As juvenile justice lawyers in Charleston, we’ve helped children who’ve been accused of committing a crime in South Carolina. In South Carolina, a minor who is taken into custody is treated differently than an adult. For example, instead of going through adult criminal court, juveniles go though the South Carolina Juvenile Justice System. In addition to being charged with the same crimes as adults, such as possession of drugs or weapons, there are special statutes that only apply to children, such as such as incorrigibility (beyond the parent’s control), truancy (failure to attend school), and running away. In this article, our Charleston juvenile defense lawyers explain the South Carolina Juvenile Justice System and your child’s rights if they are in trouble with the law.
Can a child be arrested for a crime in South Carolina?
In a manner of speaking, yes, but there are some differences from an adult’s arrest. For purposes of the juvenile justice system, a “child” is a minor less than seventeen years old. Unlike adults, juveniles aren’t served with an arrest warrant. Instead, any person, including law enforcement, may file a “petition” in family court alleging that a child has committed a crime or a status offense such as truancy. Instead of “arresting” the child, law enforcement takes the child into “custody.” Some of the crimes our juvenile justice attorneys in Charleston typically see involving children include:
- Carrying a weapon on school grounds
- Possession of marijuana or other drugs
- Assault and Battery (fighting at school, fighting with a family member, etc.)
- Malicious Injury to Property
- Weapons charges
What is a juvenile status offense in South Carolina?
In South Carolina, a “status offense” is an offense that only a child can commit (the act wouldn’t be a misdemeanor or felony if committed by an adult). Status offenses include:
- Incorrigibility (beyond the parents’ control)
- Truancy (skipping school)
- Running away from home
- Playing or loitering in a billiard room (pool hall)
- Playing a pinball machine (yes, that is a law)
- Gaining admission to a theater by false identification.
Can the police question a child if the child’s parents aren’t present?
Yes. In South Carolina, police can question a child even if the child’s parents aren’t there at the time of questioning. However, while in custody, a child has the same rights as an adult as far as police interrogation. For example, the police must first give Miranda warnings to the child including the right to remain silent, there right to an attorney, and that an attorney will be appointed by the family court to represent the child if the child can’t afford one.
Does a child go to jail when they are taken into custody in South Carolina?
No. The officer who took the child into decides whether to release the child to the child’s parents or the child’s legal guardian. If the officer decides not to release the child, then the Department of Juvenile (DJJ) will try to place the child in an approved home, program, or facility, other than a secure juvenile detention facility.
What happens after a juvenile is taken into custody in South Carolina?
DJJ will put the child through an “intake” process to make comprehensive psychological, social, and educational assessments about the child. As part of this process, a DJJ case worker will interview the child and the child’s parents or guardian for background information. The case worker also gathers the child’s school and medical records and identifies services, such as mental health treatment, substance abuse treatment, or counseling for the child and the child’s family.
What happens if law enforcement decides to put the child into a juvenile detention facility?
The family court must hold a detention hearing within 48 hours from the time the child was taken into custody, excluding weekends and holidays. At the detention hearing, the family court may decide to keep the child at a juvenile detention center until the adjudicatory hearing (described below) if:
- The child is accused of a violent crime under South Carolina’s criminal statutes,
- The child is accused of possessing a deadly weapon; OR
- There is no suitable alternative placement; AND
- Detention is in the child’s best interest or is necessary to protect the child, the public, or both.
During the detention hearing, the child must be represented by an attorney unless the child waives this right AFTER the child has consulted AT LEASE ONCE with a lawyer. The family court can conduct this hearing without the child’s parents or guardian if, after a “reasonable effort,” the parents or guardian can’t be found.
At the detention hearing, the family court considers any evidence that is relevant to whether the child should be detained. DJJ reports the facts to the court and it makes a recommendation regarding detention. If the family court orders that the child be detained, then a social worker or a psychologist must screen the child within 24 hours to determine if the child is in need of any services.
At the detention hearing, the court may appoint a guardian ad litem (GAL) for the child. A GAL is a formal advocate for a child involved in a court proceeding and to communicate to the court about a child’s best interests. The GAL will investigate the facts, participate in negotiations, and take a position in court as to the child’s welfare.
