Stewart Buchanan v. SCDPPPS ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Stewart Buchanan, #69848, Appellant,
v.
South Carolina Department of Probation, Parole, and
Pardon Services, Respondent.
Appellate Case No. 2019-001554
Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge
Opinion No. 6021
Heard May 3, 2023 – Filed August 30, 2023
AFFIRMED
Hannah Lyon Freedman, of Justice 360, and John H.
Blume, III, of Law Office of John Blume, both of
Columbia, for Appellant.
Matthew C. Buchanan, of South Carolina Department of
Probation, Parole and Pardon Services, of Columbia, for
Respondent.
THOMAS, J.: Stewart Buchanan appeals the order of the Administrative Law
Court (ALC), which affirmed the denial of parole by the Parole Board of the South
Carolina Department of Probation, Parole and Pardon Services (the Board),
arguing (1) the Board's procedures violated his right to due process and (2) his
forty-seven years of incarceration for a crime he committed as a juvenile
constitutes cruel and unusual punishment. We are constrained to affirm.
FACTS
On May 18, 1973, Buchanan broke into the victim's home in the early morning
hours. The victim, Buchanan's neighbor, awoke and fled the house. Buchanan
stabbed her to death in the front yard. Buchanan, who was seventeen years old at
the time, was under the influence of a mix of drugs and alcohol and a lack of sleep.
In September of 1973, Buchanan pled guilty to murder and was sentenced to life
imprisonment. At the time, an individual sentenced to life in South Carolina was
eligible for parole upon the service of ten years. The trial court made a
confidential report from Buchanan's psychiatrist available to the jury, which
returned a verdict of guilty with a recommendation of mercy. 1
Buchanan first appeared before the Board on January 12, 1983, and was denied
parole. He has now appeared before the Board at least eighteen times and been
denied parole each time. Regarding the most recent denial in November 2018,
parole was denied due to: (1) the nature and seriousness of the offense; (2) an
indication of violence in this or a previous offense; and (3) the use of a deadly
weapon in this or a previous offense.
Prior to the most recent parole hearing, Buchanan submitted a Memorandum in
Support of Favorable Parole Recommendation. The memo reported Buchanan had
"more than demonstrated his rehabilitation and reformation through his positive
institutional record and participation in numerous counseling, rehabilitative[,] and
religious programs." The memo argued the Board should consider the factors
enumerated in Aiken v. Byars. 2
1
At the time of the hearing, the death penalty had been abolished, yet a jury still
determined whether to recommend mercy.
2
410 S.C. 534, 765 S.E.2d 572 (2014). The Aiken court held that a sentencing
court considering a sentence of life without parole (LWOP) for a juvenile offender
must consider:
(1) the chronological age of the offender and the
hallmark features of youth, including "immaturity,
impetuosity, and failure to appreciate the risks and
consequence";
(2) the "family and home environment" that surrounded
the offender;
As to the first factor, the hallmark features of youth, the memo explained
Buchanan was a juvenile at the time of the crime, with a juvenile's lack of maturity,
underdeveloped sense of responsibility, and incomplete neurological development.
The memo notes Buchanan's childhood was tumultuous with an unstable family
life, difficulties at school, and a peer group that was involved with drugs and
alcohol. His parents were absent most of the time, his older sister had just run
away from home, he spent time in a boys' home, and he "began engaging in
attention seeking behavior at home and at school . . . ."
Regarding the second factor, family and home environment, the memo reported
that Buchanan's father was "an alcoholic who drifted from job to job" and when he
was home, enforced corporal punishments, including backhanding, punching in the
face, and hitting with a belt. Buchanan's mother was "cold and aloof" and highly
critical of her children. In addition, she once allegedly attempted to run over one
of Buchanan's father's mistresses and threatened to leave her husband many times
"and did a few times for short periods of time." The family moved to Fort Mill, a
town of less than 3,000 at the time, when Buchanan was seven years old.
