SC Supreme Court: Right to counsel in sex offender commitment cases

In In re Chapman, 796 S.E.2d 843 (S.C. 2017), the court held that while South Carolina provides a statutory right to counsel for all stages of sex offender commitment proceedings, “we find section 44-48-90’s right to counsel is not merely a statutory right, but also a constitutional one arising under the Fourteenth Amendment and the South Carolina Constitution.”

The court relied in part on Vitek v. Jones, 445 U.S. 480, 491-92 (1980), a plurality decision that held prisoners being transferred involuntarily to mental health facilities had the right to legal assistance (but not necessarily counsel), as well as decisions from the supreme courts in Kansas and Virginia finding a right to counsel in sex offender commitments.  The court added that this constitutional right to counsel included the right to effective assistance of counsel, but that such claims had to be raised in habeas proceedings rather than on direct appeal.  It then held that since normally there is no right to appointed counsel in habeas proceedings (whether criminal or civil),

a person committed as an SVP would ordinarily be required to assert an ineffective assistance of counsel claim in a habeas proceeding without the assistance of counsel. We find this result would be not only inequitable, but also the functional equivalent of denying SVPs the right to effective assistance of counsel.  As discussed, supra, the General Assembly provides persons subject to commitment under the Act with a right to counsel at “all stages of the proceedings.” S.C. Code Ann. § 44-48-90.  Due to the unique unfairness of requiring SVPs to pursue ineffective assistance of counsel claims without the assistance of counsel, this language must be construed as providing persons committed under the Act with a right to counsel during their first habeas proceeding … We recognize this portion of our holding is perhaps an unforeseen application of the statutory language. Nonetheless, the General Assembly provided SVPs with a right to counsel, which cannot be merely a superficial right … While the State conceded this during oral argument, unquestionably, the General Assembly may reevaluate an SVP’s right to counsel and set forth a more comprehensive statutory scheme to address this issue.