Four bills aimed at reducing or eliminating the use of the death penalty in South Dakota await our Legislature's attention:

  1. Senate Bill 121 would repeal the death penalty in all future cases.
  2. SB 122 would continge issuance of a death sentence on "a finding that the defendant is too dangerous to be incarcerated and is an ongoing danger to the public and the prison community."
  3. House Bill 1158 would require that evidence that the victim or victim's family opposed the death penalty be presented at the presentence hearing in any capital case.
  4. HB 1159 would create a database of citizens who would declare, "Should I die as a result of a violent crime, it is my wish that no person found guilty of homicide for my killing be subject to a death sentence." Citizens would register themselves in this database on their driver's license applications.

If you're looking for support for those bills, don't look to the six legislators who appeared at Aberdeen's crackerbarrel on Saturday. None committed to support any of those bills. The lone Democrat on the panel, District 1 Senator Jason Frerichs of Wilmot, hinted that he might support SB 122, the added sentencing guideline, since one of the sponsors, rookie Senator Arthur Rusch (R-17/Vermillion), sentenced Donald Moeller to death in 1997, but Sen. Frerichs only said he hopes SB 122 comes to the floor for debate. His comments make clear that even he believes we should kill some criminals.

Senator Brock Greenfield (R-2/Clark) said he can't find any Biblical reason not to kill criminals. His mom, Rep. Lana Greenfield (R-2/Doland) vaguely referenced Barabbas but said it's o.k. to kill criminals who brag about enjoying prison (no, really, that's the story she told!). Senator David Novstrup (R-3/Aberdeen) said he voted against last year's death penalty repeal but doesn't know how he'll vote this year. His dad, Rep. Al Novstrup (R-3/Aberdeen), misrepresented SB 122 as a ban on the death penalty, then invoked the Charlie Hebdo killings and the Chester Poage murder (for the record, Al, even I, who was outraged at the jihadis who killed the French cartoonists, would rather those killers had been put in prison, not killed) to justify his position "not that I support the death penalty, but I support the opportunity for the death penalty." Preferring clarity and brevity, Rep. Dan Kaiser (R-3/Aberdeen) said he'll vote against these bills.

Here are the full remarks. The speakers, in order, are Sen. Greenfield, Sen. Frerichs, Sen. Novstrup, Rep. Novstrup, Rep. Greenfield, and Rep. Kaiser.

Notice that three of the speakers—the Greenfields and the younger Novstrup—wrung their hands over the difficult, emotional nature of votes on the death penalty. Get a grip, Brock, Lana, and David. This is government, not Dr. Phil. We understand you face all sorts of hard decisions. That's what we pay you the big bucks to do.

Rep. Dan Kaiser is wrong, but I at least respect him for sparing us the emotional showing-off and simply stating his policy position. Similarly, Senator Frerichs is hedging, but he at least focused on a direct discussion of the policy, not his personal emotions.

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The South Dakota Legislature will debate the death penalty again this session. Democratic Senator Bernie Hunhoff (D-18/Yankton) and Republican Rep. Steve Hickey (R-9/Sioux Falls) lead a bipartisan team of sponsors on Senate Bill 121, which would remove death from the penalties permitted for Class A felonies and replace it with life imprisonment without parole.

Last year the Legislature killed Rep. Hickey's death-penalty repeal in House State Affairs by one vote. This year, the death penalty debate goes first to Senate State Affairs, where SB 121 sponsors Senator Hunhoff and Senator Billie Sutton (D-21/Burke) are the only Democrats among seven Republicans. But those Republicans will see the names of House colleagues among the sponsors, including former judge Rep. Tim Johns (R-20/Spearfish), conservative Rep. Scott Munsterman (R-7/Brookings), and formidable lawyer and Catholic Rep. Lee Schoenbeck (R-5/Watertown).

Conservatives looking for a reason to repeal the death penalty get a reminder from one of South Dakota's greatest liberals, former U.S. Senator Jim Abourezk, that the death penalty does not make fiscal sense:

In Texas, which boasts of the largest death row in the country, a death penalty case in 1996 cost taxpayers an average of $2.3 million, which is about three times the cost of imprisoning the accused in a single cell for 40 years. Other states report similar savings when the death penalty is not the issue in a criminal trial.

