Indicates Matter Stricken

Indicates New Matter

 

Free Conference Committee Report -- NOT PRINTED

June 14, 2023

H. 3532

 

Introduced by Rep. G.M. Smith, Pope, McCravy, B. Newton, West, Chapman, Burns, Wooten, Haddon, O'Neal, Carter, W. Newton, M.M. Smith, Davis, Pace, B.L. Cox, Gilliam, Thayer, Bailey, Hardee, Blackwell, Leber, Mitchell, Chumley, Ligon, Hiott, Yow, Landing, Hixon, Taylor, Oremus, Cromer and J.E. Johnson

 

S. Printed 04/17/23--S.

Read the first time March 02, 2023

 

________

 

 

 

 

 

 

 

 

 

 

A bill

 

to amend the South Carolina Code of Laws by adding Section 17-15-270 so as to PROVIDE SENTENCING ENHANCEMENTS FOR PERSONS WHO COMMIT CERTAIN ADDITIONAL CRIMES WHILE ON PRETRIAL RELEASE ON BOND; by adding Section 17-15-280 so as to PROHIBIT PRETRIAL RELEASE ON BOND FOR PERSONS CHARGED WITH COMMITTING CERTAIN ADDITIONAL CRIMES AND TO PROVIDE APPROPRIATE PROCEDURES FOR DETERMINING IF ADDITIONAL CHARGES ARE PENDING; and by amending Section 17-15-15, relating to the Deposit of a cash percentage in lieu of bond, so as to require a full cash bond for persons charged with certain crimes.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-270. (A) It is unlawful for a person to commit a violent crime while under a bond order or other pretrial release order for a previous violent crime.  If the person is convicted of the subsequent violent crime, and is thereafter convicted of a violation of this section, the person is guilty of a felony and must be imprisoned not more than five years.  The sentence may be imposed concurrently or consecutively to the punishment for the principal offense.

    (B) For purposes of this section:

       (1) a violent crime is defined as those contained in Section 16-1-60;

       (2) a subsequent violent crime is one that occurs at a later date and time than the offense that resulted in the imposition of the bond order or other pretrial release order.

 

SECTION 2.  Section 17-15-15 of the S.C. Code is amended to read:

 

    Section 17-15-15.   (A) Except as provided in subsection (D), in lieu of requiring actual posting of bond as provided in subsection (A) of Section 17-15-10(A), the court setting bond may permit the defendant to deposit in cash with the clerk of court an amount not to exceed ten percent of the amount of bond set, which amount, when the defendant fulfills the condition of the bond, shall must be returned to the defendant by the clerk except as provided in subsection (C).

    (B) The cash deposit provided for in subsection (A) shall must be assignable at any time after it is posted with the clerk of court by written assignment executed by the defendant and delivered to the clerk.  After assignment and after the defendant fulfills the condition of his bond, the clerk shall return the cash deposit to the assignee thereof.

    (C) In the event the cash deposit is not assigned but the defendant is required by the court to make restitution to the victim of his crime, such the deposit may be used for the purpose of such restitution.

    (D) The provisions of this section do not apply if the defendant is charged with a violent offense, as defined by Section 16-1-60, or any felony offense involving a firearm while out on bond or other pretrial release.  If the court, pursuant to the limitations of Section 17-15-30, finds that such defendant may be released pending trial, bond must be set at the full United States currency cash bond to the exclusion of all other forms of bond whether the bond is posted by the defendant or with a bondsman. After the defendant fulfills the conditions of the bond, the clerk shall return the cash bond amount paid to the defendant.  However, in the event the defendant is required by the court to make restitution to the victim of his crime, the cash bond may be used for the purpose of such restitution.

    Any currency cash bond must be conditioned on the person charged personally appearing before the court specified to answer the charge or indictment and to do and receive what is enjoined by the court, and not to leave the State, and be of good behavior toward all the citizens of the State, or especially toward a person or persons specified by the court. Additionally, the court may impose any other conditions allowed under Chapter 15 , Title 17, and any other provision of law.

 

SECTION 3.  Section 17-15-30 of the S.C. Code is amended to read:

 

    Section 17-15-30.   (A) In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to the community or an individual, a court may, on the basis of the following information, consider the nature and circumstances of an offense charged and the charged person's:

       (1) family ties;

       (2) employment;

       (3) financial resources;

       (4) character and mental condition;

       (5) length of residence in the community;

       (6) record of convictions;  and

       (7) record of flight to avoid prosecution or failure to appear at other court proceedings.

