News & Commentary

COVID-19 has illuminated our failures as a society. To urge decision makers to minimize the harms made worse by this pandemic, today we released a blueprint for COVID-19 relief in South Carolina. The blueprint calls on our leaders to ensure the burdens of the pandemic do not unfairly fall on South Carolina’s most vulnerable communities and that all responses are rooted in science and public health and are no more intrusive on civil liberties than necessary. To ensure a COVID-19 response that protects all people, South Carolina must: 

South Carolina has a moral and legal obligation to protect the people it incarcerates. For weeks we have asked South Carolina officials to uphold this obligation in the face of COVID-19, including releasing those most vulnerable to contracting and dying from this virus. South Carolina officials have ignored their responsibility. The consequences are tragic and predicted. James Slater, a 70-year-old man incarcerated at Allendale Correctional Institution, died yesterday from COVID-19. To be clear, no one in custody should die in connection to abuse or neglect by the state.Mr. Slater’s death was preventable. The rate of recidivism for people over age 65 is nearly 0%, meaning almost all incarcerated people over age 65 pose virtually no threat to public safety. Additionally, there are multiple avenues by which Mr. Slater and other incarcerated people his age or older could have been released to a safer environment ahead of a COVID-19 outbreak. The Director of the South Carolina Department of Corrections (SCDC) has the authority to petition the parole board to release people who are 70 years of age or older. During a state of emergency, the Governor has the authority to do anything necessary to keep people safe. Neither SCDC nor the Governor, we tragically learned yesterday, has upheld their duty to protect.The virus’s ability to spread through asymptomatic carriers has been well-documented. For example, correctional institutions across the country that have issued mass testing have found that as much as 70% of the population of a single institution has tested positive for COVID-19, with a vast majority showing no symptoms at all. Therefore, testing and monitoring only those who are symptomatic is neither a solution nor a good faith effort.It is absolutely essential that those with the authority to act do everything in their immense power to prevent future deaths from COVID-19 in correctional settings. This includes ordering mass testing of all incarcerated people and staff and substantially reducing the number of people held in South Carolina’s prisons and jails.

South Carolina’s jails and prisons alike have too often become our society’s solutions for people struggling with homelessness and mental health or substance use disorders. Our jail and prison logs are a daily reminder that our criminal justice system is a racist system that stops, arrests, convicts, and incarcerates Black people at staggering rates compared to white people.With COVID-19, our failings as a society leave each of the nearly 30,000 people incarcerated in South Carolina’s prisons and jails facing a potential death sentence. That’s because incarcerated people are highly vulnerable to contracting and dying from COVID-19. They are housed in close quarters and are often in poor health. It is impossible for them to follow the social distancing guidelines.For weeks, public health experts have been urging policymakers to do everything in their power to substantially reduce prison and jail populations to safeguard the lives of those who work and live there. The findings outlined in a new report released today by the ACLU amplify the need to reduce South Carolina’s jail populations immediately.The report focuses on a new epidemiological model that shows COVID-19 could claim the lives of approximately 100,000 more people nationwide than current projections stipulate if jail populations are not dramatically and immediately reduced. These projections hold even if communities across the United States continue practicing social distancing and following public health guidance.South Carolina’s unfortunate embrace of mass incarceration makes this problem even more dire. We’re talking about approximately 10,000 people in South Carolina’s jails alone.Here are three things that our judges, solicitors, law enforcement, and local political leaders can do immediately to substantially reduce South Carolina’s jail population.First, review all people currently held pretrial and immediately release on a personal recognizance bond all but the very few people where pretrial detention is absolutely necessary to ensure the person’s return to court or public safety. Approximately 75 percent of the over 10,000 people in South Carolina’s jails are incarcerated only because they are too poor to afford their bond. These people have not even been convicted of a crime.Second, end the war on marijuana. As we reported on Monday, South Carolina has the second highest rate of marijuana possession arrests in the country. Every 15 minutes somebody is arrested for possessing marijuana in South Carolina - a substance that is legal or decriminalized for personal use in 26 states and the District of Columbia. As we work toward the legalization of marijuana statewide, our local leaders, from solicitors, to city and county leaders, to police chiefs and sheriffs, can immediately stop enforcing South Carolina’s marijuana possession laws. That’s a reduction of around 34,000 arrests each year.Third, prohibit the use of arrests unless necessary to prevent imminent and serious bodily harm to another person and all non-incarceration alternatives have been exhausted. This would not only reduce unnecessary incarceration, but also strengthen trust in law enforcement - a key component to advancing public safety. As the Vera Institute of Justice noted, in “communities where distrust in police is high, people are less likely to report a crime or offer witness testimony, which impedes effective policing.”For weeks we have asked our South Carolina’s political leaders to listen to the experts and take immediate steps to reduce our incarcerated populations. Our political leaders are running out of time, as we saw yesterday moments after we, along with our pro bono partners at Arnold and Porter, filed a lawsuit seeking the release of people at heightened risk of contracting and dying from COVID-19 in South Carolina’s prison system. Shortly after we filed the lawsuit, the South Carolina Department of Corrections disclosed that a second incarcerated person tested positive for COVID-19 at Kirkland Correctional Institution, leading to a two-week lockdown at the facility. Because Kirkland is the facility where all newly sentenced people come before being sent to another prison, the Department of Corrections has announced that it will not take newly sentenced people for two weeks, leaving additional people warehoused in South Carolina’s jails until Kirkland opens again.As the new ACLU model found, aggressive action and policy change could save as many as 23,000 people in jail and 76,000 in the broader community if we stop arrests for anything but the five percent of crimes defined as most serious by the FBI — including murder, rape, and aggravated assault — and double the rate of release for those already detained.Incarceration should not become a death sentence. The ACLU model shows that a larger catastrophe can be prevented if governors and all system stakeholders drastically reduce their incarcerated populations.We cannot do this alone. Your voice can make a difference. Please click this link to learn how you can take action!

