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The South Carolina Juvenile Collateral Consequences Checklist

The South Carolina Juvenile Collateral Consequences Checklist. What is a Collateral Consequence?.

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The South Carolina Juvenile Collateral Consequences Checklist

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  1. The South Carolina JuvenileCollateral Consequences Checklist

  2. What is a Collateral Consequence? • Collateral consequences are the penalties, disabilities, or disadvantages imposed upon a person as a result of a criminal conviction, either automatically by operation of law or by authorized action of an administrative agency or by a court on a case by case basis. • The South Carolina Children’s Code makes efforts to limit the effects of collateral consequences on minors who have been adjudicated delinquent. Juvenile Collateral Consequences Project

  3. Collateral or Direct Consequence? • Direct consequences are imposed as part of the court’s judgment at sentencing, including: terms of imprisonment or community supervision, or fines. • Put another way, collateral consequences are opportunities and benefits no longer fully available to a person, or legal restrictions a person may operate under, because of their criminal conviction or juvenile adjudication of delinquency Juvenile Collateral Consequences Project

  4. 1. Adjudication of Delinquency • Under South Carolina law, a delinquency adjudication is not a criminal conviction. S.C. Code Ann. § 63-19-1410(C). • However, for many practical purposes, delinquency adjudications are treated like criminal convictions and may result in a number of collateral consequences for the juvenile. Juvenile Collateral Consequences Project

  5. Tried as an Adult • A “juvenile” is generally a person less than 17 years of age. • However, the solicitor has the discretion to charge a child of 16 years or older as an adult if • The child is charged with a Class A, B, C, or D felony or; • A felony with a potential sentence of 15 years or more. Juvenile Collateral Consequences Project

  6. Family Court or General Sessions? Juvenile Collateral Consequences Project Family Court (Sentenced as Juvenile) Discretion of Solicitor whether to charge juvenile age 16 or older facing felony charges as an adult in General Sessions Court South Carolina Supreme Court South Carolina Court of Appeals Circuit Court: General Sessions (Sentenced as Adult)

  7. 2. Records Generally Not Open to the Public • All law enforcement records of children must be kept separate from records of adults, and any information identifying a child must not be open to public inspection. S.C. Code Ann. § 63-19-2030(B). • Family court records are confidential and open to inspection only by court order to persons having a legitimate interest in the records. See e.g., S.C. Code Ann. § 63-19-2020, et sq. Juvenile Collateral Consequences Project

  8. 3. Juvenile Court Generally Not Open to the Public • Cases involving children must be taken up as separate hearings without a jury. S.C. Code Ann. § 63-3-590. • Only persons the judge finds to have a direct interest in the case or in the work of the court may be admitted. S.C. Code Ann. § 63-3-590 . Juvenile Collateral Consequences Project

  9. 4. Employment Opportunities • Many employment applications only ask potential employees to reveal past criminal convictions, which does not include delinquency adjudications • But,employers are not barred from considering or inquiring about delinquency adjudications and may have ways of accessing this information. • Whenever possible a delinquency adjudication should be expunged. Juvenile Collateral Consequences Project

  10. 5. Driver’s License A child’s driving license may be suspended as a result of a delinquency adjudication by the court for certain offenses: • Criminal Offenses may result in suspension until the child’s 18th birthday. • Status Offenses, offenses that are not a crime if committed by an adult, may result in suspension until the child’s 17th birthday. S.C. Code Ann. § 63-19-1420(A). Juvenile Collateral Consequences Project

  11. 6. Military A delinquency adjudication may affect a young person’s ability to enlist in the military. • Those convicted of felonies are not eligible for the military without special approval from the Secretary of Defense. 10 U.S.C. § 504(a). • Military recruiters frequently assist recruits in getting their juvenile records expunged if records are not lengthy and the offenses are not extremely serious. Juvenile Collateral Consequences Project

  12. 7. Carrying a Firearm • A delinquency adjudication does not preclude a person from possessing a firearm when they are otherwise legally permitted to do so. • However, it is unlawful for a person who has been convicted of a violent crime that is classified as a felony offense to possess a firearm or ammunition within South Carolina. S.C. Code Ann. § 16-23-500. Juvenile Collateral Consequences Project

  13. 8. Public Housing A delinquency adjudication may affect access to public housing. • Public housing authorities have the right to evict families of delinquent children, even if their delinquent conduct does not occur on public housing property. • Person subject to lifetime registration under a state sex offender registration statute is ineligible for public housing. Juvenile Collateral Consequences Project

  14. 9. Access to Schools • Children may be expelled, suspended, or transferred from school because of a delinquency adjudication by a school district’s board of trustees for certain offenses. • This includes enrollment in high school level technical and trade schools. Juvenile Collateral Consequences Project

  15. 10. Access to Higher Education • In most cases delinquency adjudication does not bar access to higher education • A delinquency adjudication does not automatically bar access to federal student financial aid. • But, a criminal conviction for possessing or selling illegal drugs while person was receiving federal student grants, loans or work-study can restrict access to financial aid. Juvenile Collateral Consequences Project

