Judge rules Richland’s ankle monitor program unlawful

A state judge’s ruling on Thursday that a Richland County ankle monitoring program was created unlawfully raises questions about what will happen to some 200 suspects now out on bond on the ankle monitors – and the program itself.

The program was implemented in 2014 by 5th Circuit Solicitor Dan Johnson after public outcry over several high-profile killings committed by defendants who were out on bond but not wearing ankle monitors.

In a four-paragraph ruling, Judge Clifton Newman on Thursday overturned two 2014 orders by another circuit judge, orders that allowed Johnson to set up an ankle monitoring program now in wide use in Richland County.

Currently, some 200 defendants in criminal cases have posted bond, were released and are wearing ankle monitors.

Although ankle monitors can’t prevent a crime, supporters of the program say they deter those wearing them because their movements are tracked minute-by-minute and they can be placed at the scene of a crime if they commit one.

Johnson indicated Thursday in an interview he may explore appealing.

“We have just received the order ... and we are reviewing it,” Johnson said. “We believe strongly that electronic monitoring is a useful and effective tool to monitor defendants while on bond. It is being used all across the country.”

In any case, ankle monitoring is required for only a small percentage of defendants who are released on bond, Johnson said. Defendants who are required to get ankle monitors as a condition of release include those who are accused of stalking, for example, or who have a violent criminal history.

Richland County chief public defender Fielding Pringle, who last spring brought the legal action that prompted Newman’s order, said Thursday that Newman’s order makes it clear Johnson’s program should end.

Newman’s order “resolves all of the issues ... by completely nullifying previous orders that established the monitoring program in Richland County,” Pringle said in a statement Thursday. She had specifically requested that Newman nullify the previous orders.

“This does not mean that electronic monitoring is no longer a term of bond that a court can impose,” Pringle said in a statement. “It simply means the way defendants are being monitored will be substantially redefined to ensure that constitutional protections are in place, protections that have been absent in the wake of those (2014) orders ... .”

In a May hearing on the matter before Newman, Pringle had argued that the way the program is set up, Johnson’s office works closely with the private ankle monitoring company and Johnson’s prosecutors have unconstitutional access to private information concerning defendants’ whereabouts.

Prosecutors shouldn’t be able to have so much information about a defendant unless law enforcement has good cause and gets a search warrant, Pringle argued.

In legal filings and arguments to Newman at a hearing in May, Pringle told the judge there are major problems with the way ankle-monitoring is done in Richland County. Among them:

▪ The program discriminates against poor clients who can’t afford the $259 monthly cost to a private company for the ankle monitor.

▪  Prosecutors had sole discretion about revoking bond without going before a judge, Fielding said, thwarting judges’ authority.

▪ Because much of the program is run out of Johnson’s office at the Richland County courthouse, prosecutors have unrestricted access to information about suspects’ whereabouts while they are out on bond.

Pringle’s office represents defendants in criminal cases who don’t have enough money to pay for a lawyer.

During the May hearing, 5th Circuit assistant solicitor Dan Goldberg, who argued the case for Johnson, told Newman that his office was ready to make changes to the program, including cutting or eliminating prices for some people facing criminal charges and who could otherwise meet bond requirements to get released from jail.

The program, called Electronic Monitoring Program, was started in 2014 in reaction to the 2013 slaying of Kelly Hunnewell, a Columbia baker who left four children behind after she was shot to death during a nighttime armed robbery. Two of the three defendants in that case were out on bond but were not being monitored electronically. All three were eventually caught and tried. Two were convicted and given stiff sentences. A mistrial was declared for the third defendant and is now on appeal.

Electronic monitoring of defendants is in wide use around the nation. Newman did not say that ankle monitoring by itself is unlawful – only the way it was established by a judge’s order in Richland County.

In Richland County, supporters say the program has led to a drop in defendants committing crimes while out on bond.

They also say that Offender Management Services, the private company that runs the program, has quality equipment and that its performance is not at issue.

“The program allows people to get back in the community and get back to work, but it allows us to monitor them and make sure they don’t violate their bond or break the law,” Richland County Sheriff Leon Lott, a big backer of the program, said in May.

The program was created June 9, 2014, under an administrative order signed that day by state Judge Robert Hood.

Supporters had cited that order as indisputable evidence of the program’s legality. But Hood’s order was ruled by Newman on Thursday as “not in accordance with the requirements of the S.C. Home Detention Act.”

Hood declined comment Thursday.

Officials with Electronic Offender Services could not be reached.

Johnson’s office has statistics that he says show that his ankle monitoring program has made the community safer.

For example, in 2015, of 1,688 Richland County defendants let out of jail on bond without an ankle monitor, 433 – or 25 percent – were re-arrested while out on bond.

But that same year, of the 511 defendants out of jail on bond and required to wear an ankle monitor, 16 – or 4 percent – were rearrested while out on bond.

This story was originally published June 30, 2016 at 12:56 PM with the headline "Judge rules Richland’s ankle monitor program unlawful."