If the excessive cost of a death penalty trial is compared to a nondeath case, each state could increase police presence, police training and other matters designed to curb criminal activity, which is where the money should be spent [Jim Abourezk, "Is Death Penalty Too Costly for Taxpayers?" that Sioux Falls paper, 2015.02.02].

Expect serious, non-partisan fiscal and moral arguments in Senate State Affairs... and, we hope, on the floor of both chambers as this important bill advances.

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Back in 2013, the Legislature concluded that its Legislative Research Council wasn't keeping pace with evolving technology and legislators' demands. They got LRC director Jim Fry to resign, and in the summer of 2014 they hired Jason Hancock to run the show.

Whatever reforms Hancock implemented must have included spending more time reviewing bill drafts. As of close of business yesterday, January 6, the LRC had published just nine bills (bit-chompingly summarized here). Those bills only popped into view Monday afternoon. As Mr. Powers notes, that's notably later than usual. Last year, we had bills to read by December 23. Two years ago, December 19. Three years ago, December 29. Four years ago, December 23.

Maybe the delay indicates that legislators are swamping their LRC with bills. Rep. Rev. Steve Hickey (R-9/Sioux Falls) tells this blog that he's working on twelve bills. Twelve bills: if all 105 legislators were that ambitious, we'd have 1,260 bills to plow through! That's more than twice what we usually have; Rep. Rev. Hickey is giving District 9 their money's worth and then some!

Two of Hickey's bills are super-duper secret, but he's willing to share the rest:

  1. death penalty repeal
  2. a mental illness bill related to the Death penalty
  3. two bills I'm calling victim wish bills so people who are murdered who oppose the death penalty have their wishes considered
  4. a bill that allows child sex abuse victims who were litigating their cases in 2010 to not have their cases dismissed because the legislature changed the statute of limitations
  5. two bankruptcy exemption bills
  6. an ATV bill that creates a fund for trails
  7. a bill that brings accountability to the drug control fund and gives 25% back to the counties for indigent defense.
  8. "Long Economic Winter" task force

The death penalty repeal bills are consistent with Rep. Rev. Hickey's conversion on capital punishment in 2013. His bill to repeal the penalty in the 2014 session was defeated in its first committee hearing on a narrow 7–6 vote.

The ATV trail bill could be fun. Expect me and Patrick Lalley to lobby for an amendment to include bicycle access to any new trails.

The "Long Economic Winter" task force is a fiscal prepper idea Rep. Rev. Hickey has been pushing to no avail for a few years. Rep. Rev. Hickey contends that we need to plan for how South Dakota could survive a serious economic depression, a massive cutback in the federal spending that keeps our state afloat (38.9% of the Governor's proposed FY 2016 budget), or worse. Here's how Rep. Rev. Hickey described the proposal to his colleagues last year:

Study the ramifications of a long economic winter on main street South Dakota and state government, and make recommendations for contingency plans. I'd like a LEW (long-economic winter) workgroup to address the following 7 questions.

  1. What would say, a 20% reduction in Federal funds mean to South Dakota?
  2. What would the collapse of the dollar mean to main street South Dakota: What would it mean to our state's large financial sector, which at present is a significant source of revenue and jobs?
  3. What are the possibilities for weaning South Dakota off Federal and other uncertain (or arguably unhealthy) revenue sources?
  4. What if any measures in South Dakota could be adopted so our present statutes don't exacerbate difficulties in buying and selling, or bartering?
  5. What current state statutes might hamstring people simply trying to take care of themselves and their families and or frustrate or prolong our recovery?
  6. What would a significant disruption in the food, fuel or power supplies mean to our population?
  7. Considering the unstable and unsustainable economic environment beyond our borders, just how much should we keep in our reserve funds? [Rep. Steve Hickey, 2014 Summer Studies Ballot, spring 2014]

If the economy gets so bad that we have to barter, details of state law may be the least of our concerns. But maybe California Governor Jerry Brown's plan for power micro-grids would be a good step in toward that disaster planning.