    (B) A court shall must consider:

       (1) a person's criminal record;

       (2) any current charges pending against a person and any prior charges against a person at the time release is requested;

       (3) all incident reports generated as a result of an offense charged;

       (4) whether a person is an alien unlawfully present in the United States, and poses a substantial flight risk due to this status;  and

       (5) whether the charged person appears in the state gang database maintained at the State Law Enforcement Division; and

       (6) whether a person is currently out on bond for another offense.

    (C)(1) Prior to or at the time of a hearing, the arresting law enforcement agency shall must provide the court with the following information:

           (a) a person's criminal record;

           (b) any charges pending against a person at the time release is requested;

           (c) all incident reports generated as a result of the offense charged; and

           (d) any other information that will assist the court in determining conditions of release to include, but not be limited to, notification of any existing bonds for another offense.

       (2) The arresting law enforcement agency shall inform the court if any of the information is not available at the time of the hearing and the reason the information is not available. Failure on the part of the law enforcement agency to provide the court with the information does not constitute grounds for the postponement or delay of the person's hearing. Notwithstanding the provisions of this item, when a person is charged with a violation of Chapter 25, Title 16, the bond hearing may not proceed without the person's criminal record and incident report or the presence of the arresting officer. The bond hearing for a violation of Chapter 25, Title 16 must occur within twenty-four hours after the arrest.

    (D) A court hearing these matters has contempt powers to enforce the provisions of this section.

 

SECTION 4.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-35.   (A) As used in this section:

       (1) "Approved active electronic monitoring device" and "monitoring device" means a body worn or non-body worn device or mobile phone application approved by the South Carolina Law Enforcement Division which records or transmits oral or wire communications or an auditory sound, visual images, or information regarding the person's location and activities, that must verify live biometric, photographic, or videographic identification information, and that timely records and reports the person's location.

       (2) "Approved electronic monitoring agency" means a law enforcement agency, licensed bondsman or bonding company, or electronic monitoring company that is certified by the South Carolina Law Enforcement Division to supply, maintain, and monitor electronic monitoring devices to participants ordered by the court to wear electronic monitoring devices under the provisions of this section.

       (3) "SLED" means the South Carolina Law Enforcement Division.

       (4) "Monitoring agency" or "agency" means an approved electronic monitoring agency. 

       (5) "Participant" means a person, ordered by the court or as a condition of bond to wear or possess an approved electronic monitoring device.

    (B)(1) The court, in its discretion, may, for a person charged with a violation of criminal offense under the jurisdiction of the court of general sessions or any offense where the court finds sufficient evidence of a concern for the victim's safety or the safety of any member of the public, order that the person be placed on surveillance via an approved active electronic monitoring device which must be worn or possessed at all times for the duration specified by the court, either in lieu of setting or requiring the posting of bond or as an additional condition of the release on bond.

       (2) For pretrial bond consideration, the judge is not limited to nonviolent offenses, but must take into consideration all concerns relating to the setting of an appropriate bond under Section 22-5-510, Sections 17-15-10, et seq., and Section 16-25-120. The device must be capable of recording the person's location at all times. If the court orders a device, before the participant is allowed to leave custody, the detention facility where the defendant is located, in coordination with the approved monitoring agency, must ensure the participant is fitted with an approved active electronic monitoring device, and that all appropriate bond paperwork, including the agreement with the bonding and electronic monitoring companies acknowledging the terms and restrictions of the bond, is completed.

       (3) The participant who is ordered on supervision must:

           (a) wear an approved device at all times to verify his compliance with the conditions of his detention or if the device is not body worn, must maintain possession of his approved device on or near his person at all times for the duration of the detention and must verify his identity and location at any time required by the order of the court and must maintain the monitoring device on or near his person at all times for the duration of the detention, subject to the order of the court and reasonable orders of an agent or employee of the monitoring agency in order to effectuate the conditions of the monitoring order. For purposes of this subsection, "near" means within hearing distance of the device's notification or call alerts but not farther than thirty feet. In areas of the State where cellular coverage requires the use of an alternate device, the approved electronic monitoring company may use an alternate approved device with approval of the court;

           (b) charge and maintain the monitoring device in working order and must report any damage, destruction, or noticeable malfunction of the active monitoring device, whether the incident was accidental or intentional, and including the device having a dead battery, to at least one of the following parties within two hours of the incident: the monitoring agency, the appropriate law enforcement agency with jurisdiction over the underlying offense, or any other party specified in the order;

           (c) abide by other terms and conditions set forth by the approved electronic monitoring agency with regard to the monitoring device and electronic monitoring program;

