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10. SENTENCING GUIDELINES

This past legislative session, in response to the desires of both the public and of the judiciary to have some certainty in sentencing, the General Assembly passed a comprehensive Crime Act (Act 83, H. 3096) which encompasses a Truth in Sentencing provision. Because of the concern that judges would not adjust their sentencing practices to conform with Truth in Sentencing, the Act is structured so that Truth in Sentencing applies only to all persons convicted of offenses which carry a maximum penalty of 20 years or more. Under the Act, these individuals must serve at least 85 percent of the sentence before they are eligible for early release.

The goal of this Act was not to drastically increase the amount of time that offenders must serve, but to provide a sentence that is more truthful and reflective of the actual amount of time that will be spent in prison. Although legislators decided to apply Truth in Sentencing only to the more serious and violent crimes, there was general agreement that upon the implementation of Sentencing Guidelines, Truth in Sentencing would be expanded so as to encompass the remaining spectrum of crimes.

The necessity and importance of Sentencing Guidelines is evident. Sentencing Guidelines, coupled with Truth in Sentencing, will decrease disparity and increase fairness in sentencing uniformly across the State. Structured sentencing can maintain the proper balance between the seriousness of the crime, the prior criminal record, and punishment. Most agree that the most violent or dangerous offenders who pose a threat to the safety of society should be incarcerated. However, currently, offenders with sentences of three years or less make up about 33 percent of the prison population. The average length of stay of these prisoners is approximately 6 months. With the decreasing number of and the increasing costs of prison beds, a continuum of non-incarceration sanctions must be studied and applied to this ever-increasing percentage of the prison population.

A Sentencing Guidelines system can help ensure the best allocation of Corrections' resources while effectively punishing offenders of all types with sanctions specifically tailored the circumstances surrounding the crime that has been committed. The Sentencing Guidelines Commission, with the help of grant funds received from the Edna McConnell Clark Foundation, has set December of 1995 for the deadline for the completion and submission of Sentencing Guidelines Legislation. The Commission has set forth the following goals: (1) The development of a sentencing grid which balances most of the judges' current sentencing practices with the requirement of Truth in Sentencing to reduce sentencing disparity and provide certainty in sentencing; (2) The development of a grid which maintains the proper proportionality between punishment, crime seriousness, and prior criminal record; (3) The development of a grid which covers most of the crimes judges deal with in any given year; (4) The development of a grid which will encourage the use of incarceration for offenders convicted of violent offenses and other serious offenders with long criminal records; and community alternative programs for those offenders who commit minor offenses and have short or no criminal records; (5) The development of a grid which will not contribute substantially to additional prison overcrowding; and (6) The development of a grid which is perceived as fair and reasonable to judges, legislators, solicitors, defense counsel, and members of the general public.

11. DIVISION OF MOTOR VEHICLES (TIED IN RANKINGS WITH EDUCATION (K- 12) REFORM

Legislation may be introduced next year addressing two aspects of the Division of Motor Vehicles, as follows:

(1) Finding a "Home" for the Division

Prior to 1993's Restructuring Act, the Division of Motor Vehicles was a division of the Highway Department (DOT). However, after passage of that act, control of DMV had been shared until recently by the Department of Public Safety and the Department of Revenue. Last month Governor David Beasley signed an executive order effective January 1, 1996 which places the Division of Motor Vehicles under the Department of Public Safety.

(2) Making the Department a "Consumer Friendly" Agency

A number of things could be done by the General Assembly to assist DMV in serving the public in the most efficient manner possible. Most proposals are intended to shorten or eliminate long lines at the department and prevent individuals from being forced to appear at DMV offices during inconvenient work hours.

[a] ATM Machines: Encourage the Division to develop a system of ATM machines that would enable citizens to pay their vehicle property taxes and license revalidation sticker fee by credit card 24 hours a day. The ATM machine could then issue the revalidation sticker or simply issue a paid receipt acknowledging that a sticker would be mailed promptly. In Texas, ATM machines are set up to provide individuals seeking employment with information about job openings in both the private and public sectors.

