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Editorial: SC Senate needs to pass bail reform, along with more complex changes

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Some tweaks to the S.C. bail bond laws will help, but ultimately lawmakers will only close the revolving-door criminal justice system when they increase the system's capacity. (AP Photo/David Zalubowski, file)

It’s tempting to see this year’s legislative push to slam shut South Carolina's so-called revolving door of our criminal justice system as pure politics.

After all, overall violent crime in South Carolina was down in 2021, the latest year for which the State Law Enforcement Division has released results. And as The Post and Courier’s Ema Rose Schumer and Alexander Thompson report, although there are some dramatic examples of people being arrested for violent crimes, getting out on bail and then getting arrested again for more violent crimes, there doesn’t seem to be anything beyond that anecdotal evidence that we have a significant problem.

Charleston Police Chief Luther Reynolds has been one of the most outspoken critics of revolving-door justice, but a 2022 Charleston County study found that only 5% of people released on bail were charged with a second violent crime within six months. And most of them, Ms. Rose and Mr. Thompson report, were for burglary, armed robbery or drug charges.

Editor's note: This editorial has been corrected from an earlier version that incorrectly cited a 2022 Charleston County study as saying only about half of 1% of all people arrested for violent crimes were charged with a second violent crime within six months.

Still, that doesn’t make it OK for people to commit a crime while they're out on bail, and it doesn't mean we don’t need to make reasonable changes to deter even that small number of revolving-door crimes. It does, however, mean that we need to keep the actual scale of the problem in mind and make sure we don’t inadvertently punish innocent people.

The idea of creating an additional five-year sentence for anyone convicted of committing a violent crime while out on bail for a violent crime, as the House voted last week to do, makes a lot of sense.

So does the idea, also contained in H.3532, of making it easier to revoke bond for someone who’s arrested again while out on bail. Ditto the idea of requiring judges to take whether a defendant was out on bail into account when setting bail for the new charge.

Those are all changes the Senate should approve to address a troubling if not particularly large problem — ideally in conjunction with a proposal to create graduated penalties for using a gun to commit a crime. As we noted in Monday's editorial, the House voted last month to do that, but only in the context of an irresponsible bill to allow anybody without a criminal record to carry a gun in public without any training or background checks.

There might even be a place in state law for a provision in H.3532 that requires people who are arrested for a violent crime while out on bail — even for a nonviolent offense — to post a full cash bond for any new arrest. In most cases, criminal defendants are required to post only 10% of their bail amount.

Supporters see this as a way of dealing with judges they consider too soft on crime, by increasing the defendant's required payment 10-fold and making it cost-prohibitive for some defendants to get out of jail before trial. But if a judge really is determined to let some people get out on bail, he can just set a lower bail. So lawmakers need to understand that this isn’t a panacea.

Indeed, lawmakers need to understand that there’s no such thing as a panacea when it comes to preventing people from committing crimes while they’re out on bail awaiting trial, because the most obvious way to do that — just keeping everybody locked up until trial — simply isn’t workable.

Our criminal justice system is built around the idea that everybody is innocent until proven guilty. Both our state and the federal constitutions prohibit “excessive bail”; the S.C. Constitution even grants the right to bail in most cases, while the U.S. Constitution implies that. So lawmakers don’t have the option of making everybody wait in jail until the prosecutor and the courts get around to trying them. Even if that were allowable though, our jails are so full that we don't have enough space to house all the people charged with violent crimes until they can be tried — a wait that can drag on for months or years.

So ultimately, while we might be able to keep more people in jail before trial by building more jail space and staffing it up, our only real solution is to reduce the amount of time between arrest and trial, by increasing the capacity of our criminal justice system, from our crime labs to our prosecutors and public defenders to our judges. That’s not a solution you can put on a bumper sticker, and it probably won’t sound that impressive on a campaign ad, but ultimately that’s the way to close the revolving door.

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