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?

12 Responses to “Bench warrants for failure to appear are routinely issued without due process

  • Hopefully. It addresses the notice problem, but doesn’t require unnecessary hearings; well drafted.

  • Hi. I have some bench warrants in kansas city. i tried to get an image of one recently and got strange answers from the court clerks ans supervisors and finally after pressing in, a supervisor very reluctantly told me that the judges dont sign bench warrants and there really isnt one because it would take too long (she said) to do so many of them (how horrible to be a public servant and have to do all that work before raping pillaging and plundering). Anyway, I’ve been a private legal aid / paralegal for ten years and fight things in court all the time. as you might guess, the judges dont respect anyone but lawyers very much. the word warrant in my book is a type of order. it’s something signed by a judge which says he is warranting or guaranteeing there is reason or cause to arrest. after more research i found that the clerks can issue the bench warrant via the city code and even the city code says the clerk can issue the warrant. they protect themselves though by calling it a “notice of warrant” that’s fraud though because that implies there IS a warrant. today i found out there isnt even a fake piece of paper called a warrant. if anyone would like to come here for a few months and clean up financially. i can get you lots of cases including mine. i am willing to come work for you first or do whatever it takes to get you in a position where we can win a case here and then do it more and make a niche out of it if anyone is interested or if anyone wants to just help a good person. I run a non-profit advocacy group and help people as a consumer advocate and criminal victim advocate. thanks!

    • oh and i meant to mention… i went online to see what popped up on this subject and on google yahoo and one other search engine, the whole search engine is cleansed on this subject – “bench warrants not signe”. i got ZERO hits. finally i went on and there are hundreds of hits. i found yours near the top. thanks for posting the info about due process, it was GREAT if i have to i can go a few rounds with them in federal court here. i’ve done it before. but i really dont want to do it without an attorney. thanks so much for posting! it gave me a lot of encouragement!

      • ok now i just read your article about actual notice vs constructive notice re change in sex offender registry. in kansas city they started mailing tickets and dont give them to you while pulled over for a traffic ticket now! that’s constructive notice!!!! these idiots just send them in regular u.s. mail. i have gotten bench warrants for parking tickets this way because they mailed the tickets to the wrong address!!! I’d love help setting up a little legal aid office here. i have other stories and issues….

  • michelle horton
    5 years ago

    hi can you help me i have a bench warrant. i am a student and i just found out about this. please i dont want to be jailed for something i didnt do can you help me email me

  • If I pay my fine can the failure to appear be lifted I live 3000 miles from sc

    • Bobby Frederick
      4 years ago

      Probably not. You need to talk to a defense attorney in the county and state where the BW is, and see if you can get it lifted before you turn yourself in or get picked up.

  • Casey Can you reach out to me please..

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