[b] Renewal of Drivers' Licenses by Mail: The Division of Motor Vehicles favors the renewal of drivers' licenses by mail. Under this system, the driver would simply send in the $12 replacement fee and the Division would use their existing picture and issue another license. This procedure would shorten lines by reducing the number of individuals visiting the DMV offices by 800,000 per year.

[c] Allow Passage of a Certified Drivers Education Course to Automatically Enable Beginners to Receive a License: The State regulates these courses, and insurance companies give a 10 percent discount to beginners who successfully pass a drivers' education course. This program would encourage beginners to enroll in drivers' education courses and receive proper training.

EDUCATION REFORM (TIED IN RANKINGS WITH DIVISION OF MOTOR VEHICLES

In recent addresses to several groups, the State Superintendent of Education, Dr. Barbara Nielsen, has referenced the State Department of Education's plan to develop an education proposal with intentions that the plan be introduced as legislation during the 1996 session. While specific details of the plan have not been communicated, six major topics have been highlighted.

The proposal will define governance and the roles of school boards, superintendents, and the State Department of Education. Academic learning standards will stress achievement at least at the basic level in all assessed subjects. The Department of Education will rollback many regulations and will pass only new regulations that support academic learning standards; provide for the health, safety and civil rights of students and staff; address facilities; and licensing of personnel.

Accreditation will be replaced with 24 quality standards that support an effective education system. Achievement will be requied at least at the basic level. School districts will be held accountable for both academic achievement and fiscal responsibility. If after three years student performance is not at least at the basic level in achievement, the district leadership will be removed.

Education will be funded first rather than administration. Adequate student base cost will be provided in block grants. Reporting will be required in the following categories: instruction, instructional support, operations, other commitments, leadership, and continuous improvement ("The Penny"). One suggestion to improve education is to provide infrastructure making telecommunications and other technologies equitably accessible to all schools. This allows all schools to offer a wider curriculum through distance learning while keeping costs affordable.

13. TUITION ASSISTANCE

During the 1995 session, the General Assembly approved the extension of the license for the Barnwell Low Level Nuclear Waste Facility and raised fees. These fees are being placed into a separate fund for public school facility assistance and for Higher Education scholarship grants. A Part II, permanent provision proposed in the Appropriations Act defined how to use these funds, but was not adopted. It outlined the method for providing these scholarships.

The proposed eligibility criteria for the scholarships included graduation from a high school, residency of 24 months, a "B" average in high school or 900 on the SAT, and no felony record. In addition, to maintain eligibility, students were to be required to rank in the upper 50 percent of their class. Requirements were also proposed for Technical College applicants. The Commission on Higher Education was charged with the responsibility to promulgate regulations, and adjustments to the scholarships were to be made for grants received by the applicants from any other sources. The proposal also included some funding for grants for students attending private colleges.

The Conference Committee decided not to adopt this provision in order to allow members more time to study this proposal. Members want to determine how best to design the program so that it serves as an incentive for better student performance in school, while reaching as many well deserving students as possible.

In August 1995, Mr. Fred Sheheen, commissioner of the South Carolina Commission on Higher Education, sent a letter to the Senate Education Committee outlining the positions that the Commission on Higher Education has taken on financial assistance for college students. In the letter Mr. Sheheen states that the Commission has adopted four principles in this matter: (1) a state funded need-based grants program should be established; (2) it should be campus administered; (3) it should include students attending private (independent) institutions; and (4) the Commission should be responsible for oversight of the program.

Mr. Sheheen also points out three major differences between the draft legislation and the proposed State "need-based" grants program endorsed by the Commission. These areas are academic requirements for eligibility, financial criteria, and the level of participation of the independent colleges and universities.

14. HEALTH CARE/INSURANCE

At the present rate, more than 40 million people will be uninsured, and health care is likely to consume between 15 percent to 20 percent of the gross domestic product by the year 2000. Data from numerous sources show that health-care spending varies greatly from state to state.

