South Carolina Criminal Defense Blog

The Citadel military college in Charleston has revealed its own sexual abuse snafu, revealed on the heels of Penn State's scandal. Louis Neal "Skip" ReVille worked for three years as a camp counselor at the Citadel, during which time he was "investigated" when a 14 year old camper reported that ReVille took him and another child into his room where they watched pornography and masturbated.

"We regret that we did not pursue this matter further," Citadel President Lt. General John Rosa and Board of Visitors Chair Doug Snyder said in a statement.

Apparently they discovered during their investigation that ReVille had no history of arrests or complaints, and he "strongly denied the accusation." So they did not pursue the matter further, and no charges were brought. Many people charged with weaker evidence than statements from two eyewitnesses/victims wish that avoiding criminal prosecution was this easy for everyone.

After graduating from the Citadel, ReVille was a principal at Coastal Christian Preparatory School and he coached sports for years at several area schools and recreation centers. Now he he has been charged with molesting five more boys in Mount Pleasant, South Carolina. The Citadel is releasing this information now because of media requests following the Penn State incident.

The NYTimes yesterday noted that Elana Kagan, Obama's nomination for the USSCT, had argued in favor of the government in this case:

At the argument of the case in January, Solicitor General Elena Kagan, now President Obama’s pick for the Supreme Court, said the law was needed “to run a criminal justice system that does not itself endanger the public.” She said 105 people had been confined under the law.

Ms. Kagan pointed to the Constitution’s “necessary and proper” clause as granting Congress the power to pass the law, though the clause is not ordinarily thought of as a source of free-standing authority. The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.

Not a huge deal, I suppose. The fact that the USSCT approved the indefinite detention of persons deemed to be sexually dangerous is not a huge deal at this point either - the USSCT and every state supreme court opinion that I have seen have already upheld these statutes under Due Process challenges where it is the states that are detaining the offenders under state laws.

What makes this case different is that it is the federal government doing the detaining under federal law, and not the states. The decision is not significant for the fact that people are being detained indefinitely - that is old news - what is significant is the further broadening, or stamp of approval on breadth already taken by the Congress, of the federal government's power to detain and hold citizens in jails. The states already have systems in place to evaluate and detain sexually violent predators, and the federal government does not belong in this arena.

Another thing that bothers me is that throughout the Comstock opinion the majority analyzes the issue as if they are discussing a criminal law, with criminal penalties for criminal conduct that has been committed. The state sexually violent predator laws have been upheld in part because they were not criminal penalties - they were civil statutes and the process was one of civil commitment (even though the offender remains in a detention facility in a prison cell) and therefore there was no double jeopardy issue. We are not punishing people in advance for crimes they have not committed, we are civilly committing people who are diagnosed as mentally ill and who have been found to be a danger to others.

The tone of Comstock seems to be A-OK with classifying indefinite commitment of sex offenders as a criminal penalty for crimes that have not yet been committed.

Two important criminal defense related opinions were released by the USSCT today - Graham v. Florida and United States v. Comstock. Graham holds that sentencing a juvenile to life without parole is cruel and unusual punishment in violation of the Eighth Amendment, at least in a non-capital case. Comstock holds that the Necessary and Proper Clause of the Constitution gives the government the authority to incarcerate a sexually dangerous federal prisoner indefinitely, beyond the time that he was sentenced to.

There's plenty of commentary out there already, so I'll keep it short. Scott Greenfield thinks that the two decisions are irreconcilable:

There isn't any way to reconcile these decisions, as the thread between them seems never to meet. Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance. But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption.

Taken separately, these decisions offer much to chew on. Taken together, they offer no coherent penal philosophy. Taken that they come from the same court, they offer no clue what we stand for.

I disagree. All analysis aside, looking at the bare facts on the surface of each case, we have 1) children being locked up for life sentences; and 2) bad terrible sex offenders who could hurt children if we let them out of their cages. Law enforcement, legislators, and appellate courts follow the thinking and sentiment of the public-at-large, and the rationale behind each case can be summed up with one simple statement: "Think of the children . . ."

More commentary at A Public Defender, Gamso for the Defense, and Liberty and Justice for Ya'll.

In State v. Hicks, decided May 3, the S.C. Supreme Court denied Hicks' appeal from the addition of sex offender conditions to his probation on grounds that there were two additional grounds for HIcks' revocation that his attorney did not appeal.

Hicks pled guilty to ABHAN (assault and battery of a high and aggravated nature) and was sentenced to ten years suspended to time served, five years probation, and registration as a sex offender. His probation was later revoked 90 days and the court ordered that Probation, Pardon, and Parole's sex offender conditions would be added as conditions of his probation.

The sex offender conditions of probation are burdensome and extreme, and I don't see where a court can or should add such terms at a later term of court, essentially modifying the defendant's sentence after the fact. The defendant here was sentenced in 2005, the probation department added the sex offender conditions in January 2006, and the Circuit Court added them to the defendant's sentence in May 2006.

The Court of Appeals did not answer the question, holding that the issue of the addition of the sex offender conditions at the revocation hearing was not preserved because it was not ruled upon by the Circuit Court; and here the Supreme Court has also dodged the question by holding that they cannot hear the appeal because defendant did not raise all grounds for revocation.

I believe, because of the extreme requirements in the sex offender conditions of probation, that this is not different than the case of State v. Davis, where the Court of Appeals reversed the Circuit Court's addition of the sex offender registry to the defendant's sentence during a probation revocation hearing - although the sentencing judge can order order placement on the sex offender registry for good cause following a conviction of ABHAN, a probation revocation judge at a later time does not have the authority to modify the sentence and add sex offender registry as a condition.