Buchanan did not fit in well in the small community. He was overweight,
weighing over 200 pounds by the time he was sixteen years old. He was teased at
school and became the class clown, often getting in trouble. After his older sister,
who acted somewhat as a surrogate mother to him, ran away, and Buchanan
returned from a short stay at a boys' home, he "turned to drinking and drugs."
(3) the circumstances of the homicide offense, including
the extent of the offender's participation in the conduct
and how familial and peer pressures may have affected
him;
(4) the "incompetencies associated with youth—for
example, [the offender's] inability to deal with police
officers or prosecutors (including on a plea agreement) or
[the offender's] incapacity to assist his own attorneys";
and
(5) the "possibility of rehabilitation."
Id. at 544, 765 S.E.2d at 577 (alterations in original) (quoting Miller v. Alabama,
567 U.S. 460, 477–78 (2012)). These factors are generally referred to as the Miller
factors. The parties here also refer to them as the Aiken factors.
The memo describes Buchanan's situation at the time of the offense when
considering the third factor from Miller, the circumstances of the offense. During
the summer of 1973, Buchanan began using methamphetamines and LSD, had
stopped attending his auto mechanics classes at York Technical College, was
working night shifts, and was not sleeping. The night of the offense, he took
several hits of LSD and drank excessively. His recollection of the night in
question was "a blur." Buchanan admitted to the police that he committed the
offense and told them "he did not have complete control of his actions that night."
However, "[t]hen and now[, he] takes full responsibility for his actions and the
consequences thereof."
In its discussion of the fourth factor, the incompetency of youth when dealing with
the criminal justice system, the memo notes that at the time he pled guilty,
Buchanan accepted the advice of his attorney, who "virtually guaranteed him that
he would be paroled in less than twenty years" because many persons convicted of
murder were granted parole after ten years of service, and it was rare not to be
granted parole after twenty years.
Finally, as to the fifth factor, the possibility of rehabilitation, the memo notes
Buchanan has spent the last forty-five years incarcerated and has taken advantage
of the opportunities available to him. While he was still seventeen years old, he
became part of Manning's Comprehensive Drug Abuse Program by visiting
schools and churches to dissuade other teenagers from using drugs. Within the
prison, he has been certified as a literacy tutor for more than forty years. He tutors,
teaches English at night school, and started his own course to teach inmates basic
legal research and writing. He has also worked as a volunteer Inmate Grievance
Clerk and a hospice volunteer, and is a member of the Character Based Unit (a
society of inmates focused on rehabilitation), which is demanding and requires a
good disciplinary history, ability to contribute, demonstrated interest in
rehabilitation, mental stability, and credibility. Buchanan volunteers as a chaplain
in the prison and, when on work release, he is actively involved with Trinity
Baptist Church and Kairos, a Christian ministry program.
In addition, Buchanan has been enrolled in the release plan, Jump Start. He was to
graduate on November 14, 2018, "at the Blue Level — the highest possible level of
completion." Jump Start is a Christian-based organization that focuses on
transitioning men back into the workforce and society after prison. As a parolee
and graduate of Jump Start, Buchanan would be provided transitional housing for
two years, be mentored, and receive assistance getting a job and eventually buying
a home. He completed extensive business and vocational courses, completed more
than 500 hours of carpentry training, and worked as a manager for Astro Glass
during a work release program. Buchanan submitted numerous certificates of
training, volunteerism, and education, and letters in support of his parole from
educators, potential and past employers, and prison employees.
Dr. Susan Knight, a forensic psychologist, examined Buchanan in preparation for
the parole hearing. She noted Buchanan had some disciplinary charges during his
incarceration; however, she concluded he did not represent a significant risk for
future violent acts. Dr. Knight interviewed numerous employers, prison
employees, a chaplain, and others, who positively described Buchanan as follows:
a model inmate; a hard worker; a "really good, really respectful guy"; of "good
character"; respected and well-liked by other inmates; helpful to other inmates;
smart; deeply involved in religion; "If he got out tomorrow, I would be happy to
know he bought a home on my street"; sincere, articulate, and honest; and
remorseful. Dr. Knight concluded Buchanan suffered from no psychological
disorders and found, "[H]is prison record indicates an exceptionally-responsible
worker, with very few physical altercations, and a positive demeanor and attitude.
