In addition to the embezzlement charge from April, Florence County Sheriff Kenney Boone now faces three counts of misusing campaign funds. But that’s not his biggest worry: Monday’s indictment included a second count of common-law misconduct in office, a sweeping criminal charge that carries a sentence of up to 10 years in prison.
It’s a charge that has come into vogue in recent years, as prosecutors used it against officials from state legislators and small-town council members to correctional officers and, yes, sheriffs. Most notably, because of that lengthy sentence, it was the charge that triggered then-House Speaker Bobby Harrell’s automatic suspension from office, which allowed Rep. Jay Lucas to become speaker.
The Post and Courier’s Gregory Yee reported Sunday that only 52 percent of the 760 misconduct charges brought since 2000 have ended in convictions.
But the problem isn’t the conviction rate. As former prosecutors told Mr. Yee, common-law misconduct is often thrown into the mix to persuade people to plead guilty to the lesser, more specific charges, such as violating ethics laws.
The problem is that it’s breathtakingly sweeping in nature, criminalizing actions by public officials that are not themselves against the law. And the bigger problem is that the Legislature never voted to make it a crime. It was declared a crime by the S.C. Supreme Court.
This isn’t the sort of thing that critics usually have in mind when they complain of judicial activism. But that’s not a bad name for judges writing an opinion that says, essentially: This is now a crime in South Carolina, and these are the elements of that crime.
That’s what the court did in 1983, in an appeal from the bizarre case of former Columbia Police Chief Arthur Hess.
After acknowledging that Mr. Hess was the first S.C. official charged with common-law misconduct in office, which dates to medieval England, the unanimous court said it was drawing on a string of New Jersey Supreme Court decisions to write the law.
Common-law misconduct in office occurs, the court wrote, “when duties imposed by law have not been properly and faithfully discharged.” The court also approved the instructions the trial judge had given the jury in the Hess case: “Misconduct includes any act, any omission, in breach of duty of public concern by persons in public office provided it is done willfully and dishonestly.”
The court defined three kinds of misconduct: malfeasance, which means acting illegally; misfeasance, which means acting legally but corruptly (it can mean simply defiling the office); and nonfeasance, which means not carrying out a required duty of the office.
Read that again, and note how sweeping it is: If prosecutors prove they were acting willfully and dishonestly, public officials can be sent to prison for 10 years for taking entirely legal actions that defile their office, or for failing to do their jobs.
Now, we think it makes a lot of sense to remove officials from office for such reasons. And maybe the case can be made that such people ought to be imprisoned. Even for 10 years. But that case needs to be made.
The job of the courts is to apply the law in specific cases and decide whether the law complies with the state and federal constitutions. It’s the job of the Legislature to make the judgment calls about what should and should not be a crime in our state. The Legislature needs to do that in this case, deciding whether all of the court-written elements of common-law misconduct should apply, and whether the sentence is appropriate. Once it does that, it should prohibit prosecutors from using the court-written version of the law.
Not because we are convinced that the court erred in the way it wrote the law, but because that’s the job of the Legislature.