For the United States as a whole, spending on hospital and physician services and for prescription drugs totaled $1,877 per person in 1991, according to the federal government. These items account for 70 percent of spending on personal health care. Other items that may increase health care spending are the cost of nursing home care, home health care, dental care, mental health care and medical equipment.

The State of South Carolina receives over $3 billion in federal funds each year. These funds are directed towards a wide variety of programs including health care, education, and economic development. They are allocated to the states in the form of entitlements, categorical funding and block grants. One of the largest federally-funded programs administered by the state is Medicaid, which totals about $2 billion.

Presently, Congress is considering major changes in the method of providing these funds to the states. The federal fiscal year began on October 1, and Congress is working on changing this program with the expressed purpose of reducing expenditures to control the federal deficit. What this will probably mean for South Carolina is that state officials will be more "in charge" of allocating these funds among the various recipients during a period of time that Federal funding will not grow as much as it has in the past. This will put increasing pressure on the health services as federal funds begin to tighten, yet the demand for services will increase as the elderly population continues to grow.

As is the case for other states, South Carolina has a big stake in the outcome of the health-care debate. In the long run, the responsibility for implementing health-care reform will fall to the states. There is a need for the State to begin preparing for this significant change in federal funding policies, especially for Medicaid.

There has been little debate on the state level regarding health insurance, when compared to the discussions of automobile insurance reform proposals and of workers' compensation insurance measures. Why? Last year, South Carolina again led the nation in reforming the "Small Employer Health Insurance" market by enacting the Small Employer Health Insurance Availability Act, which mandates and guarantees insurance coverage for small groups. While national health care reform continues to be an issue in the nation's capital, concerns about rising health insurance costs and the increasing number of uninsured and underinsured South Carolinians will likely receive attention on the state level once again in 1996.

The primary concern over the health insurance debate focuses on the issue of mandating benefits and its effect on the business community, as well as its cost. There are several bills pending in the General Assembly which mandate benefits for all policies even if the covered person does not want them. Another issue of concern is "any willing provider legislation". Although such legislation is seen by some as an enrollee's right, others view it an a "doctor's protection act" for those doctors who do not want to participate as a provider in different plans at a competitive or lower rate.

Opponents of "any willing provider" argue that, one, it deviates from the basic premise of some managed care plans, whereby the enrollee chooses from a list of providers (who have agreed to provide a service at a lower rate) and second, businesses save money by utilizing managed care plans. As you know, 75 percent to 80 percent of employers pay some portion of their employees health care coverage. In fact, when they do, it is usually more than 50 percent of the cost. The 20 percent to 25 percent of those employers that do not are small businesses which would like to but cannot do so financially. And, finally, opponents argue that it naturally precipitates other actions. Several states that have enacted "any willing provider" legislation have seen movement by trial lawyers to use it a vehicle to obtain "employee's choice of physician" in workers' compensation cases (which increases the cost that the business must pay).

In addition to the introduction of "any willing provider" legislation next session, other proposals anticipated to be before the General Assembly include: unitary pricing legislation and establishing prices for prescription drugs ("price fixing") so as to keep smaller pharmacies and independent pharmacists in the market.

15. WORKERS' COMPENSATION (TIED IN RANKINGS WITH HIGHWAY FUNDING/PROPERTY RIGHTS

After considerable debate, the House passed four Labor, Commerce and Industry Committee bills by adopting several workers' compensation reforms designed to reduce costs.

• H.3835 WORKERS' COMPENSATION: Administrative Changes
• H.3836 WORKERS' COMPENSATION: Work Related Stress Claims Defined
• H.3837 WORKERS' COMPENSATION: Start/Stop Payment Procedure
• H.3838 WORKERS' COMPENSATION: Back Injury 50% or more loss -- Rebuttable Presumption of Total Disability

These four legislative measures are pending in the Senate Judiciary Committee in a subcommittee chaired by Senator Ed Saleeby. The focus of the House regarding these bills will be to work with the Senate for their passage.

