South Carolina Sentencing Reforms: A New Reality-Based Public Policy

Earlier this summer, South Carolina became the latest state to adopt sentencing reforms aimed at reducing penitentiary expenses. South Carolina's prison population rose abruptly from just over 9,000 inmates in 1983 to more than 24,000 by the end of 2009, with steep future increases projected. Over the same interval, the state prison budget rose from $63.7 million to almost $400 million. Despite this massive public investment, rates of violent crime and recidivism in the state have remained high.

According to The Pew Center on the States, spending on corrections throughout the U.S. increased more than fourfold over the past two decades. One percent of American adults are behind bars, and corrections budgets are the fastest growing expense item for state governments after Medicaid. The Pew Center, which advises many states about public safety performance, praised South Carolina's dedication to the issue. Richard Jerome, project manager of the organization's Public Safety Performance Project, said that "South Carolina policy makers put aside ideology, looked at the data and forged a comprehensive package of reforms that will get taxpayers a better return on their public safety dollars."

Strategies for Efficient Implementation of Sentences

One strategy that the new law employs is to provide eligibility for parole or probation to non-violent drug offenders, rather than requiring them to serve mandatory prison sentences. In addition, convicted drug offenders will now be required to pay fines, which will be dedicated to funding drug treatment and other rehabilitative programs. But the new law increases punishment for some violent crimes and focuses resources on the decision-making process for early release and ongoing supervision of parolees.

This legislation signed in June by Governor Mark Sanford was the result of a year of concerted efforts by the South Carolina Sentencing Reform Commission, which was made up of members of the state legislature and judiciary. The commission also took into account important insights from the defense bar, prosecutors, crime victims' organizations and law enforcement.

With similar recent developments in states such as Texas and Mississippi, some commentators perceive a trend away from the punitive sentencing enhancements put in place by many states in the 1990s. Incarceration is a drastic step for a society to take to uphold justice, and the public should rightly expect proportionality and effective results. Meanwhile, criminal defense lawyers must strive to see that suspects are not excessively charged and that the state is held to its steep burden of proof before denying a citizen of his or her liberty.

Conway Magistrate Judge Avoids DUI Charge

Driving under the influence in South Carolina is illegal no matter who you are, but everybody gets their day in court. A magistrate judge from Horry County was cited back in April by a Myrtle Beach patrolman after he performed a U-turn on a two-lane road. He was later released after posting $997 bond for the drunk driving charge and $133 for driving left of the center line.

At a late June court date, the judge forfeited his bond on the basic traffic offense, but the DUI charge was later dismissed by prosecutors in the 12th Circuit Solicitor's office, who did not comment to the media. The judge's attorney called the episode "an embarrassment," but said that the DUI case was weak and characterized the result as the "picture-perfect way justice should work." He was not aware if his client was offered a field sobriety test, but said, "the tests are only accurate 70 to 80 percent of the time anyway."

The case was transferred to a different circuit for purposes of neutrality, and he received a resolution in less than three months. Back in Horry County, the Chief Magistrate announced that the judge would soon resume his docket of traffic and jury court cases.

Prepare All Cases for Trial

It is almost always a good idea for accused drunk drivers to contest the charges they face. The stakes are high: under South Carolina law, a first DUI conviction can be punished by up to 90 days in jail and/or a fine of more than $2000. Add to that a six-month drivers license suspension, enrollment in drug and alcohol safety awareness classes, inflated insurance costs, and a permanent criminal record, and a smart and strategic defense becomes a wise choice.

In addition to the fallibility of field sobriety tests, there are many aspects of a DUI arrest that demand close legal scrutiny. An officer must be able to articulate sufficient reasons to have made a stop in the first place, and must carry out the investigation without invading the driver's constitutional rights. Empirical evidence of blood-alcohol content, such as Breathalyzers, is not foolproof, but challenging technical results is a complex matter.

An experienced criminal defense trial lawyer can help you understand the charges, explain your legal options and assess your chances for a positive result. Preparing all cases for trial, whether the case goes to trial or not, is the best strategy to achieve success in your case.

Warrantless Searches: Reckless Policing or Crime Prevention?

In a bill that is currently making its way through the South Carolina legislature, the privacy rights of parolees and probationers are being challenged. The proposed law, commonly known as the South Carolina Reduction of Recidivism Act of 2010, would allow officers to search persons recently released from prison on parole or probation without first obtaining a warrant. This power would also extend to searching the person’s vehicle and personal belongings, such as a purse or bag, and seizing anything illegal.