Collateral and interview data indicate [he] expressed remorsefulness[] and [the]
ability for empathy."
Dr. Knight reviewed the criteria used by the Board and concluded that, as to the
nature and seriousness of the offense, Buchanan took full responsibility,
demonstrated remorse, and recognized with good insight the factors that facilitated
his substance abuse. As to his adjustment while in confinement, Dr. Knight
reiterated Buchanan's many accomplishments and honors. Regarding her
assessment of Buchanan's risk to the community, Dr. Knight found he was at low
risk for future violent recidivism, and she identified substance abuse treatment as
his primary risk management strategy. Finally, as to the Board's criterion of the
adequacy of an offender's parole plan, Buchanan has been approved for two years
of housing at Jump Start and has the opportunity of employment in a ministry and
involvement through Jump Start in woodworking, a furniture company, and other
construction.
Buchanan's attorney also submitted a letter to the Board, arguing that after Aiken, it
needed to consider Buchanan's "youth and its attendant circumstances and provide
a meaningful opportunity for release." The letter requested the Board (1) hire an
expert in adolescent brain development and consider the expert's written
evaluation; (2) schedule the parole hearing at a different time from hearings for
adult offenders and allow testimony from mental health professionals and other
witnesses; and (3) consider the factors of youth, including the incompetency of
youth regarding the legal system, immaturity, home and community environment
at the time of the offense, evidence of remorse, and efforts made toward
rehabilitation.
The Board responded to the letter, arguing Buchanan was not being denied any
constitutional rights. The Board noted, "Though [its] reasons for denial . . . will
never change, these reasons for denial are legal . . . ." The Board also stated, "As
long as it is revealed that the Board applied the mandatory criteria, the use of the
events of the offense as a reason for denial is lawful."
At the hearing before the Board, Buchanan was represented by his attorney and
accompanied by three pastors and Dave Johnson from Jump Start. Buchanan
explained the events of the offense and his subsequent involvement in a
comprehensive drug abuse therapy program, Narcotics Anonymous, and
Alcoholics Anonymous. Buchanan's attorney spoke on his behalf. Pastor Tammy
Blom also spoke on his behalf, concluding she envisioned Buchanan "moving into
Jump [S]tart after leaving prison." Pastor Frank Ledvinka also spoke, indicating he
believed in Buchanan, saw Buchanan's great love of God and others, and asked the
Board to give him a chance. The hearing indicates the Board had "71 signatures in
opposition." According to Buchanan, the Board deliberated for less than a minute
before verbally denying his request for parole. In a subsequent letter, the Board
stated it considered the following in denying parole:
(1) the characteristics of your current offense(s), prior
offense(s), prior supervision history, prison disciplinary
record, and/or prior criminal record . . . ;
(2) the factors published in Department Form 1212
(Criteria for Parole Consideration);
(3) the factors outlined in Section 24-21-640 of the
South Carolina Code of Laws[;] and
(4) actuarial risk and needs assessment factors
pursuant to Section 24-21-10(F)(1) of the South Carolina
Code of Laws.
Buchanan appealed to the ALC.
In its order affirming the Board, the ALC noted its review was confined to a
determination of whether the Board's denial of parole afforded Buchanan due
process and was consistent with Cooper v. South Carolina Department of
Probation, Parole & Pardon Services. 3 The ALC rejected Buchanan's argument
that recent case law had created a new substantive constitutional right to a
"meaningful" parole review for inmates who were sentenced as juveniles, which
required the Board to expressly consider an inmate's youth in determining parole.
In addition, the ALC found it did not have the authority to "establish a new
substantive constitutional right." The ALC denied Buchanan's request that it order
the Board to grant parole. This appeal followed.
