By Ellen Cleary
First appeared in The Advocate Vol. 1 | No. 2 | April 2022
As a part-time bond court magistrate judge in Richland County for five years, I learned some things about how the system works. I am hoping I can share some insights that might be useful to practitioners.
First, every county and municipality operates differently. The best way to learn the system in a particular jurisdiction is to make friends with the staff and ask questions. They are overworked and overwhelmed, so patience and understanding goes a long way.
Counties and municipalities are all required to hold bond hearings at least once every twenty-four hours. Regardless of the jurisdiction, a bond hearing must be held within twenty-four hours of arrest and the defendant must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the jail. S.C. Code Ann. §22-5-510 (Supp. 2022).
Bond court judges come from a wide variety of backgrounds and most magistrates are not lawyers. Only a very few of the lawyer-judges have ever practiced criminal defense. They receive one week of initial training on the constitutional requirements regarding criminal law. There are no guidelines that tell a judge what bond amount is appropriate, except that summary court offenses are usually set at the fine amount (including fees). This gives part of the responsibility to argue the appropriate bond for your criminal defendants to you, practitioner. Keep the following in mind:
- South Carolina Const. Art. I, § 15 provides, in part, as follows: “All persons shall, before conviction, be bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, giving due weight to the evidence and to the nature and circumstances of the event….” Section 22-5- 510 of the South Carolina Code of Laws outlines the factors the judge must consider.
- The ultimate determination is whether the defendant is (1) a flight risk or (2) a danger to the community. The statutory factors are relevant only to determine whether the defendant is either one of those. Only if the judge finds the defendant is a flight risk or a danger may he require a surety. Otherwise, a personal recognizance bond is required. Judges need to be reminded of this.
- Most judges will give a cash/surety bond if the person is facing a long prison sentence. The reasoning is that fact makes them more likely to flee. Therefore, while normally the facts of the case are not discussed at a bond hearing, they can be relevant to determine the likelihood of fleeing. So, if the facts are weak, let the bond court judge know that.
- Many judges will require a cash/surety bond simply because the defendant is already out on bond. If the person has appeared for their court dates, picking up a new charge while being out on bond does not necessarily indicate that the person is a flight risk or danger. Again, the statutory factors must fit into these two constitutional
requirements. Again, judges need to be reminded of this.
- Concerns about flight risk can generally be addressed with an electronic monitor. Remember to request that the costs be waived or reduced if the client is indigent or close to indigent.
- Many of the defendants have mental health and/or addiction issues. Even though judges usually understand that this is out of the defendant’s control, judges are hesitant to let a person out if there is a risk to the community. If the defendant is violent, the lawyer needs to offer alternatives to keeping the person in jail. If an in-patient admittance can be set up, the judge will be much more likely to give a low or PR bond.
Judges welcome suggestions for terms and conditions that will alleviate the risks of release. These include electronic monitors, SCRAM monitors, and mandatory mental health evaluations.
- If your client is from out-of-state, volunteer to sign a waiver of extradition and to surrender the client’s passport. Always remember to ask permission to leave the state, especially with out-of state defendants. It is much easier to address this in the original order than having to get it amended.
- If your client is neuro-divergent, give a heads up to the judge or the bond court staff. Nobody wants to be the judge that admonishes an autistic defendant to make eye contact. Do not assume that the judge knows if your client has issues that might affect his behavior in court.
- If the judge orders a cash/surety bond, always ask for the option to pay a percentage. If your client can pay cash into the clerk of court, they will get that money back if they show up for court. If they go through a bondsman, they won’t get that money back. If payment of attorney fees is an issue, have the defendant sign an assignment of the bond to cover part of their legal fees.
While not exhaustive, I hope that these reminders give The Advocate readers a refresher on bond requirements and some tips to best formulate a zealous representation for S.C. criminal defendants.