published Monday, July 18th, 2011

Georgia courts grapple with criminal banishment

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ATLANTA — Georgia judges are outlawed from banishing offenders from the state, but a legal maneuver that some use to get around the ban is at the center of a long-running legal debate that persists despite a state Supreme Court ruling.

Judges will sometimes restrict offenders to just one or a handful of the state’s 159 counties, confining them to remote counties in rural Georgia or hard-to-reach spots near the Okefenokee Swamp. The convicts almost always wind up leaving the state, leading defense attorneys to call the tactic de facto banishment.

The latest clash came this week in the case of David Nathan Thompson, a mentally ill convict who moved to Columbus after he was restricted from living in north Georgia upon his release from prison. His attorneys claimed the restrictions violate the ban on cruel and unusual punishment and deprive him of the help he needs from his family in metro Atlanta.

But the Georgia Court of Appeals sided with prosecutors in a decision Tuesday, finding that banishment may be imposed as long as the trial court doesn’t abuse its discretion by crafting the order in an unreasonable way. Thompson’s attorney vowed to appeal to state and federal courts, setting up more legal showdowns over what’s become a contentious issue.

The Georgia Supreme Court has already weighed in on the debate. In a 6-1 opinion, the judges found that banishing convicted criminals from Georgia is illegal, but upheld the practice of banning them from living in all but one of Georgia’s 159 counties.

That challenge was brought by Gregory Mac Terry, who was restricted from living anywhere in Georgia but rural Toombs County after he pleaded guilty in 1995 to charges he assaulted and stalked his estranged wife.

But Thompson and his attorney hoped his case would be different because it involved a mentally ill defendant.

There are no hard numbers on how many defendants have been slapped with these banishment orders.

Although the state has outlawed banishment since the colonial days, judges have used it over the past few decades to rid themselves of defendants deemed undesirable, said McNeill Stokes, an attorney who represented both Terry and Thompson. He said DeKalb County judges decades ago banished dozens of offenders to Echols County, which sits on the Florida line.

“Georgia must stop banishing its citizens,” he said. “It’s a throwback to the 18th century.”

Prosecutors, though, have long argued the orders are a way to rid criminals from populous areas and protect victims from repeat offenses. And in Thompson’s case, they argued keeping him away from north Georgia was the best way to protect the public from impulsive, erratic and potentially violent behavior.

Thompson was sentenced to eight years in prison after he unloaded a round from a high-powered rifle into the brick wall of a suburban Atlanta house where his stepmother’s sister lived. No one was hurt, but the bullet terrified the family as they prepared to sit down for a pizza dinner.

The sentence was eventually cut in half by a review panel, but it was tied to an additional order that banned him from living everywhere in Georgia for 20 years but Ware County, which sits about 250 miles from his family.

When the order took effect in April 2009, Thompson moved to a trailer park in Shelby County, Ala. partly because he was promised a job there as a welder and partly because it was a shorter distance to his family and support network in metro Atlanta.

The gig soon dried up, and Thompson’s mother, Andrea Davis, said he lapsed into a manic-depressive state. Prosecutors said he soon sent threatening messages to a North Carolina woman he met online and also lied to his probation officer about a trip to Florida.

He was arrested in Georgia in June 2009 and his probation revoked for 18 months. But when he was released from custody in December, he faced modified living restrictions. This time, he was banned from living just about anywhere in Georgia that was north of Macon.

So he moved to Columbus, where he spends his time on a fruitless job search while obsessing over his legal battle.

The Georgia Court of Appeals opinion did little to bolster his case. The three-judge panel rejected arguments that the banishment order violates his constitutional rights. The order, it said, is designed to help him “have a fresh start without the temptation to reoffend.”

Thompson’s attorney vowed to appeal the case to the Georgia Supreme Court and to federal courts, but he said he’s tired of waiting.

“I’m in disbelief. I can’t believe they would uphold this banishment,” he said. “I can’t get a job, I can’t support myself. I’m barely functioning down here. I’m hanging on for dear life. I served my prison time and I’ve paid my debt, and now it’s time for me to move on with my life.”

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