South Carolina Criminal Defense Blog

Any person who is convicted of a "no parole offense" as defined in § 24-13-100 must complete community supervision upon their release from jail. Basically, this means when the person is released, after serving 85% of their sentence, they are on a sort of probation for two years. If the community supervision is revoked, a process similar to a probation violation, they are sent back to prison for up to one year, in the judge's discretion. This could happen over and over again.

Until now, many people have been caught in a revolving door, in and out of prison even when the amount of time served has greatly exceeded the amount of time they were originally sentenced to. In 2004, the South Carolina Supreme Court heard the issue in State v. Mills, and held that the plain language of the statute provided that community supervision revocations could cumulatively total twice the original amount of time a person was sentenced to. But the Court stated clearly that the sole issue before them was the statutory construction of the community supervision statute, and they did not address the glaring constitutional issues involved.

In State v. McGrier, decided last week, and argued by defense attorney Charles Grose of Greenwood, S.C., the Court revisited the community supervision statute and recognized that, as applied to persons who have already served the entire amount of time they have been sentenced to, the community supervision statute is unconstitutional.

The Court in McGrier held that a practical application of their decision in Mills violates a defendant's procedural due process rights, by imposing a sentence which exceeds the defendant's original term of incarceration without notice that the original sentence would be modified and greater punishment imposed. If a defendant realized the full implications of the community supervision provisions, he may not have decided to plead guilty.

The statute violates defendants' Sixth Amendment rights as well. Mills' literal interpretation of the community supervision statute effectively allowed a community supervision violation to become a separate and distinct criminal offense without the benefit of of the Sixth Amendment's constitutional protections. The Sixth Amendment guarantees the right to notice, cross-examination of adverse witnesses, and compulsory process to call favorable witnesses - the right to present a defense in an adversarial proceeding. Under the Sixth Amendment, any fact that exposes a defendant to greater potential sentence must be found by a jury, not a judge, and must be established beyond a reasonable doubt.

The Court in McGrier correctly concluded that the total amount of time that an inmate could be incarcerated for community supervision revocations must be limited to the length of the remaining balance of their sentence. Too often we have only criticism for our appellate courts, and the slow erosion of constitutional protections, but McGrier was a well written opinion in which our South Carolina Supreme Court acknowledged the Constitution and preserved it.