I'm eager to see Rep. Rev. Hickey's full proposals in the Legislative hopper. And really, if we are to be an informed and well-governed democracy, we need to see those bills as soon as possible. Get cracking, LRC!

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An Orange County, California, judge has ruled the state's death penalty unconstitutional. U.S. District Court Judge Cormac J. Carney says California's death penalty inflicts cruel and unusual punishment, not because state-sanctioned killing of captive convicts is abhorrent, but because California doesn't kill Death Row inmates quickly enough:

[Carney] noted that more than 900 people have been sentenced to death in California since 1978 but only 13 have been executed.

“For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution,” Carney wrote.

...The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said [Maura Dolan, "Federal Judge Rules California Death Penalty Is Unconstitutional," Los Angeles Times, 2014.07.16].

The language in that last sentence is important. In the 1972 Furman decision, the U.S. Supreme Court abolished capital punishment on the grounds that weaknesses in due process allowed judges and juries to impose the death penalty in "an arbitrary and capricious manner" that did not deter or punish crime. States quickly reworked their capital punishment laws, and we were back to killing convicts by 1977.

Citing Furman in his 29-page ruling, Carney says California is back to an arbitrary and capricious system that does not deter or punish crime, in which the state says to a convict, "You're going to prison for life, but there's a 1.4% chance we'll kill you." Keeping that chance of death at 1.4% requires engaging in an appeal process that currently averages 25 years and is getting longer.

One could argue that the delay in carrying out the death penalty is the convict's fault. If convicts would just waive their appeals beyond those mandated by law, the way murderer Eric Robert did to expedite his death in 2012, the arbitrary delay would disappear.

But Carney rules that the state, not Death Row inmates, is gumming up the works. California has reduced funding for public defenders. Low pay for public defenders taking on this tough appeal cases contributes to a shortage of public defenders. Convicts may not receive counsel to take up their appeals for more than a decade. Once lawyered up, even if convicts make their appeals as non-dilatorily as possible, the California Supreme Court is still taking an average four years to decide habeas petitions.

Carney's ruling reminds me of South Dakota Rep. Rev. Steve Hickey's position on capital punishment. When he announced his conversion against the death penalty last summer, Rep. Rev. Hickey said that killing convicts might serve its purpose if we made executions "swift, painful, ugly, and public." But such killings are cruel, unusual, and un-Christian. Hence, Hickey's effort to repeal South Dakota's death penalty.

Justice and Furman require that we not kill swiftly. But the delays in the due process California adopted to answer Furman violates the Eighth Amendment as surely as too-swift pre-Furman executions. Killing bad men may satisfy our primal impulses, but we can't shoehorn frontier justice into a framework of Constitutional due process.

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Unlike Annette Bosworth, Denny Davis really is motivated by his Christian faith to take political action. The Catholic deacon directs South Dakotans for Alternatives to the Death Penalty. Davis's group supported the bill Rep. Steve Hickey (R-9/Sioux Falls) brought to the Legislature this year to end South Dakota's use of capital punishment. In an e-mail to supporters, Davis says we can expect SDADP to bring a similar bill to Pierre next year, and he wants help letting candidates know that's coming:

We continue to work for the repeal of the death penalty in South Dakota and as always we do this together. I write to you to ask two things to bring us to the 2015 Legislative Session in Pierre.

The first is to ask all of you to be talking to the candidates for the State House and Senate seats about their stand on the death penalty. The primaries are over and the candidates need to know that we will bring a repeal bill next Jan. This is vital to getting the word out in the hearts and minds of the candidates. Talk to them, write to them, call them; somehow make contact. Actively pursue them even if you have a group who wants to go to their door and ask questions. Remember to always respect their view even if it doesn’t agree with yours. Just tell them where you are at and where you will vote in Nov. If they know there are many who oppose the death penalty, it will give them time to think about the issue and whether it is right for South Dakota [Denny Davis, South Dakotans for Alternatives to the Death Penalty, e-mail, 2014.06.24].

That's certainly a conversation worth having with your Legislative candidates.

