News Release ~ 01/18/2017

Report: Nation's Criminal Defense Bar Documents "Sixth Amendment-Free" Proceedings in South Carolina Courts

The nation's criminal defense bar documents routine violations of the Sixth Amendment for South Carolinians who are accused of low-level offenses and who cannot afford an attorney. 

Washington, DC (Jan. 18, 2017) – Today, the National Association of Criminal Defense Lawyers (NACDL) released its second report on South Carolina's summary courts, Rush to Judgment: How South Carolina's Summary Courts Fail to Protect Constitutional Rights. The U.S. Constitution in the Sixth Amendment guarantees that a person accused of a crime has the right to a lawyer, whether or not he or she can afford to hire one. In South Carolina, the bulk of criminal cases are relatively minor offenses heard in municipal and magistrate courts, collectively referred to as summary courts. As demonstrated by the NACDL reports, these courts routinely fail to inform defendants of their right to counsel and refuse to provide counsel to the poor at all stages of the criminal process. South Carolina summary courts also regularly violate the Constitution by sentencing defendants to jail simply because they cannot afford to pay fines.

The first report, Summary Injustice: A Look at Constitutional Deficiencies in South Carolina's Summary Courts, a joint project with the American Civil Liberties Union (ACLU) and the ACLU of South Carolina, was released in April 2016. This follow up report to Summary Injustice presents the findings from additional study of South Carolina's summary courts accomplished through the systematic gathering of data from magistrate and municipal courts in five counties in the Palmetto state.

"This report documents that South Carolina's summary courts, which hear hundreds of thousands of cases a year, operate in a largely Sixth Amendment-free zone," said NACDL President Barry J. Pollack. "The assembly line approach to justice in South Carolina's summary courts falls well short of what is required both by the Constitution and by fundamental fairness. In issuing this report, NACDL calls for reform to change this intolerable situation."

This study is a part of a larger undertaking by the nation's criminal defense bar. NACDL is studying public defense systems in states across the nation to ensure the guarantees of the Sixth Amendment are secured for all persons accused of wrongdoing. Over three months in the winter and spring of 2016, observers collected information on criminal cases in dozens of summary courts in urban, rural, and suburban areas of South Carolina.

Each day, the team observed court hearings in various venues, observing individuals charged with everything from shoplifting and driving offenses to unlawful possession of tobacco and alcohol. In every court studied for this report, the team found egregious, repeated constitutional violations happening daily and in hundreds of cases. In the months of court watching and data collection, researchers documented numerous findings, all of which are set forth in the Rush to Judgment report. They include:

  • A routine absence of any lawyers in the courtroom -- nearly 26% of observed defendants had their cases processed without interacting with a single lawyer: the case was prosecuted by a police officer, there was no defense counsel, and the judge was not a licensed attorney.
  • Fewer than 10% of defendants in the study were represented by counsel. In 89% of the cases observed, the charging officers were the prosecutors in the summary court proceedings.
  • More than half of defendants (50.9%) were not advised of their right to counsel when speaking to the judge.
  • For bench trials, guilty was the most common verdict. Over 90% of defendants were found guilty; 96.3% of defendants tried in their absence were found guilty, compared to 73% when the defendant was present.
  • Most defendants were sentenced to a fine or were given a choice between paying a fine and serving a jail sentence. Nearly three quarters of the time, judges failed to inform defendants of the consequences of non-payment of fines.
  • Jail was imposed on 19.0% of defendants, and of these defendants 97.4% were not represented by counsel.
  • No defendant who entered a guilty or no contest plea or who was found guilty after a bench trial was warned about the possibility of deportation or other immigration consequences during any plea colloquy or sentencing; less than 4% of defendants were notified of other potential collateral consequences. Only 1.2% of defendants were advised of their right to appeal or the right to an attorney for that appeal.
  • Inadequate data collection coupled with the fact that some summary courts do not keep comprehensive records of their proceedings has resulted in a system that operates with little oversight to ensure constitutional rights are being upheld.

"South Carolina's summary courts suffer lack of oversight, lack of lawyers, and little due process. Constitutional violations occur undeterred because, shockingly, the charging officers are the prosecutors," said Professor Alisa Smith, Chair of the Legal Studies Department at the University of Central Florida. "They prosecute unrepresented defendants in courtrooms presided over by non-lawyer judges. The proceedings are quick. Individuals are not adequately informed of their rights or the consequences of entering pleas. When they don't enter a plea, trial judges hold immediate bench trials. Ill-prepared defendants, who are not provided the constitutional rights that apply at trials, do not question the charging officer's testimony and do not call witnesses. Unsurprisingly, they are typically found guilty. In small counties, the police are running the courts — they are the arresting and prosecuting authority, and the trial judges defer to their recommendations. The accused appears defeated, even before setting foot in the courthouse, without any real voice or chance to overcome what appears to be a presumption of guilt. This palpable lack of independent justice in these courts should be of major concern to South Carolina's residents and legislature."

Findings from the study lead NACDL to suggest the following five recommendations for reform to ensure that South Carolina's courts operate in accordance with constitutional mandates and guarantee procedural justice for those whose lives will forever be altered as a result of a criminal adjudication:

  1. Staff South Carolina's summary courts with prosecutors and public defenders and ensure that courts are presided over by judges who are licensed attorneys.
  2. Reduce the caseload of magistrate and municipal courts by decriminalizing traffic offenses.
  3. Reduce fines and fees, and consider alternative sanctions for those who cannot afford to pay.
  4. Increase uniform reporting of criminal and traffic cases in summary courts to include data regarding whether defendants had counsel and whether and how defendants were informed of their rights.
  5. Enact uniform procedures for magistrate and municipal courts regarding advisement of rights and plea colloquies. Ensure that all defendants understand their rights and the direct and collateral consequences of a guilty plea or verdict.

The lead researcher and co-author of Rush to Judgment was Professor Alisa Smith, Chair of the Legal Studies Department at the University of Central Florida. Sean Madden, Associate Professor of Criminology and Criminal Justice at the University of Tampa, worked as the statistician on the project. Additional co-authors were NACDL Public Defense Training Manager Diane DePietropaolo Price and NACDL Public Defense Training and Reform Director Colette Tvedt.

Rush to Judgment and the April 2016 report, Summary Injustice, can both be downloaded at www.nacdl.org/summaryinjustice.

Learn more:

NACDL's work in the area of public defense: www.nacdl.org/publicdefense 

Contact

Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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