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October 23, 2006

Banishment as an alternative sentence, eh?

Thanks to this post by Brooks Holland at PrawfsBlawg, I see that folks in upstate New York are giving banishment a try as an alternative sentence.  Here are details from this article in the Toronto Globe & Mail:

After a judge convicted him of sexually abusing a 15-year-old student, teacher Malcolm Watson was offered two punishment options: an American jail cell or exile to Canada. Mr. Watson chose Canada. The unusual sentence, which has immigration lawyers questioning its legality, means that Mr. Watson, 35, must stay out of the United States for the next three years....  Under the sentence imposed by Cheektowaga Town Court, Mr. Watson must remain in Canada, and can enter the United States only to report to his probation officer.

Erie County district attorney Frank Clark called the plea deal "a little dicey" but said the family of the 15-year-old victim was happy.  So were some U.S. law-enforcement officials: "He's Canada's problem, not ours," said one, speaking on condition of anonymity....

The negotiated deal was designed to spare the 15-year-old victim from testifying in court, Mr. Clark said, and achieved two goals: Mr. Watson wanted to "return to Canada to be reunited with his family," while the parents of the victim wanted to ensure that Mr. Watson had no contact with their daughter. "They hope he stays in Canada for the next 500 years," Mr. Clark said.

Since I am a fan of creative sentencing justice, I think this is an encouraging sentencing story.  But I have an inkling that banishment as a sentence might not sit well with others.   Thoughts?

October 23, 2006 at 06:10 PM | Permalink

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» New Federal Prison: Canada from a Public Defender
Thanks to Prof. Berman, we learn of this alternative sentencing:After a judge convicted him of sexually abusing a 15-year-old student, teacher Malcolm Watson was offered two punishment options: an American jail cell or exile to Canada. Mr. Watson chose... [Read More]

Tracked on Oct 24, 2006 7:54:35 AM

» New Federal Prison: Canada from a Public Defender
Thanks to Prof. Berman, we learn of this alternative sentencing:After a judge convicted him of sexually abusing a 15-year-old student, teacher Malcolm Watson was offered two punishment options: an American jail cell or exile to Canada. Mr. Watson chose... [Read More]

Tracked on Oct 24, 2006 7:58:48 AM

» Tuesday Roundup from ACSBlog: The Blog of the American Constitution Society
A teacher convicted of sexually abusing a 15 year-old student has been banished to Canada as punishment. Shavar Jeffries argues that courts should allow plaintiffs to assert that they are entitled to compensation for injuries due to pre-13th Amendment ... [Read More]

Tracked on Oct 24, 2006 2:49:00 PM

» New Federal Prison: Canada from a Public Defender
Update: Canada doesn't want our sex offenders. Who can blame them? We don't either!Ontario is not a “dumping ground” for American sex offenders, Premier Dalton McGuinty said Tuesday as he urged Ottawa to fight a U.S. judge’s decision to allow [Read More]

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Comments

The article indicates it doesn't sit too well with the Canadians.

"Although he refrained from commenting on the case for privacy reasons, [Immigration Minister] Solberg used tough language to describe how Canada would deal with non-Canadians convicted of crimes elsewhere.

'If non-citizens pose a threat to Canada, we will do everything in our power to have that person removed as quickly as possible,' he said."

You can hardly blame them.

Posted by: Kent Scheidegger | Oct 23, 2006 7:07:57 PM

question: If he is deported from Canada for his U.S. conviction, will that violate his probation here?

Posted by: Gideon | Oct 23, 2006 7:09:39 PM

I'm with you on creative sentencing, DAB. But this isn't the way.

I think there's a pretty good reason why banishment (or "transportation," as it was known in a more innocent time) sounds like a relic of the 17th century: it is one.

One sovereign casting its unwanted off to another is wrong on two levels. First, as to the receiving state, it's humiliating to be told that a more powerful neighbor's criminals are your problem. Second, as to the sending state, banishment is a fundamental rejection of the principles of punishment at the hand of the offended sovereign, rehabiliation, and eventual reintegration into the community.

I know a lot of law enforcement workers will say that fighting crime is all about moving it elsewhere, but this formalizes it a bit too far.

Posted by: Matthew | Oct 23, 2006 7:38:56 PM

Two other points I feel compelled to raise, upon noting that it was a New York town court that imposed this sentence:

1) Do states even have the power to do this? The federal government has plenary power over citizenship and immigration issues, does it not? Even if one were to argue that Watson is free to return and simply be held in violation of probation, I think that he could legitimately argue that the Privileges and Immunities Clause (it lives!) prohibits a state court from burdening his right as a U.S. citizen to be in the United States. He may not want to, of course, but I have grave doubts about the constitutionality of this sentence.

