Did a second-degree lynching conviction require violence and service of 85 percent of a three-year sentence under South Carolina law in 2006?

Plain-English summary

The South Carolina Attorney General answered two questions about second-degree lynching in 2006. First, the opinion said the offense required an act of violence by a mob; it could not be a nonviolent offense under the definition the opinion quoted. Second, it said a person convicted of the offense and sentenced to the custody of the Department of Corrections could not obtain early release, discharge, or community supervision until serving at least 85 percent of the actual prison term imposed.

The opinion distinguished the judge's choice of sentence from the rule governing how much of that sentence had to be served. It quoted the sentencing statute as allowing a term of three to twenty years at the judge's discretion, while treating second-degree lynching as a Class C felony and therefore a “no parole offense” under the cited statutes.

Currency note

This opinion was issued in 2006. 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

Q: Could second-degree lynching be nonviolent under the law the opinion analyzed?
A: No. The opinion quoted the offense as an act of violence inflicted by a mob on another person without causing death.

Q: Did the sentencing judge decide whether the 85 percent rule applied?
A: The opinion treated the length of the sentence as subject to the judge's discretion, but treated the minimum service requirement as following from the offense's no-parole classification for a prisoner in Corrections custody.

Q: What release did the 85 percent rule restrict?
A: The opinion named early release, discharge, and community supervision before the prisoner served at least 85 percent of the actual term imposed.

Background and statutory framework

The opinion relied on the offense definition and on the South Carolina appellate decision it quoted for the violence element. It then connected the sentencing range for second-degree lynching to the no-parole definition and the Class C felony list. Its answer was expressly tied to a conviction for that offense and a sentence to Department of Corrections custody, including the local-facility arrangement described in the opinion.

Citations and references

The original opinion cites South Carolina Code provisions on the no-parole service rule and felony classifications, as well as State v. Smith and Notaro v. Evatt for the offense's violence element. Its statutory discussion reflected the law it described in 2006.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-15-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06sept15-Reese.pdf

Original opinion text

HENRY MCMASTER
AITORNEY GENERAL

September 15, 2006

The Honorable Glenn G. Reese
Senator, District No. 11
597 Fagan Drive
Lake Bowen
Inman, South Carolina 29349-7000
Dear Senator Reese:
You forwarded a letter from Mr. Ronnie Blanchard in which he raised questions regarding second degree lynching.

In his first question, Mr. Blanchard questions whether second degree lynching can be nonviolent as well as violent. As explained in State v. Smith, 352 S.C. 133, 137, 572 S.E.2d 473, 475 (Ct.App. 2002),

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Second degree lynching, a felony, is defined as "(a]ny act of violence inflicted by a mob upon the body of another person and from which death does not result.. .. " S.C.Code Ann.§ 16-3-220 (1985) ... "Mob" is further defined as "the assemblage of two or more persons, without color or authority oflaw, for the premeditated purpose and with the premeditated intent of committing an act of violence upon the person of another." S.C.Code Ann.§ 16-3-230 (1985) ... Although" [t]he common intent to do violence" may be formed before or during the assemblage,... to sustain a conviction for lynching the State must produce at least some evidence of premeditation. See § 16-3-230... As explained by the court in Notaro v. Evatt, 831 F.Supp. 518, 520 (D.S.C. 1993), Under Section 16-3-110, the elements ofthe crime oflynching in the second degree are: (1) any act of violence, (2) inflicted by a mob, (3) upon the body of another, (4) which does not result in death...The gravamen of the offense is the infliction of violence by a mob on "another person." Consistent with such, second degree lynching involves an act of violence. It was also questioned whether "if you get a three year sentence for second degree lynching... (is it)... amandatory 85% or is that up to the judge's discretion." Pursuant to Section 16-3-

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Posr OmCE Box 11549 •

COLUMBIA, SC 29211-J 549

• 'I'Eu!PHONe 803-734-3970 •

FACSIMILE 803-253-6283

The Honorable Glenn G. Reese
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September 15, 2006

220, any defendant found guilty of second degree lynching " ... shall be confined at hard labor in the State Penitentiary for a term not exceeding twenty years nor less than three years at the discretion of the presiding judge." S.C. Code Ann.§ 24-13-150 states that

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(A) Notwithstanding any other provision oflaw, except in a case in which the death penalty or a term of life imprisonment is imposed, a prisoner convicted of a "no parole offense", as defined in Section 24-13-100, and sentenced to the custody of the Department of Corrections, including a prisoner serving time in a local facility pursuant to a designated facility agreement authorized by Section 24-3-20, is not eligible for early release, discharge, or community supervision as provided in Section 24-21-560, until the prisoner has served at least eight-five percent of the actual term of imprisonment imposed. S.C. Code Ann. § 24-13-100 states that
[f]or purposes of definition under South Carolina law, a "no parole offense" means a class A, B, or C felony or an offense exempt from classification as enumerated in Section 16-1-10(d), which is punishable by a maximum term of imprisonment of twenty years or more.

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S.C. Code Ann. § 16-1-90 includes in the list of Class C felonies the offense of lynching in the second degree. Therefore, inasmuch as second degree lynching is a "no parole offense", a defendant convicted of such and sentenced to the custody of the Department of Corrections, including a prisoner serving time in a local facility pursuant to a designated facility agreement as set forth above, is not eligible for early release, discharge, or community supervision until the prisoner has served at least eight-five percent of the actual term of imprisonment imposed. With kind regards, I am, Very truly yours,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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D. Cook
Assistant Deputy Attorney General