No, no one asked my opinion . . . but I’m going to give it anyway. Why I think South Carolina Needs a Post-Trial Motion for Sentence Reduction.

I have a number of thoughts about how (and why) I think certain aspects of our criminal justice system should be revised in this state.  As someone who has operated in this space for the past twenty years, I think I’ve identified some relatively easy fixes that can improve efficiencies in the system and work for everyone—my clients, prisons, judges, and other stakeholders. My opinions, though, are provisional.  I reserve the right to revise them at any point. Still, I’ve given this particular fix some thought.  I don’t think any criminal justice reform is necessarily simple (although it doesn’t have to be particularly hard either), but it has to start somewhere!  These are simply my modest thoughts on the matter.

I think we need a statute that allows a defendant to file for a sentence reduction.  The closest statute we currently have is the current version of S.C. Code Ann. §17-25-65 which provides for a reduction in sentence for inmates who provide substantial assistance in the investigation and prosecution of others, or for rendering assistance to Department of Correction employees to prevent them from becoming seriously injured or killed.  The solicitor must file this motion.

This is all well and good, but it’s too restrictive. It’s also out of line with our sister states.  North Carolina, Georgia, Florida, and West Virginia all have statutes that allow an inmate to ask his sentencing judge to revisit his sentence. They’re all a little bit different, but they allow a defendant to file the motion.

We had a statute like the one I am advocating for in Wyoming, and here’s how it worked:

An inmate would be convicted of a non-violent crime and would receive a sentence.  That inmate would then enter the Department of Corrections where he or she could avail herself of various educational programs and vocational skills instruction. She would remain disciplinary free.  Then, she had the right to file a motion for a sentence reduction with her sentencing judge who would review the motion (which was generally about 2-3 pages), review the certificates of completion for various programs, and the prison disciplinary record and, if sufficiently impressed with the conduct of the inmate, would grant a sentence reduction.  I typically saw reductions of 9-18 months.  There was no right to appeal; there was no evidentiary hearing.  There was no “resentencing hearing.” Just an order reducing the time. That’s it.  Much easier than having a day set aside for PCR hearings!

Here are the benefits of such a proposal:

• It incentivizes inmates to behave while they’re in prison. This, of course, makes the institutions much safer and just more pleasant for the staff in general.

• It incentivizes inmates to take advantage of educational and vocational training so that when they are released, they will have marketable skills they can use to help find and keep jobs.

• It reduces the prison population by allowing inmates with a proven record of following the rules and good behavior to exit the system prior to the completion of their initial sentence. The least dangerous inmates in the system can self-select out of prison early based on their good conduct.

• It reduces the current pressure on the post-conviction relief (PCR) system by providing an alternate route for low-level offenders to seek relief by way of a sentence reduction instead of clogging up the PCR system which should mainly accommodate more serious crimes. The truth is many inmates who file PCR’s really just want time reductions. Filtering these cases out of the system will increase efficiencies in the Courts of Common Pleas (the caseloads of the judges who oversee the PCR’s), the Attorney General’s Office (who have to prepare for evidentiary hearings even when there are no meritorious claims), the Clerks of Court (who have to assign counsel for PCR’s), and appointed counsel (who have to trek to visit with clients who do not have meritorious claims and then must appear at evidentiary hearings to raise these non-meritorious claims).

There would not be any right to counsel in these cases.  Inmates could file them pro se or retain counsel or request law students to assist them (I was a law student in a clinical appellate program when I first started drafting these motions on behalf of inmates).

This is a far cry from being “soft on crime.” The beneficiaries of this rule change would primarily be low level, non-violent offenders and prison staff.  By transitioning this cohort of inmates out of the appellate and PCR systems, those systems will have more resources to focus on more significant issues including violent crime.  Also, the rule could include additional language that makes it clear that an inmate can only file one of these motions during the course of her incarceration.  Inmates should be encouraged to wait until they have developed a track record of good behavior before they file.  Solicitors should inform the victims of these crimes about the possibility of a sentence reduction and explain to them how it helps make the institutions safer and prepares the inmate for post-release reintegration into society. Reasonable victims will understand.

A simple statute like the one I am proposing is such an easy fix that could relieve some of the significant burden crushing our system.  And don’t think the system isn’t collapsing under its own weight right now.  I met with a client today who waited 5 YEARS for his PCR to be dismissed for being “untimely filed.”  It’s time to start thinking deeply about how to change some of our laws to provide for greater access to the justice system.  A frankly, the task is not necessarily as daunting as it might first appear. Small, incremental changes can go a long way towards increasing efficiencies.  If you agree, reach out to your representatives!