The Swampy Loophole in the Georgia Constitution

In 1777, the U.S. state of Georgia adopted its first-ever state constitution. The document does what most constitutions do — it outlines the structure of the state government, the process for making and enforcing laws, and the like. It has been revised a number of times over the last two-plus centuries, with most versions mostly following the language and rules set forth by the previous version. In 1861, though, coinciding with the state’s decision to secede from the United States in an effort to maintain slavery, the state added a Bill of Rights to the document. That section — now Article I, Section I of the Georgia State Constitution — has remained mostly unchanged since, with two exceptions. First, in 1865 — after the Civil War — the state amended it to abolish slavery. And second, in 1877, they added the following language:

Paragraph XXI. Banishment and whipping as punishment for crime. Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime.

It’s very clear: if you commit a crime in Georgia, and the state convicts you and sentences you for punishment, that punishment can’t include whipping, and it the courts can’t banish you from the state. It’s very straightforward. 

And yet, as recently as 2001, criminals have found themselves, effectively, banished from Georgia. The trick? They get sent to the swamp. Echols County, specifically.

Echols County is in the south of Georgia, bordering Florida (here’s a map). Of the 159 counties in Georgia, Echols County is the 152nd least populous and number 155 by population density. It is very rural, with swampland occupying a lot of the region; according to American City and Country, it is “the only Georgia county without incorporated municipalities.” (Even the county seat of Statenville unincorporated, and, perhaps descriptively, it was once named “Troublesome.”) As of the 2010 census, nearly a third (32%) of its roughly 4,000 residents live below the poverty line. And that’s an increase — in the wrong direction — from the 2000 census by about eight percentage points. As of 2001, per the Atlanta Journal-Constitution, it has “no restaurants, hotels, or banks” across its 412 square mile expanse. It’s not a great place to go if you’re looking for better jobs or other economic opportunities.

So if you’re a criminal looking for a second chance, you probably don’t want to move to Echols County. And that gives prosecutors and judges a tool that the state constitution probably didn’t intend, but one that some law enforcement officials appreciate. In 2001, Kelly Burke, then a district attorney in Macon County, Georgia (150 or so miles from Echols) explained his perspective to the Los Angeles Times, “advocat[ing for] banishment as a positive alternative to prison that gives the offender a chance to start fresh.”Per the Times, Burke was “particularly fond of banning drug dealers, saying it takes away the local customers and contacts they need to stay in business.” And Article I, Section I, Paragraph XXI of the state constitution? Not a problem.

The state constitution, per the text above, bars “banishment beyond the limits of the state” — again, that’s clear. But those last five words — “beyond the limits of the state” — are important. Georgia courts have interpreted the clause to imply that if you want to banish criminals from part of the state, that’s entirely fine. For example, in 1975, the state Supreme Court heard a case where a criminal defendant was banished from seven of the state’s 159 counties; and held that “the sentence in the present case is within the broad definition of banishment as that term generally has been used.” In other words, it’s perfectly okay for the state to banish convicts from part of the state. 

So, every so often, that’s what they do. The Atlanta Journal-Constitution explains why in a 2001 article:

Here’s how it works. In a plea agreement, defendants are given the option to move from Georgia for a specified period instead of going to prison. Legally, the agreement bans the defendant from 158 of 159 counties, this skirting the state’s constitutional banishment clause. The one-county exception, court officials, say, usually is Echols. The reason: Officials believe no one would actually move there.

And it seems like those officials are likely correct. In the second part of that Journal-Constitution article, John Petrey, then the chief district attorney for DeKalb County (about 250 miles from Echols) told the paper that “he has prosecutive more than 200 cases in which defendants were banished to Echols.” But Olaph White, a┬áretired sheriff in Echols told the paper that, as far as he knows, none of them showed up in his jurisdiction. Presumably, all of them left Georgia entirely.

Whether you think the loophole is just or not, it is likely not going away anytime soon. Just a decade ago, in 2011, the state courts upheld another de facto banishment using the same loophole (with a wider approved zone than Echols alone), and the state government has shown no interest in amending the constitution to account for the loophole.

Bonus fact: Georgia was one of the first places in the United States to ban slavery – kind of. In 1733, a British Member of Parliament named James Oglethorpe established the colony of Georgia, hoping to make it a place for “the unemployed and the unemployable” — that is, those who were currently poor but could make a liviing for themselves if given a fresh start. Seeing that slavery was inconsistent with that ambition, the colony explicitly banned slavery. But as Valdosta Today reports, that began to change quickly. Before the decade was out, “colonists, not content with the results they were seeing from their hard labor, argued that slaves were the only suitable method of achieving prosperity.” It took another decade but that view ultimately gained a lot of popular support, and in 1751, Georgia lifted its ban on slavery and began bringing in enslaved Africans. By the end of the American Revolution, approximately 40% of Georgia’s population were slaves.

From the Archives: The Barrier City: The tiny part of Georgia that existed for ridiculous reasons.