South Carolina Criminal Defense Blog

According to a NY Times article, New Yorkers are routinely jailed for not sitting properly on subway seats:

It is perhaps the most minor crime New Yorkers are routinely arrested for: sitting improperly on a subway seat. Seven years ago, rule 1050(7)(J) of the city’s transit code criminalized what was once simply bad etiquette: passengers putting their feet on a subway seat. They also cannot take up more than one seat if it interferes with other passengers’ comfort, nor can they block movement on a subway by doing something like standing too close to the doors.

Police officers handed out more than 6,000 tickets for these violations in 2011. But a $50 ticket would have been welcome compared with the trouble many passengers found themselves in; roughly 1,600 people like Mr. Peppers were arrested, sometimes waiting more than a day to be brought before a judge and released, according to statistics from district attorneys’ offices.

An NYPD spokesman says that the crackdown on minor offenses like putting your feet up or smoking on platforms has made the subways much safer, because it gives police an excuse to check for warrants and apprehend armed or wanted felons.

This has nothing to do with anything in South Carolina, where Subway is known only as the restaurant where they make sub sandwiches, but come on, is this true? Do we live in a country where the police arrest citizens and put them in cages because they put their feet up on a train or light a smoke in the wrong place?

Thanks to some recent comments on our local listserve, I went back and read the definitions of "manufacture" and "marijuana" in the S.C. Code, and found two things - 1) the definition of "manufacture" does not include the growing of marijuana for personal use; and 2) the definition of "marijuana" excludes stems and sterile seeds.

1) "Manufacturing" of a drug is included in the same statutory sections as distribution and possession with intent to distribute - S.C. Code section 44-53-375(B) for methamphetamine and cocaine base (crack cocaine); and S.C. Code section 44-53-370(a) for everything else including marijuana:

(a) Except as authorized by this article it shall be unlawful for any person:

(1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue;

(2) to create, distribute, dispense, deliver, or purchase, or aid, abet, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.

When you look at the definition of "manufacture," in S.C. Code section 44-53-110, it specifically excludes the "preparation or compounding of a controlled substance by an individual for his own use . . . ":

"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:

(1) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(2) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.

Which means that a person growing marijuana for his own use should not be charged with "manufacturing" marijuana - instead the person should be charged with simple possession. Simple possession of greater than 28 grams of marijuana, under 44-53-370(d)(2), is punishable by up to 6 months for a first offense, whereas manufacturing marijuana is punishable by up to 5 years for a first offense under 44-53-370(b)(2). (According to 44-53-180 and 190(d)(11) marijuana is a schedule I narcotic, because it has: (a) A high potential for abuse; (b) No accepted medical use in treatment in the United States; and (c) A lack of accepted safety for use in treatment under medical supervision. )

If the person was charged instead with possession with intent to distribute, based on the weight being greater than the inference level of 28 grams, then the potential punishment would still be the same as manufacturing. But, if it was being grown for personal use and there is no other evidence of intent to distribute, then what we are really talking about is simple possession, and not manufacturing or possession with intent. The intent of personal use that takes us outside the definition of manufacturing, also means that there was no intent to distribute.

2) The definition of "marijuana," in in S.C. Code section 44-53-110, specifically excludes stems and sterile seeds:

"Marijuana" does not mean:

(1) the mature stalks of the marijuana plant or fibers produced from these stalks;

(2) oil or cake made from the seeds of the marijuana plant;

(3) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom);

(4) the sterilized seed of the marijuana plant which is incapable of germination.

Which means, when calculating the weight of a quantity of marijuana, stems and seeds should be excluded, assuming that the seeds are sterile. I have never heard of law enforcement or chemists taking out the stems or seeds when weighing the drug, but it seems that, pursuant to the statutory definition of marijuana, a defendant should be entitled to have their own expert exclude the stems and seeds and re-weight the material. This could be critical when the weight is otherwise a close call - if the weight is close to the threshold 28 grams for an inference of intent to distribute, or the threshold 10 pounds for a trafficking marijuana charge.

In 2009, South Carolina's expungement laws were amended, doing away with the administrative fee for expungement after a dismissal or acquittal, but increasing the fee for other types of expungements. The time period for expungement under the Youthful Offender Act (YOA) was changed from 15 years to 5 years from the completion of the sentence.

Last year, the expungement law for YOA convictions was changed again to prohibit persons from getting an expungement unless they were actually sentenced under the YOA. This is a big deal - most people are not actually sentenced under the YOA and, for various reasons, it may not be the best thing for a person to receive a YOA sentence as opposed to a straight sentence. Prior to this amendment, pursuant to Gay v. Ariall, a person who would have been eligible for a YOA sentence (24 or younger, non-violent offense) could have their record expunged under the YOA. This makes sense. Now, whether or not you can have your record expunged is determined by whether you were sentenced specifically under the YOA. This makes no sense.

For years, I and every other criminal defense lawyer in South Carolina have advised our clients that if they plead to a straight adult sentence, if they were 24 or younger and it was a non-violent offense, they would be able to have their record expunged 5 (or 15, pre-2009) years after their sentence was completed. Now the legislature has made liars out of us, and our clients get screwed. If any legislators are reading, this needs to be fixed. It is unfair to first time offenders who entered pleas to non-violent offenses believing that their records could be expunged later. It is unfair to not allow a younger, non-violent offender to get an expungement after time has passed and they have demonstrated that they are not criminals, whether they chose to plead under the YOA or not.

