CHAPTER 17:60:05
EXECUTIVE CLEMENCY
Section
17:60:05:01 Applications accompanied by signed statement.
17:60:05:02 Background checks on all applications.
17:60:05:03 Service of notice of application on state's attorney.
17:60:05:04 Repealed.
17:60:05:05 Hearing -- Postponement -- Notice.
17:60:05:06 Notice by board.
17:60:05:07 Applicant's prison record.
17:60:05:08 Repealed.
17:60:05:09 Record of hearing.
17:60:05:10 Denial of application final -- Reconsideration prohibited.
17:60:05:11 Repealed.
17:60:05:12 Grounds for recommending executive clemency.
17:60:05:13 Application for executive clemency by inmate.
17:60:05:14 Request for application.
17:60:05:15 Publication of notice of application.
17:60:05:16 Applicant name change.
17:60:05:17 Receipt of application.
17:60:05:17.01 Notification of receipt of application -- Schedule appearance for hearing panel.
17:60:05:18 Request for information.
17:60:05:19 Notifying victims.
17:60:05:20 Recommended by hearing panel to the board -- Request of hearing panel involving special circumstance -- Applicant notified.
17:60:05:21 Notification of decision by hearing panel.
17:60:05:22 Notification to applicant of board decision.
17:60:05:23 Notice to applicant of executive decision.
17:60:05:24 Notification of granted pardon to authorities.
17:60:05:25 Suspended imposition of sentence.
17:60:05:26 Expedited application -- Persons eligible.
17:60:05:01 Applications accompanied by signed statement. All applications for executive clemency shall be accompanied by a written statement signed by the applicant setting forth what the applicant believes to be a reasonable and realistic recommendation the board might make to the Governor. This statement may include any plea the applicant may desire to make in support of the application. A personal appearance may be required by the board.
Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.
17:60:05:02. Background checks on all applications. Upon
receipt of a completed application for executive clemency, the executive
director shall review the applicant's criminal history obtained from the
National Crime Information Center.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:03. Service of notice of application on state's
attorney. Notice of an application for executive clemency requiring action
by the Board of Pardons and Paroles shall be given by the applicant to the
state's attorney who prosecuted the applicant or to the successor in office
before being filed with the executive director of the Board of Pardons and
Paroles. The service of notice upon the state's attorney shall be made and its
return certified in the manner provided for the services of summons in the
circuit court. The certificate of service shall accompany every application
filed with the board.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-3.
Cross-Reference:
Warrant executed by arrest -- Advise defendant as to
warrant -- Manner of service of summons, SDCL 23A-2-9.
17:60:05:04. Contents of notice -- Publication in newspaper or posting on courthouse door.Repealed.
Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.
17:60:05:05. Hearing -- Postponement -- Notice. If circumstances do not permit a hearing on the application on the date set, the board may postpone the hearing for any period of time not to exceed six months. Applicants shall be given notice by the board of any postponement.
Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.
17:60:05:06. Notice by board. After the application for
executive clemency is filed with the executive director, the executive director
shall notify the state's attorney who prosecuted the applicant or the successor
in office, the judge who presided at the trial, the Attorney General, and the
sheriff or local law enforcement agency in the county where the offense was
committed. The notice shall contain the applicant's name, crime, sentence, and
date of the hearing and shall be completed and sent at least thirty days prior
to the hearing.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-3.
17:60:05:07. Applicant's prison record. The executive
director shall obtain and file a copy of the applicant's available prison
records with the application.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:08. Time for filing. Repealed.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986;
repealed, 33 SDR 43, effective September 18, 2006.
17:60:05:09. Record of hearing. If the board recommends
clemency, the executive director shall record the findings. The record shall
include the reasons for granting the application. The record and all papers
filed with the application shall be furnished to the Governor with a copy of
the board's recommendation.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-7, 24-14-10.
17:60:05:10. Denial of application final -- Reconsideration
prohibited. If an application for clemency is denied by the board, the
proceeding is terminated. The board may not reconsider or rehear that
particular application. The board may not consider a new application for
clemency from that applicant for a period of one-year following the denial of
an application.
Source:
4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 33
SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:11. Submitting new application after denial.Repealed.
Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.
17:60:05:12. Grounds for recommending executive clemency.
