Two years ago, a man named Bo Dana Rupert stood before a judge in Montgomery County, Kansas, after pleading no contest to charges of criminal threat and interference with law enforcement.
Rupert’s attorney, a public defender in this southeast Kansas county near the Oklahoma border, had negotiated a plea deal with the prosecutor. The proposed punishment for the defendant? Twelve months of probation.
Oh — and get outta town, pardner. “The defendant agrees to transfer his corrections to another State and not return to Kansas,” the plea deal said.
After sentencing, Rupert’s attorney was even more explicit. “Don’t still be here tomorrow when the sun comes up,” he told his client, lest the prosecutor seek new charges.
Rupert took the advice. He left the state — in a car, not on horseback — and hasn’t come back.
Yes, this sounds like a B-grade Western. Sending defendants into interstate exile is wrong, and almost certainly illegal in Kansas.
That’s why the American Civil Liberties Union has filed a motion to strike the banishment part of the deal, declare Rupert’s probation over, and prohibit the county prosecutor from filing new charges if he comes back to the state.
“Kansas was my home for two years, and my banishment sentence has kept me from my family and destroyed the life I was starting to build for myself,” Rupert said in an email provided by the ACLU.
“In Ancient Greece, it was called exile,” the group’s lawyers have told the court. “In the American West, it was called ‘sundown probation,’ the practice of dropping convicted defendants at the state line ... Mr. Rupert is now subject to this very same punishment.”
That punishment clearly fails on moral and practical terms. We don’t flog prisoners anymore, or put them in stocks. State-based exile faded as a punishment in the early 20th century, in part because of its cruelty. Banishment lasts a lifetime.
But it’s also an issue for the states. If Kansas can banish miscreants, why wouldn’t other states do the same thing? Why should one state be able to unload its troublemakers on another?
The ACLU says Kansas law doesn’t permit exile as a punishment. It also points out — reasonably — that Rupert was unable to meet the conditions of his probation in Kansas because he was banned from the state. He was in trouble if he came back, and in trouble if he stayed away.
“This is one of the most bizarre and illegal sentences I’ve ever seen,” said Lauren Bonds, the legal director for the ACLU of Kansas.
It is true that Rupert signed the plea deal, in part to avoid other potential charges and perhaps time in prison. He is not an innocent victim here.
The case is also complicated by some of the facts: The judge in the case accepted the signed plea agreement but never specifically ordered exile as a formal sentence. Lawyers will have to hash out those details.
But the fundamental approach should be obvious: Ordering a defendant to get out of town, by sundown no less, is wrong. If a criminal suspect is to be punished, probation or time in jail are the acceptable options.