Luke in Creative Loafing

The following was posted to Creative Loafing on October 2nd, 2014:

Why do Georgia judges banish defendants?

Despite debate over rehabilitative benefits, some judges include punishment as part of sentencing

HIT THE ROAD: A Fulton County judge's punishment for Luke O'Donovan's role in an incident that took place at a 2013 Reynoldstown party was to serve probation in Screven County.

LUKE’S SUPPORT COMMITTEE

HIT THE ROAD: A Fulton County judge’s punishment for Luke O’Donovan’s role in an incident that took place at a 2013 Reynoldstown party was to serve probation in Screven County.

Georgia’s constitution bans all kinds of old-fashioned things. Think slavery, court-ordered whippings, and imprisonment for debt. But the document also has a line that discusses punishment of scofflaws by kicking them out of town.

Every year, judges across the state tell defendants that part of their sentencing, typically after serving time in prison, includes packing up their bags and moving somewhere far, far away — provided they don’t bar someone from living in Georgia, one of the few states that still allows bizarre, albeit constitutional, punishment. And no one’s in much of a rush to do away with the practice, which has little known rehabilitative benefit, if any.

To James Cantwell, it’s an “archaic” punishment. Cantwell and a group of others are aiming to get a banishment order lifted from their friend Luke O’Donovan.

O’Donovan was sentenced to two years in prison — followed by eight years of probation in Screven County — by Fulton County Judge Todd Markle for a controversial incident at a 2013 Reynoldstown house party. Six people were injured, including O’Donovan. His friends say he was fighting back with a knife against up to a dozen men whose anti-gay slurs and physical attacks were enough to make O’Donovan fear for his life. The prosecution says O’Donovan had been kicked out of the party and came back angry and armed.

Of everyone who went to the hospital, only O’Donovan faced charges. He took a negotiated plea deal and was sentenced in August. The deal didn’t initially include being exiled to Screven County in East Georgia after finishing his prison sentence, says Cantwell. He says an angry Judge Todd Markle, who was overseeing the case, imposed the banishment himself.

Screven County Sheriff Mike Kile says he did not hear of the sentence until months afterward, whenCreative Loafing contacted him for comment. Kile says he doesn’t even know how O’Donovan would get to the 14,000-population east Georgia county, since there’s no bus line running there from Atlanta.

“I doubt seriously he could find a job. There’s not a whole lot of places to live in the county … especially coming in here out of the blue,” said the sheriff. He added that the state parole board prefers to release parolees to somewhere that they have a home. Kile doesn’t like O’Donovan’s chances starting afresh in Screven anyway. “He’s going to come out here with 25 dollars in his pocket … he’s going to wind up in the county jail pretty soon.”

But what is more likely to happen is O’Donovan may become an exile to South Georgia or leave the state.

Banishment from the state of Georgia was forbidden by the 1877 state constitution and has survived all subsequent edits. There’s no record of how many people Georgia courts banish each year from counties and even certain police zones. But more than two-dozen defendants have argued that the punishment is unreasonable or serves no rehabilitative purpose. In all cases but one, the punishments have been substantially upheld.

The state’s high courts have found banishment to be useful for several reasons. For one, it protects the victims, kind of like a restraining order with a huge radius. For two, it’s supposed to sever the wrongdoer from their network of cronies, thereby reducing the chances of reoffending.

The Georgia Supreme Court has heard plenty of arguments against banishment on the grounds that it’s unconstitutional, cruel, unusual, or disproportionate. But because the state Constitution says banishment “beyond the limits of the state” shall not be allowed, the state Supreme Court says banishment is OK, though judges should instead limit the parolee to a judicial circuit where he or she has access to the needed rehabilitative services. (O’Donovan’s original banishment to Screven had to be changed to a banishment to the swampy five-county Southern Judicial Circuit along the Florida border, Cantwell says.)

In reality, however, most banishees choose a home in one of the other 49 states rather than in an unfamiliar Georgia county, says Atlanta attorney McNeill Stokes, an opponent of banishment. The punishment is “unnecessary, and it’s just ludicrous,” he says, and fits no pattern of rehabilitation.

Nor is it necessarily always enforced. David Nathan Thompson lived with his mom in DeKalb County for two years in contravention of an order to stay in South Georgia. His parole officer in Columbus required no more than a phone call every month. Thompson became a legal resident of DeKalb again earlier this month, when a judge accepted a plea from his mother, Andrea Davis, that her son be allowed to live at home among a supportive network of family and friends — not in 11 years of exile.

“We’re on a mission now, and his life will start over,” Davis says.

Thompson admits that in 2004, as a 20-year-old, he fired a gun toward the Fulton County home where relatives of his late father lived. The young man was skipping his bipolar medication. He’s since been diagnosed with mental illness so severe that he has been designated as a disabled person. Family and friends keep tabs on him with visits and phone calls.

He took a plea deal to serve eight years in prison, followed by a year’s house arrest and then 11 years banishment to Ware County. The prison sentence was later reduced to four years. He was arrested while on parole but also got his banishment area enlarged to all of South Georgia. Though he and his allies say his stepfamily is getting special treatment, no judge yet thinks the principle is necessarily wrong.

Fulton County Superior Court Judge Kimberly M. Esmond Adams earlier this month decided Thompson must not leave DeKalb County for the next year and must live with his mom. If Thompson lives a productive life during that time, the judge may allow the family to consider a group home option for the young man.

“I have heard no reason from the defense as to why it is necessary for Mr. Thompson to be in any other counties,” Adams says. “I appreciate the constitutional arguments that have been raised. … However, they, in the court’s eyes are not any more compelling than the need to ensure that the citizens of the state are safe.”

As for O’Donovan, Cantwell said he was surprised that “the concept of banishment could even happen.” It may be another legal challenge to banishment in the works.

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