Davis says he's traveling next week to Washington, D.C., for further political action against the death penalty. But instead of wining and dining donors, he'll spend four days fasting with friends in front of the Supreme Court as part of the Abolitionist Action Committee's 21st annual Starvin' for Justice Fast and Vigil.

 

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Rep. Kristin Conzet (R-32/Rapid City) favored me with a Tweet yesterday. Yesterday she was one of three Republican legislators who voted against killing House Bill 1183, Rep. Steve Hickey's (R-9/Sioux Falls) failed attempt to repeal South Dakota's death penalty.

During the discussion in House State Affairs, Rep. Conzet said something about how she wasn't sure how she would square her feelings as a mother with the law. Not sure where Rep. Conzet was going with this thinking, I tweeted, "There's a difference between how a mother should act and how the state and law should act."

Later in the day, Rep. Conzet replied via Twitter, asking me to clarify and wondering how I could comment on what a mother should do, given that I am not a mother.

Uh oh.

Once I found Rep. Conzet's inquiry, I tapped out two responses:

A mother raised me. I'm married to another. Regardless, never should the state act like one enraged, vengeful citizen.

I have previously rejected and continue to reject the idea that the unique life experiences of any citizen render her or his actions immune to the analysis and judgment of other citizens. We should all cultivate a sense of empathy sufficient to understand and comment the actions of our fellow citizens. If any group of citizens has unique experiences that we do not understand, the proper response is not to wall off that experience as an excuse for any statement or behavior but, to the extent that it is relevant to public policy, share that experience and make it understood so we can come to a common agreement and agreed course of public action.

But in case Rep. Conzet wants to maintain the position that men like me cannot comment on the prerogatives of women like her, then I look forward to the South Dakota Legislature ending all discussion of abortion until it is comprised of a supermajority of women who have experienced pregnancy.

Now more specifically to the comparison Rep. Conzet may have been making and the clarification she may have sought:

Clarifying: Child at risk, parent kills to defend: OK. Victim dead, killer behind bars, state kills for vengeance: not OK.

We restrain the use of deadly force to avoid irrevocable error and check our innate bloodlust. We excuse the use of deadly force in extremis, but we do not vaunt or cheer it. Under the social contract, we mostly surrender our right to use force to the state, but we permit the state to use that force only when necessary, and only in proportion to threats at hand. The state does not need to kill a convict in chains, behind bars, subdued by the full weight of the corrections system.

With her vote yesterday, Rep. Conzet perhaps signals that she agrees. Or maybe she just wanted the full House to get a shot at grappling with the death penalty before making her final decision. But she didn't appear to want to carry on the discussion with me: since my response last night, she has deleted her tweet to me... which is a bummer, since I really get a kick out of talking with our elected representatives... as ought we all.

* * *
Yesterday's hearing on House Bill 1183 included a wealth of important, heartfelt testimony on both sides. The Legislature would serve the public well by posting a written transcript of the entire hearing. Among the quotes I'd like to see highlighted:

"The more politically ambitious the prosecutor, the more likely he or she will use the death penalty." —Mark Meierhenry, former South Dakota Attorney General, testimony to House State Affairs, Pierre, South Dakota, 2014.02.21.

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...and has to help kill an abortion ban.

Rep. Rev. Steve Hickey is having a tough week. He saw two measures he sponsored defeated in committee, and he had to help kill a third that he decided was too risky to support.

This morning, amidst hard, emotional testimony, the Sioux Falls Republican saw House Bill 1183, his effort to repeal South Dakota's death penalty, killed in committee on a 7–6 vote. Rep. Hickey has publicly documented his conversion on capital punishment, contending that the death penalty is bad policy on retribution, deterrence, safety, closure, and economics.

Democrat Bernie Hunhoff supported Hickey, saying, "I just don't think you can kill enough people to make [South Dakota] a better place." Three Republicans—Lust, Munsterman, and Conzet—voted with Hunhoff and Dems Parsley and Killer (yes, irony) to move HB 1183 to the House floor, but Democrat Peggy Gibson voted with the slim and uncomfortable majority of Republicans to bury Hickey's repeal.

