Q&A on the law

QUESTION: What is the law when an offender is suspected of a violation?

ANSWER: "If the department determines that a prisoner has violated a term of the community supervision program and the community supervision should be revoked, a probation agent must initiate a proceeding in General Sessions Court," the law states. "The proceeding must be initiated pursuant to a warrant or a citation issued by a probation agent setting forth the violations of the community supervision program."

Q: In the court proceeding, what does the law say about a judge's options?

A: "If the court determines that a prisoner has wilfully violated a term or condition of the community supervision program," the law states, "the court may impose any other terms or conditions considered appropriate and may continue the prisoner on community supervision, or the court may revoke the prisoner's community supervision and impose a sentence of up to one year for violation of the community supervision program."

Q: In the case of Jimmie Harris Jr., a probation agent signed a warrant and arrested Harris on a violation, so why wasn't a court proceeding initiated?

A: "The U.S. Supreme Court has determined that offenders on supervision have rights to due process before they can have their liberty taken away," said Matt Buchanan, lead attorney for the S.C. Department of Probation, Parole and Pardon Services. "The Department must hold a preliminary hearing before taking the case before a judge. (Two Supreme Court opinions) require two things for a revocation of parole/probation to be valid and meet due process: A preliminary hearing and a hearing before a judge. ... Only when the Department wants to revoke the (community supervision program) should the case be brought before the circuit court. And had the administrative hearing office decided to do that, it would have happened."

When they decided last spring that Jimmie Harris Jr. had broken the rules of his early prison release, probation agents signed a warrant for his arrest.

They charged Harris, 25, with violating his community release, and they threw him back behind bars.

The warrant should have triggered a court proceeding. Under state law, a judge must decide whether to give Harris another shot or send him to prison for the rest of his sentence.

But that's not what happened.

Instead, the probation department took on the court's role. Officials held a hearing of their own and decided that the case against Harris was weak. They freed the North Charleston resident, opting to give another chance to someone who had acted up 32 times while serving his sentence for shooting and wounding a man in 2006.

But that second chance might have backfired.

What happened next has stirred up more doubt about whether an agency beset with budget shortcomings and high caseloads can effectively monitor offenders. Consider that each agent in Charleston County must watch about 240 offenders, more than double the recommended workload.

The case also has renewed questions about a swamped court system that's already reluctant to send offenders back to overcrowded prisons for minor violations.

Agents never outfitted Harris' home with the technology designed to watch him. When they checked on him days after his second release, he was gone. He was a fugitive when federal authorities said he shot and critically wounded a man in Walterboro.

Today, Harris is jailed in Charlotte, where he's accused of getting into a shootout with the police.

S.C. Department of Probation, Parole and Pardon Services officials contend that the agency did everything in its power to prevent Harris from getting into more trouble. Though the agency released him from custody without consulting with a judge, the process it followed was fair and designed to guarantee his constitutional right to due process, they said.

"If you're going to take someone's liberty away, it has to reach a threshold," Peter O'Boyle, the agency spokesman, said. "There has to be a pattern of more than one violation."

When The Post and Courier initially reported on the case two weeks ago, probation officials said they were legally bound to give Harris a second chance because he had promised to behave. When confronted last week with the state law that gives courts the power to rule on alleged probation violations, agency officials continued to insist that they were not required to go that route and that they had the authority to make those calls.

State Sen. Mike Fair, a Greenville Republican who leads the Corrections and Penology Committee, saw the situation differently.

"They should have followed the law," Fair said. "We will never know what may have been prevented if they had followed the statute."

'Yeah, it's a threat'

Harris' propensity for violence and disturbing outbursts would be clear to anyone who looks at his prison record. The S.C. Department of Corrections documented 32 episodes of misbehavior after he was sent to prison in 2008 to serve seven years for shooting a North Charleston man three times.

Shortly after he arrived there, Harris punched a rival at Lieber Correctional Institution in Ridgeville. The victim's face was so badly swollen that he was hospitalized.

The first of many, his penalty for the attack extended the date of his expected release. Violent offenders like Harris must serve at least 85 percent of their sentences.

That August, Harris acted up again. He grew angry during a card game and cut an inmate's head.

Harris often defied prison authorities by hurling racial slurs and disobeying them. He once clinched his fists and charged a correctional officer who had told him to return to his cell.

Prison officials later found contraband - tobacco and two cellphones - in his cell.

Then, in January 2010, he joined other inmates from the Charleston area in a brawl against members of a Bloods gang from the Upstate.

Harris twice tossed a "yellow liquid" from a cup at officers walking by his cell.

He once showed his genitals to a passing counselor.

He hurled curses at a nurse in July 2011.

"I'm gonna mess you up!" he shouted, according to the paperwork. "Yeah, it's a threat, and you can't do anything."

No 'cracks in the system'

Harris' missteps kept him in prison eight months longer than if he had behaved. But it still didn't stop him from getting out before his full seven-year sentence was up.

That's common in South Carolina's prison system.

The state bars violent men like Harris from being paroled but still makes them eligible for release once they've served 85 percent of their time.

Because of those rules, a prisoner rarely serves the full sentence imposed on him by a judge, 14th Circuit Solicitor Duffie Stone said. Harris is suspected of a shooting in Colleton County, which is part of Stone's territory.

"That's not someone falling through cracks in the system," said Stone, a longtime advocate of reforms that establish "truth in sentencing." "That's just how the laws are set up."

