Presentation on theme: "Understanding Prison Sentences"— Presentation transcript:
1 Understanding Prison Sentences Chris FlorianDeputy General CounselSouth Carolina Department of Corrections
2 Call Us FirstFind out projected maxout and parole dates for a hypothetical sentence.We can review the sentencing order to ensure it will have the intended result.SCDC General Counsel:Internet sentence calculator:
3 Calculation of Release Dates OrWhy a Manual Sentence Calculation Looks Like a Tax Return
4 The Distinction between Parole Eligibility Date and Maxout Date Earliest opportunity for releaseDerived from total sentenceDetermination made by parole boardOffender continues to serve sentence under supervision by SCDPPPSDate calculated by SCDC based on statutory criteria as interpreted by SCDPPPSMaxout DateEnd of prison sentenceDerived from incarcerative sentenceMay be followed by supervision by SCDPPPS
5 Calculating a Maxout Date 3 types of offensesParolable offenses85% offensesDay-for-day
6 Parolable SentencesFelony D and lesser offenses with no mandatory minimumTypical offender will serve between 51% and 65% before maxoutService TimeGood Time Credits – SC Code §20 days per month if disciplinary freeCan lose earned credits for a disciplinary offenseEarned Work/Education Credits – §Amount variesMaximum is 1 day for every 2 days employed or enrolledService TimeGood TimeWork Credits
7 85% Sentences “No parole” offenses S.C. Code § 24-13-100 Defined as Class A, B, or C felonies, or offenses exempt from classificationAny offense punishable by 20 years or moreCannot be released until served 85% of the sentenceService TimeGood Time Credits – SC Code §3 days per month if disciplinary freeEarned Work/Education Credits – §6 days per month if participatingIncludes offenses with special parole eligibility provisions in S.C. Code and -375.ALC is split on this issueOn appeal to the Court of Appeals
8 Day-for-day offensesOffenses with mandatory minimum periods of incarceration that must be served day-for-day.Cannot reduce service time below mandatory minimum through earned work credits or good time credits.Example: Nelson v. Ozmint, 390 S.C. 432, 702 S.E.2d 369 (2010)Requires day-for-day service on CDV 3rd.Service Time
15 The Final Word on an Inmate’s Sentence…Most of the Time The Sentencing OrderThe Final Word on an Inmate’s Sentence…Most of the Time
16 Sentencing Order vs. Pronouncement, Part I Boan v. State, 388 S.C. 272, 695 S.E.2d 850 (2010)Oral pronouncement: 20 years plus 10 years consecutiveWritten order: 30 years plus 10 years consecutive“In a situation such as the one on appeal, due process requires the judge's oral pronouncement control over a conflicting written sentencing order.”
17 Sentencing Order vs. Pronouncement, Part II Tant v. SCDC, 408 S.C. 334, 759 S.E.2d 398 (2014)Oral pronouncement: = 40 years6 5-year terms to run consecutively to each otherOr was it?Written order: = 15Silent as to whether the 5 year terms run consecutively to each otherLetter from judge: 40 years“The sentencing sheets were signed by the judge and both attorneys without objection and are assumed to memorialize the judge's intention no less than what was pronounced from the bench. We see no reason why the Department should not be able to rely on unambiguous sentencing sheets as indicative of the intended sentence.”Oral pronouncement and written order found ambiguous. Rule of lenity.Letter was a nullity because judge no longer had jurisdictionBoan limited to its facts
18 The Most Common Source of Sentencing Problems Jail Time CreditThe Most Common Source of Sentencing Problems
19 Jail Time – What credit counts? Full credit must be given for time served prior to trial and sentencing. S.C. CodeSentencing judge’s refusal to give credit is an error of law. State v. Boggs, 388 S.C. 314, 696 S.E.2d 597 (Ct. App. 2010)Offender gets credit for time in custody even if arrest warrant for particular offense has not been served. Blakeney v. State, 339 S.C. 86, 529 S.E.2d 9 (2009)
20 Jail Time – What does not count? Time on escape. S.C. CodeTime before offense is charged. Crooks v. State, 326 S.C. 171, 485 S.E.2d 374 (1997).Pre-conviction time if sentenced pursuant to YOA. S.C. CodeTime while serving a sentence for one offense while awaiting trial on anotherA subsequent concurrent sentence
21 Subsequent Concurrent Sentences Sentence ASentence BUnder the statute (SC Code § ), the second sentence starts on the date of sentencing!Running them concurrently doesn’t change the jail time credit.
