SC enacts law permitting ineffective assistance of counsel challenges to commitment

In commitment proceedings for sexually violent predators, S.C. Code § 44-48-80(C)(1) refers to the right “to be represented by counsel”, while § 44-48-90(B) adds, “At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel designated by the Office of Indigent Defense to handle sexual predator cases to assist the person.”

In 2023, South Carolina enacted SB 146, which adds a new section to the Sexually Violent Predator Act, providing that “[a] resident committed to the South Carolina Sexually Violent Predator Treatment Program shall have the right to challenge the commitment and subsequent periodic reviews based on the ineffective assistance of counsel during the resident’s commitment trial or periodic review proceedings.” S.C. Code § 44-48-115(A).  The judge shall appoint an attorney for the resident upon the filing of the petition if the petition alleges that they are indigent. Id. at (E). The appointed attorney shall not be “an attorney who previously represented the resident in any prior criminal proceedings underlying the commitment or state post-conviction relief proceeding or appeals from those proceedings, in the original sexually violent predatory civil commitment proceeding or appeal from that proceeding, or in any previous or present periodic reviews or appeals therefrom.” Id.