South Carolina Criminal Defense Blog

The Loeben prison in Austria is an experiment in corrections that deserves attention. It is a prison, with barbed wire and locked gates like any other, full of criminals who are serving time, and yet within are painted walls, rooms with kitchens and balconies, all of the amenities of home. Beneath the concrete on the razor wire in the yard is carved "a line from the International Covenant on Civil and Political Rights (which the United States signed and ratified) that reads: 'All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.'"

Everybody says this, or something like it: I guess crime does pay, after all. Or, That’s bigger than my apartment. (New Yorkers, in particular, tend to take this route.) Or, Maybe I should move to Austria and rob a couple of banks. It’s a reflex, and perfectly understandable, though it’s also foolish and untrue — about as sensible as looking at a new hospital wing and saying, Gee, I wish I had cancer.

Contrast this with a recent news story of a woman's death in Arizona, where she was placed in an outside holding pen with a chain-link-fence-roof in 108 degree heat. She was charged with prostitution, and received a death sentence.

In the United States, which has the highest incarceration rate of any country in the world, we do not coddle criminals. Our jails and prisons are designed to make their inhabitants suffer and there is no question about it. Inmates in our local jail in Horry County sleep sometimes 8 to a cell, on the floor with a thin mattress. In our jails and prisons you will not see private toilets or showers, and the motif is steel bars and concrete blocks. Spider bites and resulting infections have been a problem in several South Carolina jails. Treating inmates with dignity is not an objective of most guards.

Some will say that the purpose for the abysmal conditions of our jails and prisons is deterrence - certainly, people do not want to go to them, therefore they will be less likely to commit crimes, right? Except this reasoning makes no logical sense - most people who commit crimes are not stopping to consider the consequences at the moment the crime is committed. Most crimes are not planned with careful forethought. As noted in the above article, crimes are committed most often 1) by persons in the heat of the moment who do not and perhaps cannot stop to consider the consequences; and 2) by persons who, even if they do stop and consider, do not care what the consequence may be.

Forcing convicted criminals to live in squalor, to suffer daily, and treating them like animals does not encourage them to live a better life when they are released from prison. It hardens a person, it can change a person, and, rather than decreasing recidivism, it encourages recidivism because once the person is released this is all that they know and what they are used to.

Is it possible that the punishment that is meted out in our prisons and the demeaning attitude of many guards is the result of a desire to be cruel to people? By nature, many people have a piece of themselves that is cruel and that enjoys hurting others - it is not only criminals with this trait, but politicians, prosecutors, attorneys, police, mothers, school teachers, and prison guards. Is it possible that, like some criminals, some people in positions of power enjoy hurting others, but they have learned how to do it legally?

If our current system of punishment does not have any measurable effect on deterrence or recidivism, why do we continue to build more prisons and do more of the same?

The government needs more ingenious ways to save money while continuing to lock up record numbers of our citizens. For example, in Springfield, Oregon, they have decided to charge accused people for their accomodations at the jail following arrest:

The city plans to charge convicted criminals up to $60 a night, depending on their ability to pay, when a new 100-bed lockup opens in October, Springfield Police Chief Jerry Smith says. Thus, the city could recoup most of its cost of about $70 a day.

"These people are the ones who cause the cost to operate a jail, so they ought to be the ones to pay it, not private citizens," Smith says.

I don't know. The Constitution says that I am innocent until a jury says otherwise, but maybe this is good sense, and not just another way to tax the poor. After all they caused us to put them in jail, right? Apparently many counties and cities in Utah, Virginia, and Oregon have begun charging people for stays in the slammer. The Douglas County jail in Roseburg, Oregon, uses a collection agency to get their money.

Repeal Day's 75th anniversary is December 5th. The 18th Amendment to the U.S. Constitution was ratified by Congress on January 16, 1919, making it illegal to produce, distribute, or sell alcohol. Following the growth of organized crime and a growing realization that prohibition did not work, prohibition was repealed by the 21st Amendment on December 5, 1933.

Today, there is again a growing realization that prohibition, this time of drugs, is still not working. A Los Angeles Times article published November 27th cites a report by the Brookings Institution, the latest in a series of revelations that the war on drugs has failed (H/T a public defender).

Contrary to government claims, the use of heroin and cocaine in the U.S. has not declined significantly, the report says, and the use of methamphetamine is spreading. Falling street prices suggest that the supply of narcotics has not declined noticeably, and U.S. prevention and treatment programs are woefully underfunded, the study says.