22 Jail Time – Court’s Authority The Court may designate specific time for commencement of service of sentence. S.C. CodeSCDC is obligated to follow the court’s order. Mention v. SCDC, unpublished S.Ct. order filed October 20, 1999.
23 Jail Time – Setting a Sentence Start Date Sentence ASentence BAvoiding the subsequent concurrent sentence problem.Set sentence start date to same start date as sentence already being servedIndicate in the “Other” section of the sentencing sheet
24 Jail Time Credit – House Arrest Sentencing judge has discretion whether to award credit:In every case in computing the time served by a prisoner, full credit against the sentence must be given for time served prior to trial and sentencing, and may be given for any time spent under monitored house arrest. S.C. CodeIf it’s on the written order, the defendant will get credit
25 How an Indeterminate Sentence Is Determined Youthful Offender ActHow an Indeterminate Sentence Is Determined
26 Eligibility for YOAMust be less than 25 years old at time of convictionCannot be a violent offenseListed in SC CodeExcept for burglary 2nd, violent (more on this in a minute)Cannot be a Class A, B, C, or exempt felonyCrimes punishable by 15 years or less
27 Youthful Offender Program Access to additional programsRelease determined by administrative release authorityOffender serves a minimum period of incarceration corresponding to seriousness of offense6 months to 12 months from assignment of ISOOffenses categorized by seriousness at:Administrative release authority approves/disapproves YOA paroleConsiders recommendations from community, victim(s), and institution
28 YOA after Relase Supervision for at least one year Evaluated for unconditional discharge by release authority after one year
29 YOA: Special Rules for Burglary 2nd S.C. Code has a 3-year mandatory minimum for YOA 2nd degree burglary sentences.Both violent and non-violent.Persons convicted of 2nd degree burglary and sentenced under YOA must serve 3 years, day-for- day.
30 YOA: The Non-Conforming Sentence Non-conforming means the offender was not eligible for a YOA sentence, but the sentencing judge ordered YOAOffenders are typically incarcerated at least 3 years
32 Eligibility for Shock Eligibility is evaluated by SCDC No convictions for violent or no parole offensesNo previous service at SCDCPhysically and mentally able to participate
33 Shock Program Ninety day incarcerative program Following incarceration offenders are released under parole supervision
34 Addiction Treatment Unit Referrals and Available Programs
35 Addiction Treatment Unit All offenders are screened for placement into the ATUIf ordered by the sentencing judge, offender will have higher priorityOtherwise, offenders who are referred are placed randomly as bedspace is availableOffenders must have at least 9 months until their maxout to be eligible
36 Concurrent Federal and State Sentences Will they really run concurrently?
37 Concurrent Federal and State Sentences: The Problem Will they really run concurrently?The federal rule: 18 USC § 3585Federal sentence starts when defendant arrives in federal custodyBOP does not defer to State sentencing orderBOP typically accepts custody only if they have “primary jurisdiction”Primary jurisdiction is the first jurisdiction to make arrest.
38 Concurrent Federal and State Sentences: The Solution Setser v. United States 132 S.Ct (2012)Coordinate with federal authoritiesBOP must follow federal ordersThe federal sentencing judge can order federal sentence be concurrent or concsecutiveEven before State sentencing!
39 Common Law Escape or Statutory Escape Automatic consecutive sentence?
40 Two Escape Offenses – the Problem There are two possible escape offenses in South Carolina.Common law escape. State v. Walker, 311 S.C. 8, 426 S.E.2d 337 (Ct. App )Statutory escape. SC Code §What are the rules for consecutive or concurrent sentencing?
41 Two Escape Offenses – the Solution Statutory escape.Term of imprisonment must be consecutive to original sentence and sentences previously imposed. SC Code § (C).Will run consecutively unless order says otherwise.Common law escape.Penalty comes from S.C. Code § (sentence where no punishment is provided)“The court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.”Will run concurrently unless order says otherwise.
42 Changes in LawDoes an amended penalty apply to offenses committed before the amendment?
43 Changes in Sentencing Law State v. Varner, 310 S.C. 264, 423 S.E.2d 133 (1992)Language of statute controlsBut if there is nothing in the statue:If the penalty is greater under new statute, apply law as of date of offenseIf the penalty is less under new statute, apply law as of date of sentencingState v. Dawson, 402 S.C. 160, 740 S.E.2d 501 (2013)2010 Omnibus Act Savings clause unambiguously detail the Act's prospective application
44 Final ThoughtsSCDC is not in court when defendant is sentenced; we are not part of the plea negotiationsUse the sentencing sheet to make Court’s intent clearUse the “Other” part of the sentencing sheetWe are happy to help in preparing a sentencing order to reflect Court’s intent