STANDARD OF REVIEW
Section 1-23-610(B) of the South Carolina Code (Supp. 2022) sets forth the
standard of review when the court of appeals is sitting in review of a decision by
the ALC on an appeal from an administrative agency. The court of appeals may
reverse or modify the decision only if substantive rights of the appellant have been
prejudiced because the decision is clearly erroneous in light of the reliable and
substantial evidence on the whole record, arbitrary or otherwise characterized by
an abuse of discretion, or affected by other error of law. Id.LAW/ANALYSIS
A. Due Process
Buchanan argues the "legal sea change" applicable to juvenile sentencing during
the past decade or so requires the Board to adopt procedures that will allow
juvenile offenders to have their youth and immaturity considered in parole
decisions. See Roper v. Simmons, 543 U.S. 551, 578 (2005) ("The Eighth and
Fourteenth Amendments forbid imposition of the death penalty on offenders who
were under the age of 18 when their crimes were committed."); Miller, 567 U.S. at
489 (finding juveniles convicted of homicide could not be subjected to mandatory
LWOP sentences, "regardless of their age and age-related characteristics and the
nature of their crimes" because to do so would "violate [the] principle of
proportionality, and so the Eighth Amendment's ban on cruel and unusual
punishment"); Graham v. Florida, 560 U.S. 48, 74 (2010) (holding "that for a
juvenile offender who did not commit homicide[,] the Eighth Amendment forbids
the sentence of life without parole"); Montgomery v. Louisiana, 577 U.S. 190,
212–13 (2016) (giving Miller retroactive effect and stating, "In light of what this
Court has said in Roper, Graham, and Miller about how children are
3
377 S.C. 489, 500, 661 S.E.2d 106, 112 (2008), abrogated on other grounds by
Allen v. S.C. Dep't of Corr., 439 S.C. 164, 886 S.E.2d 671 (2023).
constitutionally different from adults in their level of culpability, however,
prisoners like Montgomery must be given the opportunity to show their crime did
not reflect irreparable corruption; and, if it did not, their hope for some years of life
outside prison walls must be restored.").
South Carolina recognized these principles in Aiken as to sentencing, holding the
sentences of "fifteen inmates who were sentenced to life without parole as
juveniles" violated the Eighth Amendment under Miller. 410 S.C. at 536–37, 765
S.E.2d at 573. Our supreme court acknowledged the "affirmative requirement that
courts fully explore the impact of the defendant's juvenility on the sentence
rendered." Id. at 543, 765 S.E.2d at 577. Aiken held that a sentencing court
considering an LWOP sentence for a juvenile offender must consider the Miller
factors. Id. at 544, 765 S.E.2d at 577.
Buchanan argues the Board's current parole review process violates his due process
rights by not also requiring the Board to consider these factors in reviewing his
parole applications. Buchanan notes that fifteen of his eighteen parole denials cite,
virtually verbatim, the same three reasons for denial:
(1) the nature and seriousness of the current offense;
(2) an indication of violence in this or a previous offense;
and
(3) the use of a deadly weapon in this or a previous offense.
According to Buchanan, the Board's process is insufficient because it does not
require the Board to consider his youth and rehabilitation. Buchanan argues many
jurisdictions have judicially or legislatively required parole boards to specifically
consider the "hallmark features of youth" in considering parole of juvenile
offenders.
The Board argues the change in the law as it relates to juvenile sentencing has not
been extended beyond sentencing in South Carolina, maintaining Miller and Aiken
require the factors of youth be considered only by the sentencing court, not the
Board. Id. at 544, 765 S.E.2d at 577 (explaining that Miller mandates
consideration of the factors of youth by "the sentencing authority"). In addition,
the Board maintains that because Buchanan's sentence provides for parole
eligibility, Miller and Aiken do not apply. See Montgomery, 577 U.S. at 212 ("A
State may remedy a Miller violation by permitting juvenile homicide offenders to
be considered for parole, rather than by resentencing them.").
