Crime & Courts

Is disorderly conduct worse than drug possession? SC law used to kind of say it was

A couple college students get drunk in Five Points, “knock things over,” attack a sign, and are charged by police with disorderly conduct.

It’s a real case that state Rep. and attorney Micah Caskey defended.

Until recently, a conviction on those charges would have stayed on their records permanently. In one way, it would have been better for them to be charged with holding cocaine or any other illegal drug instead of damaging garbage cans or a sign. That’s because first-offense illegal drug charges could be expunged from criminal records, but not the disorderly conduct charges.

“Which seems like a perverse incentive structure,” Caskey said.

Now, a disorderly conduct charge doesn’t have to haunt people because of a bipartisan bill co-sponsored by Caskey, a Lexington Republican and state Rep. Seth Rose, a freshman Richland County Democrat who was the bill’s main sponsor. Charleston Republican Peter McCoy also sponsored the legislation.

The new law allows judges to apply the same forgiveness program for a first time drug charge to a first time disorderly charge.

Disorderly conduct encompasses a lot of behaviors such as public intoxication, using “obscene or profane language” near a church or school and firing a gun near a public roadway. The charge applies to anyone “conducting himself in a disorderly or boisterous manner” near a road or in public, the South Carolina Code of Laws says.

“As a former Richland County prosecutor I saw first hand the need to expand diversionary programs such as conditional discharge in South Carolina,” Rose said. “It didn’t make sense to allow much more serious offenses to be eligible for this program and not this 30 day misdemeanor.”

The program, known as conditional discharge, is similar to probation. A defendant enters a deferred guilty plea to the court. A judge orders that if a person follows certain conditions and upholds restrictions for a specified time, the charge will be dropped. A judge may order that a person be placed on a curfew, be routinely drug tested, avoid arrest or meet other demands. Fees must be paid.

The defendant is assigned a probation officer who ensures the defendant adheres to the program. If the defendant follows the conditions for the specified time, the charge is dropped and expunged from criminal records.

The House unanimously passed the bill, and the Senate concurred by a wide margin. Gov. Henry McMaster vetoed the bill in late May, but he was overridden by the House and Senate.

In his veto message, McMaster, a U.S. attorney and former S.C. attorney general, wrote: “I believe in the rule of law, but I also believe in grace, and I recognize the challenges that individuals with criminal records face when applying for jobs. To this end, second chances should be freely given when individuals have made mistakes and paid their debts to society; however, criminal history, like all history, should not be erased. Rather, compassion should be informed by fact and should not be forced upon unwitting prospective employers and other interested parties.”

Before the veto, Rose said he received a call from McMaster explaining why he would not sign the bill.

“I thought it was a first class, very professional move that he reached out to discuss it with me prior to veto,” Rose said. “We had a good, cordial conversation about the legislation.”

As former prosecutors, Rose and Caskey said the statute gives those enforcing laws a new tool.

“A mandate for a prosecutor is you’re not just another lawyer, you administer justice,” Caskey said. “What we want to do is make sure the (prosecutors) have the option to recognize that a defendant made a mistake, that if they show contrition… that they make sure a minor mistake doesn’t stick around forever.”

“Grace and redemption are things we tend to forget these days,” Caskey said.

David Travis Bland won the South Carolina Press Association’s 2017 Judson Chapman Award for community journalism. As The State’s crime, police and public safety reporter, he strives to inform communities about crimes that affect them and give deeper insight into victims, the accused and law enforcement. He studied history with a focus on the American South at the University of South Carolina.