South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

Bennie Wicker, #122304 vs. SCDOC

South Carolina Department of Corrections

Bennie Wicker, #122304

South Carolina Department of Corrections





This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to the appeal of Bennie Wicker (“Inmate” or “Appellant”), an inmate incarcerated with the South Carolina Department of Corrections (“SCDC” or “Department”) since January 15, 1984 after being convicted of murder and other offenses. In his appeal, Wicker challenges the imposition of a mandatory $250.00 fee for mandatory DNA processing.


This is an appeal of a final decision by SCDC in an inmate grievance proceeding on the grounds that:

(a) SCDC erred in finding that Appellant had no property interest in non-wage funds deposited into his prison trust account (such as gifts from friends and family);

(b) SCDC denied Appellant Due Process when it made a withdrawal from non-wage related funds in the inmate’s account to be applied to the cost of his DNA testing; and

(c) Inmate has been made the subject of ex post facto legislation in violation of the state and federal Constitutions because Inmate was convicted and sentenced before the passage of the act authorizing the DNA testing and requiring payment by him.


The Court's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). The Court's appellate jurisdiction in inmate appeals is limited to state created liberty interests typically involving: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which an inmate has received punishment in a major disciplinary hearing as a result of a serious rule violation. Id. However, the South Carolina Supreme Court recognizes a limited Administrative Law Court jurisdictional exception “where inmate claims deprivation of property interest.” Slezak v. SC Dep’t of Corr., 361 S.C. 327, 330, 605 S.E.2d 506, 507 (2004), citing Wicker v. SC Dep’t of Corr., 360 S.C. 421, 602 S.E.2d 56 (2004). This case involves an inmate claiming deprivation of a property interest. Therefore, this Court has jurisdiction over this appeal.

When reviewing the Department's decisions in inmate grievance matters, the Court sits in an appellate capacity. Id. at 756. Consequently, the review in these inmate grievance cases is limited to the Record presented.

An Administrative Law Judge may not substitute his judgment for that of an agency "as to the weight of the evidence on questions of fact." S.C. Code Ann. § 1- 23-380(A)(6) (Supp. 2003). Furthermore, an Administrative Law Judge may not reverse or modify an agency's decision unless substantial rights of the Appellant have been prejudiced because the decision is clearly erroneous in view of the substantial evidence on the whole Record, arbitrary or affected by an error of law. See Section 1-23-380(A)(6); See also Marietta Garage, Inc. v. South Carolina Dep’t of Public Safety, 337 S.C. 133, 522 S.E.2d 605 (Ct. App. 1999); South Carolina Dep’t of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). "'Substantial evidence' is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). Accordingly, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).


Property Interest

Respondent cites Washlefski v. Winston, 234 F3d 179 (2000) and Givens v. Alabama, 381 F.3d 1064 (2004) in support of the right of SCDC to use inmate funds other than wages to the inmate’s DNA fee.

In Washlefski, a Virginia inmate contested the right of prison officials to expend the interest on wages he earned while a prisoner which had been deposited in his prison accounts, asserting he had a property interest therein. His claim was denied upon the ground that as a prisoner, his only right in the funds was a limited right created by statute, and so long as prison officials followed the statute, there was no deprivation. Under Virginia law, which adopted the common law, prisoners did not have property rights.

In Givens, the ground for appeal was similar to Washlefski, in that it involved an inmate’s claim to a property interest in interest earned on inmate wages deposited in inmate accounts. The Court concluded that inmates had no common law property rights under Alabama law nor had any property rights been created by statute, regulation or policy and thus the inmate had no property right which could give rise to a “taking” or protected interest. See Givens, 381 F.3d 1064 (2004).

The basis for the lack of a common law right lay in the common law principle that “Although non-inmates enjoyed an assortment of property rights at common law, inmates did not.” Givens at 381 F.3d 1068.

South Carolina no longer follows the common law in this respect. “No bill of attainder, ex post facto law, law impairing the obligation of contracts, nor law granting any title of nobility or hereditary emolument shall be passed, and no conviction shall work corruption of blood or forfeiture of estate.” (Emphasis supplied.) S.C. Constitution, Article 1, § 4.

A further distinction is that both of the cases mentioned above dealt with wages earned by the inmate as authorized by statute, regulation or policy. In the case at hand, the funds in contest are derived from sources other than the wages described in S.C. Code Ann. § 23-3-670 (Supp. 2004).