On April 9, we sent a letter calling on Governor McMaster to immediately mandate a prison reduction plan and protect incarcerated people from the perilous risks associated with COVID-19 in correctional settings. Despite the recommendations of public health experts and pleas from concerned advocates and loved ones of incarcerated people, Governor McMaster has continued to neglect his duty to care for people in custody -- including those who are most at risk of becoming critically ill or dying from COVID-19. We're suing to prevent death by incarceration. Along with our pro-bono partners at international law firm Arnold & Porter, we filed a federal lawsuit this evening against Governor Henry McMaster, South Carolina Department of Corrections Director Bryan Stirling, and members of the South Carolina Board of Pardons and Paroles. Protection and Advocacy for People with Disabilities, Inc. (P&A) also joined the lawsuit as a plaintiff on behalf of incarcerated people with disabilities. 

A new ACLU report released today documents how South Carolina’s marijuana laws needlessly ensnare tens of thousands of people -- disproportionately Black people -- in its criminal justice system every year. Sold to the public in the name of public safety,  these laws do not make us safe and ruin lives.South Carolina has the second highest arrest rate for marijuana possession in the United States. Every 15 minutes somebody is arrested for possessing marijuana in South Carolina - a substance that is legal or decriminalized for personal use in 26 states and the District of Columbia.South Carolina’s current marijuana laws are a monumental waste of tax dollars. For each of the 34,229 marijuana arrests in 2018, our tax dollars had to pay for a judge, a clerk, law enforcement officers, solicitors, and others to process the case. According to an economic analysis published in 2013, the 16,669 marijuana possession arrests in 2010 cost South Carolina taxpayers nearly $50 million. Between 2010 and 2018 the number of marijuana possession arrests more than doubled, meaning South Carolina taxpayers may be paying closer to $100 million each year to enforce outdated and harmful marijuana possession laws.South Carolina’s marijuana policy is another example of its two-tiered justice system. Two people can be arrested for possessing the same amount of marijuana and face vastly differing punishments based on nothing more than their wealth. This is because access to diversion programs, which can mean the difference between having a criminal conviction and a clean record, often require fees to participate. As a result, those with wealth can pay their way to a clean record, while those without wealth are stuck with a criminal record and all of its collateral harms.And, South Carolina’s marijuana laws, like all aspects of its criminal justice system, are enforced with a staggering racial bias. In 2018 Black people were 3.5 times more likely to be arrested for marijuana possession when compared with whites, despite both groups using marijuana at roughly the same rate. And, this disparity is on the rise, up from 1.8 times more likely to be arrested in 2001  to 2.8 times more likely to be arrested in 2010. The discriminatory enforcement of South Carolina’s marijuana laws means that Black people are more likely to face the immediate harms of a marijuana possession conviction, including potential incarceration, criminal records, the loss of jobs, housing, financial aid eligibility, and child custody.The discriminatory enforcement also compounds the harms that already exist because of the racial wealth divide - a divide born from slavery and maintained though racist policies including regressive taxation, lending and pay discrimination, and unequal education, to name a few. White families in the United States have a median household wealth of $171,000 while Black families median household wealth is just $17,600. Because of this vast economic inequality, the reduced ability to participate in a diversion program and the collateral harms of a marijuana conviction, including its associated fines and fees, disproportionately push Black people into cycles of never ending debt, poverty, and further contact with the criminal justice system.It’s time for our communities to define and advance our vision for what a just, equitable, and safe South Carolina should look like. And, part of this vision must be the legalization of marijuana with racial equity at the foundation of such reform.

