Bench warrants for failure to appear are routinely issued without due process
In Horry County and probably most counties in South Carolina, defendants are required to appear for “roll call” – in Horry County there are two roll call dates that are set automatically, called the initial appearance and the bond returnable, after which the solicitor’s office will periodically mail out notices to appear at additional roll call dates.
When a defendant does not appear at roll call, a bench warrant is automatically issued for them – a warrant to arrest them and hold them without bond until either their case is over or until a circuit court judge hears a motion to lift the bench warrant and releases them. These warrants are usually issued without notice to the defendant or their attorney. They are issued ex-parte, meaning they are signed by a judge at the request of a solicitor outside the presence of the defendant’s attorney.
Often, there is a reason why the person did not appear at the roll call. It may be miscommunication with their attorney, it may be simple confusion over multiple court dates in different courts, it may be that they were in the hospital or otherwise had a good reason to not be present. It may be that their address has changed and they did not receive the notice in the mail. It may be that they are on the run and thumbing their nose at the court system. It doesn’t matter – the bench warrant is issued, the attorney is not notified, and when the person is picked up they will sit in a cage, sometimes for months, until, hopefully, their attorney gets them released.
In State v. Binarr, the Court discusses what type of procedural protections are required when a substantial interest is at stake, such as the deprivation of liberty, and finds that “the fundamental requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review,” none of which are present when the state issues a bench warrant for a person’s arrest for failure to appear at “roll call.”
Vital to our assessment of the sufficiency of the evidence are the provisions of our state and federal Due Process Clauses, which state that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, sec. 1; S.C. Const. art. I, sec. 3. “The fundamental requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review. Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008). . . .
Here, Petitioner was subject to a ninety-day mandatory term of imprisonment for failing to register. Without question, imprisonment is recognized as one of the greatest deprivations of liberty. As our United States Supreme Court has explained:
Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action. Youngberg v. Romeo, 457 U.S. 307, 316 (1982). “It is clear that committment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Jones, supra, 463 U.S. at 361. We have always been carful not to “minimize the importance and fundamental nature” of the individual’s right to liberty. Salerno, supra, 481 U.S. at 750.
Foucha v. Lousiana, 504 U.S. 71, 80 (1982).
Notice – there is no notice given to either defendant or their attorney beforre the bench warrant is issued.
Opportunity to be heard – there is no hearing before the bench warrant is issued, and if it was possible to request one, the defendant would not know to do so because they don’t realize the warrant has been issued until the sheriff appears at their door and puts them in handcuffs.
Judicial review – the fact that a bench warrant has been issued is not appealable, and there is no way to get the deprivation of due process in front of an appellate court. A judge may sign the bench warrant, but the judge is simply signing a stack of warrants that the solicitor has placed in front of him or her. When a motion to lift the bench warrant has been filed and a hearing scheduled, often the defendant has already been in jail for weeks or months before a judge looks at the situation and hears the facts.
This could be fixed by court rule. It could be fixed by legislation. Possibly it could be fixed by a class action lawsuit. At a minimum, the defendant’s attorney should be notified and given the opportunity to request a hearing before the warrant is issued.
What’s the answer?