The statutory factors that must be considered by the Board are as follows:
The board must carefully consider the record of the
prisoner before, during, and after imprisonment, and no
such prisoner may be paroled until it appears to the
satisfaction of the board: that the prisoner has shown a
disposition to reform; that in the future he will probably
obey the law and lead a correct life; that by his conduct
he has merited a lessening of the rigors of his
imprisonment; that the interest of society will not be
impaired thereby; and that suitable employment has been
secured for him.
S.C. Code Ann. § 24-21-640 (Supp. 2022). In addition, the Board must consider
the factors enumerated in its parole form. 4
4
The current list of the factors on Form 1212 are as follows:
1. The risk the inmate poses to the community;
2. The nature and seriousness of the inmate's offense, the circumstances
surrounding the offense, and the inmate's attitude toward it;
3. The inmate's prior criminal records and his/her adjustment under any
previous programs or supervision;
4. The inmate's attitude toward his/her family, the victim, and authority in
general;
5. The inmate's adjustment while in confinement, including his/her progress in
counseling, therapy, and other similar programs designed to encourage the
inmate to improve himself/herself;
6. The inmate's employment history, including his/her job training and skills
and his/her stability in the work place;
7. The inmate's physical, mental and emotional health;
8. The inmate's understanding of the cause of his/her past criminal conduct;
9. The inmate's efforts to solve his/her problems such as seeking treatment for
substance abuse, enrolling in academic and vocational education courses, and in
general using whatever resources the Department of [C]orrections has made
available to inmates to help with their problems;
10. The adequacy of the inmate's overall parole plan. This includes [an]
inmate[']s living arrangements, where he/she will live and who he[/she] will live
with; the character of those with whom the inmate plans to associate in both
In Cooper, our supreme court explained the Board's procedure is proper "if [the
Board] clearly states in its order denying parole that it considered the factors
outlined in section 24-21-640 and the . . . factors published in its parole form." 377
S.C. at 500, 661 S.E.2d at 112; see also Compton v. S.C. Dep't of Prob., Parole &
Pardon Servs., 385 S.C. 476, 479, 685 S.E.2d 175, 177 (2009) (relying on the
holding in Cooper to affirm a denial of parole because the parole board "clearly
stated in its [order] that it considered the [section 24-21-60] criteria and the criteria
set forth in Form 1212").
As found by the ALC, the Board's denial of parole met the requirements of Cooper
and the ALC had authority to review the decision. 5 Based on what Cooper says
his/her working hours and his/her off-work hours; the inmate's plans for gainful
employment;
11. The willingness of the Community into which the inmate will be released to
receive the inmate;
12. The willingness of the inmate's family to allow his/her to return to the family
circle;
13. The attitudes of the sentencing judge, the solicitor, and local law
enforcement officers respecting the inmate's parole;
14. The feelings of the victim's family, and any witnesses to the crime about the
release of the inmate[;]
15. The actuarial risk and needs assessment outlined in section 24-21-10 (F)(1)
of the S.C. Code of [L]aws; which evaluates based on Criminal Involvement,
Relationships/Lifestyle, Personality/Attitudes, Family, Social Exclusion and
Mental Health[; and]
