The South Dakota Board of Pardons and Paroles hears from DOC staffer Stacy Cole on July 13, 2023, at the Jamison Annex of the South Dakota State Penitentiary. (John Hult/South Dakota Searchlight)
SIOUX FALLS — A Texas native who bilked his business partners out of more than $169,000 in 2005 could walk free if Gov. Kristi Noem signs off on a commutation recommended Thursday by the Board of Pardons and Paroles.
Should the governor endorse the board’s 5-2 recommendation for clemency, 60-year-old Rex Gard would be able to begin paying his restitution bill.
Gard and his family members appealed for mercy over Microsoft Teams on Thursday, with his brother promising him an oil fields job that would pay the 17-year South Dakota inmate between $4,000 and $5,000 a month.
Gard’s 65-year sentence for a non-violent offense was relatively unique in its severity, parole board members pointed out. Unlike some charged with grand theft in business-related theft schemes, Gard didn’t use most of the ill-gotten gains to purchase sports cars, gamble or otherwise bolster his own financial situation.
Instead, he told the board, he took money from his two partners in a limited liability company focused on construction work to make business purchases without his partners’ knowledge. He also wrote bad checks and ducked tax liabilities.
He’d used the money to buy new equipment for the company, including heavy machinery, “new tools, new everything,” Gard claimed, in hopes of setting the business up for success.
“I overspent,” Gard said. “Failure was not an option for me at that point. My ego wouldn’t let me consider anything else.”
Gard was booted from the LLC and indicted on a flurry of theft-related charges. He was ultimately sentenced to four 10-year sentences and one nine-year sentence for forgery. The sentences were set to run consecutively, meaning the next 10-year prison term would begin upon completion of the last. Under that sentence, he’s not eligible for parole until 2031, and his sentence wouldn’t be complete until 2069.
Board members Patricia Meyers and Kirsten Aasen, both lawyers, each noted that the stiffness of the sentence for a non-violent offense was unusual.
During a back-and-forth with Aasen over Gard’s potential to repay the debt, Meyers even suggested that some cases like Gard’s wind up being handled in civil court.
“Five consecutive sentences for forgery …” Meyers said.
“It seems excessive,” Aasen said.
“It’s really excessive,” Meyers said.
The losses from the thefts were excessive, too, according to Aasen and other board members. Gard was also sentenced as a habitual criminal. The $169,000 restitution figure framed Thursday’s clemency discussions, alongside concerns about his ability to pay it.
The job reportedly waiting for him on the outside could conceivably help him pay off the debt. Gard and his brother grew up working in the Texas oil fields with their father. His brother said he now owns an oil field services company, which would put the inmate in line for a higher rate of pay at his first post-prison job than many parolees.
Board members peppered Ken Gard with questions on his brother’s potential role, how much he stood to earn and how much he’d reasonably be able to pay in restitution each month with the salary. Aasen questioned Rex Gard about the physicality of the work, wondering if he’d be able to hold the job long enough to pay off the bill.
Ken Gard assured the board that one of his vendors had committed to employing his brother, and that the salary would be significant enough to make a dent in the debt.
The pay could be as high as $5,000 a month, he said, so his brother would be able to pay “anywhere from $500 or $800-$900 a month” toward restitution and still have enough “to pay his bills and put food on the table.”
Ken Gard and his wife, Gard’s adult son and a longtime family friend each pledged in turn to offer financial help or a place to stay. Ken Gard and his wife said they’d take in Rex initially and let him stay without paying rent.
At $500 a month, it would take nearly three decades to pay off his restitution bill – far longer than he’d be under the thumb of the parole board if he’s granted clemency.
That issue was a source of heartburn for some board members. In order to release Gard, the body had two options: recommend commuting all of his sentences to shorter terms to make him eligible for release, or recommend commuting all but one, keeping him – and his payment behavior – under the purview of the board until as late as 2029.
Board staff Stacy Cole told the group that Gard would need to sign a contract with the state’s Obligation Recovery Center. That agency would set the terms of repayment and continue to hound Gard until the debt is paid, she said.
That wasn’t quite enough for Peter Lieberman, a retired judge and board member who ultimately abstained from the clemency vote because it carried no minimum monthly payment requirement.
“I’ve seen these things float out there, and the payments just slow to a dribble,” Lieberman said.
Board member Chuck Schroyer moved to make Gard parole-eligible immediately by commuting each sentence to five years. Schroyer and Meyers each said that releasing Gard to a supportive family and a job that would allow him to begin making payments is preferable to keeping him in prison.
“I just don’t see any reason to keep him sitting here any longer,” Schroyer said.
Jan Steele, Vaughn Beck and chair Myron Rau joined Schroyer and Meyers in voting to recommend commuting Gard’s sentence. Aasen and Ken Albers voted against it.
The recommendation now goes to Gov. Kristi Noem for review.
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