Covid-19 is spreading in prisons and jails throughout the United States and South Carolina is not immune to this trend.People in prisons and jails are at heightened risk of contracting and dying from COVID-19. They are housed in close quarters, and are often in poor health and physically unable to follow the social distancing guidelines.South Carolina should be doing everything in its power to reduce the number of people currently incarcerated, and thankfully some counties are doing this.Yet, while some judges, solicitors, and law enforcement leaders in South Carolina have recognized the need to reduce the number of incarcerated people in their jurisdictions, Governor McMaster has issued a number of executive orders that could upend this progress.Many of the Executive Orders issued in response to the COVID-19 outbreak include provisions that expand police powers. These expanded powers lack clear definition and have raised serious concerns from vulnerable community members.While individual rights may give way to the greater good during a disease outbreak, the use of any measure that deprives individuals of their liberty must be scientifically supported and proportional. Some provisions of Governor McMaster’s Executive Orders fail to meet this basic test.Many of these provisions ask law enforcement officers to enforce criminal laws without clear guidance and/or proper training. For example:

According to a statement released by the National Association of Probation Executives and 50 current and former probation and parole executives from across the country, probation and parole agents should “do all [they] can in this crisis to make sure [they are] not inadvertently spreading the COVID-19 virus.”As the number of South Carolinians infected with COVID-19 continues to grow, it is imperative that the South Carolina Department of Probation, Parole and Pardon Services (DPPPS) do their part to prevent the spread of COVID-19 in the criminal justice system.We sent a letter today calling on DPPPS Director Jerry Adger to enact the following policies, also recommended by the Vera Institute of Justice:

As the number of South Carolinians infected with COVID-19 continues to grow, we must focus on efforts to protect the health and well-being of all people housed and working inside South Carolina correctional facilities. An outbreak inside these institutions will be immensely difficult to contain and will compromise broader public health through transmission from employees who enter and exit the facilities on a daily basis.As of March 27, the South Carolina Department of Corrections (SCDC) has reported that one of its guards tested positive for the virus. Now more than ever, SCDC and other state corrections institutions must increase transparency and accountability to a response grounded in science and public health.  Last week, the ACLU of Ohio asked Governor DeWine and the heads of Ohio’s state prison and youth systems to publicly answer several questions on a daily basis to ensure transparency and provide reassurance to the loved ones of corrections employees and incarcerated people. In less than twenty-four hours, the governor and state corrections agencies began posting the requested data and updating it daily. We are following our Ohio colleagues’ lead. Yesterday, we issued a request to SCDC, the South Carolina Department of Juvenile Justice, and Governor Henry McMaster to answer the following four questions daily on their public websites: 

People involved in the criminal legal system face heightened risk of COVID-19 infection. We urge South Carolina prison and jail officials to immediately develop evidence-based and proactive plans for the prevention and management of COVID-19 in their facilities.