Commentary

The Power of a Bench Warrant, Justice or Misuse?

What exactly is a Bench Warrant? It is a written order issued by a judge authorizing the arrest of a person charged with some contempt, crime, or misdemeanor.

Is there a difference between a Bench Warrant and an Arrest Warrant? The answer to this is yes! The bench warrant authorizes the arrest of an individual who has been held in contempt of court, especially when the criminal defendant on bail makes a nonappearance or when a witness under subpoena does not appear for hearing or a trial. In the event that an individual was on bail, the court will usually set a higher bail amount or eliminate bail altogether.

By contrast, the arrest warrant process is started by a police officer. The officer files a statement with the judge explaining why he believes that the person named has committed a crime (in legalese, the officer is showing “probable cause” to arrest the person). If the judge is convinced, he/she signs the warrant, and the police can make the arrest.

Here in South Carolina Bench Warrants are issued by the hundred by Circuit Court, Magistrate Court, Family Court and General Sessions Courts. But the most common are by Family Court Judges. It is important to know that in many cases prior to a Bench Warrant being issued one must have been personally served with a summons. Typically the Court uses the local Sheriff’s Department to serve it’s summons, but this can also be facilitated by private process servers.

As we asked several attorneys about this aspect and were informed that the personal service was simply a guideline used by Judges, that not all Judges feel that this is a requirement even though it is in State Statue and Court Rules. It is believe by some Judges, that this is simply a given that these individuals know they need to be there.

When asked about the possible issue of Due Process violations, we were explained that this does not come up many times because of a prior court orders that usually exist. But when we spoke with a few Federal Law practicing attorneys we were told that this would be a major issue as these individuals may not have been made properly aware of their presence being required in court, hence the typical requirement of being personally served with a summons. That this requirement is a protection for individuals from being wrongfully arrested due to not having any knowledge of being requested to be in court.

Most individuals who have bench warrants issued on them are not hunted down by law enforcement, but instead are found by simple things like being pulled over for speeding or some other small violation. Also, that most bench warrants do not extend beyond the States boundaries, due to the cost of having someone brought back. But that does not mean that if a bench warrant is issued that another state will not transport you back to the jurisdiction of the issuing court, it largely depends on the reason for the issuing of the bench warrant.

We were also informed as to the powers that a bench warrant has and it’s limitations. A bench warrant is used to bring an individual back before a Judge, plain and simple you would think. But there are some counties in South Carolina that bypass the Judge part and go directly to sentencing, or what is called “Pre-sentencing”.

The practice of pre-sentencing is usually done in criminal cases by a Judge who would review a report to see if there are reasons for a lesser sentence. There are also Pre-sentencing hearings that can be held for these instances. But more recently Family Court Judges have began this practice. Several Family Court Judges have pre-sentenced individuals without having them brought back before them or another Judge to determine why the individual failed to appear. As we discussed this with Federal Law Attorneys we were informed that this could be a direct mis-use of what bench warrants are used for and not to mention the Civil Liberties aspect of this practice, as Family Courts are a Civil Court and not considered criminal.

Some of the limitations we were told surprised us. A bench warrant can not be used to enter a residents to search for an individual. For instance Law Enforcement must receive permission from the Home Owner to search a residents, if the owner is not the suspect. Otherwise, law enforcement would have to seek a search warrant or an actual arrest warrant.

So the question comes to par… Are certain Judges mis-using the power of a bench warrant to incarcerate individuals without Due Process?

In recent years South Carolina’s Judicial Process has come under question. From the individuals who elect judges to the orders issued by judges in many cases. We believe that the Judicial System is black or white in many aspects, but is it right or wrong? As Society has changed drastically from the time many of the laws were created in South Carolina one could ponder if the laws needed to change and if the practices governing those laws needed to change as well.

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