The current state of expungement law in S.C. is as follows:

- 1st time offenders in magistrate or municipal court, where the offense carries 30 days or less, can get an expungement after 3 years if they have no other convictions.

- 1st time offenders convicted of criminal domestic violence (CDV) can get an expungement after 5 years if they have no other convictions.

- A person sentenced under the YOA (and under the current law they have to actually be sentenced under the YOA) can get an expungement 5 years after the completion of their sentence (release from prison or completion of probation or parole) if they have no other convictions.

- If there are multiple charges arising from the same incident on the same day and they are resolved on the same court date, it counts as one charge for purposes of getting the conviction expunged.

- If a charge is dismissed or the person is acquitted at trial, the arrest and disposition can be expunged.

- A person who completes a pre-trial diversion program (Pre-Trial Intervention or PTI, Alcohol Education Program or AEP, or a conditional discharge) can have their arrest expunged after they have completed the program and the charge is dismissed.

- A person who completes the Drug Court program will have their case re-opened, the charges dismissed, and then the arrest and disposition can be expunged.

- Traffic offenses cannot be expunged (i.e. driving under the influence or DUI, driving under suspension or DUS, and reckless driving).

- Other "convictions" that would preclude a person from getting an expungement includes "no-contest" or "Alford" pleas, and forfeitures (when you don't show up for court and they apply your bond money as a fine).

§ 56-1-745, which suspends a defendant's driver's license following a conviction for any drug offense, has been repealed by H - 3668, which was signed into law on April 12, 2011. The SCDMV is still suspending licenses for arrests that occurred before April 12, even if the conviction was after, but any arrest that occurs after April 12 will no longer result in a driver's license suspension.

Suspension of driver's licenses has no rational relation to enforcement of the drug laws, and this is a positive development. We already have a law criminalizing driving under the influence, which applies equally to consumption of alcohol or drugs, and which appropriately results in a license suspension following conviction. Suspension of driver licenses for drug possession causes unnecessary hardship for countless numbers of people and it has no relation to driving offenses unless the person was also charged with DUI.

The penalties for most property crimes are determined by the dollar value of the property in question - under the old law, less than 1000$ was up to 30 days, 1000$ to 5000$ was up to 5 years, and more than 5000$ was up to 10 years. S1154 changes the dollar values for most property crimes, so that they are now:

< $2000 misdemeanor and up to 30 days
> $2000 but < $10,000 felony and up to 5 years
> $10,000 felony and up to 10 years

This includes many seldom used property offenses, some of which I didn't even know existed, but the more common ones include:

Malicious injury to personal property
Forgery (no dollar amount = up to 3 years, < 10k up to 5 years, > 10k up to 10 years)
Larceny (petty larceny and grand larceny)
Shoplifting
Receiving stolen goods
Embezzlement (public officials)
Breach of trust with fraudulent intent
Obtaining signature or property by false pretenses
Failure to return rental property
Possession of stolen vehicle
Insurance fraud

Also, defrauding an innkeeper, although punishable by up to 6 months, can now be tried in the magistrate court.

*** S1154 gives jurisdiction to the magistrate and municipal courts to hear forgery with no dollar amount, which has a potential sentence of up to 3 years ***

Edit: corrected the potential sentence for forgery no dollar amount, H/T to Stuart Sarratt, law student extraordinaire and newly minted blogger at the Just Cause Blog.

S1154 adds 17-25-65, which says that if the state makes a motion within one year of sentencing, the court can reduce a person's sentence for helping to investigate or prosecute another person.

It is now easier for prosecutors to lie to juries about why inmates are testifying for the state at trial. Up to this point, the state would typically keep a charge hanging over a defendant's head until they testified to what the prosecutor wanted them to provided truthful testimony at trial, and then the witness would enter their plea to a reduced charge or a reduced sentence after the trial. At trial, the witness would testify that they were testifying out of the goodness of their heart, and not for any hope of personal gain. Then they are subject to cross examination about the murder charge that they have pending and how they don't really want to spend the rest of their life in jail, which is powerful motivation to take the stand and lie to make the prosecutor happy.

Now, the prosecutor can go ahead and plead their witness to a looong sentence, so that they can testify that they are obviously not getting any help in exchange for their testimony - they've already been sent to prison. Then after the trial the prosecutor can go back and make their motion to reduce the witness' sentence.

It also means that inmates in state prison, not just in the local jail, will be scrambling for information that they can use to try to get a sentence reduction by testifying for the state in pending prosecutions. We have taken a giant leap closer to the federal criminal system, where justice is routinely achieved by coerced/bought testimony from inherently unreliable witnesses who have every motivation to lie. Congratulations.

Burglary:

Burglary second degree under 16-11-312 (A) is now punishable by up to 10 years (it was 15 years). But, burglary 2nd degree under subsection (B) is still punishable by up to 15 years and parole eligibility is at 1/3 of the sentence. The difference is subsection (A) is a straight-up burglary second, where someone breaks into a dwelling - a place where a person lives - and there are no aggravating circumstances. Subsection (B) is a burglary 3rd degree, where someone breaks into a building - a place where people do not live - and there are aggravating circumstances that bump it up to a burglary 2nd degree.

So, under the new statute, if you break into a person's home you get less time than if you break into a building where people do not live. That makes sense.