The war on drugs has resulted in ever increasing violence, at home and abroad, as drug cartels continue to profit from the vacuum created by prohibition in the United States. Former Mexican president Ernesto Zedillo, interviewed by the LA Times for the article,

cited skyrocketing violence in his own country as an example of the damage done by these policies. More than 4,000 people have been killed in Mexico this year in drug-related warfare between government troops and traffickers, and among rival drug gangs. Many of the weapons confiscated in raids and shootouts came from the U.S.

Law Enforcement Against Prohibition (LEAP), an ever-growing group of former police officers, judges, and prosecutors who support bringing an end to prohibition, will commemorate the 75th anniversary of the repeal of alcohol prohibition with an event tomorrow at the National Press Club (H/T Radley Balko), and have issued a press release:

WASHINGTON, D.C. – On Tuesday, December 2, a group of law enforcers who fought on the front lines of the “war on drugs” and witnessed its failures will commemorate the 75th anniversary of alcohol prohibition’s repeal by calling for drug legalization. The cops, judges and prosecutors will release a report detailing how many billions of dollars can be used to boost the ailing economy when drug prohibition is ended.

“America’s leaders had the good sense to realize that we couldn’t afford to keep enforcing the ineffective prohibition of alcohol during the Great Depression,” said Terry Nelson, a 30-year veteran federal agent and member of Law Enforcement Against Prohibition (LEAP). “Now, cops fighting on the front lines of today’s ‘war on drugs’ are working to make our streets safer and help solve our economic crisis by teaching lawmakers a lesson from history about the failure of prohibition. We can do it again . . ."

“We Can Do It Again: Repealing Today’s Failed Prohibition,” highlights how the “war on drugs” – just like alcohol prohibition – subsidizes violent gangsters, endangers public health and diminishes public respect for the rule of law. The report also details how the newer prohibition comes with the much graver threat of international cartels and terrorists who profit from illegal drug sales. Yet, it leaves readers on a hopeful note…

“We’re starting to see an emerging consensus that drug prohibition just doesn’t make sense,” said Seattle’s retired Police Chief Norm Stamper, a LEAP member. “Three out of four Americans now say the ‘war on drugs’ has failed, and so do the U.S. Conference of Mayors, the National Black Caucus of State Legislators and the National Hispanic Caucus of State Legislators. Now, it’s up to the new administration and Congress to follow through.”

Below is a link to a video made by LEAP, and some highlights from their message:

- In 1914, 1.3% of the people in this country were addicted to drugs when we passed the Harrison Act, creating the first illegal drug in the U.S. In 1970, the beginning of the war on drugs, 1.3% of the people in this country were addicted to drugs. Today, a trillion dollars and countless destroyed lives later, 1.3% of the population is addicted to drugs.

- Drug legalization is not an approach to the drug problem; it is about our crime and violence problem. Once drugs are legalized we still have to deal with the drug problem. We are capable of dealing with addictions - 50% of the adult smokers in our country quit in the last 10 years, giving up nicotine, the most addictive drug that we know, without criminalizing it but through aggressive education efforts.

- The first outcome of legalization is that 1.6 million less people would have to be arrested every year. And it means that 69 billion dollars every year would be freed up to put in other places, such as prevention and treatment of substance abuse, other much needed government programs, and the economy.

- In South Africa in 1993, under apartheid, they incarcerated 851 black males per 100,000. In the United States in 2004, under prohibition, we incarcerated 4919 black males per 100,000. In 2007, according to the Pew Center on the States, 1 in 15 black men aged 18 or older were incarcerated, and 1 in 9 black men aged 20 - 34 were incarcerated. How anyone could look at this and not see institutionalized racism, I don't know.

The FBI's yearly report on crime data was released this week, and shows that a record number of Americans were arrested for marijuana possession in 2007:

872,721 Americans were arrested for marijuana in 2007, and of those arrests, 89% or 775,138 were arrests for simple possession - not buying, selling, trafficking, or manufacture (growing) . . . This represents an increase in marijuana arrests of 5.2% from the previous year and the fifth straight year marijuana arrests have increased from the previous year. Now a marijuana smoker is arrested at the rate of 1 every 37 seconds and almost 100 marijuana arrests per hour.

In comparison, Grits points out that "597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses." Dallas criminal defense lawyer Robert Guest takes this a step further, finding that the clearance numbers (crimes solved) for 2007 were:

Murder 60%

Rape- 40%

Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?

South Carolina had a total of 213,355 arrests, of which 10,681 were arrests for violent crimes, 302 were arrests for murder, and 30,679 were arrests for drug crimes

Just days before the FBI released their statistics showing that over 872,000 Americans were arrested in 2007 for marijuana, our esteemed Drug Czar stated on C-Span that "we did not arrest 800,000 marijuana users," and went on to explain that "we arrest people because they are usually involved with things like violent offenses . . ."