           (d) turn himself in to custody of the appropriate detention facility upon the order of the monitoring agency, or the appropriate law enforcement agency with jurisdiction over the offense; and

           (e) pay for the cost of the approved active electronic monitoring device and the operation of the monitoring device for the duration of the time the person is required to be electronically monitored, subject to an order of indigency by the court. The summary court or circuit court has jurisdiction upon motion of the defendant to consider exempting a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if it is determined that exceptional circumstances exist such that these payments cause a severe hardship to the person who is deemed indigent. If the indigency hearing is held at a time and date separate from the initial bond hearing, the defense must notify the prosecutor, the bondsman, and the monitoring agency of the date, time, and location of the hearing subject to the notice requirements of the court.

    The payment of the cost must be a condition of supervision of the person and a delinquency of two weeks or more in making payments may operate as a violation of a term or condition of the electronic monitoring and bond. No person shall be denied the privilege of electronic monitoring under this statute based on inability to pay upon a finding by the court that the defendant meets the qualifications for indigency. The State shall allocate funds to be housed in an indigency fund under the control of the Department of Public Safety to be distributed to the monitoring companies as appropriate to cover the cost of indigent participants.

    (C) A participant ordered by the court to be monitored under the provisions of this section, who fails to comply with any of the provisions of this section or who fails to comply with any additional condition of the court order including location restrictions, may have his bond revoked or may be punished for contempt at the discretion of the court.

    (D) It is unlawful for any person, knowingly and without authority, to remove, tamper with, damage, destroy, shield the signal from, or otherwise circumvent an active electronic monitoring device, or to aid or assist a person ordered by the court to be electronically monitored under the provisions of this section to remove, tamper with, damage, destroy, shield the signal from, or otherwise circumvent a monitoring device and, upon conviction, the person must be punished under the provisions of Section 24-13-425. This subsection does not apply to a person or agent of the electronic monitoring agency or bonding company, or a member of law enforcement acting under the authority of and with compliance to the court order.

    (E)(1)  Upon violation of any of these requirements and a showing by affidavit and supporting records by the electronic monitoring company on a domestic violence bond or general sessions bond or where emergency circumstances exist on any other bond, the approved electronic monitoring company may approach a summary court judge for a bench warrant if one is not already provided for in the bond paperwork or other court order. Law enforcement shall immediately attempt to locate and incarcerate the defendant upon notice of the bench warrant. After incarceration, the prosecutor must be notified and the defendant must be brought before a summary court judge within three calendar days or before a circuit court judge within three business days, whichever has jurisdiction of the underlying charge, to determine whether the bond is to be reconsidered or bond conditions amended. The prosecution must provide the defense with any relevant evidence regarding the alleged violation within a reasonable time before the hearing and the hearing may be continued for cause.

       (2)   Nothing in this section shall reduce any duty of the bondsman to pick up the offending bailee and immediately incarcerate him for violation of bond conditions. Failure to do so may lead to bond estreatment for failure to enforce bond conditions by the bondsman and possible other administrative or criminal action.

       (3)   Nothing in this section may be used to hold the electronic monitoring agency civilly liable for any criminal acts of the defendant committed while being monitored.

 

SECTION 5.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-37.   (A) The South Carolina Law Enforcement Division may promulgate regulations to effectuate the intent of Section 17-15-35 and this section, develop standards for the use and approval of active electronic monitoring devices, and shall certify electronic monitoring agencies, including law enforcement agencies, electronic monitoring companies, and bondsmen and bonding companies. SLED must keep a public list of those companies that are certified.

    (B) The approved electronic monitoring agency must:

       (1) provide active electronic monitoring devices or mobile phone applications approved by SLED that must provide verifiable identity and location information at regular and random intervals throughout the day, and that timely record and report the person's presence near or within a prohibited area or the person's departure from a specified geographic location;

       (2) allow any law enforcement agency, including the prosecutor's office, to have access to real-time monitoring, if possible, and any reports requested by law enforcement or the prosecution must be provided within twenty-four hours of the request;

       (3) notify the solicitor having jurisdiction over the participant and the bondsman within forty-eight hours when he becomes aware or should have become aware that the participant has violated any provision of the court's order for electronic monitoring, or the participant has been surrendered to the custody of law enforcement; and

       (4) immediately notify local law enforcement and make reasonable attempts to immediately notify the victim if the participant violates any exclusion zones related to the victim.

    (C) Failure of the electronic monitoring agency to maintain compliance with regulations established by SLED, the order of the court, or any applicable statute shall be reported to SLED by the solicitor for administrative action. SLED may impose a fine, or suspend or revoke the certification for any approved agency who demonstrates a failure to maintain the standards and reporting requirements set forth under the regulations and appropriate statutes.

