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Banishment By A Thousand Laws

February 8, 2009

BANISHMENT BY A THOUSAND LAWS: RESIDENCY
RESTRICTIONS ON SEX OFFENDERS

Corey Rayburn Yung

In 1932, the Soviet Union instituted the policy of propiska to control the internal movements of its population. As a component of the propiska system, people without an “acceptable occupation” were exiled from major cities. The exiles were instructed not to live within 100 kilometers of designated cities within the Soviet Union.

The practice of banishing people to the 101st kilometer was later expanded to include criminals, homeless
persons, prostitutes, and political dissidents. One of the last great purges to the 101st kilometer accompanied the 1980 Moscow Olympic Games as the Soviet Union sought to project a positive image of its capital city to the world community. The practice gave rise to the expression “taken to the 101st kilometer” which is still a storied and harrowing phrase in Russia and other former Soviet states. Members of exile communities lived in a social “abyss” where people were separated from their families, friends, and the only places they had
ever known. Even after the collapse of the Soviet Union, and the resultant end of banishing persons to the 101st kilometer, the former exiles have struggled to reintegrate into a society that they forcibly left so long ago. The Soviet Union’s use of mass banishment of select classes of persons from designated areas is one of the few experiments with such a practice in modern societies. It also has striking similarities to the various regimes set up in the United States to control the living arrangements of sex offenders.

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Nineteen states and hundreds, if not thousands, of localities have adopted sex offender residency restrictions. Bills to establish residency restrictions are currently pending in another twelve states.

Given the recent development of residency restriction laws and a political environment toxic to the status of sex offenders, the number of states and localities with residency restriction laws will likely continue to grow. The typical residency regulation establishes an “exclusion zone” around schools, child-care facilities, parks, and/or other locations where children are commonly found. The exclusion zone usually requires that a sex offender live 500 to 2,500 feet from any listed protected locations. A single exclusion zone affects just a small geographic area. However, the cumulative and aggregate effect of the many exclusion zones adopted at the state, local, and neighborhood levels, prevents sex offenders from living in many cities, towns, and communities. Further, as one jurisdiction has attempted to restrict the residency of its sex offenders by creating exclusion zones, neighboring communities have followed suit to avoid becoming a haven to local sex offenders. The result is an emerging race-to-the-bottom pattern where communities are moving to prevent sex offenders from flocking to their exclusion-zone free municipalities.

In this article, I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed “internal exile.” Internal exile is an uncommon practice in the West and within the United States. Consequently, the advent of exclusion zones for sex offenders is a development that could fundamentally alter basic principles of the American criminal justice system. I argue that exclusion zones represent the reemergence of banishment as a form of punishment in the United States.

Examining the connections between banishment and exclusion zones is essential to effective policy-making for sex offenders for several reasons. First, from a doctrinal standpoint, if exclusion zone laws “resemble”banishment, then the laws are presumed punitive in nature. If the statutes are punitive in nature, the laws cannot normally be applied retroactively (as most of the exclusion laws are), double jeopardy challenges are viable, due process claims are strengthened, cruel and unusual punishment claims may succeed, and other constitutional protections are heightened. If, however, legislatures are successful in portraying exclusion zones as entirely regulatory, then the ability to zone out any group of undesirables in America becomes a legal possibility. In the United States, the only targeted group so far has been sex offenders, easily one of the most unpopular populations in the nation. However, the legal arguments in support of these sex offender laws could apply to numerous other outcast populations as well. Second, from a policy perspective, the degree to which exile resembles the establishment of exclusion zones allows us to learn from prior experiences with internal exile systems. The Soviet exiling someone to the 101st kilometer is one of the few examples of internal exile in modern developed societies. As a result, I draw substantially from the Soviet experiences in understanding the nature of internal banishment and its consequences.

Third, banishment is a unique punishment because of the social signaling it represents. Total social ostracization and isolation, without the possibility of reassimilation, is a punishment that carries a different set of assumptions and goals than a typical criminal sentence in America. By casting out sex offenders because of a political environment charged with hysteria and fear, America is in danger of undermining basic principles in our democratic structure. This article is structured as follows: Part I explores the history and law of banishment as a form of punishment in the West generally, and in the United States, specifically. Part II discusses the development of sex offender exclusion zone laws and judicial responses to those laws. Part III
identifies the connections between historical practices of banishment discussed in Part I and the new exclusion zone laws reviewed in Part II. Part IV shows how the linkages between exclusion zones and exile ultimately raise substantial legal, policy, and ethical problems for residency restrictions on sex offenders. I conclude by looking to the future of sex offender laws in America.

Read entire paper here (PDF).

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