Think You Have a Constitutional Right to an Attorney? Not in Many South Carolina Courts
Imagine getting arrested, charged with a crime, prosecuted, convicted, and hauled off to jail. Imagine that happening without ever being represented by a lawyer. Not in America, right? Wrong. This injustice happens with shocking regularity to people in South Carolina in the city of Beaufort and town of Bluffton.
Take the case of Tina Bairefoot, whose constitutional rights were trampled upon in Beaufort.
Ms. Bairefoot was arrested for shoplifting at Walmart and charged with a misdemeanor in Beaufort municipal court. She pleaded not guilty. Despite the fact that she was facing criminal charges and possible incarceration if convicted, Bairefoot was never even advised of her right to have a court-appointed lawyer if she could not afford to pay for one.
In fact, not only was she on her own to defend herself, but it was the police officer who arrested her who then acted as the prosecutor in court. After a “trial” that took a matter of minutes, Ms. Bairefoot was convicted and sentenced to 30 days in jail without counsel by her side.
Adding insult to her injustice, when she tried to advocate for herself, the municipal court judge interrupted her, called her defense “B.S.” He told her that “he didn’t care” about what she had to say, and wouldn’t let her speak. Then he tossed her in jail. During her time behind bars, Ms. Bairefoot suffered from mental anguish and emotional distress and was deprived of several necessary medications.
Not once on her journey from arrest to incarceration was Bairefoot provided a lawyer. Is this constitutional? Absolutely not.
Many years ago, the Supreme Court that the Sixth Amendment prohibits jailing people upon conviction without affording them counsel. Yet in South Carolina the practice is still commonplace. As the ACLU documented in a 2016 report co-authored with the National Association of Criminal Defense Lawyers, “unconscionable and unacceptable practices that cause significant harm” are rampant in local courts in that state. In the Beaufort and Bluffton, thousands of poor people are cycled through their municipal courts every year. Some are condemned to jail or prison. None are given a lawyer.
The amount of money someone has should never be a determining factor in what kind of justice someone gets. But poor people are deprived of their Sixth Amendment rights in Beaufort and Bluffton simply because of these municipalities’ inexcusable refusal to contract with the public defender office to provide representation to indigent defendants in the municipal courts. And these local governments are far from alone.
Despite South Carolina enacting in 2015 requiring municipalities to provide lawyers to poor people in municipal courts, a majority of municipalities in South Carolina ignore this requirement — even though all charges in municipal court are criminal charges and most expose the defendants to possible incarceration.
This failure results in widespread constitutional violations. Worse still, in many of these courts, the judges are not lawyers. And sometimes those prosecuting cases are also not lawyers, but police officers.
People like Tina Bairefoot, who are given unlawful jail sentences, can suffer all the harms connected to being incarcerated, including lost employment, separation from family, and worsening of medical conditions.
Of course, those who can afford a lawyer have a better shot at getting justice. They can choose to have a skilled legal professional by their side throughout the entire criminal process to challenge the charges, put the state’s evidence to the test, make persuasive legal arguments to the judge, and negotiate appropriate resolutions.
In South Carolina’s municipal courts, if you have money, the Constitution applies. If you don’t, it doesn’t. That’s why the ACLU, the ACLU of South Carolina, and Nelson Mullins Riley & Scarborough LLP have filed a lawsuit against Beaufort and Bluffton on behalf of Tina Bairefoot and people like her to send a message to municipal courts across the state: The right to counsel is not a luxury for those with means, but a protection guaranteed to all.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Maryland Supreme CourtDec 2024
Criminal Law Reform
Roland Branch v. State of MarylandRoland Branch v. State of Maryland
This petition to the Supreme Court of Maryland asked the court to reconsider its adherence to Whren v. U.S., 517 U.S. 806 (1996), which declared that a traffic stop undertaken for pretextual reasons does not violate the Fourth Amendment to the U.S. Constitution so long as the police have probable cause to believe that a traffic violation occurred. The ACLU, alongside the ACLU of Maryland, filed an amicus brief in support of the defendant’s petition, in which the ACLU argued that the court should take up the question of whether pretextual stops violate the Maryland Constitution. In September 2024, the Court denied the petition. -
North Carolina Supreme CourtDec 2024
Criminal Law Reform
State v. WrightState v. Wright
This case in the North Carolina Supreme Court involves the question of whether the police violated the U.S. Constitution when they searched the defendant, Mr. Wright’s, backpack even after he repeatedly said no to the search requests. The ACLU alongside the ACLU of North Carolina filed an amicus brief arguing that the search was unconstitutional because Mr. Wright’s eventual “consent” was the result of police coercion. Our brief urges the court to consider the totality of the circumstances that make one more susceptible to coercion, including race and poverty. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
New litigation centered on increasing access to substance-use disorder treatment in jails and prisons is helping to reduce mortality rates among incarcerated individuals.