Another workers' compensation proposal for debate when the General Assembly returns to Columbia in January is a legislative measure which has been adopted in other states (H.4267, Rep. Cato). It requires a workers' compensation insurance carrier to offer, as a part of the policy or as an optional endorsement to the policy, deductibles optional to the employer (policyholder) for workers' compensation benefits beginning July 1, 1996. Deductible amounts offered must be disclosed fully to the prospective policyholder in writing and can be in the amount of $100, $200, $300, $400, $500, or increments of $500 up to a maximum of $2,500 for each compensable claim. Its purpose is to provide the option to the employer to pay for small claims in exchange for a lower workers' compensation insurance premium. The employer would choose or decide which deductible amount would be affordable as an "out of pocket expense".

Several states in the nation have instituted practices of lowering the medical expense component of workers' compensation claims by requiring the use of managed care programs. As lower workers' compensation premiums are sought in South Carolina, this alternative may be discussed in 1996 for South Carolina.

HIGHWAY FUNDING (TIED IN RANKINGS WITH WORKERS' COMPENSATION/PROPERTY RIGHTS)

South Carolina is in critical need of highway construction and maintenance funding. There are a number of possible alternative mechanisms to increase highway funding which could be considered during the 1996 legislative session, as follows:

(1) UNDERAGE DUI: The federal government is requiring states to pass legislation lowering the blood alcohol content level for underage drivers. If individuals under twenty-one years old who are driving a motor vehicle are found to have a blood alcohol content of 0.02 per cent or greater, they shall be deemed to be driving while intoxicated or driving under the influence of alcohol. Should legislators opt not to adopt this legislation, the South Carolina State Highway Fund could lose more than $6.9 million dollars in federal funds beginning October 1, 1998, and an additional ten per cent of federal highway dollars every year thereafter that the legislation remains unpassed.

(2) DELETE PROVISIONS REQUIRING ONE PENNY OF THE STATE GASOLINE TAX TO BE ALLOCATED TO THE GENERAL FUND: Under South Carolina Code Section 12-27-380, 9.34 cents of every gallon of gasoline sold in South Carolina must be credited to the State Highway Fund. However, the section also requires that 1 cent per gallon be deposited in the General Fund. This one cent per gallon requirement resulted in approximately $20 million for the General Fund in Fiscal Year 1994-1995 (according to an estimate of the Board of Economic Advisors. A bill introduced during the 1995 session by Representative Keegan (H. 3555) would delete this "1 cent" requirement'; this legislation currently is pending in the House Ways and Means Committee.

(3) DIVERT A PORTION OF EXCESS SUPPLEMENTAL APPROPRIATIONS ($87 MILLION) TO THE STATE HIGHWAY FUND: Because the figure used to determine anticipated state revenue was so conservative, it is anticipated that approximately $87 million will be available in excess supplemental appropriations.

(4) RESTRICT USE OF C FUNDS ($51.5 MILLION FOR FISCAL YEAR 1994-1995) TO PROJECTS NOW BEING FINANCED BY THE STATE HIGHWAY FUND: For example, all or a greater portion of the C Funds could be designated only for the maintenance of secondary roads. Maintenance of roads constructed with C Fund money is an annual drain on the Highway Fund of $100 million.

(5) INCREASE THE PERCENTAGE OF THE MOTOR CARRIER BIENNIAL REGISTRATION CARD FEE GOING TO THE STATE HIGHWAY FUND: Amend South Carolina Code Section 12-31- 250 to provide that the full Motor Carrier Biennial Registration Card Fee of $8 be allocated to the State Highway Fund. Currently, 30 percent goes to the Highway Fund and 70 percent goes to the General Fund. If all proceeds from this fee were deposited in the State Highway Fund, then an additional $4.2 million would be generated.

(6) INCREASE THE PERCENTAGE OF MOTOR CARRIER TEMPORARY PERMIT FEE GOING TO THE STATE HIGHWAY FUND: Amend Section 12-31-220 of the Code to require that the full motor carrier temporary permit fee of $15 go to the State Highway Fund. Currently, 80 percent is allocated to the Highway Fund and 20 percent is allocated to the General Fund. This additional 20 percent going to the Highway Fund would generate an additional $175,000 for the State Highway Fund.