Harris had more than four months left on his sentence when he got out March 1, 2013, on community supervision. Under an agency policy, participants of the program must wear an electronic monitor after they are released. If they do that successfully for 90 days, their devices are removed.

It costs about $10 a day to electronically monitor someone like Harris and $20 for sex offenders, the agency said.

By the time Harris walked free, agents had not ironed out the details of his home detention. He didn't yet know where he would live, the agency spokesman said, and his family's James Island home didn't have the land-line telephone that his monitor needed. That left agents without a way to track his movements and Harris bound by little but his word.

The probation agency had known for months that this day would come. The state Corrections Department, after all, is required to warn probation agents of an inmate's pending release on community supervision six months before it happens.

But O'Boyle said the early warning only helps so much, and the agency has no way to set up a monitor before a prisoner's actual release.

"The law would have to be rewritten to require that," he said. "We're going above and beyond what's required by the law right now."

Some lawmakers contend that merging the probation and corrections departments would improve communication to make releases go smoothly. A current House bill would make the parole agency a division of the Corrections Department.

Its passage, however, is doubtful.

A 'waste' of resources

In the few weeks after Harris' release, he failed to show up for an appointment and wasn't at home when the agents checked on him. They completed the warrant for his arrest.

When they eventually confronted him, he told them that he didn't want to follow the rules. So he landed in jail for another month.

That's when the law says a General Sessions court must take over and address the alleged violation.

But before a case gets to that point, agency officials argued, they must hold a hearing to decide whether the agent had probable cause for the arrest. They pointed to two U.S. Supreme Court opinions from the 1970s that said probationers and parolees are entitled to a preliminary hearing.

"Putting someone in prison requires a high bar of proof," O'Boyle said, "a pattern of fairly serious misbehavior."

Harris' misconduct - skipping a meeting and straying from his home - wasn't enough, O'Boyle said.

Violations usually entail an offender committing a new crime, O'Boyle said, not just failing to be where he was told.

An independent hearing officer decided that the agent's charge would not have succeeded in front of a judge, the agency's lead attorney, Matt Buchanan, said. Letting such cases persist would be too taxing on the courts anyway, he explained.

"It is a waste of judicial resources to hold a court hearing when we are asking a judge to not revoke an offender's supervision," Buchanan said. "It wastes valuable time to bring a case before the judge to ask them to continue the offender on supervision. It makes no sense; we can do that ourselves."

Harris' warrant was placed in his court file in downtown Charleston, but the department's hearing absolved him of being penalized for it. He also promised to behave, O'Boyle said, so he was freed April 23.

"It's not like we had any choice in the matter," O'Boyle said, "as long as he was willing to comply."

But he didn't comply.

Agents were still trying to arrange for the equipment to monitor Harris when they lost track of him. They traveled to his home three days after his release with plans to hook up his monitor to a phone line, but he wasn't there, O'Boyle said.

They checked again and again but came up empty.

The agents had paid special attention to Harris because they knew he was violent, O'Boyle said.

But their workload has made close supervision difficult.

In Charleston County, where Harris lived, each agent is responsible for an average of 240 offenders, compared with 150 in 2008, when The Post and Courier first examined the problem.

Statewide, the average agent handles 92 offenders, the agency said. That's down from 109 six years ago.

The American Probation and Parole Association recommends between 30 high-risk offenders per agent and 120 per agent in the low-risk category.

Recent funding increases for South Carolina's agency should boost hiring and eventually ease the workload here, according to Fair, the state senator.

"It's getting straightened out," he said. "The numbers are still high, but they seem to be doing a better job."

'Benefit of the offender'

The agents issued another warrant for Harris' arrest in mid-May.

But a month later, with Harris still a fugitive, federal investigators said he shot and wounded their lead witness in a Walterboro drug conspiracy.

Police officers eventually arrested Harris in mid-July, when they said they caught him with cocaine in North Charleston.

This time, the new drug charges were enough to put Harris in front of a judge, O'Boyle said. He was jailed until 9th Circuit Judge Stephanie McDonald ordered him to complete his original sentence in prison.

Harris served his time by the first of November. He then posted bail on the drug charges because investigators didn't have enough evidence to hold him in the Walterboro shooting.

Harris also was questioned in the New Year's Day shootings in North Charleston that killed two women and wounded a third. But detectives didn't have what they needed to charge him in those crimes either.

Whether a longer term behind bars would have foiled the Walterboro shooting is something Stone, the top prosecutor in Colleton County, could not surmise. Harris has since been indicted in that case.

"What else could (Harris) have done?" Stone said. "He couldn't have done anything worse from what it looks like to me."

Fair, the senator who heads the corrections panel, said the case requires further inspection to find out whether probation agents could have more closely watched Harris.

For the public, however, such information will be difficult to come by.

Agency officials denied The Post and Courier's Freedom of Information Act request for Harris' file because it's considered privileged information. A law allows the agency's director or a judge to order its release.

Sealing the file protects offenders from court action, the agency attorney said. Data such as drug-test results, Buchanan said, could be used against them in a divorce proceeding or a criminal hearing.

"We don't want outside parties to have access to (agents') notes," Buchanan said. "It's principally for the benefit of the offender ... to open up to our agents."

After all, he said, the department's main purpose is to get offenders "reformed and back to being productive members of society."

Reach Andrew Knapp at 937-5414 or twitter.com/offlede.