 

SECTION 6.  Section 17-15-55 of the S.C. Code is amended to read:

 

    Section 17-15-55.   (A)(1) The circuit courts, at their discretion, may review and reconsider bond for general sessions offenses set by summary court judges. Also, the circuit courts may consider motions regarding reconsideration of bond for general sessions offenses set by summary court judges upon motions filed with the clerks of court. Hearings on these motions must be scheduled. The rules of evidence do not apply to bond hearings.

       (2) After a circuit court judge has heard and ruled upon a defendant's motion to reconsider a bond set by a summary court judge, further defense motions to reconsider may be heard by the circuit court only upon the defendant's prima facie showing of a material change in circumstances which relate to the factors provided in Section 17-15-30, and which have arisen since the prior motion to reconsider. In addition, the circuit court may hear further defense motions to reconsider based on the length of time the defendant has been held for trial after six months. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances. A defendant shall be advised of his right to a speedy trial. Information regarding the defendant's guilt or innocence does not qualify as a change in circumstances for purposes of reconsidering bond absent the solicitor's consent.Notwithstanding another provision of law, nothing prevents a solicitor or the defendant from filing a motion for a speedy trial or requesting the court to set a date certain for trial based on the facts and circumstances in the case. If either party fails to comply with the terms of an order granting a speedy trial, the court may reconsider the terms of the defendant's bond, may consider sanctions and may grant other just and proper relief as the court determines.

    (B)(1) Motions by the State to revoke or modify a bond must be made in writing, state with particularity the grounds for revocation or modification, and set forth the relief or order sought. The motions must be filed with the clerks of court, and a copy must be served on the chief judge, defense counsel of record, and bond surety, if any. The court must have a hearing and rule on the state's motion within thirty days of the filing.

       (2) After a circuit court judge has heard and ruled upon the state's motion to reconsider a bond set by a summary court judge, further state motions to reconsider may be heard by the circuit court only upon the state's prima facie showing of a material change in circumstances which have arisen since the prior motion to reconsider. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances.

       (3) If the state's motion to revoke or modify bond includes a prima facie showing of imminent danger to the community, imminent danger to the defendant, or flight by the defendant, the chief judge or presiding judge shall conduct or order an emergency bond hearing to be conducted by the circuit court judge within forty-eight hours of receiving service of the state's motion or as soon as practical. The chief judge shall order the solicitor to notify the defense counsel of record and bond surety of the time and date of the hearing, and the solicitor shall provide proof that reasonable efforts were made to affect the notice. Upon notice by the State, the defense counsel of record and bond surety shall make reasonable efforts to notify the defendant of the emergency hearing. The court may proceed with the hearing despite the absence of the defendant or bond surety. The court may not proceed with the hearing if the defense counsel of record is not present. If an emergency bond hearing is held without the presence of the defendant and bond is revoked, the judge having heard the matter may conduct the hearing on the defendant's motion to reconsider the revocation. Defense motions to reconsider revocation must be filed with the clerk of court and served on the solicitor and bond surety.

    (C) If a person commits a violent crimeoffense, as defined in Section 16-1-60, or any felony offense involving a firearm, which was committed when the person was already out on bond for a previous violent crime offense or any felony offense involving a firearm and the subsequent violent crime offense did not arise out of the same series of events as the previous violent crimeoffense, then:

       (1) the bond hearing for the subsequent violent crimeoriginal offense must be revoked by operation of law and a hearing for the subsequent violent offense or any felony offense involving a firearm must be held in the circuit court within thirty days;

       (2) during the bond hearing for the subsequent violent offense or felony offense involving a firearm, the court must issue findings of fact and conclusions of law addressing the revocation of bond for the original offense, whether a new bond is issued for the previous offense as well as if bond is appropriate for the subsequent violent offense or felony offense involving a firearm;

       (3) Iif the court finds that certain conditions of release on bond will ensure that the person is unlikely to flee or pose a danger to any other person or the community and the person will abide by the terms of release on bond, the judge shall consider bond in accordance with the provisions of this chapter and set or amend bond accordingly. Notwithstanding the provisions of Sections 17-15-15, any bond set for a violent offense or felony offense involving a firearm committed when the person was already out on bond for a previous violent offense or felony offense involving a firearm must be deposited to the court in cash or its equivalent in full, notwithstanding if posted by the person, his representative, or by a bond surety;