Disturbing schools:

The disturbing schools statute was amended to give magistrate courts jurisdiction when an adult is charged with disturbing schools - because it is punishable by 90 days, magistrates could not hear these cases without an express provision giving them jurisdiction (unless otherwise stated in a statute, magistrates only have jurisdiction to hear offenses punishable by 30 days or less).

Licenses:

56-1-440 was also amended to give magistrate courts jurisdiction - when someone is charged with driving without a license (not driving under suspension; this applies when the person never had a license to begin with), second offense is punishable by up to 45 days and third offense for 45 days to 6 months.

Payment plan: S1154 adds 56-1-395, which allows a person, if all suspensions have been served, to get a temporary license that will last 6 months while they make payments on their reinstatement fees.

Amnesty: It also adds 56-1-396, which provides that the DMV must create a one-week amnesty period each year - if a person's license is suspended, but all of their fees have been paid and all other conditions met, if the person applies during the one week amnesty period, the DMV must reinstate their license and all qualifying suspensions will be cleared.

Both of the last two exclude suspensions for DUI offenses - but if a person has multiple suspensions for DUI and for something else, they can apply and have the qualifying suspension cleared and then just serve out the DUI suspension.

S1154 made two substantive changes to the bond statutes - first, it added "any charges pending against the accused at the time release is requested" to the list of things that a court must consider in determining conditions of release.

The old statute already listed "all incident reports generated as a result of the offense charged, if available" - as one of the items a court must consider in determining conditions of release, but this seldom happens (that I've seen, anyway). The new statute adds a section requiring law enforcement or detention staff to provide the court with the incident report, and provides that the court has contempt powers to enforce the requirement.

I doubt that most magistrates or municipal judges are going to insist that they get the incident report "or else." But, this is something that a defense attorney can point to in asking the court to require them to provide the incident report. If it is provided to the court by law enforcement it must also be provided to defense counsel, and it is an opportunity to find out what the basis of the charges are - information that has not otherwise been readily available at the initial bond hearing.

As an aside, the old law and the new law dealing with magistrates in 22-5-510 describes what offenses a magistrate cannot set bond on, and which offenses they can choose to deny bond on. The magistrate at an initial bond hearing cannot set bond on any offense punishable by death or by life (murder, burglary 1st), and the magistrate may deny bond on violent offenses as defined by 16-1-60. This means if the charge before the magistrate is not specifically listed in 16-1-60 the magistrate must set a bond for the person.

It's not a guideline or a suggestion - it is a restatement of Article I Section 15 of the S.C. Constitution:

SECTION 15. Right of bail; excessive bail; cruel or unusual or corporal punishment; detention of witnesses.

All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained. (1970 (56) 2684; 1971 (57) 315; 1998 Act No. 259.)

Arson:

1st degree Arson still carries a maximum potential sentence of up to 30 years, but arson 2nd degree now carries a maximum penalty of 3-25 years (formerly 5-25) and arson 3rd degree is now 0-15 (formerly 1-10).

Lynching:

The crime of lynching is now called "assault and battery by mob." Assault and battery by mob in the 1st degree is where two or more people assault someone and the victim dies, and it is punishable by 30 - life (lynching in the 1st degree was formerly punishable by death). Assault and battery by mob in the 2nd degree, resulting in serious bodily injury, is now 3-25 (lynching 2nd degree was formerly 3-20), and there is a new tier for assault and battery by mob in the 3rd degree, resulting in plain jane bodily injury, which is punishable by not more than a year in prison.

Attempted Murder:

Until now, there has been no attempted murder offense in South Carolina other than the common law offense of assault and battery with intent to kill, which carried up to 20 years in prison. S1154 creates a new statutory offense of attempted murder, punishable by up to 30 years in prison - "a person who, with intent to kill, attempts to kill another person with malice aforethought, either express or implied, commits the offense of attempted murder." By statute, assault and battery high and aggravated and 1st, 2nd, and 3rd degree are lesser included offenses of attempted murder.

Assault and battery:

S1154 does away with the common law offenses of assault and battery, creates a series of tiered offenses:

Assault and battery of a high and aggravated nature (ABHAN) is now the equivalent of what used to be assault and battery with intent to kill (ABWIK), and is a felony that carries a potential sentence of up to 20 years. There must be a battery (unlike the lesser assault and batteries which could be proven with only an assault), and it must either result in great bodily injury or it must have been done by a means likely to produce death or great bodily injury. (great bodily injury = causes a substantial risk of death or causes serious disfigurement or loss or impairment of a bodily member or organ)

Assault and battery in the first degree is the equivalent of what used to be ABHAN, and is a misdemeanor that carries up to 10 years. A battery is not necessary - it can be:
1) an assault and battery where injury results and
i) it involves nonconsensual touching of the private parts of an adult with lewd intent or
ii) it occurred during the commission of a robbery, burglary, kidnapping, or theft; or it can be
2) an assault, with no battery,
i) by means that are likely to produce death or great bodily injury (as opposed to ABHAN, where a battery was required) or
ii) that occurred during the commission of a robbery, burglary, kidnapping, or theft.

Assault and battery in the second degree creates a new tier that did not exist under the old law, and is a misdemeanor that carries up to three years. Like A/B first degree, no battery is necessary - it is an assault or an assault and battery where:
1) moderate bodily injury results or could have resulted (moderate bodily injury = physical injury requiring treatment (complex surgery or use of anesthesia) to an organ system other than skin, muscles, or connective tissues; or
2) there is nonconsensual touching of the private parts.

