Feb 22, 2021
What Does it Mean When a Judge Exiles American Citizens?
SURVEY INCLUDED
In 2012, California state judge Ariadne J. Symons (Superior Court of Santa Cruz County) banished a criminal defendant who is a U.S. citizen, Mr. Kyle Robert Cheza, from the state. She required that he agree not to return to the entire state of California for the probation period, and to reside in another specified US state (Pennsylvania), in exchange for a plea deal that would result in no jail time. The criminal case was for misdemeanor aggravated trespass (entering or remaining in dwelling without consent while resident is present).
Defendant? American born, Kyle Robert Cheza. Age: 42, Race: Caucasian, Height: 5'1", Weight: 175 lbs., Brown Long Hair, Blue Eyes, Mustache & Goatee. Large tattoo on right torso.
After learning that Cheza had sued Symons in federal court for violating his civil rights, we questioned why we could not find any record indicating that local media outlets, judicial oversight bodies, or local politicians had addressed Symons’ handling of Cheza’s case.
SEE: The three federal court decisions in Cheza’s lawsuits are on our Tracker. Sort the database by fields (e.g., “Symons” or “California”).
The practice of banishment is when a judge or state official offers a plea deal for a defendant who is a U.S. born citizen to relinquish state citizenship during a probation period and leave the state, but thereby avoid any jail time. If they return, they are jailed.
Currently, sixteen US states have constitutional provisions expressly prohibiting banishment across state lines. Courts in other states that have not codified prohibitions, have nonetheless rejected the legality of the practice. Justifications for the judicial bans range, including court rulings that interstate banishment is unconstitutionally cruel and unusual punishment pursuant to the Eighth Amendment. Other courts have held that exile violates separation of powers because the judiciary cannot subvert the legislature in defining a state’s penal code.
One of the most prominent reasons that Symons’ actions warrant scrutiny is the fact that California’s courts outlawed exile as far back as 1946. Nearing 75 years ago, the California state court ruled that a banishment order conditioning probation on the defendant leaving San Joaquin County for two years was “an unlawful increase of punishment . . . not provided by statute, and therefore void.” In re Scarborough, 76 Cal.App.2d 648, 650 (1946).
The Scarborough court did not define constitutional law as the basis upon which it built its judgment. Instead, admonishing that the practice would naturally invite other states to retaliate by flooding refugees across the Californian border, the court articulated the following principles of public policy:
To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the Union itself. Such a method of punishment is not authorized by statute, and is impliedly prohibited by public policy.
In [a prior . . . case, Lopez], the court held that the portion of the judgment of conviction, which provided that “defendant is to be deported to Mexico,” is void.
The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city. The old Roman custom of ostracizing a citizen has not been adopted in the United States. The so-called “floating sentence,” too frequently resorted to in some inferior courts, falls in the same category. There is no statute in California authorizing such judgments.
As such, the Scarborough opinion directly equated the exile of California state defendants who are ejected across state borders with the deportation of foreign-born defendants ejected internationally. Scarborough also expressly prohibited banishment even from the local borders of municipal subdivisions, such that a defendant cannot be precluded from residing in a California city or county in exchange for sentencing leniency.
Orders precluding defendants from local areas are not uncommon in various U.S. states. Such “intrastate” preclusion orders have been adopted in response to rises in specific offenses, such as drug crimes. Defendants are banned from certain regions or localized areas (parks, schools, buildings, neighborhoods, etc.) in an attempt to disrupt their activities and networks. By contrast, California’s categorical rejection of exile from any territory within the state is more stringent and grounded in principle.
Another salient value underscoring the Scarborough decision is concern that sending defendants to other states will result in a refugee war. Once neighboring states recognize that they are being assigned to domicile convicted criminals — without the recipient state’s consent — the resulting rancor could lead to retaliation and a hypothetical flood of refugees. Consequently, the only accomplishment would be to inherit anther state’s defendants without California having any oversight jurisdiction over their probation.
These public policy principles would be reemphasized in 1959, when the California state court asserted: “It was beyond the power of the court to impose banishment as a condition of probation. The provision therefore was a void and separable part of the order granting probation. Revocation of probation upon the sole ground of violation of such a void provision was without authority in law.” People v. Blakeman, 170 Cal.App.2d 596 (1959). The Blakeman court further ruled a defendant cannot make a voluntary agreement to accept banishment as a substitution for other penalties: “A defendant may waive formalities established for his protection, but not that which is essential to a valid judgment. Lack of jurisdiction may not be waived, nor may jurisdiction be stipulated.” Under precedent, California state officials have no authority to banish a defendant across state lines in exchange for lenient probation conditions.
