A majority of the jurisdictions examining the issue have held that a probation condition banishing a defendant from a geographic area, such as a state or a county, is typically broader than necessary to accomplish the goals of rehabilitation and the protection of society, and thus is in violation of statutory provisions regarding probation. See Jones v. State (Alaska Ct. App. 1986), 727 P.2d 6 (vacating condition prohibiting the defendant from being within a 45-block area since the condition is `unnecessarily severe and restrictive', unlike a condition which prohibits the frequenting of certain types of establishments, such as bars, where the specifically prohibited activity will occur); State v. Franklin (Minn. 2000), 604 N.W.2d 79 (vacating condition excluding defendant from Minneapolis, Minnesota); State v. Ferre (Or.Ct.App. 1987), 734 P.2d 888 (determining condition restricting the defendant from the county where the victim lives is broader than necessary, but indicating condition limiting banishment to the town, instead of the county, where the victim resides would be reasonable); and Johnson v. State (Tex.Ct.App. 1984), 672 S.W.2d 621 (determining banishment from county where defendant resides is unreasonable). ¶ 26 Some jurisdictions have invalidated banishment conditions based upon a public policy rationale.
These cases are factually distinguishable. The geographic restrictions in Edison v. State, 709 P.2d 510 (Alaska Ct. App. 1985), Jones v. State, 727 P.2d 6 (Alaska Ct. App. 1986), and People v. Beach, 195 Cal.Rptr. 381 (Cal.Ct.App. 1983), all failed because they prohibited probationers from entering areas where they lived or worked. Brockelman neither lived nor worked in Evergreen or Bergen Park. Brockelman also cites In re White, 158 Cal.Rptr. 562 (Cal.Ct.App. 1979), where the court found that excluding the defendant from a metropolitan area could cause the defendant to violate probation inadvertently when traveling through the area on public transportation.
Although the court agreed that the restriction could have been more narrowly tailored, the court held that the restriction was reasonably related to rehabilitation, was not too vague to be understood, and had not invited arbitrary enforcement. See also Jones v. State, 727 P.2d 6, 9 (Alaska App. 1986) ("If the court wishes to impose probation conditions involving area restrictions, it may do so only upon evidence of a relationship between [the] offenses and the prohibited activity or area. They also cannot be so broadly drawn as to deny the defendant access to his residence and occupation.").
In Johnson v. State, 672 S.W.2d 621, 623 (Tex.Ct.App. 1984), the court concluded that banishing Johnson from his county of residence as a condition of his probation was not reasonably related to his rehabilitation when banishment would leave him broke and unemployed. In a similar vein, in Jones v. State, 727 P.2d 6, 8-9 (Alaska Ct. App. 1986), the court vacated a probation condition prohibiting Jones from being within a forty-five block area as not being reasonably related to his rehabilitation. The court determined that the trial court had not given a reason why, in light of the fact that the forty-five block area included both Johnson's work location and residence, it had imposed such a harsh condition.
On the other hand, the restriction cannot be so broad as to have little, if any, reasonable relationship to the crime sought to be prevented. See Jones v. State, 727 P.2d 6 (Alaska App. 1986) (prohibition against being in downtown high-crime area where defendant convicted of marijuana offense lived and worked invalid); Edison v. State, 709 P.2d 510 (Alaska App. 1985) (upon alcohol offense conviction, order to stay out of town not justified); State v. Ferre, 84 Or. App. 459, 734 P.2d 888 (1987) (upon domestic violence conviction, order to stay out of county improper); State v. Jacobs, 71 Or. App. 560, 692 P.2d 1387 (1984) (abuse of neighbors conviction, order to stay out of town not sustainable). Here, the defendant's movements were not narrowly restricted; rather, the restriction related to a large geographic area that was not specifically defined and in which defendant had been, and expected to be, employed on construction projects.
The Oyoghok court rejected arguments similar to those raised by defendant, found no showing that the defendant's liberty was unduly impinged, and concluded the challenged condition of probation was not unreasonable. In Jones v. State (Alaska Ct. App. 1986), 727 P.2d 6, the court vacated a condition of probation prohibiting defendant from being in 45-block downtown area where there was no clear nexus on record between area and defendant's drug-related misconduct, as unnecessarily severe and restrictive and not reasonably related to defendant's rehabilitation. In State v. Morgan (La. 1980), 389 So.2d 364, as in Oyoghok, the court upheld a condition of probation directing the defendant to remain out of the French Quarter in New Orleans for the duration of her probation, as against her claim that the condition constituted a "banishment" in violation of the prohibition against cruel and unusual punishment in the eighth amendment of the United States Constitution. The Morgan court found this restriction against entering a relatively small geographical area of the city could not be equated with loss of citizenship.