On July 10, 2019, the ACLU of Kansas filed a motion on behalf of Bo Dana Rupert to correct an illegal 2017 sentence banishing him from returning to the state of Kansas.
Rupert pled guilty to two counts of criminal threat and three counts of filing a false report in August of 2017. At the time of sentencing, the presumptive sentence for his base offense was correctly identified as 12 months of probation.
But during Mr. Rupert’s guilty plea, the Court also accepted the terms of a plea agreement Rupert had entered with Markle. In negotiating Rupert’s plea agreement, Markle made clear he was bent on having Rupert leave town for good. The plea agreement included a requirement for Mr. Ruper to both leave and never return to the state of Kansas.
"Banishment" amounts to a form of illegal punishment that harkens back to the draconian penalties of Ancient Greece or the vigilante justice of the Old American West. This American "sundown probation" was all but eradicated by a compact between the States as early as 1935. Other states that have considered the question have, over the past century. unambiguously found that banishing a criminal defendant from an entire state is a form of illegal sentence that violates state public policy.
Mr. Rupert’s plea agreement stated, “If the defendant does return to Kansas then […] the County Attorney may consider filing all other charges for additional offenses not filed now”). Mr. Rupert felt he had no choice but to accept this agreement.”
Rupert’s lawyer’s final admonition was, “Don’t still be here tomorrow when the sun comes up. Failing to do so, he warned, would violate Mr. Rupert’s plea agreement and expose him to a harsher sentence for breach of his agreement.”
Mr. Rupert misses his home in Kansas and has family he wishes to see. He wishes to return to the State without the fear of violating his criminal sentence or otherwise risking exposure to additional charges for violation of his plea agreement with the State
The ACLU of Kansas' motion requests that the District Court of Montgomery County strike the portion of Mr. Rupert's sentence banishing him from the State of Kansas, declare that Mr. Rupert’s probation sentence has been served in full, and order that the County Attorney may not attempt to enforce Mr. Rupert’s condition of banishment through subsequent prosecution.”
