Bond Hearings in SC: Do You Have a Constitutional Right to a PR Bond?
How do bond hearings work in SC?
I’ve heard attorneys say that you have a constitutional right to a PR bond in SC, that you have a constitutional right to a PR bond if you are not charged with a capital offense, or that you have a constitutional right to some type of bond, even if it is not a PR bond.
None of that is true.
Below, I’ll go over how bond hearings work in SC, including:
- What the SC Constitution guarantees (it’s not a PR bond),
- What SC law says about bond hearings,
- When SC courts can deny bond, and
- The factors that the court must consider before denying or setting the conditions of a defendant’s bond.
SC’s Constitutional Right to Bond: Article I, Section 15
There is no constitutional right to receive a PR (personal recognizance bond) in SC, although the SC Constitution does guarantee the right to bail in certain types of cases.
Article I, Section 15 of the SC Constitution says:
SECTION 15. Right of bail; excessive bail; cruel or unusual or corporal punishment; detention of witnesses.
All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained. (1970 (56) 2684; 1971 (57) 315; 1998 Act No. 259.)
The SC Constitution contains the right to bail – although not necessarily a PR bond – for every person who is not charged with:
- A capital offense,
- An offense punishable by life in prison, or
- A violent offense as defined in SC Code § 16-1-60.
If you are charged with a capital offense, an offense punishable by life in prison, or a violent offense, the court can deny bond after “giving due weight to the evidence and to the nature and circumstances of the event.”
The SC Constitution also guarantees that:
- Bail will not be excessive,
- Cruel, corporal, or unusual punishment will not be inflicted, and
- Witnesses will not be detained unreasonably.
There is no constitutional right to a PR bond, and there is only a constitutional right to receive a bond in certain cases, but SC bail-bond laws provide additional rights to defendants.
SC Bond Laws: Is There a Statutory Right to Bond in SC?
Bond hearings in SC are also controlled by SC laws that instruct judges as to when a PR bond should be granted, the maximum amount of bond that can be imposed for misdemeanor offenses in the magistrate or municipal court, when the court can deny bond, and the factors that the court must consider when setting bond.
Bail Cannot be Denied for Misdemeanor Offenses in the Magistrate or Municipal Court
If a person is charged with a misdemeanor offense in the magistrate or municipal court, it is unlawful for the court to deny that person’s bond, and the bond set cannot be greater than the maximum fine the person would pay if they were convicted.
This includes driving under the influence first offense and domestic violence third-degree offenses.
SC Code § 22-5-530 says:
(A) A person charged and to be tried before a magistrate or municipal judge for a violation of law is entitled to deposit with the magistrate or municipal judge, in lieu of entering into recognizance, a sum of money not to exceed the maximum fine in the case for which the person is to be tried. However, an individualized hearing must be held when the person is charged with a violation of the provisions of Chapter 25, Title 16 and the victim of the offense must be notified pursuant to the provisions of Section 16-3-1525(H).
Bond Hearings in SC Must be Held Within 24 Hours of the Arrest
How long can they hold a person in jail without seeing a judge?
SC Code § 22-5-510 says that any person “charged with a bailable offense must have a bond hearing within 24 hours of his arrest,” and they must be released “within a reasonable time, not to exceed four hours,” after the jail is notified that bond has been set.
PR Bonds are the Default for Noncapital Offenses
Remember that the SC Constitution says a judge can deny bond in the case of violent offenses, capital offenses, and offenses punishable by life in prison after “giving due weight to the evidence and to the nature and circumstances of the event?”
SC Code § 17-15-10 goes even further and says that any person charged with a noncapital offense – including violent offenses and offenses punishable by life in prison:
…shall, at his appearance before any of such courts, be ordered released pending trial on his own recognizance without surety in an amount specified by the court, unless the court determines in its discretion that such a release will not reasonably assure the appearance of the person as required, or unreasonable danger to the community or an individual will result.
Shall means this language is mandatory. At bond hearings in SC, 1) the judge shall give the defendant a PR bond, unless 2) the court determines that the defendant is a flight risk or a danger to the community.
If the court determines that the defendant is a flight risk or a danger to the community, then the law doesn’t say that the court can deny bond. It says that the court “may impose any one or more of the following conditions of release:”
- A surety bond,
- Designation of a person or organization to supervise the defendant,
- Travel, association, or residence restrictions,
- Curfew, or
- Any other condition reasonably necessary to assure appearance in court as required.
So, 1) under § 17-15-10, every noncapital defendant has the right to a PR bond unless the court finds that they are a flight risk or danger to the community.
2) If the court finds that they are a flight risk or danger to the community, the court is still required to give every noncapital defendant a bond, but the court can place conditions on the defendant’s release to assure their appearance in court.
Factors Considered by the Court When Setting Bond
When deciding whether a defendant is a flight risk or a danger to the community, § 22-5-510 says that the court should consider “the nature and circumstances of the offense charged” as well as:
- Family ties,
- Financial resources,
- Character and mental condition,
- Length of residence in the community,
- Criminal history,
- Whether the person has ever evaded law enforcement or failed to appear in court,
- Any pending charges against the person even if they have not been convicted,
- The incident reports from the current charges, and
- “Any other information that will assist the court in determining conditions of release.”
When the court denies bond in violation of the SC Constitution or SC laws or set an unreasonably high bond under the circumstances, the defendant’s attorney has several options that may include:
- A motion to reconsider before the magistrate who set or denied the bond,
- A motion to reconsider before a circuit court judge, or
- A writ of habeas corpus if the defendant is being held unlawfully (for example, if bond is denied on a magistrate court misdemeanor offense).
Criminal Defense Lawyers in Charleston, SC
Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including bond hearings, bond reconsiderations, and habeas petitions.
If you’ve been charged with a crime in the Charleston or Myrtle Beach areas, call now at (843) 808-2100 or contact us through our website for a free consultation.