Assault and battery in the third degree is the equivalent of the common law assault and battery, except that no battery is required - if a person injures another person or attempts to injure another person - and is punishable by up to 30 days.

On June 2, bill S1154 was signed into law by the governor - the "Omnibus Crime Reduction and Sentencing Reform Act of 2010." It includes some major changes to the criminal law in S.C., it is long and detailed (my printout is 94 pages long), and it is a must-read for anyone practicing criminal defense in the state.

The new law includes many changes in sentencing, some that benefit defendants and some that do not. It includes a "savings clause," which purports to limit the application of the new statutes to offenses committed after June 2. I've done some research on this, and the case law in South Carolina clearly says that defendants get the benefit of a change in sentencing, in the absence of a statutory provision such as a savings clause - there is no case directly on point where a defendant sought the benefit of a statutory amendment but there is a savings clause in the amendment, so this question may be open for debate.

The stated purpose of the Act is to reduce recidivism and to reduce the non-violent prison population, although I'm not sure exactly how it will accomplish this, based on what I'm seeing in it.

It is the intent of the General Assembly to preserve public safety, reduce crime, and use correctional resources most effectively. Currently, the South Carolina correctional system incarcerates people whose time in prison does not result in improved behavior and who often return to South Carolina communities and commit new crimes, or are returned to prison for violations of supervision requirements. It is, therefore, the purpose of this act to reduce recidivism, provide fair and effective sentencing option, employ evidence-based practices for smarter use of correctional funding, and improve public safety.

We'll see.

Jamie Leigh Jones, represented by TLC grad L. Todd Kelley, was drugged and brutally gang-raped by co-workers while working for Halliburton in Iraq in 2005. When she reported the attack to her superiors, she was kept locked in a container under armed guard and not allowed to leave or call her family for days. Due to a clause in her employment contract, the District Court ruled that she could not bring her claims in court and was instead limited to arbitration, although ultimately the Fifth Circuit Court of Appeals reversed that decision and held that some of her claims could be brought in court.

Four years later, an amendment to a defense bill was passed that would change defense contractors' ability to limit their liability for employees who are raped: "Freshman Senator Al Franken's amendment to a defense bill would guarantee employees of military contractors access to the court system if they are sexually assaulted and would freeze military contracts to any company that fails to cooperate."

Amazingly, 30 republican senators voted against the bill.

Doug Berman at Sentencing Law and Policy picked up this story out of New York, where lawmakers are trying to pass a law that would require persons convicted of criminal domestic violence (CDV) to be listed on a registry similar to sex offenders. Most of the New York article is devoted to telling the story of one woman who was terrorized by her husband, and how a domestic violence registry could prevent the man from terrorizing others in the future.

Berman then takes the idea to its extreme, espousing that all serious crimes should be subject to registry requirements:

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

This is wrong on so many levels, I don't know where to begin. Maybe with what seems to be a basic misunderstanding or misinformation on the part of the professor - he seems to want to make all criminal convictions public, but the fact is that all criminal convictions are public and have always been. The information is there for anyone to find, and the only thing that a registry does is impose upon the accused a continuing obligation to register their current address and photograph so that anyone may find them at any given time. In most states, you can pull anyone's criminal history from a website in a matter of minutes. For example, official South Carolina records checks are available at SLED's website, and in many counties all arrests, regardless of conviction, including identifying information and the status or disposition of the case are available to the public on the judicial department's website. Registries have nothing to do with "criminal justice transparency."

The push for a domestic violence registry has everything to do with political posturing. The story of one victim is told for full dramatic effect - the monster who holds a knife to his wife's throat, spits on her, locks her and their daughter in a closet, and now is lurking on dating websites, seeking his next victim - it is used to grab attention, to instill fear, and to move the listener to action. The legislator who promotes this bill wants to be seen as a hero who is protecting the public. It gives him or her exposure as they lobby for their bill, and anyone who opposes the bill is painted as being "for" domestic violence. The legislator, our hero, is gathering votes.

We need to have domestic violence laws, because there are true victims of domestic violence and it is a problem that needs to be addressed. But the truth of the matter, which is not seen by the general public and certain sheltered law professors, is that "true" domestic violence cases make up a very small percentage of the cases that come through the court system. They are rare, indeed, for those that actually spend time in the criminal courts and see the cases that are made.

Much of what I see in South Carolina are manufactured domestic violence charges. Police arrive at a home and tell the residents if we are called, someone is going to jail. Citizens are jailed and charged with domestic violence because there was a verbal argument that got too loud. A wife calls the police and she is then arrested when the husband says hey, she hit me. People are jailed with no evidence of physical violence whatsoever. Husband and wife are both taken to jail, because police cannot decide who the aggressor was. Husband or wife make false complaints of domestic violence to seek an advantage in their divorce or child custody case. Then there are cases of simple assault, by the man or woman, that are one time occurrences and do not qualify as spousal abuse.

In South Carolina, the right to counsel is systematically denied to indigent defendants in the magistrate and municipal courts - our Chief Justice has instructed magistrates to ignore the U.S. Supreme Court and to not appoint counsel to those who cannot afford attorneys:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

The result is that those persons accused of CDV 1st offense in the magistrate courts or the city courts who cannot afford an attorney plead guilty, whether they are guilty or not. Professor Berman would have these individuals, who in my experience make up a significant portion of those charged with CDV 1st offense, emblazoned with today's modern scarlet letter, an online registry. My hope is that someone with Berman's stature and voice would not fall prey to the hype and politics of fear, and instead could broadcast the truth of what happens in our nation's courtrooms every day.

