Terry v. Hamrick

BENHAM, Justice,

dissenting.

I respectfully dissent from Division 3 of the majority opinion because I believe banishing Terry from 158 of 159 counties is unreasonable, not logically related to the rehabilitative scheme of bis sentence, and in fact results in de facto banishment from our state which is unconstitutional. Indeed, as soon as Terry steps out of prison, he will instantly be in violation of the terms of his probation as he will not be in Toombs County.4 Even assuming Terry could comply with the terms of his probation upon his release and travel to Toombs County without setting foot in any other Georgia county, it is still likely that he will be forced to leave the state in lieu of serving his probation in Toombs County because of his lack of ties to the county and limited options to obtain employment, housing, and rehabilitative services. See “158-County Banishment” in Georgia: Constitutional Implications Under the State Constitution and the Federal Right to Travel, 36 Ga. Law Rev. 1083 (2002). If he were to depart from the state due to the terms of his banishment, such result would be unconstitutional. Id. at 1103.

Terry resided, committed his crimes, and was arrested in Douglas County. He has no ties whatever to Toombs County which is over 200 miles away from Douglas County. The banishment is unreason*30able and at odds with a logical rehabilitative scheme because, being unable to reside in any other community than Toombs, Terry’s options for obtaining a job, housing, and services necessary to aid in his rehabilitation and prevent a recurrence of the circumstances that caused him to enter our penal system are limited. Already Terry has been precluded from participating in a Fulton County work-release program which not only would have served in his rehabilitation but would have provided relief to our taxpayers who would have had one less person to fund in our prison system. Because of the severity of the banishment, there is also no opportunity for authorities to give thought or analysis as to whether Terry could participate in the work-release program in a less restrictive manner, while still limiting any danger to his ex-wife or society at large. There is precedent for constructing a term of banishment that has a rational relationship to the circumstances of the case.5 See Hallford v. State, 289 Ga. App. 350 (2) (657 SE2d 10) (2008) (banishment from judicial circuit plus eight other counties upheld where trial court considered location of victim’s residence, employment, and the residences of victim’s family members in selecting counties); United States v. Cothran, 855 F2d 749 (11th Cir. 1988) (for rehabilitation purposes and the safety of the community, it was reasonable to ban defendant during his two-year probation from Fulton County where he had been subject to bad influences which led him to deal drugs to and exert influence over the community’s minors).

A reasonable person in Terry’s situation faced with being relegated for ten years to a single county to which he has no ties or access to services and resources would surely be compelled to leave the state.6 36 Ga. Law Rev., supra at 1103. Accordingly, I would hold that the 158-county banishment was unreasonable7 in this case, and that 158-county banishments are illegal per se insofar as they act as *31a de facto banishment from this state, thereby violating Georgia’s constitution.

Decided June 30, 2008. McNeill Stokes, for appellant. Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Steven M. Rodham, for appellee.

Terry is currently imprisoned 300 miles away from Toombs County in the Walker State Prison located in Walker County, Georgia.

In his habeas petition, Terry requested banishment from Douglas County only as a more reasonable term of probation.

Judges and prosecutors, particularly those in more metropolitan areas of the state, know offenders banished to one county will, more often than not, leave the state and that is why they relegate offenders to more rural counties. See Colin Campbell, Hard to Believe, But Banishment is Legal, Atlanta J.-Const., October 23, 2003, at F2; Brendan Sager, Metro’s Banished Vanish to Avoid Exile in Rural Echols Restricted to Life Far From City Glitz, Most Flee Georgia, Atlanta J.-Const., September 30, 2001, at Al; Brendan Sager, Banished Vanish At Georgia “Gulag” Echols County Prisoners Simply Flee State, Atlanta J.-Const., September 30, 2001, at Cl.

Notably, in 2006, the Georgia legislature passed legislation that probationers may not be banished to an area of the state that encompasses less than a judicial circuit or to an area in which any mandatory service or program is unavailable. OCGA § 42-8-35 (a) (6) (A) and (B). Therefore, the legislature now has formally precluded trial courts from banishing probationers to a single county.