I conclude that Appellant does have a property interest in non-wage funds deposited in his prison account such as gifts from family and friends as well as property acquired by inheritance or devise.

Due Process

In 1994 the S. C. Legislature created the State Deoxyribonucleic Acid Identification Record Database Act, §23-3-600 through §23-3-700 of the South Carolina Code of Laws, requiring certain inmates to provide DNA samples, which includes the following:

S.C. Code Ann. § 23-3-670 (Supp. 2004), Processing fee; payment by person providing sample.

(A) A person who is required to provide a sample pursuant to this article must pay a two hundred and fifty dollar processing fee which may not be waived by the court. If the person is incarcerated, the fee must be paid before the person is released from confinement and may be garnished from wages the person earns while incarcerated. …

Appellant asserts that the statute limits the reach of the prison officials to those funds earned as wages by the inmate. That is not the case. The statute does not limit the source of repayment wages.

In Matthews v. Eldridge, the United States Supreme Court explained that “due process is flexible and calls for such procedural protections as the particular situation demands.” Matthews v. Eldridge, 424 U.S. 319, 334 (1976). The Court further explained that,

[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335. The application of these three factors demonstrates that no further due process is warranted or needed to protect Appellant’s property rights in the non-wage funds voluntarily deposited into his Cooper Trust Fund account.

1. Private Interest Affected

Although an inmate’s private interest in his personal funds is apparent, an inmate is not entitled to complete control over his money while in prison. Mahers v. Halford, 76 F 3d 951, 954 (1996). While incarceration does not deprive prisoners of the protection of the United States Constitution, an inmate’s constitutional rights are subject to certain restrictions and limitations. Id. Many privileges and rights are withdrawn or limited during incarceration because of the underlying purposes of our penal system. Id. An inmate is not absolutely deprived of the benefit of their money when part of it is applied toward their restitution debts. Id. at 954-955. The general principle is that an inmate whose money is taken and applied toward his court-ordered restitution debt does not suffer a total deprivation of that money. Id. at 955.

This general principle is applicable to Inmate Wicker’s case, the only difference being that Wicker’s debt was established by act of the Legislature and not the Courts. Inmate Wicker is receiving the benefit of the deduction because it is used on his behalf in the payment of a debt that must be paid.

2. Risk of Erroneous Depravation

Once the DNA debt of $250.00 was established by Act of the S.C. Legislature, SCDC followed through by issuing a memo to its wardens dated August 17, 2004, outlining the procedure for repayment which included withdrawals from non-wage funds in inmate “E.H. Cooper Trust Fund” accounts and requiring that inmate populations be notified immediately that the new procedure would go into effect on September 13, 2004. Appellant Wicker clearly had notice thereof, at the latest[1] by October 20, 2004 because that is the date on his Step 1 Inmate Grievance Form grieving the deduction under the policy complained of and which ultimately led to this appeal.

The “procedures used”, then, are notice to the inmate, after which he may avoid the deduction by preventing any future deposit of non-wage funds into his account (SCDC makes no deductions from non-wage funds which were in the account prior to September 13, 2004). If Inmate fails to prevent further deposits, these deposits are considered a voluntary submission to SCDC policy and cannot be deemed a “taking”.

The matters that mitigate against any erroneous deprivation are:

(a) The debt is exact in amount, having been set by statute.

(b) The amount cannot be changed or waived, even by a Court.

(c) The identity of those liable for the debt is also set by statute.

(d) Those who do not want to have the deduction made from their account may “opt out” by preventing further non-wage deposits into the account. If they fail to do so, their payments are voluntary.

Appellant’s Brief argues ardently that inmates, for various reasons, cannot control the deposit of non-wage funds into their accounts. I do not find his arguments persuasive.

In Mackey v. Montrym, the United States Supreme Court stated that “… the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible ‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of error.” Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 2618 (1979). All governmental decision making does not have to comply with standards that assure perfect, error free determinations. Id. “Thus, even though our legal tradition regards the adversary process as the best means of ascertaining truth and minimizing risk of error, the ‘ordinary principle’ established by our prior decisions is that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Id. Therefore, when prompt post-deprivation review is available for correction of administrative error, all that is required is that the pre-deprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible government official warrants them to be. Id.

The only evident material errors that might occur in a case such as this one would be a result of a mistaken identity or a mathematical error in computing the deduction. Both possibilities can be handled through the inmate grievance procedure, or through the civil courts.

