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Copyright (c) 2003 Suffolk University
Suffolk University Law Review

NOTE: Banishment: The Constitutional and Public Policy Arguments Against This Revived Ancient Punishment


36 Suffolk U. L. Rev. 469


Matthew D. Borrelli


I. Introduction
Since colonial times, states have used banishment to punish criminals by exiling convicts who disobey the rules of a community. 2 Today, only six states implore this punishment as part of probationary sentences or as an alterative to jail time; however, the recent decisions in Georgia upholding banishment could serve to spread this punishment throughout the country. 3 Banishment requires that criminal defendants leave a town, county, or state for a period of time and prohibits their return during that period. 4 The Georgia courts and legislature, for example, are the most aggressive in instituting and supporting banishment to punish criminals for petty crimes and drug dealing. 5 Georgia courts reason that banishment removes criminals from their local contacts and effectively stops crime at a lower cost than jail time. 6

The majority of states have not adopted banishment because of its questionable constitutional validity and its lack of comportment with public policy. 7 State courts are inconsistent on the constitutionality of banishment. On the one hand, many opponents argue that constitutional flaws could invalidate banishment altogether if the United States Supreme Court reviewed the issue. 8 On the other hand, proponents argue that banishment is constitutionally valid and the benefits of relieving an already overburdened prison population and cleaning up neighborhoods outweigh opposing public policy arguments. 9

This Note examines whether banishment violates the Constitution and then analyzes the effect of banishment on public policy. 10 Specifically, this Note discusses whether banishment impedes ...
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