On June 2nd, a bill was signed into law that will stop the solicitor's offices from charging a fee to expunge records where the person was found not guilty or where the charges were dismissed. The "administrative fee" for all other expungements will increase to $250, however.

Section 17-22-940. (A) In exchange for an expungement service that is provided by the solicitor's office, the applicant is responsible for payment to the solicitor's office of an administrative fee in the amount of two hundred fifty dollars per individual order, which must be retained by that office and used to defray the costs associated with the expungement process, except as provided in subsection (B). The two hundred fifty dollar fee is nonrefundable, regardless of whether the offense is later determined to be statutorily ineligible for expungement or the solicitor or his designee does not consent to the expungement.

(B) Any person who applies to the solicitor's office for an expungement of general sessions charges pursuant to Section 17-1-40 is exempt from paying the administrative fee, unless the charge that is the subject of the expungement request was dismissed, discharged, or nolle prossed as part of a plea arrangement under which the defendant pled guilty and was sentenced on other charges.

Even more importantly, this bill decreases the time limit for an expungement under the Youthful Offender Act from 15 years to 5 years.

Jasper County, South Carolina, is soon to be the latest to enact an unconstitutional ordinance protecting us all from the danger of sagging pants.

Jasper County Councilman LeRoy Blackshear proposed the ordinance in June. It would ban anyone from appearing in public "wearing his or her pants more than three (3) inches below his or her hips and thereby exposing his or her skin or intimate clothing."

Some councilmen expressed concerns about whether government should be in the business of enforcing dress codes. Blackshear, however, believes it is in our best interests:

"Some people are saying that government doesn't have any place to tell people how to dress if they're not buying their clothes. But government makes other laws about seat belts, open-container laws and DUI. All these are for benefit of our citizens," he said.

What is wrong with this picture? Let's begin with asking who does this law affect? 9 out of 10 persons wearing sagging pants are black youth. It is a current style, fad, or whatever you want to call it, and any law such as this is going to have a disproportionate impact on black persons. Not that most criminal laws are not already disproportionately enforced against minorities, but this law is actually aimed at black youth. Secondly, the law is unconstitutional on its face. Under our State Constitution, local municipalities cannot criminalize conduct that is not already criminal under state law.

So why do city and county councils continue to try? Boredom? We already have criminal laws for every conceivable action that could be harmful to ourselves or the people around us, so they must try to come up with more and more to justify their existence? If nothing else, they now have something to sit around and debate and vote on?

I've said before that I think it should be a prerequisite that any person seeking office as a legislator (drafting and voting on laws) or an executive such as governor or president (enforcing laws) must have a law degree. If your job wholly consists of drafting, interpreting, or enforcing the laws, you should at least have a minimal understanding of what a law is and of the Constitution. Possibly we could offer a minimal "crash course," possibly a year's worth of courses on the legislative process and Constitutional law, for non-lawyers who want to run for political office.

Maybe, when legislators are bored because they cannot come up with more criminal laws to debate and vote on, they could now begin to review the laws that we do have, and vote on getting rid of some of the unnecessary ones. This would create many many hours of productive work for legislative bodies, and possibly would benefit society rather than further restrict it. They could begin debating why we should un-enact laws that govern how we dress, or they could begin debating why we don't need to criminalize victimless conduct such as riding a motorcycle without a helmet or drug possession.

The European Court of Human Rights held that it is "a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights" for DNA samples taken from innocent persons to be held in a database for government use. The Guardian reports:

The fingerprints and DNA samples of more than 857,000 innocent citizens who have been arrested or charged but never convicted of a criminal offence now face deletion from the national DNA database after a landmark ruling by the European court of human rights in Strasbourg.

In one of their most strongly worded judgments in recent years, the unanimous ruling from the 17 judges, including a British judge, Nicolas Bratza, condemned the "blanket and indiscriminate" nature of the powers given to the police in England, Wales and Northern Ireland to retain the DNA samples and fingerprints of suspects who have been released or cleared.

The judges were highly critical of the fact that the DNA samples could be retained without time limit and regardless of the seriousness of the offence, or the age of the suspect.

The court said there was a particular risk that innocent people would be stigmatised because they were being treated in the same way as convicted criminals. The judges added that the fact DNA profiles could be used to identify family relationships between individuals, meant its indefinite retention also amounted to an interference with their right to respect for their private lives under the human rights convention.

South Carolina recently passed a bill allowing law enforcement to take DNA samples from persons who are arrested for felonies and some misdemeanors, regardless of whether they are convicted. Similar legislation has been introduced in other states and the federal government, and whether the practice will survive constitutional challenges remains to be seen.

The South Carolina Senate and the House of Representatives overrode the Governor's veto of the DNA testing bill today. It's a mixed blessing - the reason the Governor vetoed the bill was because at the last minute the legislature combined the bill providing for preservation of DNA evidence and post-conviction access to DNA evidence for testing, with a bill allowing law enforcement to take DNA samples from persons who are arrested for felonies and some misdemeanors, regardless of whether they are convicted.

We needed the post-conviction testing bill, but at what price? Why did the legislature feel the need to combine these two bills? The provision allowing for the taking of DNA samples from persons who have not been convicted goes too far, and is an unreasonable invasion of privacy.