  16. College Applications Both South Carolina and Clemson ask about juvenile adjudications and school discipline actions. • Clemson: “Are there any criminal charges currently pending against you? Have you ever been convicted of a crime other than a minor traffic violation? Do you currently have disciplinary charges (non-academic or academic) pending against you from a high school, college, university, or other postsecondary educational institution?” • South Carolina: “Have you ever been arrested for or convicted of a violation of any local, state, or federal law, other than a minor traffic violation since the 9th grade, or are you currently facing an arrest or criminal charge?” Juvenile Collateral Consequences Project

  17. 11. Sex Offender Registration Juveniles who have been found delinquent due to the violation of particular crimes may be required to be placed on the registry. • Juveniles must register in every county where live, own real property, or attend school. • Must register within one business day of being placed on probation and/or release from DJJ. • Must re-register at least twice a year for life. • Juveniles are placed on the same public (internet accessible) registry as adults. Court can order child to register for any other offense if “good cause” is shown by the solicitor. Juvenile Collateral Consequences Project

  18. Sex Offender Registration (con’t) • Juveniles must register upon adjudication for certain offenses. The most common offenses in Family Court are: • Criminal Sexual Conduct in the 1st, 2nd, or 3rd • CSC with a Minor in the 1st or 2nd* degree • *required to register unless Court makes finding on the record that act resulted from consensual sexual conduct and the offender is 18 years of age or less or from consensual sexual conduct between persons under 16 • Assault with Intent to Commit CSC • Lewd Act • Note: Indecent Exposure is not on this mandatory registry list. Child will be required to register only if the Court orders such. Juvenile Collateral Consequences Project

  19. 12. Expungement • Expungement is available upon petition to the court for persons older than age 18 who were adjudicated delinquent for a status or nonviolent offense if certain conditions have been met. • Juvenile records do not automatically disappear on a child’s 18th birthday. • To start, apply to the Solicitor’s Office in the county where the offense was committed. Juvenile Collateral Consequences Project

  20. 13. DNA Samples • Children adjudicated delinquent of felony offenses and some misdemeanor offenses are required to submit a DNA sample to the State DNA Data Base. • A juvenile may be compelled to provide an additional sample if the first is lost, damaged, contaminated, or unusable S.C. Code Ann. § 23-3-620. Juvenile Collateral Consequences Project

  21. 14. Voting A young person who turns 18 is able to register and vote, despite a delinquency adjudication for any offense. • A person may vote regardless of whether the delinquency adjudication is for conduct that would be a felony or a misdemeanor if committed by an adult. • A person in DJJ placement is still eligible to vote. Juvenile Collateral Consequences Project

  22. 15. Jury Service • A young person who turns 18 is able to serve on a jury, despite an adjudication of delinquency for any offense. • A prior criminal conviction or juvenile adjudication, if admitted to, may provide a party to the action with grounds to strike for cause the potential juror with a record. • A prior criminal conviction or juvenile adjudication, if admitted to, may provide a party to the action with grounds to strike for cause the potential juror with a record. Juvenile Collateral Consequences Project

  23. 16. Immigration Status • A delinquency adjudication can affect a child’s immigration status, but assessing the possible consequences is complicated. • In most cases, a delinquency adjudication is not a criminal conviction for immigration purposes and will not trigger immigration consequences. • But, prior to entering an admission or proceeding to an adjudicatory hearing, the defense attorney handling the matter should seek advice from an immigration attorney with relevant experience Juvenile Collateral Consequences Project

  24. 17. Adult Sentencing • Juvenile’s record of delinquency adjudications for certain offenses can affect sentencing for a criminal conviction as an adult. • South Carolina courts may consider a prior juvenile adjudication when assessing the sentence of an adult and may enhance a sentence in the federal criminal system. Juvenile Collateral Consequences Project

  25. Acknowledgements Board Members of the South Carolina Commission on Indigent Defense: • Harry A. Dest., Esq. • Yvonne Murray-Boyles, Esq. • James Bannister, Esq. • Ashlin B. Potterfield, Esq. • Judge Edward B. Cottingham, Esq. • Representative G. Murrell Smith, Esq. • Senator Gerald Malloy, Esq. • Jack D. Howle Esq. • D. Ashley Pennington, Esq. • Walker Wilcox, Esq. • John Nichols, Esq. • Douglas L. Strickler, Esq. This checklist was created with the generous and able assistance of: • T. Patton Adams, Esq., Project Coordinator • Executive Director, Commission on Indigent Defense • Robert Listenbee, Esq., Project Advisor • Administrator, DOJ, Administrator of Office of Juvenile Justice and Delinquency Prevention • Linda Bernadin, Esq., Principal Editor,South Carolina Children’s Law Center • Zach M. Merritt, Author • Blanche Richey, Esq., Editor • Becca Dunn, Design • John H. Strom, Editor Juvenile Collateral Consequences Project

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