       (4) Iif the court finds no such conditions will ensure that the person is unlikely to flee or not pose a danger to the community, the court shall not set a bond for the instant offense and must revoke all previously set bonds; and

        (D) (5)Iif a person commits a violent crimeoffense, as defined in Section 16-1-60, or felony offense involving a firearm which was committed when the person was already out on bond for a previous violent crimeoffense or felony offense involving a firearm, and the subsequent violent crime offense did not arise out of the same series of events as the previous violent crime offense, then the arresting law enforcement agency must transmit notice of the second arrest, implicating this subsection (C), to the solicitor of the circuit in which the crime offense was committed and the administrative chief judge of the circuit in which the crime offense was committed. The prosecuting agency must notify any victims of the initial or subsequent crimes offenses pursuant to Chapter 3, Title 16 of any bond hearings.

    (D) If a person commits a violent offense, as defined in Section 16-1-60, or felony offense involving a firearm which was committed when the person was already out on bond for two or more previous separate violent offenses or felony offenses involving a firearm for which separate bonds were set, and the subsequent offense did not arise out of the same series of events as the two or more previous separate offenses, and the court determines that under the totality of the circumstances the previous bonds should not be revoked and another bond should be set, any bond set by the court must be deposited in full and may not be posted by any bond surety company.

    (E) Notwithstanding subsection (C)(2), if the original bond was set in another judicial circuit, that prosecution agency shall be notified of the revocation and any finding the court makes pursuant to this subsection.  The prosecution agency having jurisdiction over the subsequent charge must make the notification required in this subsection within forty-eight hours of the conclusion of the preceding.  The presiding judge has jurisdiction to make a finding on record to deny a new bond on the original charge or may order a new bond hearing to be scheduled on the original charge in the judicial circuit where the charges are pending.  This hearing must be scheduled within thirty days by the prosecution agency having jurisdiction over the original charges.

    (F) For the purpose of bond revocation only, a summary court has concurrent jurisdiction with the circuit court for ten thirty days from the date bond is first set on a charge by the summary court or the date of the grand jury indictment whichever occurs first to determine if bond should be revoked.

 

SECTION 7.  Section 22-5-510 of the S.C. Code is amended to read:

 

    Section 22-5-510.   (A) Magistrates may admit to bail a person charged with an offense, the punishment of which is not death or imprisonment for life;  provided, however, with respect to violent offenses as defined by the General Assembly pursuant to Section 15, Article I of the Constitution of South Carolina, 1895, magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event, including, but not limited to, any charges pending against the person requesting bail. "Violent offenses" as used in this section means the offenses contained in Section 16-1-60. If a person under lawful arrest on a charge not bailable is brought before a magistrate, the magistrate shall commit the person to jail. If the offense charged is bailable, the magistrate shall take recognizance with sufficient surety, if it is offered, in default whereof the person must be incarcerated.

    (B) A person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility.

    (C) In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to the community or an individual, a court, on the basis of the following information, may consider the nature and circumstances of an offense charged and the charged person's:

       (1) family ties;

       (2) employment;

       (3) financial resources;

       (4) character and mental condition;

       (5) length of residence in the community;

       (6) record of convictions;  and

       (7) record of flight to avoid prosecution or failure to appear at other court proceedings.

    (D) A court shall must consider:

       (1) a person's criminal record;

       (2) any charges pending against a person at the time release is requested;

       (3) all incident reports generated as a result of an offense charged;

       (4) whether a person is an alien unlawfully present in the United States, and poses a substantial flight risk due to this status;  and

       (5) whether the charged person appears in the state gang database maintained at the State Law Enforcement Division; and

       (6) whether a person is currently out on bond for another offense.

    (E) Prior to or at the time of the bond hearing, the arresting law enforcement agency shall must provide the court with the following information:

       (1) the person's criminal record;

       (2) any charges pending against the person at the time release is requested;

       (3) all incident reports generated as a result of the offense charged; and

       (4) any other information that will assist the court in determining conditions of release to include, but not be limited to, notification of any existing bonds for another offense.

    (F) The arresting law enforcement agency shall inform the court if any of the information required in subsections (C), (D), and (E) is not available at the time of the hearing and the reason the information is not available. Failure on the part of the law enforcement agency to provide the court with the information does not constitute grounds for the postponement or delay of the person's bond hearing. Notwithstanding the provisions of this subsection, when a person is charged with a violation of Chapter 25, Title 16, the bond hearing may not proceed without the person's criminal record and incident report or the presence of the arresting officer. The bond hearing for a violation of Chapter 25, Title 16 must occur within twenty-four hours after the arrest.

