Presentation on theme: "Understanding How Prison Sentences Work"— Presentation transcript:
1 Understanding How Prison Sentences Work Chris FlorianDeputy General CounselSouth Carolina Department of Corrections
2 Call Us FirstWe can help draft the proposed sentencing order to ensure it will have the intended result.SCDC General Counsel:
3 The Maxout Date 4 types of sentences Parolable offenses85% offensesDay-for-dayYOA sentencesSubstantial difference in percentage of time offender would serve until maxout
4 Parolable SentencesFelony D and lesser offenses with no mandatory minimumTypical offender will serve between 60% and 70% 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
5 85% Sentences “No parole” offenses S.C. Code § 24-13-100 Defined as Class A, B, or C felonies, or offenses exempt from classificationCannot 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 participatingService TimeGood TimeWork Credits
6 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
7 YOA Sentences Targeted institutional programming Administrative Release AuthorityStill in developmentPanel of 3-5 members to approve YOA parole release and revocationConsiders 3 factorsSeverity of crime as measured by Release MatrixRelease Recommendations from community, victim(s) and institutionRisk Assessment Score as measured by Global Risk Assessment Device (GRAD)Intensive Supervision Program
15 Conflicting Sentencing Orders The sentencing judge pronounces one sentence and writes a different sentence
16 Conflicts between Pronouncement of Sentence and Written Order 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 But when the situation is reversed… Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct. App. 2011) (petition for cert. pending)Oral pronouncement: = 40 years6 5-year terms to run consecutively to each otherWritten order: = 15Silent as to whether the 5 year terms run consecutively to each other“Under ordinary circumstances, SCDC must determine the sentence imposed by the trial court from the sentencing sheets. If there is some ambiguity in the sentencing sheets, SCDC may examine the transcript of record to determine the intent of the sentencing judge.”What about Boan?“There are some situations in which SCDC may look beyond unambiguous sentencing sheets.”
18 Pre-Conviction Jail Time Subsequent Concurrent Sentences
19 Subsequent Concurrent Sentences: The Problem The jail time statute - SC Code §Automatic credit for time served before sentencingNo credit for home detention. State v. Higgins, 357 S.C. 382, 593 S.E.2d 180 (Ct. App. 2004)With 2 exceptions:EscapeAlready serving a sentence for another offenseThe Court has the power to award a specific amount of jail time under the statute
20 Subsequent Concurrent Sentences: The Problem 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.
21 The SolutionSentence ASentence BUse the Court’s power to award a specific amount of jail timeSet sentence start date to same start date as sentence already being servedIndicate in the “Other” section of the sentencing sheet
23 YOA Sentences for Second-Degree Burglary: The Problem S.C. Code now 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.Disqualifies these inmates for the shock incarceration program.
24 YOA Sentences for Second-Degree Burglary: The Solution Mandatory minimum does not apply to other related offenses.Where there are multiple offensesSeek incarcerative sentence on other offensesAsk for adult offender sentence instead of YOANo mandatory minimumStill could be eligible for shock incarcerationBut offender would lose benefits of YOA
25 Concurrent Federal and State Sentences Will they really run concurrently?
26 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.
27 Concurrent Federal and State Sentences: The Solution Encourage coordination with federal authoritiesBOP gives greater deference to federal ordersBOP has power to designate SCDC as a facility for service of the federal sentence.18 USC § 3621.Sentences would then run concurrentlyState waiver of primary jurisdictionRarely doneShumate v. U.S., 893 F. Supp. 137 (NDNY 1995)
28 Common Law Escape or Statutory Escape Automatic consecutive sentence?
29 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. 1992)Statutory escape. SC Code §What are the rules for consecutive or concurrent sentencing?
30 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.
31 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 sentencing
32 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