Prosecutorial Control of the Calendar Undone in South Carolina

North Carolina Criminal Defense LawyerNorth Carolina and South Carolina are the only two states where prosecutors control the calendar. In almost all other states, a neutral party – a trial court administrator or the judges – control the calendar in consultation with both the state and the defense to decide when a case is brought to court for motions, a hearing, or trial.

I’ve written elsewhere about how North Carolina’s prosecutorial control of the calendar coupled with the lack of a speedy trial statute creates all kinds of problems for the defense. Some of these issues were litigated in the early 1990s in Simeon v. Hardin but were never ultimately resolved by the court system. A compromise of sorts was worked out, but it has largely left the problem unresolved. While judicial districts are supposed to have a calendaring plan that levels the playing field, the plans are difficult to enforce.

The real problem ultimately is that the combination of a lack of neutral control of the calendar and the lack of a speedy trial statute means that prosecutors can defer action on cases, letting them pile up, as opposed to deciding which cases are truly in need of prosecution, and which need to be resolved quickly because they are less serious.

(For more in this, please see: Andrew Siegel, “When Prosecutors Control Criminal Court Dockets:Dispatches on History and Policy from a Land Time Forgot.” Siegel is a law professor formerly a the University of South Carolina.)

Now South Carolina’s Supreme Court has ruled in State v. Langford that prosecutorial control of the calendar violates South Carolina’s constitution by violating Article I, Section 8 of the SC constitution which reads:

In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.

Since the ruling is based on South Carolina’s constitution, it has no real precedential effect on North Carolina courts. North Carolina has a different constitution. And these issues were previously ruled upon in the early 1990s in Simeon v. Hardin in which the Supreme Court of North Carolina held that prosecutorial control of the calendar does not violate the separation of powers clause in the NC constitution.

Nonetheless, the analogous section of the North Carolina constitution is Article I, Section 6:

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

The NC and SC separation of powers sections are similar, though not exactly the same. Note, I am not an authority on constitutional law and have not reviewed the South Carolina constitution in detail.

While North Carolina’s constitution seems to give District Attorney’s additional authority under the Judicial Department Article, a similar Section exists in the South Carolina constitution. Compare Article IV, Sec. 18 of the North Carolina Constitution:

(1) District Attorneys. The General Assembly shall, from time to time, divide the State into a convenient number of prosecutorial districts, for each of which a District Attorney shall be chosen for a term of four years by the qualified voters thereof, at the same time and places as members of the General Assembly are elected. Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a District Attorney. The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.

(2) Prosecution in District Court Division. Criminal actions in the District Court Division shall be prosecuted in such manner as the General Assembly may prescribe by general law uniformly applicable in every local court district of the State.

Now look at Article V, Section 24 of the South Carolina’s Constitution:

There shall be elected in each county by the electors thereof a clerk of the circuit court, a sheriff, and a coroner; and in each judicial circuit a solicitor shall be elected by the electors thereof. All of these officers shall serve for terms of four years and until their successors are elected and qualify. The General Assembly shall provide by law for their duties and compensation.

The General Assembly also may provide by law for the age and qualifications of sheriffs and coroners, and the selection, duties, and compensation of other appropriate officials to enforce the criminal laws of the State, to prosecute persons under these laws, and to carry on the administrative functions of the courts of the State.

The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.

While the South Carolina Supreme Court’s ruling in December does not affect North Carolina law, it should have persuasive power given some of the similarities in the state constitutions.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.