'Nightmare' directive from SC's Chief Justice has courts, cops scrambling

'Nightmare' directive from SC's Chief Justice has courts, cops scrambling
Published: Nov. 6, 2017 at 5:16 PM EST|Updated: Nov. 6, 2017 at 10:34 PM EST
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COLUMBIA, SC (WIS) - A memo from South Carolina Supreme Court Chief Justice Donald Beatty has forced judges, attorneys, and law enforcement to re-examine how they handle cases in lower level courtrooms.

The directive issued by Beatty on Sept. 15 takes aim at proceedings in summary courts.

Beatty's message points to constitutional rights violations for defendants he says are being jailed before they have access to legal counsel:

"It has continually come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment. This is a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States.

All defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right to court-appointed counsel prior to proceeding with the trial.  Absent a waiver of counsel, or the appointment of counsel for an indigent defendant, summary court judges shall not impose a sentence of jail time and are limited to imposing a sentence of a fine only for those defendants, if convicted.

When imposing a fine, consideration should be given to a defendant's ability to pay.  If a fine is imposed, an unrepresented defendant should be advised of the amount of the fine and when the fine must be paid.  This directive would also apply to those defendants who fail to appear at trial and are tried in their absence."

"I am mindful of the constraints that you face in your courts, but these principles of due process to all defendants who come before you cannot be abridged," Beatty writes.

The Chief Justice's comments prompted the top judge of the Irmo Municipal Court to recall all bench warrants and remove them from the National Crime Information Center system.

Meanwhile, a Richland County Sheriff's Department official says the directive has created a "nightmare" for the agency.

Beatty's message follows two highly critical studies released by the National Association of Criminal Defense Lawyers, the ACLU and The Foundation for Criminal Justice.

The most recent report issued this year is titled "Rush to Judgment: How South Carolina's Summary Courts Fail to Protect Constitutional Rights."

It targets court proceedings in five South Carolina counties, finding what the NACDL called "egregious, repeated constitutional violations happening daily and in hundreds of cases."

The organization says, as a result, many defendants "lose their liberty, sustain the life-altering consequences of a criminal conviction, and are saddled with fees and fines, the non-payment of which can have cascading impacts for years to come."

The right to counsel under the Sixth Amendment to the United States Constitution applies in state courts through the Due Process Clause of the Fourteenth Amendment.  U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; S.C. Const. art. I, § 14.

See Argersinger v. Hamlin, 407 U.S. 25 (1972) (holding that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial);

Scott v. Illinois, 440 U.S. 367 (1979) (concluding that the Sixth and Fourteenth Amendments to the United States Constitution require that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense); Alabama v. Shelton, 535 U.S. 654 (2002) (ruling that a defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel).

See also: Faretta v. California, 422 U.S. 806, 835 (1975) (providing a criminal defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open'" (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942))).

Read both reports here: https://www.nacdl.org/summaryinjustice/

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