The First Circuit recently upheld a district court’s imposition of a special condition of supervised release banning two convicted drug dealers from Suffolk County, Massachusetts (basically, Boston) during the entirety of their eight- and twelve-year periods of supervision (United States v. Garrasteguy). The case caught my eye for two reasons. First, that’s a long time to be banned and a big area to be banned from, even if the defendants had a history of violating no-trespass orders from the Boston Housing Authority. Second, the defendants were selling crack in the Bromley-Heath public housing project—a development I used to ride by twice a week on my way to work as an after-school counselor in nearby Dorchester.
The appellate court’s decision turned primarily on the standard of review it applied. Though the court was troubled that the ban was longer and broader than similar release conditions upheld in other circuits, because the defendants failed to object to the conditions at trial the lower court’s decision was subject only to plain-error review. “Even assuming that exclusion from all of Suffolk County would unjustifiably impinge the defendant’s fundamental rights,” the court wrote, “we cannot conclude that leaving the imposed condition intact would bring judicial proceedings into public disrepute.”
This sort of sentence wouldn’t fly in North Carolina. “In North Carolina a court has no power to pass a sentence of banishment,” State v. Doughtie, 237 N.C. 368 (1953), and banishment has been broadly defined here to include orders compelling people “to quit a city, place, or country, for a specific period of time, or for life,” State v. Culp, 30 N.C. App. 298 (1976).
Beyond evoking memories of my college years (because of my work as a counselor—nothing to do with the crack), the Garrasteguy case calls to mind arguments that sex offender residential (G.S. 14-208.16), employment (G.S. 14-208.17), and “on the premises” (G.S. 14-208.18) restrictions amount to virtual banishment and are therefore unconstitutional. North Carolina’s residential restrictions do not go as far as those in some states. Georgia, for example, included school bus stops (more than 150,000 of them) within its definition of “areas where minors congregate,” leaving, according to the Georgia Supreme Court, “no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.” Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007). Nevertheless, North Carolina’s restrictions certainly render some places off limits to offenders. [As an aside, note that the “on the premises” restrictions of G.S. 14-208.18 do not apply to all registered sex offenders. Rather, they apply only to those convicted of offenses under Article 7A of Chapter 14 (Rape and Other Sex Offenses) and those whose victim was under 16 at the time of the offense. I have seen a number of media references and legislative summaries implying that all registered offenders are subject to the law.]
A key distinction between sex offender restrictions and the conditions at issue in Garrasteguy is that the sex offender restrictions apply for as long as the person is required to register—a period which, in many cases, extends well beyond the actual punishment imposed. For many offenders in North Carolina (386 by my last count) the restrictions apply for life.