Criminal defendants in South Carolina could face stricter requirements when applying for a public defender under a bill proposed by two York County Republicans.
It would mandate that screenings for indigency, a person's lack of ability to pay, be done by the S.C. Department of Probation, Parole and Pardon Services — an agency that has never done such work. Screenings include checks on income, employment and assets such as property, cash and stocks. But the proposal would add a lengthy list of required proof such as years of public assistance payments and tax forms.
Proponents say centralization of screening services, currently performed by public defender's offices, judges or court clerks, is needed to ensure that people who can afford lawyers aren't taking advantage of the system. While many in the legal community agree that screenings are essential, many worry the stringent requirements could delay representation for the state's most impoverished residents and create an unneeded bureaucracy.
The measure comes as state Supreme Court Chief Justice Donald Beatty has sought to ensure that public defenders are available even at the lowest levels of the judicial system. Some counties have also aimed to provide attorneys to poor defendants within hours of arrest.
"This is solving a problem I don't think we have," said Cameron Blazer, a Charleston-based attorney who served as an assistant public defender in state and federal courts before entering private practice. "I worry about a system that's reinventing the wheel. I worry that this new wheel is pretty square."
For Hugh Ryan, executive director of the S.C. Commission on Indigent Defense, the bill isn't about putting up restrictions; it's about finding out the facts.
"We don't know the scope of the problem," Ryan said. "What's the true number of people who are indigent? It's hard to really move forward until you know the scope of the problem."
S.C. Reps. Greg Delleney, R-Chester, and Tommy Pope, R-York, co-sponsored the bill. Delleney did not respond to multiple phone calls, and Pope referred questions to Delleney.
The bill passed through the state's House of Representatives on March 9 and is currently before the Senate's Judiciary Committee.
'Agency within an agency'
Before moving to the Senate, it was amended to include a pilot program that would happen in six counties: Richland, Horry, Chester, Colleton, Edgefield and Lee.
That program is key, Ryan said.
The state's probation department would conduct indigency screenings and would be required to issue a report on the program to the General Assembly by Jan. 1, 2020, including the number of applications accepted or rejected, reasons for rejection and recommendations for resources needed to expand the program throughout the state.
The pilot would go into effect immediately if the bill is passed and signed by Gov. Henry McMaster. Screenings would not go statewide until 2020, according to the latest amendment.
The pilot effort alone would cost taxpayers around $2 million and require the probation agency to hire 42 new employees, said Peter O'Boyle, a department spokesman.
There are no centralized statistics on how many South Carolinians qualify as indigent because screening is done by various clerks of court offices, summary court judges or public defender's offices, Ryan said.
"We certainly believe a proper screening should be done; however, we need to make sure it is not too onerous so as to prevent those who are truly indigent from receiving appointed counsel," he said.
But not all officials are convinced such drastic change is needed.
"This bill appears to create a new bureaucratic requirement out of a system that isn't structured to do it," Blazer said. "The scope of the information being requested, it disincentivizes people from seeking (legal) assistance."
Ninth Circuit Public Defender Ashley Pennington agreed.
"The working assumption of this bill is (defendants are) living at homes where they keep financial documents," Pennington said. "An arrest can often be a catastrophic event."
Nevertheless, the public defender said screening by an independent agency is a good idea.
Having the probation department conduct the screenings is based on federal courts, where the U.S. Probation and Pretrial Services System conducts all screenings for defendants at their initial bond hearing, he said.
"What we're talking about is sort of building an agency within an agency," Pennington said.
In some counties across the Palmetto State, independent screeners are already at work.
Charleston County received a $2.25 million grant from the MacArthur Foundation in 2016 to reform the local criminal justice system.
Part of the grant, awarded to the county's Criminal Justice Coordinating Council, went toward hiring three screeners to work in bond court, where they're reaching up to 70 percent of the potential indigent population at hearings within hours of an arrest, Pennington said.
Greenville County has operated an independent Office of Indigent Defense for decades, said 13th Circuit Public Defender Christopher Scalzo, who serves Greenville and Pickens counties.
Scalzo, too, has worries about the bill.
The extensive checklist might be overly bureaucratic, and shifting responsibility for screening to the probation department could require extensive overhauls in an agency that has never had anything to do with legal defense, he said.
"You're talking about 46 counties," Scalzo said. "You're asking (the agency) to come into an area they've never been involved in. There's a danger in delaying (representation) and failing to capture the people who need a lawyer. It's more work than is necessary."