Any court system has some ethically challenged judges. And even ethical judges sometimes misapply the law.
But as an investigation by The Post and Courier’s Joseph Cranney and ProPublica reveals, you’d be hard-pressed to find a larger concentration of ethically challenged and incompetent judges than in South Carolina’s magistrate courts.
In the magistrate courts of South Carolina, citizens often must fend for themselves before judges lacking formal training in the law and whose errors can result in punishing consequences for defendants.
The system, Mr. Cranney reports, is “unlike any other in the country, and one that has provided fertile ground for incompetence, corruption and other abuse.” That’s because of a combination of laws and traditions that state legislators refuse to change.
Higher-court judges must pass the Bar, demonstrate their knowledge of the law and clear ethical checks; magistrates essentially have to have a pulse — and the right relationship with the local senator. Because appointment is all about politics.
The three-quarters of South Carolina’s magistrates who aren’t lawyers are required to complete less than a week and a half worth of training and pass a test that asks such questions as “What is the smallest number” and “What is the earliest date” in a list. Some — court officials refused to say how many — fail on the first attempt.
Magistrates can send people to jail for days, weeks or months. But Mr. Cranney found magistrates refusing to listen to defendants’ claims of self-defense and refusing to tell them they had a right to a lawyer. He uncovered serious judicial errors or misconduct in 30 of the state’s 46 counties.
Two years ago, S.C. Chief Justice Don Beatty felt compelled to write to the state’s 319 magistrates that “It has continually come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment,” which is “a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States.”
It’s easy to get frustrated looking for a way to fix the problems.
The most obvious solution is to require magistrates to be lawyers. But lawyers would demand higher salaries, and legislators are more interested in delivering $50 “rebate” checks to voters than delivering justice to those South Carolinians involved in hundreds of thousands of misdemeanor criminal cases and civil disputes every year.
Still, there are a lot of smart, ethical people without law degrees — and many of them are in fact magistrates. The fact that many magistrates are neither derives in no small part from the way they become and remain magistrates:
Technically, the governor appoints magistrates, and the Senate confirms or rejects them. In reality, they’re selected by the senator who represents the community they serve. Governors yield to individual senators’ choices because they have no real choice.
They are picked by state senators, often individual senators.
When they come up for reappointment, they aren’t required to alert senators or the governor if they are disciplined for misconduct by the state’s judicial watchdog. Currently more than a dozen remain in office despite being disciplined.
They can remain in office until they’re reappointed or replaced, so a quarter remain in this holdover status. That allows senators to hold them in limbo, essentially threatening to replace any who make decisions the senators don’t like.
An obvious way to improve the system without spending any more money would be to let the governor appoint magistrates. But the law already requires this. Governors defer to senators, knowing that 1) the Senate will reject any appointment not favored by the local senator and 2) senators can sabotage their agendas if they don’t play ball on magistrates.
Another obvious improvement would be to require the entire Senate to confirm magistrates, rather than just the local senators or senator. Again, though, the law already requires this; senators, by tradition, vote as the local senator wants them to.
So, three other ideas for improvement, which still would require Senate approval but that might not feel so threatening to senators:
South Carolina's judicial discipline system, dominate by judge and operating in near-complete secrecy, is broken, as The Post and Courer's "The Untouchables" investigation with ProPublica revealed. We need less secrecy and fewer judges investigating judges.
• Require more thorough training for non-lawyer magistrates. Their current initial training is an eighth that of new police officers and just 1/26 that of barbers. Yes, barbers.
• Require the office to be vacated once the term is up, rather than allowing magistrates to serve in holdover purgatory, and allow the governor to appoint an interim magistrate, without Senate approval, until the Senate gets around to acting on the vacancy.
• Require the dates of any disciplinary or court actions against magistrates to be released publicly when they are up for reappointment, and require the details to be made available to the governor and senators. (Yes, all that information should be made public, but we’re trying to be realistic.)
Over the years, magistrates have been asked to handle increasingly bigger cases, which allows the bad ones to have an increasingly detrimental effect on people’s lives. We deserve better.