Kentucky Justice? Kicked Out of the Commonwealth

By R.G. Dunlap

Kentucky Center for Investigative Reporting

The decision by Carrollton police to ship an emotionally disturbed man by bus to Florida has prompted a state attorney general’s investigation — and has renewed interest in the centuries-old practice of banishment.

About This Story

This article was produced by the Kentucky Center for Investigative Reporting, a new nonprofit newsroom from Louisville Public Media. You can read more at kycir.org.

The forced removal of a person from a particular area such as that allegedly imposed by Carrollton police on Adam Horine dates back to biblical times.

The Book of Genesis refers to God banishing Adam and Eve from the Garden of Eden. Ancient Chinese and Greek laws recognized its use. More recently, England employed banishment throughout its colonial empire in the 17th and 18th centuries.

But in the current era, banishment “would seem more appropriate to Romeo and Juliet or Great Expectations than to the solution of problems in a modern society,” one legal scholar wrote more than a half-century ago.

Many states explicitly ban the practice, and courts in some others have found it to be unconstitutional. Still, banishment continues to surface periodically.

In January 2013, a Washington, D.C., judge ordered a tree-climbing abortion protester out of the district after he attempted to disrupt President Obama’s inaugural address.

Two years earlier, a Jefferson County judge cut short a chronic panhandler’s jail sentence after the man agreed to return to his native Bell County with the aid of a bus ticket purchased by a police group. Officials said at the time that they hoped to use the case as a template for dealing with repeat-offense panhandlers, according to The Courier-Journal.

And in July 2002, a circuit court judge in Carroll County conditionally discharged a defendant’s 12-month jail sentence with the stipulation that he remain out of the county for two years.

Dan Goyette, the chief public defender for Jefferson County, told the Kentucky Center for Investigative Reporting that “banishment is unlawful and unenforceable in Kentucky.”

Other criminal-justice experts agreed. Although banishment is permitted in a handful of states, it “rarely occurs any more,” said David Harris, a professor at the University of Pittsburgh School of Law. “This is not something from the modern era.”

The issue of banishment gained national attention recently following KyCIR’s investigation into the Adam Horine case. A Carroll County district court judge in late April ordered police to transport the mentally ill, 31-year-old man to Eastern State Hospital in Lexington for psychiatric evaluation. (Read “Police in Kentucky Town Ship Mentally Ill Man to Florida, Defying Judge’s Order“)

Police defied the order within hours, escorted the petty criminal out of jail, drove him 50 miles to Louisville and gave him a one-way bus ticket to Florida. Horine was later charged with escape to ease his extradition to Kentucky. The Kentucky Attorney General’s office is now investigating the matter, and court hearings for Horine are scheduled for Wednesday.

Kentucky Public Advocate Ed Monahan, who oversees the statewide public-defender program, said the state’s courts “have no authority to impose banishment on a person as condition of probation as an alternative to imprisonment.”

Monahan added, however, that a person “must challenge the improper condition at the time it is imposed.”

That was the conclusion reached in one relatively recent case of banishment decided by the Kentucky Court of Appeals.

Lakinda Sharee Butler pleaded guilty in 2007 to possessing marijuana in Fayette County. She received a 12-month jail sentence but was placed on two years’ probation with several conditions, including that she remain out of the county except to pay fines. After consulting with her attorney, Butler agreed.

But when she accompanied a friend to a court hearing in Fayette County less than a year later, Butler was arrested, charged with violating her probation and ordered to serve her time in custody. She appealed, contending, among other things that banishment violated her constitutional right to travel freely within the United States.

In its February 2010 decision, the Court of Appeals noted that the state’s courts cannot make banishment a condition of probation as an alternative to incarceration.

But there was a catch: Because Butler accepted the “invalid probation order” when it was imposed, and later violated it, requiring her to serve the 12-month jail sentence was “not a violation of her constitutional rights,” the court held.

In Horine’s case, courtroom video shows that the prospect of going to Florida was part of a plea deal proposed by the prosecution. But Horine at one point expressed reservations about the deal, saying he didn’t want to go to Florida. And the judge, concerned about his mental health, ordered the psychiatric exam, which Horine has now received.

There also are differing opinions on whether banishment — illegal or unconstitutional — actually achieves its desired goal as a socially acceptable alternative to imprisonment.

In a 2010 article in the journal Law and Social Inquiry, two University of Washington professors concluded that the consequences of banishment “are typically both negative and significant.”

Exile diminishes a person’s sense of humanity, the authors wrote, and they found little evidence that banishment reduces the consequences of homelessness, addiction, drug-dealing — or mental illness of the sort that had afflicted Adam Horine when police sent him to Florida.

Indeed, the authors concluded, banishment actually intensifies “the pain and harm associated with these social problems.”

Reporter R.G. Dunlop can be reached at rdunlop@kycir.org or (502) 814.6533.

Disclosure: Attorney Dan Goyette is a member of Louisville Public Media’s board of directors.