House Bill Could Give Accused Criminals Multiple Breaks

January 30, 2012

Investigative Reports

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The NerveOffenders charged with certain crimes could have their records wiped clean multiple times under a bill introduced this month by a state House member who is a criminal defense attorney.

Under the bill (H. 4603) by Rep. Todd Rutherford, D-Richland, the 16 solicitors who oversee the state’s 46 counties would have the authority to admit defendants more than once into pre-trial intervention (PTI) programs run by solicitors.

Under current law, offenders are allowed through a PTI program only once.

PTI was designed to give first-time, non-violent offenders a second chance by allowing their charges to be dropped if they met the requirements of the program, which often involves restitution to victims or counseling. Shoplifting, for example, is a common offense dealt with through PTI.

Supporters say PTI programs, which typically run 90 days to one year, help clear crowded court dockets and lower incarceration costs by reducing the number of repeat offenders.

Critics contend, among other things, that loopholes in state law allow offenders charged with first-offense criminal domestic violence into the program, and that there isn’t enough oversight of the program to ensure compliance with the law.

Rutherford, a criminal defense attorney in Columbia and a former prosecutor, told The Nerve last week that he drafted his bill to address situations in which someone successfully completed a PTI program at a young age but got into minor legal trouble again years later.

He gave an example of an 18-year-old charged with an “inconsequential” offense, who, at age 40, was charged along with other passengers in a car in which a small amount of marijuana was found.

“This would be up the prosecutor to send him back through the program and wipe this off his record, and be able to touch him in this process,” Rutherford said.

Asked what he meant by “touch,” Rutherford said PTI programs typically require counseling for drug or alcohol problems, adding, “PTI is not just pay your money, and your case is dismissed.”

Rutherford’s bill does not cap the number of times a person can participate in PTI or specify the number of years someone must wait to reapply to the program.

A longtime crime victims’ advocate contacted last week by The Nerve said she would oppose Rutherford’s bill.

“Crime victims would be totally against this for repeat offenders,” said Laura Hudson, executive director of the nonprofit South Carolina Crime Victims’ Council. “You’re already hurting them (victims) enough with one offense.”

Hudson said she is particularly concerned about letting defendants go free multiple times for criminal domestic violence offenses. CDV offenders can be admitted into PTI programs because the crime is not classified under state law as a violent offense.

“It tends to escalate,” Hudson said about CDV.

In South Carolina annually, more than 36,000 victims report domestic violence incidents to police; and over the past 13 years, an average of 33 women have been killed statewide yearly by intimate partners, according to information on the website of the S.C. Attorney General’s Office.

Rutherford countered that in many cases, sending accused batterers through PTI, which requires them to go through a batterer-treatment program, would be better for victims in the long run than having defendants “just pleading guilty.”

Hudson also contended that Rutherford’s bill could be a “money-maker for the solicitors,” though she added, “Hopefully, they will not give up public safety for money.”

Under state law, it costs offenders $100 to apply to PTI, and another $250 if they are accepted into the program. Both fees are non-refundable.

David Ross, director of the state Commission on Prosecution Coordination, which oversees the administration of PTI programs statewide, told The Nerve last week that his office doesn’t keep track of how much revenue is generated through the programs statewide, referring those questions to local solicitors.

The state’s solicitors processed a total of 13,000 applications last fiscal year, which ended June 30, and collectively accepted 9,690 offenders into the program, according to a year-end accountability report produced by Ross’ office. During last fiscal year, 9,180 individuals successfully completed the program, the report said.

Based on those figures, the program would have raised a total of more than $3.7 million statewide last fiscal year. State law requires that all fees generated by the program are earmarked for the program.

Asked if his bill would be a financial windfall to solicitors’ offices, Rutherford jokingly replied, “I don’t think anyone would accuse me of trying to help prosecutors financially.”

Ross declined to comment on specifics of Rutherford’s bill, referring The Nerve’s questions to David Pascoe, the solicitor for Orangeburg, Calhoun and Dorchester counties; and the current president of the South Carolina Solicitors Association.

Efforts last week to reach Pascoe were unsuccessful.

Hudson questioned why the Commission on Prosecution Coordination doesn’t audit PTI programs statewide to ensure that only eligible defendants are admitted and go through the program only once.

Besides banning those charged with crimes classified as violent offenses, the program under state law also prohibits participation by anyone charged with:

  • Driving under the influence or driving with an unlawful alcohol concentration;
  • Blackmail;
  • Traffic-related offenses punishable by only fines or loss of points; and
  • Certain fish, game, wildlife or commercial fishery-related offenses.

(There are separate, PTI-like or conditional discharge programs for young adults charged with minor alcohol-related offenses, drivers charged with traffic offenses carrying fines only and four points or less on their driver’s licenses, and those charged with simple possession of marijuana or certain other drugs.)

Ross said there’s good reason why his office doesn’t conduct audits.

“The solicitors have broad discretion over the offense that is eligible,” he said. “There’s no real way to audit that.”

Overall, the state’s PTI programs are “real successful at keeping people from re-offending,” said Ross, noting, “It’s probably the most successful diversion program in the country.”

Rutherford’s bill, which was introduced on Jan. 17, was referred to the House Judiciary Committee, of which he is a member.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.