Are some children too young to be held in a juvenile detention center in South Carolina?
Yes. Children under 11 years old can’t be placed in a detention facility. Also, children between the ages of 11 and 12 may only be detained if the family court orders detention.
How long can a juvenile be kept in a detention center in South Carolina while waiting for a family court adjudicatory hearing?
If, at the first detention hearing described above, the family court orders that the child be detained, then the child is entitled to another hearing: (1) within 10 days following the first detention hearing (10-day hearing); (2) within 30 days following the 10-day hearing; and (3) at any other time for “good cause.” In all, a child can’t be detained for more than 90 days unless there are “exceptional circumstances.”
If a child is taken into custody because of a status offense, the child can’t be detained more than 24 hours in a juvenile detention facility unless the child’s acts have violated a previous family court order. If the child is detained for violating a valid court, the child may be held in a juvenile detention facility for up to 72 hours excluding weekends and holidays.
South Carolina’s Juvenile Detention Center, that serves Charleston, Dorchester, Berkeley, and many other counties, is at 1725 Shivers Road, Columbia, South Carolina 29212, (803) 896-9440.
Are juvenile hearings open to the public in South Carolina?
No. Unlike adult criminal hearings, juvenile hearings are confidential. Only persons who have a direct interest in the case or who work for the court may be admitted.
Does a juvenile accused of a crime in South Carolina get a jury trial?
The answer depends on whether the family court transfers (waives) to adult criminal court. If the child is waived to adult criminal court, then the child is entitled to a jury trial just like an adult who is charged with a crime. If the child isn’t transferred to criminal court, then the child doesn’t have a right to a jury trial. Instead, the child and the child’s parents or guardian are then notified of the charges in the petition, and the family court sets an “adjudicatory hearing” to decide whether the child is innocent or whether there is sufficient proof beyond a reasonable doubt that the child committed a crime or a status offense.
When can a child be tried as an adult for a crime in South Carolina?
The family court may conduct a “waiver hearing” to decide whether waiver to adult criminal court is in the child’s and the public’s best interest. During the waiver hearing, the family court may waive the child to adult criminal court if:
- The child (any age) is charged with murder;
- The child 16 or older and is charged with any criminal offense (not a status offense);
- The child is between the ages of 14 and 15 and is charged with an offense which carries a maximum prison term of 15 years or more; or
- The child is 14 or older and is charged with (a) carrying a weapon on school property, (b) unlawful carrying of a handgun, (c) assault and battery of a high and aggravated nature, or (d) distribution of drugs within a half-mile of a school.
The family court MUST waive a child 14 or older who is charged with an offense which carries a prison sentence of ten years or more AND the child has previously been adjudicated (in family court) or convicted (in criminal court) of committing two separate prior offenses (the second offense was committed after the sentence for the first offense was imposed) which carried a prison term of ten years or more.
In deciding whether to waive the child into adult criminal court, the family court must consider the following 8 factors:
- The seriousness of the offense and whether waiver is necessary to protect the public;
- Whether the child’s acts were aggressive, violent, premeditated, or willful manner;
- Whether the alleged offense was against persons or property;
- Whether there is sufficient evidence for a Grand Jury to return an indictment;
- Whether there are adult co-defendants that make it more desirable to present the entire case in one court;
- The child’s level of sophistication and maturity;
- The child’s prior criminal record; and
- Whether the public is adequately protected considering the likelihood of the child’s reasonable rehabilitation by the use of services currently available to the court.
Are the programs like Pretrial Intervention for juveniles accused of a crime in South Carolina?
In some cases, the solicitor (the prosecutor) may “divert” the child’s case out of the juvenile justice system and family court. Instead of being prosecuted in the family court, the child may participate in a “diversion program.” If the child successfully completes the diversion program, the solicitor dismisses the child’s charges. Children who may be eligible for a diversion program include first time offenders, nonviolent offenders, or children with substance abuse problems. Diversion programs include:
- The Juvenile Arbitration Program – The child agrees to have an arbitrator (a neutral third-party) who decide the child’s punishment after hearing from the child’s lawyer, the victim(s) of the crime, the juvenile’s parents, law enforcement, and others who may be connected with the case.