Reduce Relapse Rates

The South Carolina Reduction of Recidivism Act of 2010 was first introduced in the Senate in early 2009. The stated goals of the legislation are to prevent recently released criminals from committing repeat crimes during their period of parole or probation and to reduce recidivism, or relapse into crime, rates. These goals would be achieved through eliminating the step where officers have to ask judges for warrants before searching certain individuals engaged in suspect activities.

To further enforce the new procedure, the bill mandates that those who are up for parole or probation must consent to the warrantless searches in writing as a condition of their release. If they do not, they must serve their outstanding time behind bars. This legislation is currently headed towards a vote and resides again with the Senate after the House recently amended and returned it. Even though the ultimate goal of the bill seems beneficial to society, the means the legislation presents is not without controversy.

Assess Pros and Cons

Proponents of the bill say that it would deter repeat offenders for fear of being caught with illegal items. They also offer that it could help keep parolees and probationers in line if overworked parole or probation officers cannot frequently monitor their activities and whereabouts. In prison, criminals have little to no privacy rights. Those in favor of permitting warrantless searches and seizures agree that these privacy limits should be continued to discourage temptation for convicted criminals serving the remainder of their sentences in the greater community.

Critics of the proposed law cite the violation of privacy of people who already served their prison time. They shudder at the thought of officers performing unprovoked searches and argue this will generally harm the reputation of law enforcement personnel among area residents where these searches are performed. In addition, some civil rights advocates state there is no evidence that law would prevent recidivism and are concerned about the possibility of racial profiling by officers taking the liberty to stop people based on how they look. A final point of contention is the issue of home searches, but the Senate and House have not definitively agreed that these should be included under the law.

Prevent Searches and Seizures

The Fourth Amendment to the U.S. Constitution protects the privacy of citizens. It secures people from unreasonable government intrusion, for example from searches and seizures, by police. This right extends to people even during police stops in a vehicle or on the street, or in the event of an arrest or search of a home or business. This amendment does not apply if an officer has a valid search or arrest warrant or believes there is probable cause of participation in criminal activity.

The warrantless search and seizure bill seems to directly conflict with the rights of U.S. citizens that are guaranteed by the Fourth Amendment. As a person free from imprisonment, a parolee or probationer may expect their right to privacy and that the safeguard of the warrant process will still apply. Could a law like this, where a court does not participate in determining probable cause, promote an officer to abuse his or her power to search a person and seize property? Opponents of the law argue sentencing reform to keep violent and repeat offenders in jail is a better way achieve the legislature's goals. Many issues related to this bill are yet to be determined.

Participate in the Debate

Other states also see the value in allowing searches and seizures with regard to parolees and probationers without a warrant. North Carolina passed similar legislation, and Tennessee’s Supreme Court upheld legislation permitting warrantless searches even if there is no suspicion of illegal activity. Regardless, these types of laws walk a fine line between violating the privacy rights of recently released criminals and attempting to foil the plans of would-be repeat offenders.

Because this bill encourages treating parolees and probationers differently than non-criminals, it is important to understand the purpose of parole and probation and the laws that restrict people upon their release from prison. We must all be conscious of the rights that we have, such as the right to privacy and protection from unreasonable searches and seizures, and seek to preserve them. When the government passes legislation that curtails these rights, even for a fraction of the population, we may become subject to them one day.

Kids in Crisis (Behind Bars)

By NICHOLAS D. KRISTOF
Published: January 27, 2010

We all have blind spots, and I think one of mine — shared by many other Americans, perhaps including you — has to do with prisons.

Over the years, I’ve written many columns about Guantánamo Bay, Abu Ghraib and torture, not to mention the abuses that go on in Chinese and North Korean prisons. But I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.

Consider Rodney Hulin Jr., who was a 16-year-old when he was convicted of arson. A first-time offender and a slight figure at 5 feet 2 inches tall and some 125 pounds, he was sent to a men’s prison. There, he was the smallest person around. Within a week, he was raped, according to an account by Human Rights Watch, an advocacy group. The prison doctor ordered an H.I.V. test, since up to one-third of the inmates were H.I.V.-positive.

Rodney asked to be placed in protective custody, but he was denied. His father, Rodney Hulin Sr., picks up the story: “For the next several months, my son was repeatedly beaten by the older inmates, forced to perform oral sex, robbed, and beaten again. ... He could no longer stand to live in continual terror.”

Rodney Jr. hanged himself.

