Elizabeth Hill Senior Deputy General Counsel

1. 2010 SC Public Defenders Conference “Sentencing Nuts and Bolts: Family Court”September 28, 2010 Elizabeth HillSenior Deputy General Counsel

2. SCDJJ Attorneys • Larry Vanderbilt, General Counsel • (803) 896-9764 • llvand@scdjj.net • Elizabeth Hill, Senior Deputy General Counsel • (803) 896-4815 • (803) 608-7712 cell • eahill@scdjj.net

3. Dispositional Options – Overview • Dismissal of the charge(s) • Probation • Commitment to DJJ • Determinate Period up to 90 days • Indeterminate Period Not to Exceed 21st Bday • Suspended Commitment, Release to Placement and Probation - mandatory • Commitment, Discretionary Release to Placement and Probation • Can use “Byars Order” or any similar order that indicates DJJ has discretion whether or not to suspend commitment and send child to placement on probation

4. Probation • Child “remains under the authority of the court” • Must terminate on or before child’s 18th birthday • Court can impose any term or condition consistent with the purposes of placing child on probation • Not punishment, but “a measure for the protection, guidance, and well-being of the child and the child’s family” • Suggestion: Ask for Definite Period of Probation (or some incentive to trigger probation ending)

5. Probation Violations • Petition for Probation Violation or a Rule to Show Cause for Contempt of Court • Court can hear probation violation after child’s 18th birthday as long as violation itself occurred prior to age 18 and document initiating the action was signed/filed • Child has no right to confront witnesses at probation revocation proceeding • Failure to pay restitution, and arguably all other noncompliance, must be willful to constitute a probation violation

6. 2010-11 Budget Provisos • 53.17. (DJJ: Earned Compliance Credit) In order to avoid unconstitutional levels of overcrowding and other unconstitutional conditions from occurring in residential programs operated for the Department of Juvenile Justice, and in order to reduce caseloads of the Department's probation and parole officers so that these officers can better focus their attention and limited resources on those offenders who pose a greater threat to public safety, the Department is authorized to grant up to a ten day reduction of their probationary or parole term to probationers and parolees who are under its supervision for each month they are compliant with the terms and conditions of their probation or parole order. Parolees under the jurisdiction of the Board of Juvenile Parole are not eligible to receive this credit.

7. Commitment to DJJ • Family Court’s jurisdiction terminates upon commitment. • Children aged 12-21 (at time of sentencing) can be committed to DJJ. • Upon commitment, DJJ places into most appropriate facility/program – Court’s recommendations carry considerable weight • Child entitled to Pre-Dispositional Secure Confinement Credit (time served) • Juveniles receive credit towards their release date for time served in detention and/or secure evaluation center (no statutory opt-out provision) • What offense they are adjudicated on matters. . .

8. Determinate Commitments • Determinate Commitment – up to 90 days per adjudicated offense (up to 6 months for contempt of court) • Consecutive determinate commitments honored by DJJ (up to 360 days) • Child entitled to earn Good Behavior Credit • Juveniles can earn up to 1/3 credit towards their determinate sentence release date (commitment judge can order that child not receive credit) • Can order commitment be suspended upon DJJ locating an alternative placement

9. Indeterminate Commitments • Upon commitment, child under jurisdiction of releasing entity: • Juvenile Parole Board – felony offenses • DJJ Release Authority – misdemeanors / status offenses • Releasing entity sets guidelines (minimum and maximum) based on most serious committing offense – other committing offenses and prior adjudications also factored in • Prior to minimum – presumption against release • After maximum – presumption against retention • **Probation Violations – guidelines based on most serious offense for which juvenile is on probation, not severity of probation violation

10. Transfer to SCDC • Age 17 – violent offense • Age 19 – all other offenses (including probation violation) • Children remain under jurisdiction of Juvenile Parole Board or DJJ Release Authority & can remain committed or be on parole until 21st birthday • Be especially careful with cases remanded from GSC and with sex offenders

11. Suggestions Avoid Automatic Sanctions that Implicate Liberty Interests – Why? House Arrest, but immediately detained if any violation CE, but immediately picked up and taken to MEC/CEC/UEC upon violation of CE terms Probation, but determinate sentence of 24 hours if test positive for drugs Beware of “Review Hearings”

12. Suggestions Research Guidelines before Offering/Accepting a Plea It’s a probation case. . .why do I care about guidelines?? Remember Collateral Consequences DNA, Sex Offender Registry, Jessica’s Law, SVPA, etc. Can the charge be expunged? Encourage child to cooperate with treatment and behave…and for parent(s) to maintain contact

13. DNA • Juveniles must provide a DNA sample if: • Adjudicated for • Eavesdropping or peeping, or • Any offense classified as a felony, or • Any offense that carries 5 years or more, or • Ordered by Court to do so. • If sentenced to confinement, sample taken at the facility. • If not, sample is a condition of probation and taken in the community.

