South Carolina Pretrial Release vs. Post Conviction: Monetary Burden
A hot topic in the criminal justice community revolves around the monetary burden placed on the pretrial housing of accused defendants. The debate on how to handle pretrial defendants occurs at the federal, state, and local levels. The state of South Carolina primarily mandates pretrial release of defendants through the use of personal recognizance bonds (no monetary fee nor is there a guarantor for the successful appearance of the defendant), and commercial bail (charges a premium to guarantee the defendants successful appearance in court). In the case of the majority of defendants in South Carolina they will be released pending trial by one of the aforementioned methods. The problem many scholars fail to acknowledge in the state of South Carolina is the ability of the defendant to remain free post-conviction.
The state of South Carolina is based on a “pay the fine or do the time” mantra throughout the summary court system. Thus meaning that a defendant in the majority of misdemeanor cases is faced with two options for criminal penalty if found guilty of the accused crime. In a state with no misdemeanor probation these low-income defendants are now faced with the daunting task of paying a fine amount, or serving a 30-day jail sentence. If a defendant is fortunate enough to reach a payment agreement with the court of competent jurisdiction they may retain their freedom so long as they make all payments as agreed to. Should a defendant fail to comply with the agreement a bench warrant will be issued and the defendant will be jailed until one of the following requirements is met:
Essentially this system sets up for a debtors prison, or the housing of post-conviction defendants simply because they lack the ability to pay a fine. In a system dominated in thought about the monetary burden of pre-trial housing significant thought should be placed on the post-conviction housing for non-violent misdemeanor/family court offenders whom are being detained for the inability to pay a fine amount. In this line of business it is often seen that the majority of defendants have the ability to be released pre-trial, yet lack the ability to retain their freedom when faced with post-conviction fines.
The state of South Carolina, and more importantly the city of Charleston have begun to look at government funded pre-trial release services based on risk assessment methods. However, the state already has these methods in place through the use of magistrate judges, and the use of personal recognizance bonds (SC code of laws 17-15-10; 17-15-30). Rather than re-inventing the wheel surety agents should be provided court date notification in order to reduce the issuance of frivolous bench warrants pre-trial. This will tremendously reduce the issuance of pre-trial bench warrants while keeping a financially bound surety responsible for the defendant. Secondly the funds used to move towards government funded defendant release may be better served in misdemeanor probation efforts. Government funded programs may be better served by turning focus to the post-conviction housing of defendants simply because they lack the ability to pay a fine. Instituting misdemeanor probation type services can reduce the housing of bench warranted individuals due to monetary restrictions. In doing this these defendants can provide community services to restore the debts to society caused through their crimes, rather than having the taxpayer bear the financial burden of housing the defendant in jail because they lack the ability to pay a fine.
South Carolina Bail Agents Academy
Donald F. Mescia III