    (G) A court hearing this matter has contempt powers to enforce these provisions.

 

SECTION 8.  Section 24-13-40 of the S.C. Code is amended to read:

 

    Section 24-13-40.   The computation of the time served by prisoners under sentences imposed by the courts of this State must be calculated from the date of the imposition of the sentence. However, when (a) a prisoner shall have given notice of intention to appeal, (b) the commencement of the service of the sentence follows the revocation of probation, or (c) the court shall have designated a specific time for the commencement of the service of the sentence, the computation of the time served must be calculated from the date of the commencement of the service of the sentence. In every case in computing the time served by a prisoner, full credit against the sentence must be given for time served prior to trial and sentencing, and may be given for any time spent under monitored house arrest. Provided, however, that credit for time served prior to trial and sentencing shall not be given:  (1) when the prisoner at the time he was imprisoned prior to trial was an escapee from another penal institution;  or (2) when the prisoner is serving a sentence for one offense and is awaiting trial and sentence for a second offense in which case he shall not receive credit for time served prior to trial in a reduction of his sentence for the second offense;  (3) when the prisoner commits a subsequent crime while out on bond; or (4) has bond revoked on any charge prior to trial or plea.

 

SECTION 9.  Section 24-13-425 of the S.C. Code is amended to read:

 

    Section 24-13-425. (A) For the purposes of this section:

       (1) "electronic monitoring device" includes any device ordered by a court or pursuant to any statute that is utilized to track the location of a person.

       (2) "Person" includes any public or private agency or entity providing electronic monitoring services.

    (B) It is unlawful for any person to knowingly and without authority remove, destroy, or circumvent the operation of an electronic monitoring device which is being used for the purpose of monitoring a person who is:

       (1) complying with the Home Detention Act as set forth in Article 15, Title 24;

       (2) wearing an electronic monitoring device as a condition of bond or pretrial release;

       (3) wearing an electronic monitoring device as a condition of probation, parole, or community supervision;  or

       (4) wearing an electronic monitoring device as required by any other provision of law.

    (C) It shall be unlawful for any person to knowingly and without authority request or solicit any other person to remove, destroy, or circumvent the operation of an electronic monitoring device which is being used for the purposes described in subsection (B).

    (D) This section does not apply to an employee or agent of the electronic monitoring company, bonding company, or law enforcement entity who removes or replaces an active electronic monitoring device in order to perform maintenance and repair on the device, who removes and replaces a non-working device, who removes the device once the person is placed into secure custody or if the underlying charges have been dismissed, or who otherwise is acting under the authority of the court order.

    (E) Any person who violates the provisions of this section shall be guilty of the misdemeanor offense of tampering with the operation of an electronic monitoring device and shall be imprisoned for not more than three years, or fined up to three thousand dollars, or both.

 

SECTION 10. Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-500. (A) There is established the South Carolina Pretrial Reform Commission composed of fifteen members as follows:

       (1) three members to be appointed by the Chairman of the Senate Judiciary Committee;

       (2) three members to be appointed by the Chairman of the House of Representatives Judiciary Committee;

       (3) three members of the judiciary to be appointed by the Chief Justice of the South Carolina Supreme Court;

       (4) three members of the executive branch to be appointed by the Governor; and

       (5) three members of the directly impacted community, including one crime survivor, one person that has been through the pretrial system, and a community member at large to be jointly appointed by the Chairmen of both the House and Senate Judiciary Committees.

    (B) The members of the commission may begin meeting when at least a quorum has been appointed and shall elect one member to serve as chairman. A quorum shall consist of at least eight members.

    (C) The primary duty of the South Carolina Pretrial Reform Commission is to prepare a comprehensive report that reviews and recommends:

       (1) appropriate changes to the current pretrial system for all criminal offenses;

       (2) maintaining, amending, or abolishing the current system for determining pretrial release or detention; and

       (3) guidelines for legislation to improve the processing of cases in the court of general sessions, community safety, and court appearance outcomes.

    (D) The purpose of the report is to enable the General Assembly to consider the Pretrial Reform Commission's findings and determine whether state laws should be amended.

    (E) In making its recommendations, the commission must consider current case processing and correctional resources including, but not limited to, the capacities of local jails, community-based service providers, and state courts.

    (F) The Pretrial Reform Commission must deliver its report and recommendations to the Chairman of the Senate Judiciary Committee and the Chairman of the House Judiciary Committee no later than July 1, 2024, and the commission shall terminate when the report is made.