- Drug Court – Juveniles with drug crimes may be required to complete a program focused on drug treatment and education.
- Restitution – Repaying victim(s) for damage to their property or stolen goods.
- Community Service – Repairing damage or cleaning up vandalism, either for the victim(s) or in the community.
What happens at a juvenile adjudicatory hearing in South Carolina?
At this stage, the child can either plead guilty or deny the allegations and have a trial where the solicitor has the burden of proving that the child committed an offense. If there is a trial, the family court judge hears evidence presented by the solicitor, reports from the GAL, testimony from victims, and any evidence or testimony presented by the child’s attorney. The judge will also review any evaluations performed by DJJ. Afterwards, the judge will decide whether to dismiss the charge for lack of evidence, whether the child is innocent, or whether the juvenile is “adjudicated delinquent” (guilty) of the charge.
What happens if a child is adjudicated delinquent in South Carolina?
If the judge adjudicates the child as delinquent, then the judge moves on to the “disposition” phase where the judge decides the child’s sentence. At sentencing, the judge may consider evaluation reports, the seriousness of the offense(s), school records, behavior at home, and prior court history. Also, the judge may order the child to undergo an evaluation before sentencing. During this evaluation, DJJ gathers information about the child’s background and psychological, social and educational needs. In some cases, the child may be sent to one of DJJ’s evaluation centers for up to 45 days where the child will also receive a medical examination and attend school. The center closest to Charleston is the Coastal Regional Evaluation Center, 331 Campbell Thickett Road, Ridgeville, South Carolina 29472, (843) 821-3073.
Ultimately, the family court can:
- Order that the child be examined or treated by a physician, psychiatrist, or psychologist and placed in a hospital if necessary;
- Order the child to participate in a community mentor program;
- Suspend or restrict the child’s driver’s license;
- Place the child on probation; and/or
- Commit the child to a DJJ institution.
Probation – Probation can be any length of time up until the child turns 18. The terms of probation may include:
- Regular school attendance
- Random drug testing
- Restitution (payment of damages to the victim)
- Community service
- Electronic monitoring
- Mental health treatment
- Substance abuse treatment
Commitment – Commitment to juvenile a detention center can be either “determinant” (fixed amount of time) up to 90 days for each offense or “indeterminate” (not fixed but not to exceed the age of 21). After the child is committed, the South Carolina Board of Juvenile Parole uses guidelines to determine the minimum and maximum number of months that the child stay at DJJ’s detention center. DJJ may release a child earlier for good behavior. When a child reaches the minimum guideline amount, the child has right to appear before the Parole Board to ask for parole (release). During this appearance before the Parole Board has the right to an attorney, and an attorney will be appointed for the child if the child’s family can’t afford one. The Parole Board may grant a child a “conditional” or an “unconditional” release. If the release is conditional, the child will be supervised by the local DJJ county office for a period of time, not to exceed the age of 21, determined by the Parole Board. A child on conditional release may be required to pay restitution, perform community service, or complete a local program in the community.
Can a child’s juvenile record be expunged in South Carolina?
Yes. After the child has turned 18 and has completed their sentence including probation, the child may petition the family court for an order destroying all official records. The granting of this order is in the family court’s discretion.
Can a parent be liable for property damage caused by a minor in South Carolina?
Yes. Under South Carolina law, Section 63-5-60, a parent or legal guardian can be liable for up to $5,000.00 in damage to real or personal property caused by a minor who lives with the parent or the guardian and who is under the age of 18. To recover damages from the parent or the guardian, the property owner must bring a civil law suit outside of the juvenile justice case. The outcome of any civil lawsuit for property damage has no impact on the juvenile justice case.
Juvenile Justice Lawyers in Charleston, South Carolina
The Juvenile Justice System is where family court and criminal defense intersect. Because our lawyers work in both family court and criminal court, we’re ready to help you if your child is taken into custody in Charleston, Dorchester, or Berkeley counties. Contact Futeral & Nelson, LLC today for a FREE consultation.