To All Bail Agents,

In recent weeks we have been given information on the issues the state is having with the issuance of lower court bench warrants. The obscurity to both the bail industry and the court is confusing and we are all struggling to figure it out, the best advice is to remember your job and obligation to the state. In communications with South Carolina Court Administration they refuse to admit that the recalling of all lower court bench warrants has been directed by Chief Justice Beatty. The following code outlines our duties and remedies to perform our job. Remember, we as a profession may place a defendant back in custody for a violation of a specific term of the bond agreement, a bench warrant is not required. The advice that we have been given by the courts is to contact the court who issued the warrant to determine how they want you to proceed. The issues we are facing in the lower courts DO NOT APPLY TO THE HIGHER COURT” GENERAL SESSION “BENCH WARRANTS! You must continue to follow the surrender procedures on these defendants.

SECTION 38-53-50. Surety relieved on bond; surrender of defendant; filing of new undertaking.

(A) A surety desiring to be relieved on a bond for worthy cause  shall file with the clerk of court a motion to be relieved on the bond. A copy of the motion must be served upon the defendant, his attorney, and the solicitor’s office. The court then shall schedule a hearing to determine if the surety should be relieved on the bond and notify all parties of the hearing date. At the time of the filing of the motion, a fee of twenty dollars must be paid to the clerk of court to be retained by the clerk for use in the operation of the clerk’s office. The fee will cover the cost of copies of the motion required by the surety.

(B) If the circumstances warrant immediate incarceration of the defendant to prevent imminent violation of one of the specific terms of the bail bond, or if the defendant has violated one of the specific terms of the bond, the surety may take the defendant to the appropriate detention facility for holding until the court orders that the surety be relieved. The surety, within three business days following recommitment, must file with the detention facility and the court an affidavit clocked in with the clerk of court on a form provided by the Division of Court Administration stating the facts to support the surrender of the defendant for good cause. Nonpayment of fees alone is not sufficient cause to warrant immediate incarceration of the defendant. When the defendant and the affidavit are presented at the appropriate detention facility, the facility shall take custody of the defendant. When the affidavit is filed with the court, the surety also shall file a motion to be relieved on the bond pursuant to subsection (A). A surety who
surrenders a defendant and files an affidavit which does not show good cause is subject to penalties imposed for perjury as provided for in Article 1, Chapter 9, Title 16.

(C) If the defendant is incarcerated by the surety or a law enforcement agency as a result of a bench warrant, the surety shall file an affidavit with the court stating that the defendant is incarcerated in the appropriate detention facility as a result of the bench warrant as well as the violation of the specific term or terms of the bail bond stated in the bench warrant. Once the affidavit pursuant to the provisions of this subsection has been filed and served on the defendant, the surety is relieved of all liability on the bail bond by the court unless otherwise ordered by the circuit court within fourteen calendar days of the filing of the affidavit, or, if there is no term of court within the fourteen-day period, at the ensuing term of court.

(D) After the surety has been relieved by order of the court, a new undertaking must be filed with the appropriate court in order to secure the subsequent release of the defendant. The undertaking must contain the same conditions included in the original bond unless the conditions have been changed by the court.

INSIGHT TO WHAT IS GOING ON:

A September directive to magistrate judges across South Carolina outlined issues in the lower level court. Chief Justice Beatty stated “It has come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment. This is a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States,” The directive comes after a year- long study by American Civil Liberties Union and Association of Criminal Defense Lawyers that found issues in The SC Magistrates Courts. The report states that many people were tried in their absence and issued bench warrants, and that many defendants did not know or couldn’t afford representation in these cases. They said many of the states’ lowest courts were routinely failing to inform defendants of constitutional rights when jail time
is a possible punishment. Tens of thousands of arrest warrants statewide are being recalled as a result, even though Beatty has yet to issue a formal written order on the practice. Beatty’s instructions do not apply to the most serious misdemeanors and felonies that are handled in circuit court.

The new memorandum states the following: people who fail to pay fines or are convicted in their absence will be sent letters explaining how they can square up their cases. “when imposing a fine consideration should be given to the defendant’s ability to
pay.” If these low-level offenders do not respond, a warrant can be issued, but instead of being jailed they would go before a magistrate. In conclusion we all must use our best judgement and due diligence if you receive a lower court bench warrant. Not all jurisdictions are recalling these warrants currently. Please check with your courts in which you conduct business. You have the right to surrender your defendant by filing a motion for relief under 38-53-70. If a General Session charge has been written along with the magistrate offense you may place the defendant back in jail on a specific violation of terms and conditions on the felony offense. Tread lightly and remember what your position and duty is within the law.

Don Mescia,
Executive Director, UBA

[pdf-embedder url=”https://unitedbailofamerica.org/wp-content/uploads/2017/11/Summary-Court-Right-to-Counsel-Memo-September-15-2017.pdf” title=”Summary Court Right to Counsel Memo (September 15 2017)”]