2) The New York Times recently ran a fascinating series about the crazy you-know-what that happens in New York's small-town courts. It has unfortunately passed into the website's pay-per-view archives, but the series was titled Broken Bench and ran Sept. 25, 26, and 27 of this year. Worth a read if you have a library with access to back issues.

Posted by: Matthew | Oct 23, 2006 7:56:02 PM

Banishment is not allowed in Massachusetts. Maybe a narrowly-drawn exclusion zone related to the offense, but not a punt of the problem to another jurisdiction.

Here's a free link to the NYT story:
http://www.amhersttimes.com/index.php?option=com_content&task=view&id=2878&Itemid=27
I'm told that it's exaggerated due to reliance on complaints rather than typical court experience.

But there is another New York-specific issue. The lowest-level courts do not have jurisdiction over felonies. Ten or so years ago a rape case was plea-bargained to a lesser offense. The victim's family didn't care for the deal and caused a major uproar in the press. It turned out the judge did not have jurisdiction to accept the plea bargain because rape is a felony and he could only hear misdemeanor cases. The case was re-opened in the proper court. (In Massachusetts we have a rule that a felony defendant _is not allowed_ to plead guilty at arraignment in district court. Only a superior court judge can accept a plea.)

It is possible that a "town" judge has authority where a "village" judge does not.

Posted by: John Carr | Oct 23, 2006 9:15:14 PM

Just to point out the obvious, shipping our rapists to Canada doesn't strike me as very good diplomacy. On the other hand, I suppose Canada is under no obligation to accept him, but it still has to deal with the guy being dropped on their doorstep, which doesn't seem fair. The quote about him being Canada's problem and not ours says it all, I think.

I'm in favor of creative sentencing in principle, but not this particular form of it. Perhaps if the guy had the option of sitting in stocks 8 hours day for a year with a sign board proclaiming that he sexually assaulted a student.... just to bring the shaming debate up again.

Posted by: WB | Oct 23, 2006 10:12:36 PM

Mining geologist

I am angered as a Canadian that once again American courts seem to take for granted that extraterritorial application of US federal or state law and sentences is acceptable. I can just imagine the enraged comment on US media outlets if a Canadian court was presumptuous enough to do this in reverse. Where is the famous American regard for the process of law ?

Roy Wares

Posted by: RW | Oct 24, 2006 2:39:01 AM

Roy Wares is correct, just turn the situation around and imagine the fury.

Posted by: Timothy Scriven | Oct 24, 2006 3:31:33 AM

While it does not appear this guy is giving up his citizenship, any extension of this idea might run afoul of the Supreme Court's decision in Trop v. Dulles (1958) which found expatriation to be a violation of the 8th Amendment.

Posted by: Osler | Oct 24, 2006 10:08:00 AM

I saw this story on the Canadian Broadcasting Corp. National news broadcast last night. Apparently, the defendant pleaded to misdemeanor counts in New York, apparently with a three-year maximum. According to the CBC, he is not deportable under Canadian law unless the penalty for the corresponding offense in Canada would be at least 10 years, so the CBC thinks he will get to stay in Canada. The CBC story also indicated that, if he were deported from Canada, the plea agreement would be violated, and would have to be re-worked, starting from square one all over again.

Posted by: Greg Jones | Oct 24, 2006 5:05:53 PM

The case I was thinking of, where the prosecutor improperly had a town court accept a plea bargain to a misdemeanor in a rape case, is _People v. Cummings_, 159 Misc. 2d 1118; 611 N.Y.S.2d 1011; 1994 N.Y. Misc. LEXIS 153. It may be relevant whether an indictment had been returned and what degree of felony was charged. New York has statutory limits on plea bargains and prosecutorial discretion after charges are filed.

Posted by: John Carr | Oct 24, 2006 6:58:13 PM

Canada, at least South of 54 40, isn't exactly hardship duty. Basically, the criminal justice officials have traded criminal charges for a restaining order.

Given that the defendant had family in Canada, do we even know that he was an American?

I suspect that an incompetent, non-legally educated judge is involved here, two-thirds of Justice Court judges in New York aren't admitted to the bar (as noted in the NYT series), and they are routinely the subject of serious violations of judicial ethics and routinely make incompetent decisions.

I now practice in Colorado, where non-lawyer judges are far more rare (about 0.1% of FTEs in the state court system, and few in municipal courts who have jurisdiction limited to ordinance violations $300/90days in jail with appeals through trials de novo when non-attorneys preside), and those non-lawyers that do serve tend to be much better educated than those in New York), and there are far fewer complaints about judicial malfeasance as a result.

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