Can you get a sentence reduction in SC state court after you are in prison?
Sure, you can get a reduced sentence or even get your case dismissed if you agree to testify for the prosecution and your case is still pending, but what about after you have been sentenced? If you come back to court and testify against someone else after you have been sentenced, can the prosecutor still get your sentence reduced?
Under SC code section 17-25-65, a prosecutor can reward an inmate for testifying against another defendant even after the inmate has been convicted and sentenced.
Although defendants have the right to impeach the inmate for bias to show the jury why the inmate is lying, this routine practice by prosecutors still results in wrongful convictions and is one of the leading causes of wrongful convictions in cases where defendants received the death penalty but were later exonerated by DNA evidence…
SC Code Section 17-25-65: Sentence Reduction for Substantial Assistance
Most people who have been charged with a crime understand that if they provide useful information to a prosecutor, or testify against a co-defendant or cellmate, they can “get help” on their own charges and sentence.
In most cases, this happens before the jailhouse snitch is convicted and sentenced – that way, the prosecutor still has harsh penalties hanging over the person’s head that ensure the informant will say what the prosecutor wants them to say…
Under SC code section 17-25-65, however, prosecutors can still promise to pay an informant for favorable testimony with the informant’s freedom after they have been convicted (and long after the informant and prosecutor assured the jurors, defense, and court that there was no deal):
(A) Upon the state’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided:
(1) substantial assistance in investigating or prosecuting another person…
Even if it has been more than one year after the jailhouse informant was sentenced, the prosecutor can promise the informant a sentence reduction if it is based on information that the informant did not know (or says they did not know) until a year or more after they were sentenced:
(B) Upon the state’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:
(1) information not known to the defendant until one year or more after sentencing…
Only the circuit solicitor in the county where the inmate’s case was heard can file the motion for a sentence reduction based on substantial assistance – which means any inmate who takes a prosecutor up on the offer is at the solicitor’s mercy and has no recourse if the prosecutor decides not to honor their promises.
Federal Downward Departures
Although it is used less often in state court, the process is similar to the procedure in federal court where inmates routinely get 5k1 downward departures based on the information they provide about codefendants and others, both before their guilty plea and sometimes long after their guilty plea.
Sentence Reductions, Jailhouse Informants and Wrongful Convictions
It’s no coincidence that nearly every murder trial where the State has a weak case also involves a “jailhouse snitch.” Miraculously, the defendants who leave no physical evidence will also give detailed confessions to their cellmates…
In SC state court, it usually happens before the jailhouse snitch has been convicted and sentenced, but SC law also permits inmates who are serving their sentences for the crimes they have committed to provide information or testify against other defendants and to come back to court for re-sentencing.
Why would they lie?
Often, the jailhouse informant will testify that they are not receiving any benefit for their testimony – they are “testifying out of the goodness of their heart.” The reality is that nearly every jailhouse informant is desperate and clinging to the prosecutor as their last hope to see blue skies, to breathe the open air, and to see their families again.
For those of us who have never been locked inside a prison, eating prison food, waking up when we are told, going to sleep when we are told, walking on a concrete floor, sleeping in a cell with a convicted murderer for a roommate, and subject to daily abuse by both prison guards and other inmates, we can only imagine the depths to which that desperation would drive us.
Sentence Reductions in Exchange for Testimony is a Leading Cause of Wrongful Convictions
How many people are wrongfully convicted and locked away for crimes they did not commit?
Many want to believe that it is very few or none at all – we all sleep easier at night if we buy into the fantasy that our criminal justice system is infallible and few mistakes are made. The truth is that wrongful convictions happen regularly in our criminal justice system – most are difficult if not impossible to prove because of a lack of DNA evidence or other methods of conclusively proving a person’s innocence.
We can see the tip of the iceberg, however, when we look at the wrongful convictions where DNA evidence is available, including exonerations of people who have sentenced to death…
According to the Innocence Project, the National Registry of Exonerations has identified 156 proven wrongful convictions in the US where jailhouse informants were involved (including DNA and no-DNA cases), and a report “published by the Center on Wrongful Convictions in 2004 found that incentivized informant witnesses were the leading cause of wrongful convictions in U.S. capital cases.”
How can we stop wrongful convictions that result from unreliable jailhouse informants?
First, we have to care. The appellate courts, the legislature, prosecutors, and judges have to 1) recognize that the use of jailhouse informants (and the unethical use of them by prosecutors) results in wrongful convictions and the wrongful incarceration of defendants and 2) see this as a problem.
At a minimum, there should be pretrial reliability hearings where the Court can review details like:
- The informant’s criminal history;
- The benefit that the informant expects to receive from their testimony;
- Whether there is corroboration for the informant’s testimony;
- Whether the informant has previously recanted their testimony; and
- The details of other cases where the informant has provided testimony against defendants.
It should be disqualifying if there is no corroboration for the informant’s testimony.
It should be disqualifying if law enforcement is on video telling the informant they can “be a defendant or they can be a witness,” threatening to take the informant’s children away, or telling the informant what to say.
It should be disqualifying if the prosecutor was “trolling the jail,” pulling out defendants and offering them a deal if they can provide information about the case.
It should be disqualifying if the informant is found to have the defendant’s discovery materials in their cell or if inmates in the informant’s cellblock are selling discovery materials on the black market (believe it or not, this is commonplace, especially in the federal system).
Prosecutors should be forced to stop playing the game where they claim they have not promised the informant anything and the informant pretends that they don’t expect anything from the prosecutor – when a prosecutor later asks a court for a sentence reduction for their informant, they should be disciplined for lying to the court and that defendant should be granted a new trial.
When an informant’s testimony is found to be sufficiently reliable, there should always be an instruction from the court informing the jurors of the inherent unreliability of jailhouse informant testimony and explaining the many ways that an informant can benefit from their testimony.
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