This defeat comes on the heels of Wednesday's firmer rejection of Rep. Hickey's HB 1255, his proposal to rein in payday lenders. Rep. Hickey thought he'd tempered his anti-usury politics into a compromise palatable to the payday-lending industry. He thought he had a deal with an industry that was just glad to see him back away from a threat to bring a crushing payday-lending interest cap to a public vote. He was wrong; payday lenders lined up to cry out against these reasonable regulations. House State Affairs killed HB 1255 11–2.

Fine, says Rep. Hickey. That's the way the usury industry wants to play? It's back to the ballot:

...Hickey said he’s done negotiating.

“This is a bunch of games. These people expressly told me to put this stuff in the bill, and now they’re here opposing it,” Hickey said. “They should have been in here supporting the bill. But instead they’re going to face a rate cap” [David Montgomery, "S.D. Ballot Fight Vowed on High-Interest Payday Loans," that Sioux Falls paper, 2014.02.19].

I won't tease you too hard, Steve, for trusting payday lenders. Just hand me that petition when it comes.

To top it off, Rep. Hickey now has to come home and explain to District 9 voters why he voted against an abortion restriction.

Rep. Isaac Latterell (R-6/Tea) pitched House Bill 1240 to House Health and Human Services on Thursday. HB 1240 would have outlawed aborting fetuses with Down Syndrome. In the ongoing dishonesty of anti-abortion crusaders, Rep. Latterell asked that we punish the doctors who perform such abortions but not the women who approve and pay for what Latterell and his fellow campaigners blithely call murder and genocide.

Opposition had little to do with Down Syndrome and everything to do with women's rights and abortion in general. NARAL and others testified against HB 1240, saying that it was really an effort to drive another wedge between women and their legal right to bodily autonomy. An emotional Rep. Kathy Tyler, who described herself as a Catholic pro-life Democrat, said she'd never urge anyone to have an abortion, said HB 1240 was unenforceable and would only promote lying (women just wouldn't tell doctors their reason for having an abortion).

Rep. Hickey said he agrees with everything in HB 1240. He said there is nothing more despicable to him than abortion. He said the "callous buzzards" in the legal department at Planned Parenthood were secretly rooting for this bill so they could challenge it in court. He called NARAL and the South Dakota Campaign for Healthy Families "wicked." He said he worried there was a case that could undermine the whole complex legal battle he and fellow anti-abortion crusaders are waging in South Dakota to overturn Roe v. Wade.

House Health and Human Services split on a motion to pass the bill, 6–6. The committee then banished the bill to the 41st day on an 8–4 vote. Rep. Steve Hickey voted both times against HB 1240.

Hickey has his reasons, but now he must march the campaign trail with a vote against an abortion ban on his scorecard.

South Dakota will continue to kill prisoners. South Dakota will continue to countenance exploitative lending practices. South Dakota will see religious crusaders continue to wage a complex, multi-pronged, and uncompromising campaign against women's rights. It's been a tough week in Pierre for Steve Hickey and for South Dakota.

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While we wait for House State Affairs to pick a day to hear House Bill 1183, Rep. Steve Hickey's effort to end South Dakota's use of the death penalty, the Legislative Research Council has weighed in with its analysis of the fiscal impact on South Dakota's prisons. According to the LRC, ending the death penalty would have no impact on incarceration costs.

The LRC finds that the seven men South Dakota has sentenced to death since 1979 have spent an average of 9.8 years on death row. The LRC notes that two of those cases skew this very small sample: Eric Robert gave up his appeals and goaded us into killing him within a year of his sentencing, while Robert Leroy Anderson denied us the satisfaction of killing him by committing suicide just four years after his death sentence. Removing those outliers leaves us with an average South Dakota death row stay of 12.8 years, still two years shorter than the national average.

The LRC notes that in complying with state law, their fiscal impact statement considers only the fiscal impact in the corrections system and "does not validate, or calculate any potential costs or savings associated with the judicial or appeals process." Ending the death penalty won't make us spend more on prisons; include cost savings from a shorter sentencing and appeals process, and fiscal conservatives in Pierre may find themselves compelled to vote for HB 1183.

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