Microkhan by Brendan I. Koerner

St. Helena Off Santa Barbara

May 24th, 2010 · 3 Comments

The politics in our native state never cease to entertain, especially when the gubernatorial elections roll around. Who could forget, for example, the ill-fated candidacy of Gary Coleman? This year’s contest seems similarly likely to offer its share of oddities, starting with reactionary Douglas Hughes. Though he has positions on all the major topics of the day, Hughes has chosen to brand himself as the only candidate in favor of exiling pedophiles to one of the Channel Islands:

One of the Orange County Republican’s main campaign promises is to turn Santa Rosa Island off Santa Barbara into “Pedophile Island” where convicted molesters would be housed. Not only that, but they’d be charged with building infrastructure and creating civil society. They’d even write their own constitution.

Hughes argues that pedophiles released from prison end up back in neighborhoods where they’ll strike again. So, he says, put them on the island instead. In fact, under his plan, pedophiles would have to either leave California, stay in prison or go to the island upon their release.

This utterly wacky idea got us thinking about the legality of exile in America. Everything we’ve learned about the “cruel and unusual punishment” ban has led us to believe that banishment is uniformly unconstitutional. But to our surprise, the issue is far murkier than we anticipated: Exile has actually been used in the American justice system in the past, as stated in this 2007 paper:

After the revolutionary war, the newly independent states repaid the loyalists in kind. Eight of the thirteen colonies officially banished those who had supported Britain, while the remainder passed laws that essentially accomplished the same goal. These banishments were challenged in the American courts and ultimately approved in Cooper v Telfair—but the Court was uneasy in its acceptance: “There is, likewise, a material difference between laws passed by the individual states, during the revolution, and laws passed subsequent to the organization of the federal constitution. Few of the revolutionary acts would stand the rigorous test now applied.”

But that didn’t stop certain states from trying to use exile over the ensuing decades. Ultimately, federal courts seem to have come down on the side of banning banishment from one state to another. And Hughes’ plan for essentially creating an Escape from New York scenario almost certainly wouldn’t pass constitutional muster. But what about banning a convict from a city or county? As long as exile isn’t specifically prohibited in a state’s constitution, that might be legally copacetic—especially if the banishment isn’t indefinite.

Read the whole paper on American exile here. We’re dubious on the practice, but we can also see how it might make for a mighty weapon in terms of breaking up criminal enterprises that rely on non-electronic communication.


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3 Comments so far ↓

  • Jordan

    Cities already do that with overly broad exclusion areas for sexual offenders. Miami’s was so bad for a while that offenders were forced to live under a bridge for years.


  • Brendan I. Koerner

    @Jordan: Yeah, I’ve been following that story closely. I think the ultimate problem with that law–from a legal, rather than a fairness standpoint–is that it amounts to de facto exile.

    It’s interesting to speculate on the exact circumstances in which exile would be legal. It would have to be mandated at the state level, as a criminal punishment rather than a city/county ordinance. And it would have to demonstrate that it doesn’t fall into the category of cruel/unusual. Probably impossible in the real world, but still theoretically possible.

  • Yangshao

    i’m very proud to say that i voted for gary coleman in the gubernatorial election years ago. unfortunately, i was only one of seven in yolo county who did. i know two of the other six…