In S.C.’s lowest criminal courts, the poor suffer without attorneys, study by ACLU, lawyers finds

By Andrew Knapp, The Post and Courier

Poor defendants in South Carolina are sometimes put on trial without the attorneys they need in the state’s lowest criminal courts, where jail sentences can be short but have long-lasting consequences, legal advocates said in a new study.

Others are never told of their Sixth Amendment right to a lawyer and are shuttled through the process, bringing fines that impoverish them further or incarceration that can wipe away their jobs, according to the report by the National Association of Criminal Defense Lawyers and the American Civil Liberties Union.

PDF ACLU’s ‘Summary Injustice’
Many more don’t have representation at bond hearings, sending them to jail for time periods that can amount to a maximum sentence before they are convicted.

The findings were drawn through attorneys’ observations from late 2014 to July in 27 of the state’s 400 summary courts, including the magistrate and municipal levels.

The dearth of lawyers for the indigent — those living below the poverty line — is a national dilemma, but the researchers found it particularly troublesome in South Carolina’s low-level criminal courts, where the highest jail sentence is typically 30 days, where judges are not required to have law degrees and prosecutors are often police officers.

“It’s a perfect storm of stuff that’s going on,” said Susan Dunn, legal director for the ACLU of South Carolina, which collaborated with its umbrella organization and the defense lawyers group. “The big missing piece is clear guidance to the courts as to what they must do. They’re kind of making it up as they go.”

The ACLU provided The Post and Courier with the report that is set to be released Monday. While the analysis is based largely on anecdotal evidence, the researchers said they plan to further illustrate the issue with data later this year. Experts on both sides, though, already have acknowledged shortcomings.

Much of the solution, they said, boils down to money in a state that gives prosecutors three times more funding than public defenders. And for the first time last year, the state’s budget prevents cities and towns from using their judicial circuit’s public defenders unless those municipalities contribute extra funding.

The study also identified systemic problems, such as statewide court rules that instruct judges at this level to tell defendants of their right to free representation only when their cases are called to trial. For many, that’s too late.

In one account from December 2014, a black woman stood trial in North Charleston Municipal Court on charges that she shoplifted meat and cake from Wal-Mart with her 2-year-old granddaughter in tow. Though the woman wanted a public defender, the judge wouldn’t allow further delay in the case that had already been postponed for her to find a lawyer, the researchers said. She was convicted and sentenced to the maximum 30 days in jail. She left the courtroom sobbing and handcuffed.

The city pays the Charleston County Public Defender’s Office to provide the poor with counsel. Judges tell defendants of that right, said Derk Van Raalte, a city attorney. They can start the screening process at City Hall on the day of their first appearance. People who decide to sign up later must contact the public defender, Van Raalte said.

“North Charleston is actually a leader in terms of public defender access,” he said. “There are relatively few cities that have taken affirmative steps to get such an arrangement established.”

Several of those places are in the Lowcountry. Charleston employs its own public defender, and Mount Pleasant pays a private lawyer.

Ashley Pennington, the chief public defender in Charleston and Berkeley counties, stepped in when his office got word of the woman’s sentence. It was reduced, and she left jail days later.

But the system in city and magistrate courts has shortcomings, Pennington said. His employee handling those cases gets 750 new clients every year, many of whom face multiple charges. The nationally accepted standard is 400 new charges annually, he said.

“I don’t go around and perform audits on these courts,” Pennington said. “I don’t have that power or responsibility. But we do hear that sometimes these defendants are having trouble when they ask for lawyers.

“The stakes may not be as high in these courts, but the principal is the same.”

The study also zeroed in on Charleston County’s bond hearings, when most defendants don’t have an attorney. Though each is entitled to be freed on their own recognizance unless they pose a danger or a risk of flight, many don’t have the knowledge to argue that, the report stated.

Without legal help, many stay behind bars, unable to afford even low bail amounts. In one Beaufort County case cited by the researchers, a homeless man spent 30 days in jail for trespassing at a McDonald’s — the maximum sentence — before going to trial. He eventually pleaded guilty and got a sentence of time served.

The same result for people with jobs or families can be devastating. A grant that local officials hope to get from the John D. and Catherine T. MacArthur Foundation might help solve the problem by funding a public defender dedicated to bond court, Charleston County Chief Magistrate Ellen Steinberg said.

“We are all aware these issues are systemic in South Carolina,” she said.

The state spends $16 million a year for public defenders, while counties add to that. It would take another $10 million to properly fund them, the researchers said. But cities still must pony up more for their own courts.

Residents of cities and towns already pay taxes that fund the S.C. Commission on Indigent Defense, noted Bill Taylor, a field services manager from the Municipal Association of S.C. who works with court administrators.

A portion of most fines in city courts also goes to the agency that backs circuit public defenders statewide, he added. But a proviso added to the budget last year ordered the cities to “provide adequate funds” for indigent representation.

“They’re already paying twice, and now they’re being asked to pay a third time,” he said. “We are feeling the frustration. This is not an expense that the municipalities were looking for.”

Some have negotiated charges with public defenders’ offices, signed contracts with private attorneys or persuaded lawyers to do the work for free.

Others have ruled out jail time as a possible penalty for certain poor defendants, said Tiger Wells, governmental affairs liaison for the Municipal Association. The Constitution doesn’t guarantee representation when defendants face only a fine.