16. Other factors considered relevant in a particular case by the Board.
South Carolina Department of Probation, Parole and Pardon Services, Criteria for
Parole Consideration, https://www.dppps.sc.gov/content/download/200476/
4681336/file/Criteria+for+Parole+Consideration.pdf
5
Following the South Carolina Supreme Court's decision in Cooper, the General
Assembly amended section 1-23-600(D) of the South Carolina Code to provide
that "[a]n administrative law judge shall not hear an appeal from an inmate in the
custody of the Department of Corrections involving the loss of the opportunity to
earn sentence-related credits . . . or an appeal involving the denial of parole to a
potentially eligible inmate by the Department of Probation, Parole and Pardon
Services." 2008 S.C. Acts No. 334, § 7 (effective June 16, 2008). The ALC and
our supreme court have continued to review these appeals where they implicate an
alleged deprivation of due process. See Rose v. S.C. Dep't of Prob., Parole &
Pardon Servs., 429 S.C. 136, 144, 838 S.E.2d 505, 510 (2020) (reviewing a claim
about a routine denial of parole, this is a routine denial and the ALC correctly
affirmed the Board. We recognize there is tension between the principle that
inmates are entitled to a meaningful parole review and what appears to be serial
denials of parole based solely on factors that do not change and that have no
relation to an inmate's rehabilitation. Even so, we read the authorities to instruct
that the court system's role does not include looking behind the Board's statement
that it has considered all of the factors and made its decision. As noted by the
Board, despite Buchanan's claim that "the Board has denied his request for parole
based on the facts and circumstances of the offense[,] which [are] fixed in the past
and cannot be changed[,]" Buchanan has not been permanently denied parole and
"[j]ust because [he] hasn't received parole yet doesn't mean he never will." See
Furtick, 352 S.C. at 598, 576 S.E.2d at 149 (stating "the permanent denial of
parole eligibility implicates a liberty interest sufficient to require at least minimal
due process") (emphasis in original); S.C. Code Ann. § 24-21-645(D) (Supp. 2022)
("[U]pon a negative determination of parole, prisoners in confinement for a violent
crime . . . must have their cases reviewed every two years for the purpose of a
determination of parole . . . ."); S.C. Code Ann. § 16-1-60 (Supp. 2022) ("For
purposes of definition under South Carolina law, a violent crime includes the
offense[] of[] murder . . . .").
The Board asserts as long as its notice of rejection states it followed the statutory
and Form 1212 criteria, its order of denial is valid. Based on the law currently
that Rose had been granted parole in 2001 but remained incarcerated in 2020);
Barton v. S.C. Dep't of Prob., Parole & Pardon Servs., 404 S.C. 395, 419, 745
S.E.2d 110, 123 (2013) (reviewing a parole denial for an alleged ex post facto
violation); see generally Furtick v. S.C. Dep't of Prob., Parole & Pardon Servs.,
352 S.C. 594, 598, 576 S.E.2d 146, 149 (2003) (reviewing an appeal from the
Board's decision finding Furtick ineligible for parole because an inmate has a
liberty interest in gaining access to the Board and a permanent denial of eligibility
implicates a liberty interest requiring due process); Al-Shabazz v. State, 338 S.C.
354, 376–77, 527 S.E.2d 742, 754 (2000) (finding the ALC has the authority to
review non-collateral and administrative agency decisions); cf. Allen v. S.C. Dep't
of Corr., 439 S.C. 164, 171, 886 S.E.2d 671, 674 (2023) (explaining "[an inmate's
grievance] claim that implicates a state-created liberty or property interest is not
required for the ALC to have subject matter jurisdiction over the appeal. However,
the ALC is not required to hold a hearing in every matter and may summarily
dismiss an inmate's grievance if it does not implicate a state-created liberty or
property interest sufficient to trigger procedural due process guarantees").
existing in South Carolina, we must agree. However, we are concerned regarding
the perfunctory manner in which Buchanan's request for parole was denied.
Although Buchanan and other juveniles similarly situated are technically eligible
for parole, the continuing denial of parole based on the same factors, all
unchangeable and related to their offenses, gives no guidance to these inmates
about what can be done to improve their chances of parole and is, in essence,
equivalent to being ineligible for parole. Under the current system, it appears no
passage of time served (here, forty-seven years) or showing of rehabilitation (here,
eighteen parole reviews now indicating Buchanan "has more than demonstrated his
rehabilitation") can change his fate before this Board. The public policy behind
Roper, Graham, and Miller, to restore hope to juvenile offenders for some life
outside of prison, is thwarted by the Board's continued reliance on factors existing
at the time of the conviction with little or no apparent consideration of subsequent
rehabilitation efforts. The prospect of parole, including meaningful parole
hearings, incentivizes good conduct while imprisoned and encourages participation
in rehabilitative programs, which reduces recidivism rates. See Amanda Dick, The
Immature State of Our Union: Lack of Legal Entitlement to Prison Programming
in the United States as Compared to European Countries, 35 Ariz. J. Int'l &
Compar. L. 287, 291 (2018). Additionally, parole reduces prison populations by
releasing rehabilitated inmates, lessening the fiscal burden of incarceration by
eliminating spending on the detention of individuals who no longer pose a threat to
society.
