Nearly one in four pending criminal cases in South Carolina are more than a year and a half old, a statistic that state Supreme Court Chief Justice Jean Toal and many solicitors would like to see lessened.
Under a plan being developed by Toal and some solicitors, cases would be turned over to judges to handle if they haven’t been disposed of in a year and a half, Toal told GreenvilleOnline.com.
That’s one part of a proposed new system for handling criminal cases in the state, the second stab at the issue in a year by the justices that could soon be unveiled to judges and clerks.
At issue are criminal case backlogs that in some cases stretch back years.
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The Supreme Court decided last year to order changes in the system that would lessen the authority of solicitors to call criminal cases, following its ruling in a case that the current system was unconstitutional. But the justices suspended those orders within a month after receiving a wave of concerns by prosecutors, public defenders, judges and court clerks.
“We are very close in my view to having something that I think will acknowledge the good systems that are in place but also develop a template that will require this type of management everywhere,” Toal told GreenvilleOnline.com.
She said the new plan will be unveiled to clerks and the judiciary this summer and should result in new orders by the fall.
Last year’s proposal, which put more authority in the hands of judges, sparked opposition from the South Carolina Solicitors’ Association, which criticized it as unconstitutional and impractical.
“The simple math regarding the volume of cases juxtaposed upon the attendant terms of court shows very clearly that it is impossible to resolve the pending and forthcoming pending criminal cases within the order’s rubric,” the solicitors argued in their petition for a rehearing. “The order simply will not work, regardless of who controls docketing.”
Since then Toal has met with an “informal working group” of several solicitors and two lawmakers who once worked as prosecutors, Rep. Tommy Pope of Union and Sen. Greg Hembree of North Myrtle Beach, to come up with a new plan.
“Our goal has been to develop an order that can have buy-in from everybody,” she said, “that deals with how to manage the docket as well as an order that will put into effect the rules of the road pertaining to what I call draining the swamp.”
That means addressing older cases, Toal said, starting with identifying which cases are aged.
“There continues to be some disagreement between the solicitors and the records we have through the clerks’ offices,” she said.
Hembree said a solution isn’t an easy one, in part because each circuit is so unique.
“Columbia doesn’t know how to best run the docket in Georgetown or Williamsburg or Charleston,” he said.
“Every place is so unique. That’s not an excuse. It’s just reality. And if you ignore that and say one size will fit all, you’re going to struggle. It’s not going to happen. What will happen is you will ignore the order. Local systems will continue to operate the way they did before.”
The idea, according to Toal, some solicitors and lawmakers, is to develop a system that can manage cases effectively and efficiently while at the same time holding each of the state’s 16 judicial circuits accountable.
For example, until recently, the benchmark used to evaluate each circuit’s efficiency was for at least 80 percent of the circuit’s pending criminal cases in General Sessions court to be 180 days old or less. That has since been moved to one year or less, a number prosecutors say is more realistic.
Still, only one circuit — that covering York County — has met the benchmark, according to records on the Supreme Court’s website.
The two circuits closest to making the benchmark, the 13th Circuit which includes Greenville, and the 7th Circuit, which includes Spartanburg, had 75 percent of their cases pending one year or less.
Statewide, according to records on the Supreme Court’s website, about 63 percent of pending cases from last summer through May were a year old or less. About 13 percent were between 366 and 540 days old and 24 percent were older than 540 days.
By comparison, no circuit has reached the benchmark in the court’s May report for civil cases. The 13th Circuit has come closest with 73 percent of its cases a year old or less, according to records on the website. Six circuits were under 60 percent, according to the records.
Toal cited the circuit surrounding Greenville as an example of a well-run system that can be used as a model for others.
“Walt Wilkins is the latest of a series of solicitors beginning with Billy Wilkins when he was the solicitor in Greenville many years ago, who have very aggressively and in a very organized fashion, used a differentiated cased management system,” Toal said.
“They have systems that work that put all cases on track for disposition and manage events within a case, from initial appearance to appointment of counsel to scheduling for a trial.”
Wilkins told GreenvilleOnline.com last year that while the orders issued then might result in tweaks in the system for his circuit, much of what is sought is already being done. The system, he said, brings more certainty for all those involved.
