My Train of Thought: Banishment … Transportation … Outlawry …
Ken Lammers notes that miscreants in Houston County, Georgia, might find themselves, like Romeo, banished from the county.
In Virginia, Ken found, banishment is legal: in Loving v. Commonwealth, Mildred and Richard were forced to leave Virginia for 25 years for miscegenation; the Virginia Supreme Court upheld the banishment. The U.S. Supreme Court reversed the decision on other grounds.
In Texas, banishment within the state (as in the Georgia cases) would at first blush appear to be okay — judges routinely require people to remain in a particular county as a term of probation; in an appropriate case that county could be one other than the court’s jurisdiction. In Johnson v. State, though, the intermediate Corpus Christi Court of Appeals rejected banishment from the county as a condition of probation: “banishing appellant from the county, particularly when he is broke and unemployed is not reasonably related to his rehabilitation, and unduly restricts his liberty,” and noted, “The State of Georgia apparently does permit one political subdivision to dump persons it considers undesirable upon another.” There, of course, is an additional problem with intrastate banishment: if Harris County’s banishees wind up in Montgomery County, Montgomery County is going to send its banishees screaming to Harris County.
Banishment from the state (as in Virginia), however, is forbidden by Article 1, Section 20 of the Texas Constitution: “No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same.”
One reported Texas case referring to the prohibition of outlawry was Peeler v. Hughes and Luce.
Peeler stands for two related propositions: (1) that a convicted criminal defendant can’t sue his lawyer for negligence without first reopening the case and winning; and (2) that it’s a really, really, really bad idea to hire a biglaw civil firm to defend you when you’re facing criminal charges. According to Ms. Peeler, she was offered transactional immunity to testify against codefendants [at least one of whom was represented by her firm, Hughes and Luce]; her lawyer did not pass the offer on to her, and she pleaded guilty instead. The court held that her criminal actions were the sole proximate cause of her conviction.
This is why Texas criminal-defense lawyers don’t need E&O insurance.
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Actually, the Virginia Supreme Court overturned the banishment.
Aha. Thank you.
I realize that it’s not your main focus, but I think you could have spent a line on why the Supreme Court decided Loving as it did.
The case is one of the charters of freedom in the U.S., specifically the freedom to marry, something that was not targeted by the civil rights movements of the time, who felt it to be too controversial.
I would like to see banishment become a real & leagle option to incarceration. Im sure alot of petty nusance criminal types would appreciate the oppurtunity to stay out of jail almost as much as the community would like to see them disapear. Banishment should be for a minimum of five years.