The South Dakota State Penitentiary in Sioux Falls, as seen on Jan. 9, 2023. (John Hult/South Dakota Searchlight)
A bill that would force prison lifers to wait longer between clemency requests was returned to its original, more stringent form by the South Dakota Senate.
As amended Thursday afternoon on a 17-15 vote, Senate Bill 9 would require anyone with a life sentence for a violent crime to wait four years between requests for clemency through the Board of Pardons and Paroles.
After hearing Tuesday testimony from Board Chair Myron Rau, the Senate Judiciary Committee altered the bill to give the board the discretion to set repeat requests out anywhere from one to four years. Currently, state law allows repeat requests each year.
The bill sponsor told her fellow lawmakers that the amendment defeated the purpose of her bill.
“The bill is now watered down to the point of minimal effectiveness,” said Sen. Erin Tobin, R-Winner.
The parole board can recommend a commutation for those serving life without parole, but only the governor can grant one. A commutation in such a case offers the inmate a shot at eventual parole.
Tobin pointed to chilling Tuesday testimony from the families of two victims brutally murdered decades ago who’ve had to appear at clemency hearings for the men who killed them. They told the committee they don’t want to be re-traumatized by a hearing every year.
The amendment that offered the board discretion came from Sen. Helene Duhamel, R-Rapid City. On the Senate floor, Duhamel urged the lawmakers to trust the ability of the parole board to consider cases individually.
Some inmates serving life sentences for violent crimes committed them at a young age, she said, sometimes under the influence of drugs or alcohol. Those who’ve served significant portions of their sentence and appear to be making progress ought not be made to wait if the board sees growth.
Clemency is part of the state constitution, she said, and the board is there to help the governor make wise clemency decisions.
“One size fits all is not real life,” Duhamel said.
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Sen. David Wheeler, R-Huron, echoed Duhamel and urged the preservation of board discretion.
“We don’t want to set a law based on two of the worst cases you can think of,” Wheeler said.
The measure could also dash inmate hopes for freedom, said Sen. Reynold Nesiba, D-Sioux Falls. Inmates without hope, Nesiba said, have no reason to behave in prison.
“I just worry that this is going to make our state penitentiary a more dangerous place,” he said.
Sen. Tim Reed, R-Brookings, supported the amendment. The board’s displeasure with the loss of discretion should not influence legislators when victims support an idea, he said.
“We have to remember that this is what we do for the citizens of this state … Like any other subject, we’re the ones who make the decision,” Reed said.
The constitution doesn’t spell out a one-year waiting period, said Sen. Lee Schoenbeck, R-Watertown. That law was put in place near the turn of the century to reign in the actions of “a certain governor’s administration that was giving out clemencies like candy,” a reference to former Gov. Bill Janklow.
The law doesn’t stop any governor from going around the board and granting clemency, he noted.
“If somebody’s got a compelling case, they can still write the governor,” Schoenbeck said. “It’s just they don’t get to have a public hearing and make the families come back in more often.”
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In her final remarks, Tobin told the Senate that adjusting the waiting period alone doesn’t kill off hope for mercy. Other states have longer waiting periods.
“This is middle ground,” she said.
After about 20 minutes of debate, the Senate voted to return the bill to its original form.
Shortly thereafter, SB 9 passed as amended on a 19-13 vote. It now moves on to the House of Representatives.
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