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South Carolina criminal law generally follows the law of the United States. However, there are both substantive and procedural differences between how the United States federal government and South Carolina prosecute alleged violations of criminal law. This article focuses exclusively on South Carolina criminal law.

Unique things of South Carolina law:

Modified common law 1-year-and-a-day rule

Does not delineate degrees of murder

Felony murder rule

Treats duress and necessity the same

Overview
The South Carolina penal code contains 557 sections, almost five times the number of the Model Penal Code. It is considered disorganized because many criminal offenses exist outside of the penal code, including in 53 other titles in the South Carolina code. From 2009 to 2014, South Carolina added more than 60 crimes annually, most of which were not placed in the penal code. This followed a trend of statutory requirements lacking mens rea provisions.

In 2010, Governor Mark Sanford signed the Omnibus Crime Reduction and Sentencing Reform Act which reformed parole and probation within South Carolina.

Mens rea
South Carolina follows the Model Penal Code approach to mens rea. There are four mental states (purpose, knowledge, recklessness, and negligence) which form a hierarchy of culpability. The most culpable mental state is "purpose." Someone acts purposefully if it is their conscious object to cause the harm. Nationwide jurors have shown an inability to reliably distinguish the difference between negligence and knowledge.

Types of crimes
South Carolina Penal Code section 16 lists the different felonies and misdemeanors. There are six classes of felonies ranging from A to F, and three classes of misdemeanors ranging from A to C.

Homicide
South Carolina follows the traditional common law definition of murder and homicide. However, in 1984, the state modified the common law definition of death (which is the cessation of blood circulation and heart beat) to also include "irreversible cessation of all functions of the entire brain, including the brain stem." South Carolina has modified the common law 1-year-and-a-day rule to that of 3 years.

Murder
South Carolina does not differ much from the standard law in the United States when it comes to murder. Murder is defined as the "the killing of any person with malice aforethought, either express or implied." To kill with malice is to kill with "wickedness and without 'a just cause or excuse.'" Malice may be implied by the defendant's use of a deadly weapon such as a gun. It is an objective test to determine whether or not an item is a deadly weapon.

Malice aforethought is present when the defendant had an intent to kill without provocation or excuse; or an intent to do serious bodily harm; or the actor was engaged in "conduct evidencing a malignant heart conscious of creating a very high risk of death"; or felony murder.

One difference between South Carolina and most states is that South Carolina does not delineate murders by degrees (For example, there is no first degree murder offense).

Felony murder rule
One of the most unique aspects of South Carolina's criminal justice system is its approach to the felony murder rule. It is the only state where felony murder is an automatic aggravator. Specifically, "the crime of murder is aggravated, and subject to the death penalty, if a killing occurred while the defendant was in the commission of one of the state’s qualifying felonies."

South Carolina follows the inherently dangerous limitation to felony murder. Thus, the commission of a felony is sufficient to fulfil the malice aforethought requirement of murder "if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life."

There are six underlying predicate felonies, five of which are traditional predicate felonies such as kidnapping, larceny, robbery, burglary and rape, as well as one nontraditional predicate felony, drug trafficking. South Carolina has added the requirement that a deadly weapon be present during the course of a larceny robbery in order for that offense to count towards the felony murder rule.

The maximum sentence for felony murder in South Carolina is the death penalty.

Voluntary manslaughter
Manslaughter is a killing without malice. A defendant convicted of manslaughter faces imprisonment from two to thirty years. The absence of malice is established by the "presence of adequate provocation and a sudden heat of passion sufficient to 'disturb the sway of reason, render the mind of an ordinary person incapable of cool reflection.'"

Adequate provocation can be a number of things. Several of the traditional adequate provocation categories (finding one's spouse in the act of adultery, assault and battery, and a harm befalling the defendant's loved one before them) have been found to be sufficient in South Carolina. However, South Carolina follows the traditional common law rule that words alone cannot constitute adequate provocation. Further, like most if not all jurisdictions, the provocation must have come from the victim and not a third party.

An adequate cooling off time is "one that is sufficient to allow the passions of an ordinary reasonable person to cool."

Involuntary manslaughter
In South Carolina, "involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others." Recklessness means more than mere negligence. It requires "a conscious failure to exercise due or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof." The punishment for involuntary manslaughter is not more than five years.

Vehicular Homicide
South Carolina's vehicular homicide statute reads as follows: (A) When the death of a person ensues within three years as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others, the person operating the vehicle is guilty of reckless homicide. A person who is convicted of, pleads guilty to, or pleads nolo contendere to reckless homicide is guilty of a felony and must be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned not more than ten years, or both. The Department of Motor Vehicles must revoke for five years the driver's license of a person convicted of reckless homicide.

(B) After one year from the date of revocation, the person whose driver's license has been revoked for five years pursuant to Subsection (A) may petition the circuit court in the county of his residence for reinstatement of his driver's license. He shall serve a copy of the petition upon the solicitor of the county and shall notify the representative of the victim of the reckless homicide of his intent to seek reinstatement of his driver's license. The solicitor or his designee within thirty days may respond to the petition and demand a hearing on the merits of the petition. If the solicitor or his designee does not demand a hearing, the circuit court shall consider any affidavit submitted by the petitioner and the solicitor or his designee when determining whether the conditions required for driving privilege reinstatement have been met by the petitioner. The court may order the reinstatement of the person's driver's license upon the following conditions:

(1) intoxicating alcohol, beer, wine, drugs or narcotics were not involved in the vehicular accident which resulted in the reckless homicide conviction or plea;

(2) the petitioner has served his term of imprisonment or paid his fine, assessment and restitution in full, or both; and

(3) the person's overall driving record, attitude, habits, character, and driving ability would make it safe to reinstate the privilege of operating a motor vehicle.