Maybe Rodney would have been safer in a juvenile correctional facility, but then again maybe not. A stunning new Justice Department special report, released just this month, underscores how widespread rape is in youth correctional facilities. It found that almost one youth in eight reported being sexually assaulted while behind bars in the last year.

That means that a child in custody is about twice as likely to be raped as an adult behind bars, based on similar surveys of adult prisoners. As The New York Review of Books wrote on its blog, we face a “crisis of juvenile prison rape.”

The National Prison Rape Elimination Commission, a blue-ribbon panel that issued its final report last year, described how a 14-year-old boy weighing 98 pounds was assaulted after he was made to share a cell with two older teenagers. Both were 6 feet 2 inches, and one weighed 160 pounds and the other 195 pounds.

Surprisingly, the new survey suggests that the biggest predators are not other inmates but prison staff — and female staff members offend as much as the males do. More than 10 percent of boys in juvenile correctional facilities said that they had had sex with staff, most of whom were women.

Among girls, almost 5 percent said that they had engaged in sexual activity with staff, most of whom were men.

Reggie Walton, a federal judge in the District of Columbia who led the prison rape commission, said that the figures may even be an undercount because of the stigma of rape. “I was shocked at the level of abuse,” he said.

One lesson from the surveys is that we should rethink the way male guards are sometimes assigned to female inmates, and female guards to male inmates, without sufficient respect for inmates’ privacy or dignity. That won’t stop same-sex violence or inmate-on-inmate abuses, but it would address one important component of the abuse problem.

By some accounts, the majority of guards at women’s prisons are now men. Investigators at one juvenile correctional facility found that a male guard watched as girls showered, while a woman watched over boys showering.

Jamie Fellner of Human Rights Watch, also a member of the prison rape commission, described a Virginia prison where men were stripped naked and asked to spread their buttocks in front of a female officer. When a male inmate asked to be searched in front of a man instead, Ms. Fellner said he was Tasered.

In the last few years, a growing number of states have limited the ability of guards to strip-search members of the opposite sex or watch them showering. And a landmark law, the Prison Rape Elimination Act, created Judge Walton’s commission, which has made excellent recommendations to reduce violence and abuse behind bars. The Obama administration should quickly implement those recommendations.

Surveys have found that well-managed prisons and correctional facilities with strong accountability have almost no rape, by guards or inmates. Others have astonishingly high levels. If we want to rehabilitate young offenders and help them get their lives in order, a starting point is to end the criminal abuse of them.

The legacy of Rodney Hulin Jr. should be a concerted drive to end the way inmates are raped with impunity behind bars. The survey results indicating the ubiquity of sexual assault behind bars, often by guards, should be an awakening — and an end to this blind spot that so many of us have shown. We need to be as alert to human rights abuses in our youth correctional facilities as to those at Guantánamo.

Officials differ on effect of budget cuts on gangs

By: Liz Carey, Rick Spruill
Original post: January 23, 2010 at 8:22 p.m.

Officials with the South Carolina Department of Juvenile Justice worry that gang problems could increase if the state decides to cut the department’s budget again. But not all Anderson-area officials agree.

In Anderson County, officials estimate that more than 400 young men and women are involved in gangs.

Bill Byars, director of the state Juvenile Justice Department, said if legislators cut the agency’s budget any further, the number of young people in gangs could go up, increasing crime rates and hurting business.

“I’m not sure where the money would come from, but I’m not sure we could wait,” said Byars, who made his case Wednesday before a South Carolina House of Representatives Ways and Means subcommittee. “If you don’t suppress the gangs, it’s going to hurt economic development.”

His agency has been cut roughly 25 percent in 18 months, and is facing even deeper cuts as legislators consider ways to fill a $563 million budget hole. Byars said he’s running out of options.

Layoffs of several hundred employees at the department because of previous cuts have forced the closing of 19 programs.

Rep. Dan Cooper, the Anderson County Republican who is chairman of the House Ways and Means Committee, said cuts will be necessary to address the shortfall in the budget. While the state will be able to fill $350 million of that shortfall with federal stimulus money received by the state, that leaves a $200 million gap.

“Nobody wants to get a cut, and nobody wants to actually give cuts,” Cooper said. “But, we need $200 million in order to avoid cuts, and we’re not going to get it. You can tell by the unemployment numbers people aren’t spending money.”

When stimulus money goes away, Cooper said, the state could be looking at filling a $1 billion hole.

“I keep telling the agency directors that they’re going to look back at this year as the good times,” he said.