Right around 1:38 on the video:

Yesterday a Joint Economic Committee meeting was held by the House and Senate, called by Virginia Senator Jim Webb, to discuss the efficacy of our country's failed drug laws. There was testimony by prosecutors and legal scholars that the current emphasis on incarceration rather than treatment has proven to be costly and ineffective.

Senator Webb and the witnesses at the hearing say that despite record numbers of arrests and incarceration of drug offenders, there has been no reduction in the availability and use of drugs. "Despite the number of people we have arrested, the illegal drug industry and the flow of drugs to our citizens remain undiminished," Webb said. Also at the hearing, Rep. Robert C. "Bobby" Scott "said prevention programs such as prenatal care, early-childhood education, summer jobs and access to college would prove more cost effective than spending $65 billion a year to lock people up, as the United States does today."

According to the article, Senator Webb acknowledges that the subject matter is "politically perilous," and advocating for less prison sentences will be seen as being "soft on crime." Senator Webb said that there is no pending legislation, he just wants to get the facts out. No republicans showed up for the meeting, and there was not much media coverage of the event, as noted at Sentencing Law and Policy.

That is the main barrier to fixing the drug laws - no politician wants to be seen as "soft on crime." But it is encouraging at least to see some who are talking about it, and putting it into the public's view. The beginning of making changes in the current policy is to educate the public on the facts of the "drug war," addiction, and the ineffectiveness of current policies.

When the will of the people is to stop incarcerating America, politicians will change the laws to reflect treatment and prevention rather than incarceration for non-violent offenders. There needs to be public debate, and more people in positions of authority like Senator Webb need to speak up if there is going to be any change in our collective will as a nation.

Woman in Black thinks that a mandatory month in prison should be a prerequisite to working as a judge or prosecutor. I agree. Before we are allowed to make decisions as to just how many months or years a human being will be locked inside a steel cage, we should know just what we are talking about.

Despite all of the attention focused nationally on the overcrowding of our jails and prisons, our attorney general is pushing a bill that will remove the possibility of parole for any felony in South Carolina. The bill would accomplish two main purposes: to eliminate the possibility of parole for felonies, and to create an alternative court for non-violent offenders.

Under the current scheme, a no parole offense is defined by § 23-13-100 as a Class A, B, or C felony, or any crime that is exempt from classification but punishable by a maximum term of 20 years or more. A person who is convicted of a no parole offense is not eligible for parole and cannot be released until they have served at least 85% of their sentence.

The proposed bill, H.4309, would revise § 23-13-100 to include Class D, E, and F felonies, or any crime that is exempt from classification but punishable by a maximum term of 1 year or more, and it would include Class A and B misdemeanors as well.

The proposed bill would also establish a system of "middle courts," modeled after drug courts, but not limited to drug offenses. 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.

The figure of 1 in 100 adults incarcerated, although shocking, is not the worst of the statistics revealed by the Pew Center Study. At the beginning of 2008, 1,596,127 persons were in state or federal prisons, and another 723,131 persons were in local jails, making the total adult inmate count 2,319,258.

The figure of 1 in 100 is based on total adult population. The study also breaks down the percentage incarcerated by race, age, and gender:

1 in 54 men aged 18 or older are currently incarcerated.
1 in 106 White men aged 18 or older are currently incarcerated.
1 in 36 Hispanic men aged 18 or older are currently incarcerated.
1 in 15 Black men aged 18 or older are currently incarcerated.
1 in 9 Black men aged 20-34 are currently incarcerated.

The figure of 1 in 100 adults incarcerated is arrived at as follows:
Prison population 1,596,127 + Jail population 723,131 = Total behind bars 2,319,258.
Total adult population 229,786,080 divided by Total behind bars 2,319,258 = 99.1
One in every 99.1 U.S. adults incarcerated.

A study by the Pew Center on the States reports that more than 1 in 100 Americans are currently behind bars. The United States incarcerates more of its citizens than any other nation in the world.

A recent New York Times article discussing the study notes that:

[p]rison costs are blowing a hole in state budgets. On average, states spend almost 7 percent on their budgets on corrections, trailing only healthcare, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bonds and the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

This is not an abstract problem viewed from a distance - this is an issue that affects all of us. Horry County is currently building a $50 million addition to the J. Reuben Long Detention Center, which will require 50 additional employees. Charleston County is building a $100 million expansion to their jail, and Spartanburg County is considering a $46 million expansion to their jail.

Overcrowding in the Lexington County Jail has become a problem, and Lexington Sheriff James Metts is pushing a plan to build new jails in Laurens, Lee, and Colleton Counties to house illegal immigrants. The Beaufort County Jail is severely overcrowded and, like many counties, Beaufort is debating how much to raise property taxes to cover the costs of expansions.