"We need to get government out of the lives of people," Hart said. "This bill grows government."

And, Hart said, part of the legislation opens the door to police asking for samples even when they don't take people into custody. "Something doesn't match up in this bill, ladies and gentlemen," Hart said.

"It's a disappointment," Sanford spokesman Joel Sawyer said. "This was a bridge too far."

Police can already get DNA samples from suspects if they show probable cause.

Hart said that shows authorities don't want to use the tools they already have. "We don't want to have to give a judge a reason why we want to collect the DNA of this person," Hart said.

Sanford and the American Civil Liberties Union have complained, too, that the legislation will leave DNA information in government databases when people aren't convicted.

While the new law allows the destruction of the information, people must ask for it, and could be forced to pay for it, Hart said. Meanwhile, the sample itself would be kept and there is no requirement to destroy DNA data kept in a federal database.

The post-conviction testing bill, on the other hand, provides a much-needed resource for the wrongfully convicted to prove their innocence, that has never been available in this state. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina, and are getting attention across the country due to DNA exonerations, which allow us to go back and ask, "what went wrong?" so that we can hopefully guard against the same mistakes in the future.

Two new laws signed by President Bush on Monday require internet companies to report child pornography, requires sex offenders to provide all of their internet identifiers such as email addresses to the National Registry, and requires the attorney general to give the offender's information to social-networking websites.

Child predators will be easier to track online because of two new laws President Bush signed Monday.

The Protect Our Children Act--which includes provisions introduced by Sens. Joe Biden (D-Del.), Hillary Clinton (D-N.Y.), and John McCain, (R-Ariz.)--sets requirements for Internet companies to report incidences of child pornography. It also authorizes more than $320 million for the Justice Department over the next five years for, among other things, the Internet Crimes Against Children Task Force.

The president on Monday also signed the Keeping the Internet Devoid of Sexual Predators Act, which requires a sex offender to provide the National Sex Offender Registry with all of his Internet identifiers, such as e-mail addresses.

While the KIDS Act does not permit sex offenders' Internet identifiers to be made public, it does require the attorney general to share the information with social-networking Web sites, so the sites can compare the identifying information with that of their respective users. The bill was sponsored by Chuck Schumer (D-N.Y.) in the Senate and Earl Pomeroy (D-N.D.) in the House.

This law is substantially similar to a provision in Utah that was declared unconstitutional by a federal court in September 2008 (The first page only of the Order is reproduced below):

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH NORTHERN DIVISION JOHN DOE, Plaintiff, ORDER and MEMORANDUM DECISION vs. MARK SHURTLEFF, Office of the Attorney General for the State of Utah, in his Official Capacity, et al., Case No. 1:08-CV-64 TC Defendants.

This case involves a constitutional challenge to a Utah state statute that has recently taken effect. The relevant part of that statute requires sex offenders in Utah to provide Utah's sec offender registry with all of their internet identifiers and the websites on which they use those identifiers. This action was brought by a Utah resident convicted of sex offense in a United States military court who has sued under the fictitious name of John Doe. Mr. Doe has completed his sentence for his sex-related crimes and is not on parole or subject to supervised release. Mr. Doe contends that his right to protected anonymous speech on the internet is diminished by the disclosure requirements of Utah's statute. He challenges the statute as unconstitutional on its face as applied to him and is seeking summary judgment. The court agrees with Mr. Doe. Although Mr. Doe is a sex offender, he has not forfeited his First Amendment rights, including his right to anonymous online speech. To justify a restriction of those rights, Utah needs to show that it has a compelling interest and has chosen the least restrictive means to achieve that interest. While Utah undeniably has a strong interest in protecting children from internet predators and investigating crime, the state's disclosure requirements are not crafted in a way to meet those goals while also protecting Mr. Doe's rights.

Accordingly, the court GRANTS Mr. Doe's motion for summary judgment.

Politicians will continue to create new and exciting ways to thrash convicted sex offenders for the public's benefit. Whatever it takes to get publicity and votes. It is too much to ask for legislators or the President to consider the constitution, let alone uphold it as they are sworn to do.

Edit: Derek Logue, from a comment posted below, has put together an excellent website that is worth taking a look at, with information on treatment, recovery, and re-integration of sex offenders, up-to-date information on laws targeting convicted sex offenders, ways to fight those laws, and online resources for offenders.

A client of mine who is also a distinguished combat veteran brought to my attention a bill pending in Congress that would establish a grant program to create veteran treatment courts based on the drug court model.

“These treatment courts will address the specific challenges with drugs and alcohol too many veterans face when returning home from their honorable service overseas,” said Senator John Kerry. “For those who have given so much for our country, we should address the serious issues of drug and alcohol addiction in an appropriate forum that recognizes that some veterans fall victim to substance abuse as a way to handle post-traumatic stress. It’s well past time we offered our veterans services worthy of their sacrifice.”

The SERV Act would authorize an annual $25 million for courts wanting to establish either a veteran's treatment court or to serve veterans through an existing drug court.

Horry County and other counties in South Carolina have employed drug court programs with mixed success. I've commented on our drug courts before:

Horry County Drug Court has been praised as a success. It is a wonderful idea, and in theory it should divert many people away from the prison system. I think we all want the drug court, and the proposed middle court expansion, to work, but we need to step back and take a look at what is happening in drug court:

1) Some people are finishing the program, remaining drug free, and avoiding prison to boot. These are the success stories that we want to hear about. Horry County's drug court began in August of 2005, and has graduated 12 people so far.

