South Carolina Criminal Defense Blog

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.

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Posted In: Legislation

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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.

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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.

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Posted In: Legislation , Wrongful Convictions

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Posted In: DUI DWI Driving Under the Influence , Legislation

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