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Banishment: Using an Ancient Solution to Address a Modern Problem

by Benjamin Tschirhart

The old has become new again in the city of Saint Louis. For several years now, police have been issuing “neighborhood orders of protection,” which forbid a cited person from entering a specific municipal area for a certain amount of time. Those found in violation of the order may be arrested and criminally charged. The gap between the haves and the have-nots is growing.

Ancient Origins

Ostracism is one of the oldest forms of democratic discipline, first appearing in the historical record around 500 BCE in ancient Greece. Each year, the voting citizens of Athens had the chance to banish one person from the city for a period of 10 years. Each man in the assembly would scratch the name of his candidate on a clay pot shard or ostrakon. The person whose name appeared the most was forced to leave the city for a period of 10 years. If he returned before that time, the penalty was death. However, his property and estate were not forfeit, and he could reclaim them, stepping back into social life upon his return.

Ostracism was used in ancient Greece as a preemptive measure. In this way, it bears some resemblance to its modern usage. A person was sent away from the city when the populace feared that he might become a problem but before he could make trouble politically. The difference is that those who were banished from Athens were usually wealthy citizens with the potential to exert influence over the assembly and the city-state. They had independent means and wealth. Our modern incarnation is a good deal pettier and more sordid.  In our time, those being banished are mostly the poor, the homeless, vagrants, and addicts.

In 2003, the St. Louis Board of Aldermen unanimously passed an ordinance that spelled out penalties for violating the orders of protection. It is not clear, though, whether the orders had existed prior to that date. Of all the bill’s sponsors, four are still living: Jay Ozier, Dionne Flowers, James Shrewsbury, and Craig Schmid. When approached, three of the four said they could not remember the reason for passing the bill. This is odd, considering that the measure must have garnered wide support among the Board members, especially given its unanimous passage. The bill itself contains clues to its origin, in language alluding to drug offenders:

“Whereas, the illegal distribution, possession, sale and manufacture of controlled substances continues to plague our neighborhoods.…”

The application of the measure has been a good deal broader than was likely intended by those who wrote and passed it. One board member, Ozier (who served from 2002-2003), spoke candidly about the implementation of the ordinance, saying “If you’re talking about … panhandling or something like that, I don’t see how I could have been in favor of it.”

The Orders in Action

So exactly what are we talking about? First, it should be mentioned that St. Louis is not the only city using some form of banishment as preventative policing. Other U.S. cities (like Seattle and Cincinnati) have used “exclusion zones” to the outrage of civil rights activists. Also noteworthy is the fact that a court ruled the practice unconstitutional in Cincinnati. The case made it to the Supreme Court, where the ruling was upheld.

Beyond this however, it is not well known how common the practice is across the country. It is not often addressed publicly, much less subjected to open debate. The severity of the orders varies widely, with some lasting only a year or two, while others will not expire until 2099. Violation of the orders can result in fines up to $500 or jail time – sometimes as long as 90 days.

According to University of Washington professors Katherine Beckett and Steve Herbert, the secrecy surrounding the practice is not an accident. These measures are “largely deployed without much fanfare … part of the problem is that these legal tools are very much under the radar”

From the available information, it seems that the exclusion orders are often sought and enforced by private security companies working in wealthy and upscale neighborhoods. Circuit courts have not issued exclusion orders since Kimberly M. Gardner became prosecutor; now, the orders are often given by judges in municipal courts, where defendants usually have no counsel and where the proceedings are unlikely to attract much
public attention.

Alvin Cooper was homeless, sleeping on a vent grate outside the Enterprise Center while a hockey game was being played inside. The temperature was 38° Fahrenheit. The St. Louis police told him to move, and he refused. They then arrested him, using “knee thrusts” to his leg, and “nerve pressure points” behind his jaw and ear. Although the city prosecutor dropped the “resisting arrest” charge, he pleaded guilty to trespassing and signed an order of protection, which banned him from the 1.2 square mile area downtown where he was arrested. This area also happens to be where many social services are located.    

The People Disagree

Assistant professor of criminology Victor St. John of St. Louis University believes that the potential benefits of such bans are outweighed by their harms, particularly “in terms of individuals not being able to engage with family members or friends.… It’s a restriction on resources that are freely available to everyone else.”  Public Defender Mary Fox thinks that “It reeks of redlining.… It reeks of everything that happened before the Civil Rights Act went through – just allowing them to keep certain people out of their neighborhoods.”

The picture doesn’t improve when one finds that much of the leg work to enforce these bans is done by private security firms, hired by wealthy neighborhood residents to protect their property (at the expense of others’ civil rights if necessary).

This raises an interesting question. Are the people being banned even fully aware of what is being done to them? A neighborhood ban must be signed (and thus consented to) by the person who is banned. Police and courts use this presumed “consent” to bypass questions of constitutionality. But defense attorney Maureen Hanlon doesn’t buy it. “I don’t think the actual terms of the neighborhood orders of protection were clear to my client.… It states that he consented to it, but he was unrepresented at the time.”

Megan Green, recently elected president of the city Board of Aldermen, is inclined to agree. “If you are banning somebody from downtown from the area where services are, that makes it that much harder to address the needs … if you’re just banning somebody from a certain area, and never addressing the behavior, chances are that behavior just moves to another block or another neighborhood.” She questions the fundamental efficacy of the entire concept. “So, I’m not sure how effective something like this is at achieving what folks are going for.…”

But it might simply be the case that what Missouri is “going for” is something altogether more sinister and bleaker than Ms. Green imagines. In June of 2022, Missouri Gov. Mike Parson signed legislation making it illegal for homeless people to sleep on state-owned land.

Jim Whyte manages “The City’s Finest,” a private policing initiative in the Central West End of the city, an affluent, upscale neighborhood. He defends the use of these orders, citing their usefulness in dealing with “these very problematic people.” He frequently calls police when he witnesses a panhandler who he believes is violating a neighborhood order, expressing frustration when police aren’t available to enforce them. He has been aggressive and persistent in pursuing orders against panhandlers, addicts, and those he deems “mentally unstable” and “disruptive at local businesses.” He supports the orders as a final resort when warnings from police fail to solve problems of drug addiction or homelessness. “They wouldn’t heed any other warnings by the police, they wouldn’t confirm, their behavior was antisocial.”

ACLU Missouri abandoned an attempt to challenge the orders in court 10 years ago; they lacked sufficient information and did not have regular contact with a potential plaintiff for the case. Their position is clear, though:

“City courts violate the constitutional rights of Missourians when they issue broad, arbitrary banishment orders untied to any legitimate governmental purpose … the fact that such orders are used against people who have committed harmless, petty crimes only makes plain that the orders are about inconveniencing the vulnerable, and not about public safety....”

Sources: propublica.org; Williams, Kipling D. (2002). Ostracism: the power of silence. New York: Guilford Press. ISBN 1-57230-689-0. OCLC 47443948; Missouri Independent

 

 

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