2) I am told that most people do not graduate, but I have not seen any numbers on how many have been admitted and how many have flunked out, other than only 12 have graduated in the past 3 years.

3) Before being admitted into the program, the defendant must plead guilty, be sentenced, and then the sentence is deferred pending completion of the program.

4) To be admitted into the program, the defendant must waive any right to appeal or enjoin any decision of the drug court/ middle court judge, and the defendant must waive any right to post conviction relief.

5) If the defendant is dismissed from the program, the defendant does not receive any due process or hearing, and the full sentence is immediately imposed.

So I ask, if most people do not graduate from this program, is it promoting the rehabilitation and re-entry of non-violent offenders into society and reserving the state's prisons for dangerous offenders, or is it giving the prosecutors an easy out to obtain convictions and often lengthy sentences, without the terrible headache of appeals and PCR's? So far, it seems that this bill will not only serve to keep people in prison longer, but it will help the prosecutors to send more people there in the first place.

I am not saying that we should scrap the idea, but I do think that we should make sure that it is achieving its stated goals, and I don't think that this should be used as a way to get around defendant's due process rights.

And I would have the same concerns with a veteran's treatment court. Because the idea is to provide an alternative to incarceration for those who have served our country and are suffering for it, we do not want to put a system in place that only makes it easier to put veterans in prison instead of keeping them out of prison. Because the idea of a veteran's treatment court is to cope with issues specific to veterans, such as the combination of Post Traumatic Stress Disorder and alcohol or drug abuse as coping mechanisms for the veteran, I believe that veteran's treatment courts, if established, should be separate from the existing drug courts.

I'm not saying we should not continue with the drug court experiment - I think that we should. We should expand and improve on the drug courts that we have, and create a separate veteran's court if funding becomes available for it. But I think that we need to be aware of the realities of drug court success/failure rates, and we need to constantly work to improve the system. I think that drug courts and veteran's courts are a hopeful first step in helping the pubic and the players in the justice system understand that some people who become caught up in the justice system need help and not punishment. It is a beginning.

The DNA testing bill was vetoed by the governor, which isn't entirely a bad thing, considering that the DNA access and evidence preservation bill had been combined with a bill allowing law enforcement to take DNA samples from arrestees who had not been convicted of a crime. Surprisingly, Sanford says that the reason he vetoed the bill is because he opposes the portion allowing DNA samples to be taken from arrestees:

We see this legislation as a reach past that very foundation upon which this country was founded," Sanford told legislators in his veto. He called the bill a "further encroachment on our civil liberties and privacy rights . . . Given the ever-expanding scope of the DNA database, we believe that it is finally time to draw a line in the sand and say that the DNA database will not be expanded to individuals who have not been convicted of a crime.

And Sanford supports DNA access for inmates and evidence preservation. I applaud his concern for our civil liberties and privacy rights and wholeheartedly agree with him, but it is hard to square his interest in criminal justice on this issue with his disregard for the Constitution on other issues, such as his his statement that indigent defense funding would "send the wrong message." I suppose some parts of the Constitution are more popular than others.

The legislature will not look at the DNA bill again until January 2009 - then they can either override the governor's veto or go back to the drawing board with two separate bills as it should have been to begin with.

The DNA testing bill did pass the South Carolina Senate and House after all, but has not been signed yet by the governor. The bill in its final form has combined what was two separate bills, one allowing law enforcement to collect DNA samples from persons at the time of their arrest, and a bill which will require authorities to preserve evidence for 7 years or until a convicted person's prison sentence is complete and which will grant inmates access to DNA testing.

Sanford last year vetoed legislation requiring DNA testing when people are arrested. He called it an "overreach by government and an erosion of personal liberty."

Unlike fingerprinting, Sanford wrote, DNA "contains a great deal of sensitive personal information. DNA includes, for example, information about disease predisposition, physical attributes, ancestry and familial relationships."

He told legislators he favored taking DNA samples only after a person is convicted.

If Sanford vetoes the bill, it will not get an over-ride vote until January, when the legislature reconvenes.

I attended the "installation" of our Circuit Public Defender Orrie West this afternoon, and I was reminded that I need to comment on the importance of the work that public defenders here and across the country do. The fact is the majority of people who are charged with crimes cannot afford to retain a defense lawyer, and competent indigent defense is essential to our justice system.

There should be a defender for every prosecutor, and defendants should have resources equal to those of the government. This will most likely never happen, given the enormous resources that the government can bring to bear when they decide to convict a person, but we must continue to improve the system nevertheless. Our justice system only works when there is an effective and ethical advocate on each side of the case, and the system fails us when defenders are overwhelmed with huge caseloads or a lack of investigators and support staff.

Thanks to the tireless efforts of public defenders, private attorneys, and advocates in our state legislature, South Carolina now has a statewide public defender system in place, and it is funded. This was a positive step forward for South Carolina, in a time when many states are struggling to maintain funding for indigent defense. It is popular to fund law enforcement and prosecution agencies, but legislators nationwide need to consider not what is popular but what is just. The playing field is not level by any means, but we are one step closer.

I began my career as a public defender, and I do not mind handling appointed cases today. I have the utmost respect for those defenders who could be making significantly more income in private practice and yet stay with their jobs as public defenders (or prosecutors) because they believe in a just cause.

