabilitative purposes of the sentence. See also Sanchez v. State, 234 Ga.App. 809 (1998). It is worth noting that Sanchez also stands for the proposition that the court cannot sentence a defendant to return to the person's home country. Such would be essentially an order of deportation and would violate the federal court's exclusive authority over removal of aliens from the country.
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For the crime of aggravated stalking, however, it was held that the trial court was within its authority to banish the defendant from every county in Georgia except one. Terry v. Hamrick, 284 Ga. 24 (2008) The sentence banned Terry from every county except Toombs County. The Georgia Supreme Court found that banishment from 158 of 159 counties was not de facto banishment from the entire state and, thus, did not violate the state constitution. The court also upheld the banishment as reasonably related to the rehabilitative purpose because of the need to keep Terry away from the object of his obsession, his ex-wife.
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OCGA 42-8-35 does put some limitations on the sentencing court's authority to banish a defendant to a particular area of the state in that the court cannot limit the defendant to an area of the state smaller that a judicial circuit. By that statute, a probationer also cannot be restricted to an area where necessary services related to the sentence are not available.
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The time that the banishment is in place must also be reasonable, but the appellate courts have not yet encountered a banishment of unreasonable duration, including approval of a 30-year banishment.
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Practice Pointers
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It is worth noting that courts are usually considering probation with banishment as an alternative to incarceration. Most clients would rather have their travel inside of Georgia restricted than be a guest of the Georgia Department of Corrections. Â
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Where banishment is one the table, it makes sense to try to limit to the judicial circuit where the offense occurred. Even there, it can be worth asking for some reasonable accommodations. For instance, if a major interstate highway runs through that circuit, it may be worth asking that notwithstanding the banishment that the person can use the interstate highway to pass through the circuit without stopping or exiting the interstate highway. A lot of judges will see that as reasonable.
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Where banishment is going to be from most of the state, I typically ask that Clayton Judicial Circuit (Clayton County) be the excepted circuit owing to the presence of the Atlanta airport there. I would hate for a client to be violated from probation for changing planes at the Atlanta airport.
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