Banishment, Part II

Editor’s note: This post was originally intended to be a response to a comment to a post about sentences of banishment. The initial post, here, considered a federal sentence that forbade the defendants from a particular county during their supervised release, and concluded that North Carolina courts lack the power to impose a similar sentence. A comment asked whether the courts could be given that power by legislation expressly authorizing banishment as a sentence.  I thought that the answer was interesting enough to be a post unto itself.

Joel, great question. The court said in Doughtie that “[i]n the absence of statutory authorization, banishment . . . is not proper punishment.” So would statutory authorization make it ok? I think the answer may turn in part on what you mean by banishment, and how big a geographical area you’re talking about. Article XI, Section 1 of the NC Constitution says: “The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State.” Perhaps banishment falls under the rubric “restraints on liberty”; I don’t know.

A leading United States Supreme Court case on this issue is Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), but the “banishment” in that case (reversed on due process grounds) was really something more like “deprivation of citizenship rights,” not just a limitation on movement. Our courts upheld a local ordinance than barred registered sex offenders from town parks in Standley v. Town of Woodfin, 186 N.C. App. 134, affirmed 362 N.C. 328 (2008), though the high court only considered the offender’s claim that the ordinance violated a substantive due process right to intrastate travel. The court of appeals decision gets closer to the banishment issue.

I don’t think it will be too long before our courts hear additional challenges to the sex offender laws described above, and I imagine at least some defendants will argue that not only are the restrictions “punishment” (raising ex post facto, due process, and other issues), but also an unconstitutional punishment under Article XI, Section 1.

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