    (G) The Supreme Court shall provide appropriate staff for the commission. The Chairman of the Senate Judiciary Committee may provide additional staff for the Senate members, and the Chairman of the House Judiciary Committee may provide additional staff for the House members.

    (H) Members of the Pretrial Reform Commission may receive per diem, subsistence, and mileage as provided by law for members of state boards, committees, and commissions.

 

SECTION 11. Section 38-53-10(12) of the S.C. Code is amended to read:

 

    (12) "Surety bondsman" means any person who is approved by and licensed by the director or his designee as ana property and casualty insurance agent, appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings, and receives or is promised money or other things of value for the execution or countersignature.

 

SECTION 12. Section 38-53-10 of the S.C. Code is amended by adding:

 

    (15) "Electronic monitoring" means monitoring a person by the use of a device which records or transmits oral or wire communications or an auditory sound, visual images, or information regarding the person's activities.

 

SECTION 13. Section 38-53-50(B) of the S.C. Code is amended to read:

 

    (B) If the circumstances warrant immediate incarceration of the defendant to prevent imminent violation of one of the specific terms of the bail bond, or if the defendant has violated one of the specific terms of the bond, the surety may take the defendant to the appropriate detention facility for holding until the court orders that the surety be relieved. The surety, within three business days following recommitment, must file with the detention facility and the court an affidavit clocked in with the clerk of court on a form provided by the Division of Court Administration stating the facts to support the surrender of the defendant for good cause. Nonpayment of premium fees alone is not sufficient cause to warrant immediate incarceration of the defendant. When the defendant and the affidavit are presented at the appropriate detention facility, the facility shall take custody of the defendant. When the affidavit is filed with the court, the surety also shall file a motion to be relieved on the bond pursuant to subsection (A). A surety who surrenders a defendant and files an affidavit which does not show good cause is subject to penalties imposed for perjury as provided for in Article 1, Chapter 9, Title 16.

 

SECTION 14. Section 38-53-70 of the S.C. Code is amended to read:

 

    Section 38-53-70.   If a defendant fails to appear at a court proceeding to which he has been summonedviolates the conditions of release on bond, the court shall issue a bench warrant for the defendant. The court shallmust make available for pickup by the surety or the representative of the surety who executed the bond on their behalf, a true copyprovide written or electronic notice of the issuance of the bench warrant within seventhirty days of its issuance at the clerk of court's officeto every party bound in the recognizance. If the surety fails to surrender the defendant or place a hold on the defendant's release from incarceration, commitment, or institutionalization within ninety days of the issuance of the bench warrant, the bond is forfeited. At any time before execution is issued on a judgment of forfeiture against a defendant or his surety, the court may direct that the judgment be remitted in whole or in part, upon conditions as the court may impose, if it appears that justice requires the remission of part or all of the judgment. In making a determination as to remission of the judgment, the court shall consider the costs to the State or a county or municipality resulting from the necessity to continue or terminate the defendant's trial and the efforts of law enforcement officers or agencies to locate the defendant. The court, in its discretion, may permit the surety to pay the estreatment in installments for a period of up to six months; however, the surety shall pay a handling fee to the court in an amount equal to four percent of the value of the bond. If at any time during the period in which installments are to be paid the defendant is surrendered to the appropriate detention facility and the surety complies with the recommitment procedures, the surety is relieved of further liability.

 

SECTION 15. Chapter 53, Title 38 of the S.C. Code is amended by adding:

 

    Section 38-53-84.   (A) A person engaged in electronic monitoring of a defendant must, within forty-eight hours, notify the solicitor having jurisdiction over the defendant when he becomes aware or should have become aware that the defendant has violated any provision of the court's order for electronic monitoring. Failure of a defendant to timely pay the bondsman the full monthly electronic monitoring fee associated with the cost of the electronic monitoring device and the associated cost of the monitoring service shall, in and of itself, constitute good cause for the bondsman to file a motion to be relieved on the bond and to surrender the defendant to the custody of the appropriate detention facility pursuant to Section 38-53-50.

    (B) Failure of the bondsman to maintain compliance with the reporting requirement of subsection (A) shall be reported to the South Carolina Department of Insurance by the solicitor for administrative action whereby the bondsman's license may be fined, suspended, or revoked.

 

SECTION 16. Section 38-53-170(e) and (f) of the S.C. Code is amended to read:

 

    (e) accept anything of value from a principal except the premium, which may not exceed fifteen percent of the face amount of the bond, with a minimum fee of twenty-fiveone hundred dollars or ten percent of the bond, whichever is greater, that must be charged and collected by the bondsman before the execution of the bond. Conditions of the bond which expressly or implicitly require payment of monies in excess of the premium, as a cost of satisfying the condition of the bond, shall not be considered part of the bondsman's premium, and are not affected by this code provision. The bondsman may collect these fees from the defendant and is not limited by any language requirements of this code provision.