The magnitude of a sitting judge undertaking to impose a sentence that the state’s court has banned should have merited some outcry, if not from the public at large, then certainly from the legal and civil rights advocates. Instead, there was abject silence. No one examined the judge’s actions, nor raised a flare about governmental abuse.
We question why. Below we discuss the practice’s roots in American history, from the conservative South to “progressive” industrialized centers. The politics of banishment do not adhere to the partisan divides our national discourse would impose or elicit if the subject was a matter of open discourse.
In fact, currently, do most Americans consider banishment of defendants across state lines to be an act of “mercy”? What would you do if given the choice?
BONUS: Complete a survey (6 Questions, 3 minutes). SURVEY LINK: Sanctuary and the Banishment of America’s Sons (and Daughters) Survey (surveymonkey.com). Group results revealed as soon as you complete the survey.
Southern Roots. Modern Freedoms?
When analyzing the historical development of banishment in the US, one researcher from the 1960s traces its application to African Americans in the deep South during the pre-Civil Rights era, to the homeless, and to immigrants as a lever for eradicating social dilemmas where political consensus fails.
SOURCE: Banishment: Cruel and Unusual Punishment, University of Pennsylvania Law Review, Vol. 111 (1963)
EXCERPT: “In the course of the South’s current struggle with its race problem, increasing efforts have been made to remove, not the problem, but the race. “Freedom riders” are told by judges and warned by governors to get out and stay out; “sit-ins” are advised that there are no seating problems at lunch counters in New York City; Senators present plans to finance a Negro exodus to Africa; and citizens councils provide free bus transportation and pocket money for voluntary exile to Hyanisport.”
The misdemeanor charges often levied at protestors from all walks of life, even today, are not that distinguishable from the misdemeanor to which Cheza plead guilty (aggravated trespass). Protest movements in our nation’s history are marked by local officials “encouraging” carpet baggers to leave “peacefully” — as a warning. Without question, legal advocates and scholars would bristle and battle if modern protestors were induced to abandon their state residence to avoid a prison sentence for such a low-level charge. The disparity in the reaction to Cheza’s case may be due in part to the purpose underscoring the act under review, even if the underlying legal elements are the same?
Yet, social and political activists are certainly not the sole or the primary historical targets of banishment proceedings in the U.S. The homeless are routinely sifted and shuttled out of rejecting jurisdictions.
As of the 2020 election cycle, new laws affecting homeless populations have gone into effect in various states.
For example, “the City of Las Vegas, [Nevada] has a new vagrancy law under 10.86.010 called the ‘[E]ncampment [O]rdinance.’ This new law makes it a misdemeanor for people to sleep or otherwise camp out in certain areas if there is space available at shelters. Penalties . . . include up to 6 months in jail and/or up to $1,000 in fines.. . . In addition, Nevada has a vagrancy statute under NRS 207.030 which is enforced throughout the state, including Las Vegas.. . . Defendants convicted on more than one count of being a vagrant must serve their sentences consecutively, not concurrently. . . . [A]ble-bodied people jailed for vagrancy may be required to perform labor on the public works, buildings, grounds, or ways in the county.”
SEE: Does Las Vegas Have a Vagrancy Law?, Las Vegas Defense Group (Oct. 27, 2020)
Notably, the practice defies partisan attribution. While Nevada has trended as a “red” state (with a Republican voting base), urban Las Vegas is a growing Democrat base. Commentators identify a population shift caused by California citizens relocating to Nevada and bringing a heavy influence of Democratic Party affiliation.
SEE: Blue Metros, Red States: America’s Suburbs and the New Battleground in Presidential Politics, University of Nevada (Oct. 15, 2020)
Where did Kyle Cheza fit in? A discussion about banishment can be couched in terms of mercy or avoidance of prison costs as a matter of public finance, but is the true motive erasing the presence of the rejected within a local community? Would your assessment of Symons’ conduct differ if her bargain with Cheza was based on such motives? How can we know?
Given that judicial banishment is outlawed in California, how did judge Symons get away with it?
TO DOWNLOAD e-BOOKLET (64 pp.) about the topic of American banishment, including its application to veterans, domestic violence victims, and residents on Native American land, see: “No Sanctuary, My American Son.” The booklet also diagrams how the federal court system blocked Kyle Cheza’s lawsuit “quietly” — and never answered for it.
