South Carolina Chief Public Defender E. Fielding Pringle Argues that the Pretrial Program in Richland County, South Carolina is Unconstitutional
If you follow what is the current bail reform debate, arguments in favor of using supervision by government or private programs using electronic monitoring instead of the accountability that a surety bail bond provide are rampant. It is posited that this move will assist poor people who are trapped in the system. While some have now called for the use of supervision in the rare instance, the reality is that the District of Columbia and federal models rely heavily on supervision, including the use of electronic monitors, and advocates who disfavor financial conditions of bail have widely advocated for the use of electronic monitoring and supervision by government programs. Yet, we have often said, in light of all of the new technology and the general lack of regulation of pretrial services programs, some public, some private, the question of whether a surety or monetary bail bond is the least restrictive form of release must be understood in the full context of what impact to privacy, liberty, due process, equal protection, and the right to be free from self-incrimination that supervision and monitoring may bring.
South Carolina Chief Public Defender E. Fielding Pringle is taking on this very issue in Richland County, S.C. In filings obtained from the case, Pringle is alleging that the pretrial services program in Richland County is violating the Fourth Amendment to the U.S. Constitution, the Fifth Amendment to the U.S. Constitution, the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and also violates various provisions of the South Carolina constitution and state statutes. This particular version of pretrial services sounds a little more restrictive than a financial bail condition in our view.
Ms. Pringle noted that her clients were released on a financial bail bond, but then were also required to be monitored by the pretrial services program. She noted that the Solicitor’s office contracted with the program, which was provided office space for free for 18 months in the Solicitor’s Office. Because there are no regulations or rules constraining such program, the private corporation is acting with “unrestrained supervisory power.” That power does not contain, as Ms. Pringle alleges, “any Constitutional protections.” In fact, as Pringle notes, this program has powers that “exceed those of a bonding company.”
She also noted an additional concern, which we have shared for some time—that the prosecutor’s office would be privy to the monitoring information of defendants. We have long also said that those criminal records concerning inculpatory or exculpatory evidence do not contain proper safeguards regarding the collection, dissemination, and use of that information.
Finally, Ms. Fielding noted another critical problem that is a central issue in the debate regarding bail reform: if a defendant cannot afford to post a bond they cannot afford to pay for the posited alternative, the costs of the state to supervise and monitor them. In fact, Fielding noted that every defendant will pay $259 a month in supervision fees—which adds up to $1,554 over six months, $3,108 over a year. That is the equivalent of posting bonds of $15,000 and $30,000, respectively. Unlike a bail reduction hearing, to which defendants have a right, when it comes to the $259 a month, “a judge cannot consider a defendants ability to pay or put a defendant on a sliding scale. If ultimately indigent defendants cannot be ordered to pay, which is the likely outcome, then the local and state governments will have to pick up the tab—all in cases, as here, where a third-party and bail bonding agent have already accepted full liability on a significant surety bail bond.
When it comes time to discuss bail reform, the impact of supervision on defendants’ rights should not be given short-shrift. While the ABA and others want to persist in saying that monetary conditions of bail are always the most restrictive, we think the work of Chief Public Defender E. Fielding Pringle certainly demonstrates otherwise.
The case is State of Carolina v. Richland County, and the Motion to Remove Monitoring may be viewed here, and the Memorandum in Support here.
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