By Michael J. Whitlock
South Carolina Governor Henry McMaster signed sweeping legislation (H3532) related to its pretrial release system and licensed bondsmen. While several states have been reviewing the pretrial release regulations over the past seven to ten years, South Carolina is only now working to address concerns perceived or otherwise. Here are some highlights.
- Full cash bonds will be required on anyone charged with a violent offense while released on bond for a prior felony offense or a felony offense involving a firearm while out on bond or pretrial release.
- When setting conditions for release the court must consider the nature of circumstances surrounding the offense charged, family ties, employment status, financial resources, character and mental condition, length of residency in the community, prior criminal record, prior convictions, prior failures to appear, citizenship and gang relations.
- Licensed bondsmen can provide electronic monitors if certified by the South Carolina Law Enforcement Division (SLED).
- Bail can be forfeited if the defendant violates any bond conditions, including violating conditions of electronic monitoring.
- A person charged with a bailable offense must have a bond hearing within 24 hours of arrest and must be released within four hours after bond is delivered to the incarcerating facility.
- Tampering with a court ordered electronic monitoring device is subject to a misdemeanor charge that carries up to three years in prison, or up to a three thousand dollar fine, or both.
- A Pretrial Reform Commission is being formed and must deliver its report and recommendations to the Senate Judiciary Committee Chair no later than July 1, 2024. Surety bondsmen will be required to hold a property and casualty license.
- Bondsmen must charge a minimum of $100 or ten percent of the bond, whichever is greater, and it must be charged and collected prior to the execution of the bond; however, the bondsman is permitted to enter into a payment agreement, with a minimum payment of $100, a copy of he agreement must be attached to the bond.
- The bondsman must surrender the defendant if payment is not made for two consecutive months and after a 10-day demand letter expires. The balance must be paid in full before or at the time of a motion hearing if the defendant is to be rereleased on bond.
- Each surety agent shall, within thirty days of executing a bail bond, file with their surety a written or electronic report.
Click here to view the new law in its entirety. There is a lot to take in. I was particularly puzzled by the language requiring a defendant to be returned to custody should they fail to pay bail bond premiums. It evokes thoughts of debtors prison. Forfeiting a bond for violating terms of electronic monitoring is also concerning though instituting a criminal penalty to the offender for a violation should lessen the occurrence of violations. Requiring cash bail only on repeat violent offenders may also have merit though any defendant with the means to post full cash will then be released unsupervised bringing into question the logic behind this requirement. Whether or not the changes will be successful remains to be seen. Time has a way of exposing weaknesses in any major system overhaul.