The circuit court may order the reinstatement of the driver's license before the completion of the full five-year revocation period or the judge may order the granting of a provisional license for the remainder of the five-year period to allow the person to drive to and from employment or school or the judge may place other restrictions on the driver's license reinstatement. The order of the judge must be transmitted to the Department of Motor Vehicles within ten days.

(C) If the person's privilege to operate a motor vehicle is reinstated pursuant to subsection (B), a subsequent violation of the motor vehicle laws for any moving violation requires the automatic cancellation of the person's driver's license and imposition of the full period of revocation for the reckless homicide violation.

Attempt
Common law attempt is defined as "a specific intent to commit a criminal offense and an act in furtherance of that intent that falls short of its ultimate execution." Thus, the elements are a specific intent to commit the target offense and "a direct ineffectual act done toward its commission." The phrasing "ineffectual act" is comparative to that of a "substantial step." It must "amount to more than mere preparation, and move directly toward the commission of the crime."

South Carolina recognizes the defense of legal impossibility to an attempt offense. A legal impossibility occurs when the defendant believed that their act was illegal, was arrested for it, but it turned out that the act was not illegal. Like most states, South Carolina does not recognize the defense of a factual impossibility.

There have been no cases in South Carolina determining whether abandonment suffices as a defense to an attempt offense. In jurisdictions that recognize the abandonment defense defendants can avoid conviction if during the commission of the attempt, the defendant voluntarily and completely renounced their criminal purpose. This renunciation cannot be caused by motivation created by unexpected resistance, or the absence of an instrumentality needed to complete the crime, or an occurrence that increased the likelihood of being caught.

Solicitation
Unlike the majority of U.S. jurisdictions, South Carolina does not have a solicitation statutory provision. It instead relies on the common law for the definition of the offence. For solicitation to occur, "it is only necessary that the actor, with intent that another person commit a crime, have enticed, advised, invited, ordered, or otherwise encouraged that person to commit a crime." The crime is a misdemeanor under the common law. The second someone has solicited another to commit a crime, with the requisite mens rea, the crime has been completed.

Conspiracy
South Carolina has a codified conspiracy statute which is a felony. The conspiracy statute reads as follows: The common law crime known as “conspiracy” is defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means.

A person who commits the crime of conspiracy is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.

A person who is convicted of the crime of conspiracy must not be given a greater fine or sentence than he would receive if he carried out the unlawful act contemplated by the conspiracy and had been convicted of the unlawful act contemplated by the conspiracy or had he been convicted of the unlawful acts by which the conspiracy was to be carried out or effected. Thus, South Carolina has adopted the traditional bilateral approach to the crime of conspiracy, meaning that there must be two people in agreement.

Self-defense
South Carolina follows the standard common law definition of self-defense: "A defendant is justified in using deadly force in self-defense when: (1) defendant was without fault in bringing on difficulty, (2) defendant actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger, (3) if defense is based upon defendant's actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained same belief, and (4) defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance."

Duress and necessity
South Carolina treats the affirmative defenses of duress and necessity as the same defense, contrary to most jurisdictions. The elements of this defense are: the presence of a "present and imminent emergency arising without fault on the part of the defendant," which is of the type sufficient to "to induce a well-grounded apprehension of death or serious bodily harm if the act is not done; and "there is no reasonable alternative to committing the charged offense in order to avoid the threatened harm."

Insanity
The elements for the insanity defense in South Carolina are: at the time of the commission of the alleged crime, as a result of a mental disease or defect, the defendant lacked the capacity either to distinguish moral or legal right from moral or legal wrong. It is a modified M'Naughten rule, replacing the "know" in M'Naughten with "capacity." If a defendant is found not guilty by reason of insanity, they are acquitted and then committed in the South Carolina State Hospital.

Overview
South Carolina's sentencing design has been described as "restricted indeterminacy." An indeterminate sentence is one that allows for parole board discretion as to when a prisoner is released from prison. The state never adopted sentencing guidelines however there were considerable efforts in the 1980s and 1990s to do so. Thus, judges maintain extensive discretion, only restricted by "statutory maximums, mandatory minimums, and parole eligibility rules."

Despite the lack of sentencing guidelines in South Carolina, the state has a relatively low sentencing variation by county ratio, in part due to the fact its judges travel circuit. The in-circuit rotation of judges allows defendants to judge shop for more lenient sentencers. Until 2012, South Carolina's prosecutors, called solicitors, had control over the docket, allowing them to assign judges to cases.

Plea bargaining
The ratio of judges to the general population in South Carolina is among the lowest in the nation. Therefore, plea bargaining is the predominant form of sentencing in the state—in 2001, only two percent of offenders were sentenced after a trial as opposed to after a plea deal.