In this case, Buchanan argues he confessed, he accepted the advice of his attorney
to plead guilty, "his attorney virtually guaranteed him that he would be paroled in
less than twenty years[,]" and the jury recommended mercy. He has been
imprisoned for fifty years for a crime he committed at age seventeen. And there
appears to be no dispute—none—that he has been an exemplary inmate and
demonstrated remorse, rehabilitation, and a low risk for recidivism.
We reluctantly affirm the ALC's finding that the Board followed the proper
procedure when it denied Buchanan parole because the Board's order of denial
stated the Board had considered "the factors outlined in [s]ection 24-21-640" and
"the factors published in Department Form 1212." See Risher v. S.C. Dep't of
Health & Env't Control, 393 S.C. 198, 204, 712 S.E.2d 428, 431 (2011) ("A
decision of the ALC should be upheld . . . if it is supported by substantial evidence
in the record."); Cooper, 377 S.C. at 500, 661 S.E.2d at 112 (providing the
procedure for denying parole is proper "if [the parole board] clearly states in its
order denying parole that it considered the factors outlined in section 24-21-640
and the fifteen factors published in [Form 1212]"); Compton, 385 S.C. at 479, 685
S.E.2d at 177 (affirming a denial of parole because the parole board's order
complied with the Cooper requirements). Although the Board has complied with
the minimal requirements necessary for this to satisfy the standard our supreme
court articulated in Cooper, we are sympathetic to Buchanan's argument that it
appears inmates who offended while juveniles are not given meaningful review
regarding parole. Our role is one that is limited to operating within the framework
set by statutory law and by our supreme court's precedents. It may well be good
policy for the Legislature to review and/or revise the parole system to assure the
factors of youth are a part of considering parole in these cases rather than
permitting the seemingly perfunctory review now standardly given, but that is the
Legislature's decision, not ours.
B. Cruel and Unusual Punishment
Buchanan argues the Board's multiple denials of parole over so many years
violates the cruel and unusual punishment prohibitions in the United States and
South Carolina Constitutions. We disagree.
The United States Constitution provides, "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.
Const. amend. XIII. The South Carolina Constitution provides, "Excessive bail
shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor
corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably
detained." S.C. Const. art. I, § 15. Under either Constitution, we find no violation.
"[P]arole is a privilege, not a matter of right . . . . Parole is a creature of statute and
is exclusively in the province of the legislative branch of government. The
General Assembly empowers the Department to administer the parole program."
Major v. S.C. Dep't of Prob., Parole & Pardon Servs., 384 S.C. 457, 465, 682
S.E.2d 795, 799 (2009). "[T]he permanent denial of parole eligibility implicates a
liberty interest sufficient to require at least minimal due process." Furtick, 352
S.C. at 598, 576 S.E.2d at 149.
A State is not required to guarantee eventual freedom to a
juvenile offender . . . . What the State must do, however,
is give defendants . . . some meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in the first instance, to
explore the means and mechanisms for compliance. It
bears emphasis, however, that while the Eighth
Amendment prohibits a State from imposing a life
without parole sentence on a juvenile non[-]homicide
offender, it does not require the State to release that
offender during his natural life.
Graham, 560 U.S. at 75. We agree with the ALC that neither the United States
Supreme Court nor our supreme court requires specific parole criteria to be
considered in determining whether to grant parole, and the Board's denial of parole
did not constitute cruel and/or unusual punishment under either Constitution.
CONCLUSION
Based on the foregoing, the order of the ALC is
AFFIRMED.
MCDONALD and HEWITT, JJ., concur.