Could an indigent South Carolina defendant remain jailed before trial longer than the maximum possible sentence?

Plain-English summary

In 1999, a Charleston County detention official asked about defendants who remained in jail before trial longer than the maximum sentence for a minor offense, often because they could not afford bond and a jury trial or continuance delayed the case. The Attorney General's office said South Carolina law required full credit for time served before sentencing. Keeping a person beyond the statutory maximum could undermine the legislature's sentencing limit and, when caused by inability to post bond, raise equal-protection concerns.

The letter did not authorize jail officials to release anyone on their own. It said officers had to follow commitment orders and identified judicial relief for a defendant claiming excessive custody, including asking a court to reduce bond or seeking a writ for release after the maximum time elapsed. The opinion was advisory and informal, and it did not decide an individual detention period.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say pretrial jail time counted toward a later sentence? A: Yes. It quoted Section 24-13-40's requirement of full credit for time served before trial and sentencing.

Why did inability to post bond matter?
A: The opinion said relying solely on bail for relief could burden an indigent defendant more than a person who could pay, raising equal-protection concerns when custody exceeded the maximum sentence.

Could a detention officer release the defendant without a court order? A: No. The letter expressly said the AG could not instruct a facility to release a prisoner and that officers had no discretion to alter a court commitment order.

What court remedies did the opinion identify?
A: It described a request to reduce bond, including personal recognizance, or a writ requiring release when the statutory maximum had elapsed.

Background and statutory framework

The opinion applied Section 24-13-40's pre-sentence credit requirement to a custody period that could exceed the offense's maximum punishment. It discussed decisions about the unequal effect of cash bail on indigent defendants and distinguished legal analysis from a detention officer's authority to release a person.

Citations and references

Statute: Section 24-13-40.

Case: Williams v. Illinois, 399 U.S. 235 (1970).

Official title

Asking on the length of pre-trial time a person can be held in custody when the pre-trial time might exceed the maximum sentence possible for the offense charged.

Requester

Chief Deputy Edward S. Whitlock, Jr., Charleston County Sheriff’s Office

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-8-1999-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99june8whitlock1.pdf

Original opinion text

Lr·r.~

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

June 8, 1999

Chief Deputy Edward S. Whitlock, Jr.
Charleston County Sheriff's Office
Detention Center Administrator
3841 Leeds A venue
Charleston, South Carolina 29405-7482

Dear Chief Deputy Whitlock,
Thank you for your letter to Attorney General Condon which has been referred to me for a response. You ask for an opinion on the length of pre-trial time a person can be held in custody when the pre-trial time might exceed the maximum sentence possible for the offense charged. By way of background you inform us this occurs frequently in the case of indigents who cannot afford to post bond. The case may be continued or postponed because the defendant requests a jury trial, and as a result the defendant actually spends more time in jail than the maximum authorized for some minor offenses. The General Assembly is vested with the right to legislate criminal penalties. In some instances the maximum possible criminal sentence is mandated by statute. Furthermore, the General Assembly provided the framework by which the length of the sentence must be calculated. The Code of Laws of South Carolina Section 24-13-40 states, in part, the following: The computation of time served by prisoners under sentences imposed by the courts of this State shall be reckoned from the date of the imposition of the sentence .... In every case in computing the time served by a prisoner, full credit against the sentence shall be given for the time served prior to trial and sentencing. This Section reflects the legislature's intent that pre-sentencing incarceration be taken into account so that a defendant spends no more time in jail than that prescribed by his sentence. Therefore, the detention of a defendant in jail for an amount of time exceeding the possible maximum sentence allowed by statute would effectively circumvent the legislature's

REMBERT c. DENNIS BUILDING

•

POST OFFICE Box 11549

•

COLUMBIA, S.C. 29211-1549

•

TELEPHONE: 803- 7:14-3970

•

F\CSl~lllE 8W-25J-628J

r'

authority to set these guidelines by both the executive branch of government, through its law enforcement agencies and correctional institutions, and the judicial branch, through the courts. See State v. Sutton, 521P.2d1008, 1009 (Ariz. 1974). Ideally, the sentencing process completes before the expiration of the term of the maximum sentence. But in instances when the defendant requests a jury trial or either party requires a continuance, scheduling the sentencing within the guidelines is impractical, especially for minor offenses. Thus, to prevent a violation of a legislative mandate setting a maximum prescribed sentence of imprisonment, there must be some effective and non-discriminatory relief measures available to the defendant.

I
I

Generally the remedy for unavoidable delays in the judicial system which prolong the presentencing stage is the opportunity to post bail. The courts have held that indigent defendants who cannot provide the money to post the bond, in bailable offenses, are denied this remedy. Thus, the case law indicates that any statutory scheme of sentencing that places a greater burden on those who are unable to make bond than on those who are financially able has been held to be Constitutionally invalid under the equal protection clause. See Sutton at 1009. The California Court of Appeals addressed similar circumstances in Jn re Young, 107 Cal. Rptr. 915 (1973 ). California has a statute that commences a criminal sentence upon delivery of the defendant to the penal facility. The court held that when an indigent cannot post bail and is given the maximum sentence, the failure to give credit for his pre-sentence incarceration is unconstitutional discrimination "in an overall confinement of persons who are convicted of the same crime who are able to afford bail and so secure liberty and those who cannot do so and are confined." Id at 920. See also Wilson v. North Carolina, 438 F2d. 284 (4th Cir. 1971); Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971); Williams v. Illinois, 399 U.S. 235 (1970)(once state has defined outer limits of incarceration, it may not then subject indigents to longer period in jail). In circumstances in which the defendant is incarcerated during pre-sentencing longer than the possible maximum sentence he could receive by statute, a court would likely conclude that individual is effectively guaranteed the denial of credit against his sentence, should he even be convicted. When he is denied this credit because he cannot afford to post the bail, the courts find such additional incarceration beyond the statutory maximum violates the equal protection clause. See also Op. Attv. Gen. No. 89-56 (May 8, 1989) (requiring posting of bond where jury trial is requested may "chill" right to jury trial). This is an advisory opinion only, however. We are only able to tell you what the correct case law requires in this area. This Office is not authorized to instruct any detention facility to release a prisoner without a court order. As we have previously opined, "the duty of an officer in executing the mandate of a judicial order in the nature of a commitment is purely ministerial." Op. dnY· Gen. March 27, 1997. Law enforcement officers would have no discretion to determine the disposition of prisoners in their custody. Therefore, in circumstances in which a prisoner alleges he is being held beyond the statutory maximum, the appropriate course of action would be for the defendant to seek judicial remedy in the courts. The defendant could either seek a reduction in the bond set (such as asking for a personal recognizance bond). or he could seek release upon expiration of the maximum prescribed sentence by virtue of a wTit requiring the prisoner's release.

This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion With kind regards, I am Very truly yours,

~k

Assistant Deputy Attorney General
[

I
I

I