Among governing authorities, there is a proverbial saying, “If it ain’t broke, don’t fix it.” This is invoked in opposition to efforts to make unnecessary changes to processes or systems that function adequately. Unfortunately, with respect to prison policy in South Dakota, the more apropos description of the legislative attitude is, “It’s broke and we don’t want to fix it.” 

South Dakota’s prison population includes many inmates who are ineligible for parole despite the fact they may be elderly, disabled, physically unable to do harm, or substantially rehabilitated. There are several reasons this has been allowed to happen, some of which are rooted in overzealous legislation, unaccompanied by subsequent oversight and restraint. For example, when it comes to criminal justice reform, our legislators are quick to enhance sentencing provisions and increase sentence terms on the basis that harsh sentences deter future criminal conduct. But, harsh penalties have virtually no deterrent effect. The concept of deterrence is premised upon the idea that a reasonable person would choose not to engage in unwanted behavior due to the nature of the penalty. In reality, many criminal acts (especially the most serious ones) are committed by someone who is not acting or thinking rationally. A person acting irrationally is not deterred by any penalty, however extreme. 

Strict sentence enhancements have caused the prison populations to swell with inmates who are ineligible for parole. South Dakota’s current incarceration rate is 812 out of each 100,000 residents. This rate is one of the highest in the country, exceeding the national average of 614 per 100,000 residents. This rate is also off the charts when compared internationally – it is 10 times higher than that Norway and Denmark. Regionally, South Dakota’s rate eclipses its neighboring states of North Dakota (516), Nebraska (591), Iowa (550), and Minnesota (323) – all of which are under the national average. 

One major contributing factor is likely the fact that South Dakota is the only state in the country that permits a sentence of “life without parole” (LWOP) to be imposed on a Defendant who pleads guilty to manslaughter. All other jurisdictions reserve LWOP sentences to the higher degree felonies of Murder in the 1st or 2nd degree. 

This writer has seen at least one case where the State’s Attorney encouraged a Defendant to plead guilty to manslaughter, stating that he knew the death was accidental. Accepting the deal, the Defendant pled guilty to manslaughter, but was sentenced to LWOP. At sentencing and in subsequent post-conviction proceedings, the State’s Attorney changed his tune, asserting rather that the underlying facts were not accidental. No jury ever adjudicated the facts and this Defendant remained incarcerated for the remainder of his life, dying in prison. 

What can be done to remedy the situation? Possible solutions include 1) allowing inmates serving life sentences to be eligible for parole if their offenses occurred when they were 25 or younger; 2) eliminating the prospect of LWOP on manslaughter charges; and 3) broadening “compassionate parole” eligibility for aging and disabled inmates (the current compassionate parole statute is very narrowly written in terms of requirements related to chronological age and years of confinement.) 

This writer has supported and participated in efforts for bringing reasonable reform, but those have been quickly shot down in Pierre. A leading advocate for reform has been Senator Arthur Rusch, a retired circuit judge. He repeatedly (and unsuccessfully) sought to bring about reasonable and moderate changes during his tenure in the Senate. Unfortunately Judge Rusch’s voice is no longer available in the legislature.

A criminal justice system should balance the principles of restraint (protection of society), rehabilitation (of the offender), and retribution (punishment). Our current laws relating to parole eligibility appear focused exclusively on retribution. As such, they provide a perpetual roadblock to meaningfully dealing with overcrowding. It makes no sense to continue incarceration of large numbers of inmates who pose no threat to society (no need for “restraint”), who have experienced substantial rehabilitation (living lives as model citizens in incarceration), and who have already served decades behind bars (punishment).

There are additional reasons to extend parole possibilities for deserving inmates. Hope of a future life outside of prison is strong incentive to good behavior inside of prison and a motivation to seek rehabilitation. The elimination of hope (hopelessness) breeds discontent behind the walls. Furthermore, rendering an inmate eligible for parole does not automatically mean parole will be granted. South Dakota has a functioning Board of Pardons and Paroles that is fully capable of making that decision based on the facts and circumstances of each individual case. 

Note: In regard to the preparation of this week’s column, the author would like to thank attorneys Jeff Larson and Sarah Baron Houy for their assistance and input. 

Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at
rogermbaron@gmail.com 

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