Amy Bradshaw, Anderson County’s director for the state Juvenile Justice Department, said a recent 5 percent budget cut had been absorbed, but additional cuts would have an effect.

“Judge Byars did a great job with the 5 percent budget cuts we just took, and fortunately there were no job cuts,” Bradshaw said. “But any future cut could certainly impact our county office. It all depends on how deep it is.”

Bradshaw said cuts dating back to the 2008-09 fiscal year added pressure to an office that processed more than 640 juveniles through the county’s family court system in 2009.

“The Juveniles Experiencing Excellence Program was taken in November of 2008 when the largest cut came,” she said. “The JEEP program was an after-school program offered through Westside High School that provided life-skills training and job-readiness (training) for low-end offenders. For kids from low-income families, losing a job puts pressure on them.”

Plans for anti-gang teams in communities across the state — initially costing $2 million for 46 teams — never got off the ground.

Anderson County Sheriff John Skipper said that because the sheriff’s budget is based on local tax collections, gang-related enforcement activities are not affected by the state-level cuts.

“Our gang task force is still up and running at full speed,” Skipper said. “Obviously the gangs are not going away, and in any given area of the state local program cuts could lead to an increase in gang membership.”

When asked whether he agreed with Byars that gang activity hurts economic development, Skipper said, “I guess there is the potential for that, but you can’t say it with 100 percent assurance. It depends on the type of economic development the county is looking for and gearing itself toward.”

Skipper said he is pleased with the work being done by the Gang Task Force.

“They’re doing a lot with a little right now,” he said.

Interim Anderson County Administrator Rusty Burns said gangs are a community issue.

“It’s not just the Department of Juvenile Justice, it’s the schools, it’s mom and dad, it’s the churches, it’s the social organizations, it’s the city, municipal and county parks and recreation departments,” he said. “All of these groups work together to help prevent kids from going off track. And all of us will have to come together to address this issue, not just lay the glory or the blame at the feet of one state department.”

The real issue, Burns said, is not which agencies’ budgets to cut, but how the state raises money in the first place.

“The current budget crisis is literally pitting all of these public entities against one another,” he said. “This is probably one of the worst budget situations this state has faced since the Great Depression. Times are tough all around. Revenues are down all across the state and all across the country. We’ve got to have legislators and elected officials who have the strength of character to not only make the tough decisions, but the right decisions for all of us.”

Nearly one in 10 high school students in South Carolina is in a gang, according to a survey made public this month by the state Department of Education.

Sue Berkowitz of Appleseed Legal Justice Center, which advocates for the poor, called it a scary and depressing situation.

“This is more than just a social consequence,” Berkowitz said. “For every child we lose to a gang, that’s not a short-term social club. It often becomes a lifestyle that leads to greater and greater consequences and more and more cost.”

Further cuts to the juvenile justice department would have far-reaching consequences, said Randolph Dillingham, director of the Anderson County Alternative School. The school provides educational opportunities to children who have been expelled from any of the county’s five public school districts.

“If you cut the Department of Juvenile Justice, those of us in education who are working against this gang mentality, that’s one less resource we will have,” Dillingham said. “We are in a position where we have established a great relationship with the probation people and other officials in DJJ. If we have kids who are in the system, we have access to those DJJ staff members to come over and do counseling. … If we don’t have access, or they have fewer people in their office, then obviously it’s going to affect us negatively.”

A man who appeared at the legislative subcommittee meeting Wednesday as an expert witness on gangs likened them to incurable cancer.

“The money might go away, but the gangs aren’t,” said Robert Walker of Lake Murray.

His law enforcement career includes stints as a border patrol agent, a Drug Enforcement Agency investigator and coordinator of South Carolina Department of Corrections’ gangs unit.

Programs to bring young people off the streets are at least giving them some hope, Walker said.

“I think you’d be surprised at the number of kids who really do take an interest in what’s being offered,” he said.

An American Civil Liberties Union report suggests that major problems at the juvenile justice department would compromise both the well-being of juveniles and the public’s safety.

The report said an investigation into the department by the ACLU found staff abuse, dangerously low numbers of staff members and unacceptably high levels of juvenile violence.

“The juvenile detention system in South Carolina is in critical condition and in desperate need of positive intervention,” said Victoria Middleton, executive director of the ACLU South Carolina Office. “We need to invest the funds necessary to ensure constitutionally adequate, secure facilities, and we need to reduce the number of juveniles who are incarcerated in the first place.”