3. Probable Value of Additional or Substitute Safeguards

Clearly, no additional safeguards are necessary here. The amount of the debt has been set by statute. The Appellant had notice of the new procedure. The Appellant can avoid the deduction for the DNA debt by preventing the deposit of non-wage funds into his account, effectively “opting out” of the procedure. Also, any errors including, but not limited to, those involving mistaken identity and mathematical errors can be addressed through the inmate grievance procedure and/or a civil remedy such as one of the counts of assumpsit in the Court of Magistrate.

Government’s Interest

In this case, the collection of the debt due the state of South Carolina for DNA testing serves important state interests of imposing payment on the one whose conduct created the debt and teaching inmates responsibility. Mahers at 76 F.3d 956. In addition, there are the purposes of the act set forth in §23-3-610 to “develop DNA profiles on samples for law enforcement purposes and for humanitarian and non-law enforcement purposes as provided for in Section 23-3-640(B).” See Cannon v. S.C. Dep’t of Probation and Parole, 361 S.C. 425, 432, 604 S.E.2d 709, 713 (Ct. App. 2004); S.C. Code Ann. § 23-3-610 (Supp. 2004) and § 23-3-640(B) (Supp. 2004).

Furthermore, the state’s interest in maintaining administrative control over prisons is significant, and Courts are not ideally situated to oversee the minute details of prison administration. Mahers at 76 F.3d 956.

Ex Post Facto

The South Carolina Court of Appeals in Cannon ruled that in order for the ex post facto clause to be applicable, the statute or the provision in question must be criminal or penal in purpose or nature, and that the intent of the Legislature in enacting the State Deoxyribonucleic Acid Identification Act found in §23-3-600 through §23-3-700 of the South Carolina Code of Laws was civil, not criminal or punitive in nature. See Cannon at 361 S.C. 432, 604 S.E.2d 713. In such cases, the party asserting the protection of the ex post facto clause must “… provide the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the [legislature’s] intention.” Id. at 361 S.C. 432, 604 S.E.2d 713.

The Appellant here has offered no such proof. I thus conclude that the ex post facto portion of the appeal should be dismissed and the decision appealed from affirmed on that issue.


I find that a balancing of the factors set forth in Matthews compels a holding that the South Carolina Department of Corrections’ deductions of non-wage funds received into an inmate’s account, which are applied to reduce his DNA debt created by S.C. Code Ann. § 23-3-670 (Supp. 2005) after notice has been provided, did not violate the Due Process Clause. Given the limited nature of the deductions, the more limited due process protections applicable to prisoners, and the deference to be paid to the decisions of state administrative agencies, I conclude that the notice procedure provided satisfied the flexible demands of the Due Process Clause.

There is one missing element of proof that requires a qualification. There is nothing in the record that indicates that Appellant received notice of the new policy prior to the date of his Step 1 Inmate Grievance Form on October 20, 2004. Thus any non-wage funds deducted from his account for payment of his DNA debt between September 13, 2004, and October 20, 2004, should be refunded to him.


For the reasons stated above,


(1) That SCDC’s denial of relief on the ex post facto contention is AFFIRMED;

(2) That SCDC’s decision is REVERSED to the extent that it holds that inmates have no property interest in funds deposited into inmate accounts which were acquired by gift, devise or inheritance;

(3) That SCDC’s decision that Appellant had sufficient notice of non-wage deductions from his account to satisfy the requirements of Due Process is AFFIRMED, but only as of October 20, 2004.

(4) That SCDC is REVERSED as to any funds deducted from Appellant’s inmate account between September 13, 2004 and October 20, 2004 in which Appellant had a property interest as defined in this Order.

(5) That SCDC shall refund to Inmate Wicker, within sixty (60) days of the date of service of this Order, any funds deducted from Appellant’s inmate account between September 13, 2004 and October 20, 2004.



John D. McLeod

Administrative Law Judge

February 3, 2006

Columbia, South Carolina

[1] Appellant may have received notice of the new procedure for deduction prior to the date on his Step 1 Grievance, but there is nothing in the record to substantiate that fact. This Court has held in prior similar cases that notice sufficient to satisfy Due Process was notice provided in such fashion as SCDC normally used to notify the inmate population of matters of importance, a determination to be left to its discretion.

Brown Bldg.






Copyright © 2022 South Carolina Administrative Law Court