IS HOME DETENTION A POSSIBILITY IN SC?

If you are found guilty or plead guilty to a crime in SC, is home detention a possibility?

If a person is convicted of a crime, but they have no prior record and their circumstances make it clear they are not likely to re-offend, what purpose does it serve to send them to prison? If home detention provides intensive, constant supervision, the community is protected, and there are treatment options available in the home, does the court have to send a person to prison?

In some cases, home detention is a possibility in SC for low-risk offenders. But what if there is a mandatory prison sentence? Also, does it matter if the offense is classified as violent?

WHEN IS HOME DETENTION A POSSIBLE SENTENCE IN SC?

SC does allow home detention “as an alternative to incarceration for low risk, nonviolent adult and juvenile offenders.” SC Code Section 24-13-1530(A) says:

(A) Notwithstanding another provision of law which requires mandatory incarceration, electronic and nonelectronic home detention programs may be used as an alternative to incarceration for low risk, nonviolent adult and juvenile offenders as selected by the court if there is a home detention program available in the jurisdiction. Applications by offenders for home detention may be made to the court as an alternative to the following correctional programs:

1. pretrial or preadjudicatory detention;
2. probation (intensive supervision);
3. community corrections (diversion);
4. parole (early release);
5. work release;
6. institutional furlough;
7. jail diversion; or
8. shock incarceration.

What are the Rules for Home Detention in SC?

SC Code Section 24-13-1540 allows the department that implements a home detention program to create regulations “that prescribe reasonable guidelines under which a home detention program may operate,” and that the regulations must require the defendant to “remain within the interior premises or within the property boundaries of his residence at all times during the hours designated by the department.”

There are exceptions including employment, medical or mental health treatment, school, church, and community service employment:

Approved absences from the home for a participant may include:

1. hours in employment approved by the department or traveling to or from approved employment;
2. time seeking employment approved for the participant by the department;
3. medical, psychiatric, mental health treatment, counseling, or other treatment programs approved for the participant by the department;
4. attendance at an educational institution or a program approved for the participant by the department;
5. attendance at a regularly scheduled religious service at a place of worship approved by the department; or
6. participation in a community work punishment or community service program approved by the department.

Is the Court Required to Allow Home Detention?

Home detention is discretionary – the court can order it when it is available and when the court thinks it is appropriate – home detention “may be used as an alternative to incarceration for low risk, nonviolent adult and juvenile offenders as selected by the court [and] if there is a home detention program availablein the jurisdiction.”

Courts do not order home detention often, but when it is possible and it makes sense under the circumstances, your attorney can ask the court to order home detention.

IS HOME DETENTION POSSIBLE IF THERE IS A MANDATORY PRISON SENTENCE?

If the statute a person is convicted under provides for a mandatory minimum prison sentence, that does not prevent the court from ordering home detention instead of prison. 24-13-1530 says, “Notwithstanding another provision of law which requires mandatory incarceration, electronic and nonelectronic home detention programs may be used as an alternative…”

What if the offense is classified as a violent offense? Does that prevent home detention?

Is Home Detention Possible if I’m Convicted of a Violent Offense?

In State v. Simpson, decided by the SC Court of Appeals on January 8, 2020, the Court held that the plain language of the statute prohibits home detention for statutory violent offenses. By violent offenses, the Court means statutorily violent offenses – offenses that are classified as violent because they are listed in SC Code Section 16-1-60.

The defendant was convicted of sexual exploitation of a minor second degree (possession of child pornography). A psychologist found that he was a low risk to re-offend and that he would benefit from continued therapy in the home, and the defendant was a veteran with no prior record.

The Court of Appeals reversed the sentencing court’s grant of home detention. They noted that the statute requires a mandatory minimum sentence of two years:

We are unable to reconcile that the Legislature would consider the crime of sexual exploitation of a minor in the second degree so serious as to enact a minimum sentence of not less than two years imprisonment-and require that no portion of such minimum sentence may be suspended-with the circuit court’s decision to allow Simpson to serve the minimum two-year sentence in the same home where he participated in the file sharing of child pornography.

Despite this language in the Court’s opinion, the plain language of the statute permits a sentencing court to order home detention when there is a mandatory minimum sentence (see above). Although the Court of Appeals clearly disapproved of giving a person convicted of child pornography home detention, their decision could not rest on the mandatory minimum provision in the statute…

Sexual exploitation of a minor second degree, however, is also a statutorily violent offense because it is listed in 16-1-60 – home detention is permitted for “non-violent offenders” only. Non-violent offenses are defined in SC Code Section 16-1-70 as “all offenses not specifically enumerated in section 16-1-60,” and sexual exploitation of a minor in the second degree is found in 16-1-60:

We find the only reasonable interpretation of § 24-13-1530 is that the Legislature did not intend a person convicted of a “violent offense” as classified in § 16-1-60 be considered a “nonviolent offender” for purposes of substituting home detention for a mandatory minimum term of imprisonment.

Similarly, the SC Court of Appeals has overturned a home detention sentence where the defendant was convicted of trafficking in marijuana 10-100 pounds, not because there was a one-year mandatory minimum sentence but because trafficking marijuana 10-100 pounds is classified as a violent offense.

GOT AXELROD?

SC courts have the authority to order home detention as an alternative to incarceration for low-risk, non-violent offenders. Although courts do not order home detention as often as they could or should, it is a valid alternative to prison in some cases.

If you have been charged with a crime or believe you may be under investigation in SC, call Axelrod and Associates now at 843-353-3449 or send an email to talk with a Myrtle Beach, SC criminal defense attorney today.