     However, the bondsman is permitted to enter into a payment agreement by attaching a statement of bondsman to the bond proceeding form and this agreement shall require the principal on the bail bond or any indemnitor to make a minimum down payment of one hundred dollars. This payment agreement may not be altered and must not exceed eighteen months after the date on which the bond was executed. If the payment has not been made for two consecutive months, the bondsman must send a certified notice to the last known address of the principal and indemnitor demanding payment be made within ten days to bring the agreement current. If no payment is received by the end of the notice period, the bondsman must surrender the principal to the proper detention facility for holding and file a motion to be relieved as provided in Section 38-53-50(A) or (B), at which time the agreement must be accelerated, and the balance paid in full, before or at the motion hearing for the principal to be rereleased on bond. The bondsman may accept collateral security or other indemnity from the principal which must be returned upon within ten days after final termination of liability on the bond unless a bench warrant has been issued. The bondsman shall identify who is paying the premium and shall represent that the collateral security or other indemnity has not been obtained from any person who has a greater interest in the principal's disappearance than appearance for trial. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. If the bond is forfeited, a bondsman may not convert collateral described in the collateral receipt to cash until he has provided a ten-day notice of this pending conversion to the depositor.  This notice must be sent by certified mail to the last know address of the depositor.  After the conversion, the bondsman must disclose the actual amount received to the depositor and must return any amount received that exceeds the final judgement or consent amount, less any reasonable expenses.  These reasonable expenses include apprehension and legal costs incurred as a result of the violation of the bond.  The bondsman must provide the depositor copies of all receipts and, if applicable, the overage money within three days after settlement;

    (f) solicit business in any of the courts or on the premises of any of the courts of this State, in the office of any magistrate, or in or about any place where prisoners are confined. Law enforcement officers and jailers shall report any violations of this provision to the court. Any action taken pursuant to this provision resulting in a conviction, guilty plea, or plea of nolo contendere pursuant to Section 38-53-340 must be reported to the director or his designee by the court within thirty days; or

 

SECTION 17. Section 38-53-310 of the S.C. Code is amended to read:

 

    Section 38-53-310. (A) Each professional bondsman shall by the fifteenth of each month file with the clerk of court of the county of his principal place of business and any other county where he is doing business a written report in a form prescribed by the director or his designee regarding all bail bonds on which he is liable as of the first day of each month showing:.

    (B) Each surety bondsman shall, within thirty days of executing a bail bond, file with their respective insurance provider a written or electronic report in a form approved by the director or his designee detailing all bail bonds on which he has cause to be executed.

    (C) The reports referenced in subsections (A) and (B) shall include the following:

        (a)(1) each individual bonded;

        (b)(2) the date the bond was given;

        (c)(3) the principal sum of the bond;

        (d)(4) the state or local official with whom the bond was filed;

        (e)(5) the fee charged for the bonding service in each instance;  and

        (f)(6) all pending bonds; and

       (7) any current data on monies to be collected and retained as an express condition of the bond, whether for electronic monitoring or otherwise.

    (D) In lieu of the monthly submission of a written report to the clerk of court, the bondsman may utilize a data management software system, which contains the above required current information, and is capable of providing the appropriate clerk of court or his designee with real-time access to the data management system through a portal, website, or other data access system through which the clerk of court can confirm he has access to the required information.

 

SECTION 18. Chapter 53, Title 38 of the S.C. Code is amended by adding:

 

    Section 38-53-55.   When a person engaged in electronic monitoring of a defendant charged with a violent offense as defined by Section 16-1-60 becomes aware that the defendant has had contact with the alleged victim of the violent offense or with the immediate family of the alleged victim of the violent offense, he must immediately or within twenty-four hours, notify law enforcement, the solicitor, and the court having jurisdiction over the defendant of the contact.

 

SECTION 19. This act takes effect upon approval by the Governor; however, the provisions of Sections 17-15-35 and 17-15-37 take effect six months after approval by the Governor, and the provisions of Section 38-53-10(12) take effect July 1, 2024.

 

/s/Sen. Malloy                                                      /s/Rep. JE Johnson

/s/Sen. Hembree                                                   /s/Rep. Robbins

/s/Sen. Adams                                                      /s/Rep. Wetmore

    On Part of the Senate                                            On Part of the House

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