Congratulations to Orrie West who will continue as the Chief Public Defender for the 15th Judicial Circuit.

On Monday a new bill was signed into law that will restrict sex offenders from living within 1000 feet of schools, day care centers, or playgrounds, similar to laws that are already in effect in many other states. Last year the Georgia Supreme Court struck down a similar provision on constitutional grounds, as an unreasonable taking of property without adequate compensation, oddly enough.

The South Carolina legislation also changes first offense failure to register, making it a misdemeanor punishable by no more than 30 days, where it had previously carried a mandatory 90 days in jail. Subsequent convictions for failure to register still carry a mandatory one year sentence for 2nd offense and a minimum of 3 years up to 5 years for 3rd offense.

Extensive research over the past few years has demonstrated that registration and residency requirements do more harm than they do good, including a comprehensive report by Human Rights Watch. Prof. Berman at sentencing law and policy has been discussing the topic for the past year, and Sarah Tofte at the Huffington Post wrote about this last October, pointing out that a growing number of child safety and rape prevention advocates agree that these laws are not working.

Toft notes that these laws are driven by two widely accepted myths about child abusers: that children are most often abused by strangers and that sex offenders are always repeat offenders. The truth is that more than 90 percent of child sexual abuse is committed by people that are close to the children and not strangers, and studies reflect that three out of four sex offenders do not re-offend within 15 years.

One thing that is overlooked in discussions about registry requirements and residency restrictions is that in South Carolina and most states, the Sexually Violent Predator Act operates to keep the worst offenders and those most likely to repeat their crimes behind bars indefinitely. Before a convicted sex offender is released from prison, the Attorney General reviews their case and will file a petition to have the offender committed indefinitely as a sexually violent predator. The process has been upheld by the South Carolina and the United State Supreme Courts against constitutional challenges.

(Although the proceedings are based on the same crime they have already been punished for, it is not a due process violation because the commitment proceedings are civil and not criminal. Although the offender is kept in a state prison facility, it is not really prison because it is "under the control" of the Department of Mental Health. It is not punitive in nature because the offender is receiving treatment while under the control of DMH (in prison)).

Before we pass more laws restricting people's rights and freedoms - yes even those of persons convicted of a sex offense - we need to ask what purpose is served by the restrictions. If restricting where a person can live, or humiliating persons by putting their photos on the internet and subjecting them to attacks by giving their address to the world is not an effective solution to the problem, then why are we doing it? Like passing harsher drug laws and stiffer sentences for any crime, it is popular and it wins votes.

On Wednesday, the Senate voted to override the governor's veto on South Carolina indigent defense funds. Tuesday, the House unanimously voted to override the veto.

Governor Mark Sanford threatens a lawsuit, to force the legislature to pass a balanced budget. Also, Henry McMaster's "no parole" bill thankfully was not passed this session.

The DNA testing bill, which would allow inmates to request a DNA test in order to prove their innocence, has not been decided by the House yet.

According to the State newspaper Chief Justice Toal says

that Gov. Mark Sanford’s vetoes of millions of dollars for legal defense programs for the poor will clog state court dockets. Chief Justice Jean Toal also said the vetoes of $6.3 million to aid in indigent defense will increase the likelihood of appeals and saddle taxpayers with more spending to keep poor defendants in jails waiting for trials.

Sanford has said that his vetos, including the veto of funding for indigent defense, frees money needed for prisons and levels the playing field with prosecutors.

Edit: The House voted unanimously today to override the Governor's veto of the indigent defense bills, including the bills for funding of indigent defense of CDV and DUI. The Senate has not yet voted.

Kentucky's general assembly cut the budget for indigent defense, and the state's chief public defender is now asking judges to order the state to pay private attorneys to represent indigents.

Gideon and the 6th Amendment require that persons who are accused of crimes have the assistance of counsel. If the government wants to prosecute people the government will have to provide for the defense of those who cannot afford attorneys. Grandstanding, being "tough on crime," and vetoing the indigent defense bill is not an option. Public defenders' case loads can only be so high before they begin committing malpractice, and there must be sufficient funding to keep enough public defenders so that their case loads can be kept down. There must be sufficient funding for conflict attorneys. There must be sufficient funding for experts, investigators, and other court costs.

When the public defenders' case loads are too high, they have an ethical obligation to refuse to accept more cases. If this happens, prosecutions and the entire court system would grind to a halt.

Solutions?

Stop arresting so many people.

Start screening for indigency more effectively - if you have resources with which to retain an attorney you should not be using the public defender's office.

Elect someone with a legal education to the Governor's office (and Congress).

The Office of Indigent Defense in South Carolina has been doing an excellent job these last few years, and it seems the legislature has been supportive, in creating a statewide public defender system that was greatly needed. Don't shoot them in the foot when they are almost there.

Our governor has vetoed the statewide public defender system funding bill. Veto message, line 65, $3,993,844.00 non-recurring revenue to fund public defenders and staff. Governor Sanford believes that funding indigent defense sends the wrong message. Message to who?

The House will vote to override this veto next Tuesday.

South Carolina's revised driving under the influence bill was signed into law a few weeks ago, but it will not be effective until February 10, 2009. There are quite a few minor revisions, but the main changes are found in the penalties, which are now graduated based on the blood alcohol level.

Revised penalties under the new 56-5-2930:

First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.

Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.

Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.

Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.

The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.

Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.