“Everybody knows when they are up, when they are going to be there and when it’s time to go to trial,” he said. “Defense counsels and victims and witnesses are much happier. Because they don’t want to go to court and spend four days sitting around doing nothing.”
Solicitor Barry Barnette of Spartanburg said his county has been used for five years as a pilot for the case management system similar to that outlined last year by the Supreme Court. The pending criminal caseload for Spartanburg County, he said last year, has dropped from about 10,000 cases to about 6,300.
“Right now it works for us,” he told GreenvilleOnline.com. “We’ve come a long ways. It’s been a team effort across the board.”
Ernest Finney III of Sumter, solicitor of the 3rd Circuit and son of a former chief justice of the Supreme Court, said not all circuits are the same.
While more than 60 percent of cases in his circuit are older than a year, he said the benchmark chart doesn’t show how old the cases are that are skewing the numbers.
“When I became solicitor two and a half years ago, we had an awful lot of cases that had been on a year or some had been on longer than a year that hadn’t been moved,” he said.
New prosecutors brought in with his administration had to have time to learn the cases, he said. The docket’s age also has been impacted by a recent turnover in the public defender’s office.
“I think that’s why you have seen some of our numbers not look that good,” he said.
He said a case management system is a good idea. But each circuit has a different amount of resources, he said.
His circuit, for instance, has about six assistant prosecutors, he said, whereas the 7th Circuit has almost 30.
“Smaller circuits don’t have the resources that the larger circuits have, and we don’t have the ability to move our cases like the larger counties and circuits do,” he said.
Solicitor David Pascoe of Summerville, one of the solicitors who has been talking with Toal on the issue and a past president of the Solicitors Association, said resources are an important part of the discussion over case management.
“The number one problem is funding,” he said. “And the second problem is funding and the third problem is funding. The same circuits that have bad criminal dockets are the same circuits that have bad civil dockets and I think it really comes down to funding.”
Hembree said a key part of any solution is deciding what to do about circuits that are “woefully underfunded and undermanned.”
“There’s a point where you can’t do it on the cheap,” he said. “We do it on the cheap in South Carolina anyway. But there’s a point where it gets so cheap you can’t even run it.”
Toal said she understands that problem.
“What we have come to recognize is that there is a big difference between the circuits that are managing well and the circuits that are lagging behind,” she said.
“And some of those differences relate to the big disparity in resources. Some circuits do not have much support from their counties, therefore, other than what they get from the state, have very little in resources. Some public defenders do not have the kind of resources that others do.”
Senate Judiciary Committee Chairman Larry Martin of Pickens told GreenvilleOnline.com that he hopes the talks yield reforms everyone can agree to that won’t require the Legislature to craft the reforms.
The House this year, after receiving complaints from prosecutors, passed legislation that would essentially keep the system running as it is now. The Senate, instead of debating the bill, asked prosecutors to work with Toal to find a solution.
“You really have a pretty serious separation of powers issue here,” Martin said. “We didn’t want to set up a showdown in a way that would provoke a confrontation between the Legislature and the court.”
But House Judiciary Chairman Greg Delleney said he hopes the Senate passes the House bill because he feels the justices’ opinion and orders last year were unnecessary.
“I’ve never had a problem with a solicitor in my life,” he said. “I’ve never had a problem with a judge in my life. And I’ve been practicing law over 30 years.”
Pascoe said he has two concerns about the reform effort, one being that any changes not make handling cases too complex.
“In my opinion, moving cases should really be a simple thing,” he said. “I don’t want to make it too complicated.”
He also doesn’t want to do something the Legislature should be doing, he said.
“I believe firmly that the governmental body that should be deciding how to run the docket is the Legislature, elected by the people, not the executive and the judicial branch,” he said.
But Martin said the balance is a tricky one, although law requires the judiciary to submit rule changes for the courts to the Legislature.
“It would be desirable for it to be worked out by the court and prosecutors from around the state,” he said. “We wanted to be careful as best we could to defer to the court. We’re trying to mediate something that doesn’t always fall within our jurisdiction.”