December 2006, Volume 92, Issue 8
A Line in the Sand: Implementing Scene of the Crime Stay-Away Orders as a Condition of Pretrial Release in Community Prosecution
by Robert Prince
92 Va. L. Rev. 1899 (2006)
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The goal of community prosecution is to improve quality of life as defined by each neighborhood’s residents. The presence of ongoing drug and prostitution markets harms victimized neighborhoods far more than the sum of the individual impacts of each transaction would suggest. One of the most effective tools available to community prosecutors is the exclusion of offenders from crime-prone areas, for two reasons. First, drug and prostitution offenses rely on the presence of an identifiable market, which can be disrupted by the exclusion of potential buyers and sellers. Second, the impact a single criminal has on quality of life is multiplied by the presence of other offenders.
This Note examines one potent form of exclusion which has received almost no appellate review or scholarly examination, scene of the crime stay-away orders as a condition of pretrial release, showing that pretrial exclusion is an effective means of improving quality of life in crime-plagued neighborhoods. This proposal raises immediate questions: Is it legal? Does it infringe on the defendant’s constitutional rights? Does it punish a defendant before conviction? The Note answers each question in turn. First, it demonstrates how pretrial stay-away orders serve the purposes of pretrial release conditions, ensuring appearance at trial and protecting the community from harm. Next, it demonstrates how the orders avoid likely constitutional challenges based on right to travel, right of free association, double-jeopardy, and vagueness. Finally, the Note presents a four-pronged approach to implementing scene of the crime stay-away orders that limits the punitive effect of the orders and ensures that the orders meet the associated policy goals while complying with statutory and constitutional requirements.
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