(7) HAVE THE HIGHWAY DEPARTMENT RETURN TO SELF-INSURER STATUS FOR PURPOSES OF HANDLING ITS OWN WORKERS COMPENSATION CLAIMS . Prior to restructuring, when the Highway Department had more than twice its present employees, the cost of running the self-insurance program was $4 million. Last year alone, with fewer than half the employees and without the Highway Patrol (a seemingly high risk group), the total cost was $10 million.

PROPERTY RIGHTS (TIED IN RANKINGS WITH WORKERS' COMPENSATION/HIGHWAY FUNDING)

A bill introduced this past session, H. 3790, would add a chapter to the Code entitled "The South Carolina Property Rights Act" at Section 28-4-10 et seq. The Code sections are annotated with explanations and reasoning for the pertinent sections in much the same fashion as the Uniform Commercial Code is annotated. These comments provide the legislative intent for the bill by citing the relevant United States Supreme Court cases such as the Lucas v. SC Coastal Council and Dolan v. City of Tigard, Oregon cases, the Executive Orders such as President Reagan's Executive Order #12630 and legal reasoning used to explain the bill's provisions.

H. 3790 accomplishes two goals which protect the private property owner's right to the value of his property. First, the bill acknowledges that land use regulation may constitute a constitutional taking which is compensable to the landowner. The landowner whose property value is diminished by regulation would follow the condemnation process of the Eminent Domain Procedures Act for compensation. Second, the bill requires state and local agencies to affirmatively and prospectively assess the impact of proposed regulations on the use and value of private property and report that to the Governor, Attorney General and the appropriate financial authorities. If, in fact, it appears likely the proposed regulation will result in a constitutional 'taking', then the government agency must condemn the property and pay compensation to the affected landowners. The private property rights movement is active in other states as well as in the federal government. Sixteen states have passed legislation, known as 'planning bills' which require state agencies or the state's Attorney General to assess the takings implications of their regulations before they are adopted. Another aspect of this movement is legislation which defines a regulatory taking by a specified percentage of diminished property level. Washington and North Dakota have set a 50 percent diminution in value threshold to be the level at which a taking takes place and at which level compensation must be paid. The Texas statute sets the level at 25 percent. In Louisiana and Mississippi, the compensation only pertains to 'takings' of timber or agricultural land.

H. 3790 is currently in the Constitutional Laws Subcommittee of the House Judiciary Committee.

18. ENVIRONMENTAL INFRASTRUCTURE FUNDING

One important component to continued environmentally sound economic development is cost-effective drinking water, waste water and solid waste management facilities. A 1991 survey of counties and municipalities by the South Carolina Advisory Commission on Intergovernmental Relations showed a capital need of more than $1 billion.

This past June, the Governor vetoed the Budget and Control Board Local Government Grant Fund. As a replacement for the grant program, we need to begin capitalizing the Infrastructure Facilities Revolving Loan Fund. Neighboring states have revolving funds which are now completely funded by loan repayments.

The Office of Local Government estimates a total of $150 million, funded over several years, would provide the necessary capital for a loan program. These funds could also match available federal funds.

19. TRANSPORTATION OF SPENT NUCLEAR FUEL AND HIGH LEVEL RADIOACTIVE WASTE

With the end of the Cold War, the safe disposal of spent nuclear fuel and high-level radioactive waste has become an issue. The Clinton Administration has taken the position that the United States should be in the forefront in order to assure the proper disposal of the world's spent nuclear fuel and radioactive wastes. One possible disposal site would be the Savannah River Site in Aiken County.

To ensure the safe transport of those substances in South Carolina, a bill (H. 3553) was introduced last February to set conditions for transporting those items. Under this legislation, spent nuclear fuel and high-level radioactive waste may only be transported on South Carolina's roads or railroads if the following two conditions are met: (1) An environmental impact statement has been prepared in accordance with the National Environmental Policy Act; and (2) the Department of Health and Environmental Control (DHEC) has certified that the transport and storage of spent nuclear fuel and high-level radioactive waste in this State poses no significant risk to the health and safety of South Carolina's residents.

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