14. SVPA – Sexually Violent Predator Act • Provides a civil commitment process to address the special needs of “sexually violent predators” and the risks that they present to society. • Juveniles adjudicated delinquent for - CSC 1st _ CSC w/Minor 1st, 2nd - CSC 2nd - Assault with Intent to Commit - CSC 3rd - Lewd Act And committed determinately or indeterminately to DJJ must be referred to SVPA review prior to release

15. Sex Offender Registry • Juveniles must register upon adjudication for certain offenses. The most common offenses in Family Court are: • Criminal Sexual Conduct in the 1st, 2nd, or 3rd degree • CSC with a Minor in the 1st or 2nd* degree • *required to register unless Court makes finding on the record that act resulted from consensual sexual conduct and the offender is 18 years of age or less or from consensual sexual conduct between persons under 16 • Assault with Intent to Commit CSC • Lewd Act • Note: Indecent Exposure is not on this mandatory registry list. Child will be required to register only if the Court orders such. • Court can order child to register for any other offense if “good cause” is shown by the solicitor.

16. Sex Offender Registry • Juveniles must register in every county where live, own real property, or attend school. • Must register within one business day of being placed on probation and/or release from DJJ. • Must re-register at least twice a year for life. • Juveniles are placed on the same public (internet accessible) registry as adults. • Exception: Juveniles adjudicated for CSC in the 3rd degree, Assault with Intent to Commit, or Lewd Act are placed on a private registry that is accessible only to certain entities upon written request.

17. New Legislation • Electronic Securing and Targeting of Online Predators Act (E-Stop) – S. 973 • Required to provide information regarding internet accounts and identifiers at registration/re-registration • If changes, must send written notice with 3 days • Penalties for failure to provide information and/or providing false information • New requirement: register in county where employed • New: Tier III Offenders register every 90 days (CSC, CSC w/minor, AWIC) • New: If changes in address, employment, school, etc., must send written notice to Sheriff within 3 days

18. SOR Residency Restriction • New as of June 2008 • Applies to sex offenders, including juvenile sex offenders, who have been convicted/adjudicated of: • criminal sexual conduct with a minor, 1st or 2nd degree • assault with intent to commit criminal sexual conduct with a minor • or kidnapping a person under eighteen years of age • Prohibited from residing within one thousand feet of a school, daycare center, children’s recreational facility, park, or public playground. • Exceptions: persons who resided within a restricted area prior to the effective date of the act, persons who live in restricted area because new school/playground built, persons who live in restricted area at rehab facility or DJJ placement, etc.

19. Jessica’s Law – GPS Monitoring • Effective July 1, 2006, certain sex offenders are required to be monitored by DPPPS with an active electronic monitoring device, currently GPS. • Three ways to be subject to Jessica’s Law: • Adjudicated for certain sex offenses after July 1, 2006, • On SOR for certain sex offenses and violate a term of probation or parole after July 1, 2006, OR • On SOR for certain sex offenses and violate provision of SOR laws • Once subject to Jessica’s Law, the offense itself determines whether the Court MUST or MAY order monitoring: • If offense is CSC w/Minor in the 1st degree or Lewd Act, then monitoring is MANDATORY. • If offense is other sex offense involving minors or otherwise ordered to register on the sex offender registry for offense involving a minor, then monitoring is DISCRETIONARY.

20. New Legislation • Warrantless Searches (S. 191) • Applies to juveniles released on parole after June 2010 (not probation) – all JPB parolees and RA parolees committed for Class A or B Misdemeanor • Before they are released, eligible potential parolees must sign agreement that they will permit warrantless searches of their person, their possessions, and/or any vehicle they own or are driving. • DJJ community staff are not authorized to conduct these warrantless searches. • Upon request from law enforcement, DJJ will share whether child is on parole for eligible offense and has signed consent to be searched.

21. THANK YOU!