I've opined before about the then-pending bill in the General Assembly which would give police virtually unfettered ability to search people who have been granted probation or parole. With individual civil liberties in mind, Governor Sanford vetoed the bill when it landed on his desk. But on Wednesday, April 28, the governor's veto was overridden by the General Assembly after 2 previous failed attempts. The House voted 74-37, and the Senate voted 36-7, to force the bill into law, effective immediately.
The new law applies to conditionally released juveniles and youthful offenders, furloughed inmates, parolees, and people participating in community supervision programs. It subjects them to search or seizure, without a search warrant, without cause, of their person, any vehicle they own or are driving, and any of their possessions. Let that sink in.
Even though the law doesn't affect those who have been convicted of a Class C misdemeanor or unclassified misdemeanor carrying a possible sentence of 30 days or less prison time, it's still troubling.
House Speaker Bobby Harrell released a pandering and largely self-laudatory press release to announce the law's passage. Speaker Harrell crowed, "These searches are completely warranted because convicted offenders are serving out their remaining sentences in the public in lieu of jail." I'm sure the irony in calling these warrantless searches "warranted" isn't lost on the Speaker. But to follow his logic, because the parolees are in public, they are not afforded the typical Fourth Amendment protections? Further, in order to "reduce recidivism," we're going to go ahead and presume each and every parolee is going to break the law. So why grant them parole in the first place?
So what does this mean for South Carolina criminal defense attorneys? [. . .]
Of course, the law's supporters point out that prospective parolees are given "a choice." They don't have to take the offer of parole if they don't want to be subject to warrantless searches. Speaker Harrell's statement points out that "[i]f a convicted criminal doesn't wish to be subjected to searches as a condition of being released early, they can choose to remain behind bars."
One interesting side note is Rep. David Umphlett's (R-Moncks Corner) decision to change his vote to override the veto after originally voting not to erode the Fourth Amendment. His original vote to sustain the veto, he said, was based on "misleading information" on the House floor. So what changed that led him to change his vote? He talked to the Berkeley County Sheriff, who allayed Rep. Umphlett's concerns. So, instead of reading the actual text of the bill and then making an independent decision, as one would presume a legislator might, he decided to ask a sheriff for a legal interpretation of the law's effect. No conflict of interest or bias there, right? Maybe Rep. Umphlett should ask the U.S. Congress to get Goldman Sachs CEO Lloyd Blankfein's interpretation of the securities laws to determine whether the federal government should proceed with their investigation.
Some questions the new law raises:
(1) The law subjects the person's "possessions" to warrantless searches. What does this mean? Things in the person's immediate possession, or simply anything the person owns? If the latter, supposed, for example, the parolee has left a duffel bag in his home while he's out with his friends. The police decide they'd like to search his bag -- without a warrant or cause, of course. Can the police enter his house and search the bag? The law doesn't seem to cover that. Does the parolee have to be present? Do the police even have to tell him?
(2) Put simply: why? Why pass this law? How exactly is it supposed to reduce recidivism? It's based on a presumption of guilt.
(3) Why not change the criteria the Parole Board uses to evaluate whether a particular prisoner is a good candidate for parole? It's possible the General Assembly is trying to have its cake and eat it, too, by trading constitutional protections for relief to overcrowded South Carolina prisons.
(4) Under the new law, why are only probationers (but not parolees and others) given more protection? Sections 9 & 10 of the new law require that police have reasonable suspicion (which is still a pretty minimal standard) to conduct a warrantless search of someone who is on probation. What's the reasoning behind that?
At the end of the day, no one wants to see parolees and others who have been given a second chance to go back to their old ways and leave more victims in their paths. And recidivism is a major concern. But the question is: at what cost?
Read the text of the actual bill.
Read the text of the actual bill.