The factors to be considered by the board in all hearings on applications for
executive clemency may include the following:
(1) Substantial evidence
indicates that the sentence is excessive or constitutes a miscarriage of
justice;
(2) The applicant's
innocence of the crime for which the applicant was convicted under South Dakota
law has been proven by clear and convincing evidence;
(3) The applicant has shown
remarkable rehabilitation;
(4) Substantial evidence
indicates that the board should be in a position at the earliest possible time
to deal with the applicant as a parolee under supervision;
(5) Review of the
applicant's personal and family history; the applicant's attitude, character,
capabilities, and habits; the nature and circumstances of the offense or
offenses; and the effect the applicant's clemency will have on the victims of
the crime and the community indicates that applicant has carried the stigma of
the crime for a long enough period to justify its removal;
(6) The applicant wishes to
pursue a professional career from which society can benefit, but a conviction
prevents it; and
(7) The applicant's age and
medical status is such that it is in the best interest of society that the applicant receive clemency.
Source:
12 SDR 162, effective April 20, 1986; 33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1, 24-14-6.
17:60:05:13. Application for executive clemency by inmate.
The board may deny, without any hearing, an application for executive clemency
submitted by an inmate confined in a correctional facility or an applicant
under parole supervision.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:15. Publication of notice of application. The
publication required by SDCL 24-14-4 shall be made in the official newspaper of the city closest to where the offense was committed. The notice shall include the applicant's current name and any additional name used when convicted.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1, 24-14-4.
17:60:05:16. Applicant name change. An application for
executive clemency shall be filed under the name the applicant used when
convicted. Any name change shall be noted on the application by placing the
currently used name in parenthesis following the name used when convicted. The
applicant's name when convicted shall be used on all attachments to the
application, including the affidavit of publication and the notice to the
state's attorney.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:17. Receipt of application. Upon receipt of a
submitted application, the executive director shall review the application for
completeness. The application is considered complete when all required fields
are addressed and all notices of the application and supporting documents are
received. An application considered incomplete shall be returned to the
applicant, who may then provide the missing information and resubmit the
application. Any supporting document received by the executive director, but
not accompanying an application, shall be returned to sender.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:17.01. Notification of receipt of application --
Schedule appearance for hearing panel. Upon receipt of a completed
application for executive clemency and a background check, the executive
director shall notify the applicant of the scheduled date and time that the
applicant shall appear in front of the hearing panel for initial review and
consideration.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1, 24-15A-10.
17:60:05:18. Request for information. Upon receipt of a
completed application for executive clemency, the executive director may
request any pre-sentence investigation, any police report, and any other
relevant information from the local law enforcement agency and clerk of courts
in the county where the offense was committed.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:19. Notifying victims. The executive director shall notify any victim of the applicant, who request notice, of any scheduled hearings for the applicant for executive clemency pursuant to SDCL 23A-28C-11. Any victim may appear and state an opinion regarding the application for clemency at the hearing panel. The victim may also submit a written opinion for consideration at the hearing.
Source: 33 SDR 43, effective September 18, 2006; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.
17:60:05:20. Recommended by hearing panel to the board --
Request of hearing panel involving special circumstance -- Applicant notified.
Any application for executive clemency recommended by the hearing panel to go
before the full board for further consideration shall be scheduled for the
following month's board meeting. Special circumstances may require the
applicant to appear for consideration in front of the board in the same month
as the hearing panel. These circumstances include timeliness of travel for the
applicant and the medical status of the applicant. If the hearing panel
recommends the application to the full board in the same month, the executive
director shall check all timelines associated with the application to determine
the eligibility to be heard by the full board. These timelines include the
thirty-day notice to any necessary party, the notification of any victim, and
the twenty days since the final publication of notice of application.
The executive director shall notify
the applicant of the time and date of the hearing in front of the full board.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:21. Notification of decision by hearing panel.
The executive director shall notify the applicant in writing of the hearing
panel's decision to recommend or deny the applicant's application before the
board. This notification shall be submitted to the applicant within ten working
days from when the decision is made. Any applicant recommended to appear before the board the following month shall be
notified of the date and time of the hearing.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:22. Notification to applicant of board decision.
The board shall notify the applicant in writing of the decision to grant or
deny a recommendation for executive clemency to the Governor. This notification
shall be submitted to the applicant within ten working days from when the final
decision is made.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:23. Notice to applicant of executive decision.
The executive director shall notify the applicant, in writing, of the
Governor's decision to grant or deny executive clemency within ten days upon
receipt of the Governor's decision.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:24. Notification of granted pardon to authorities.
Upon receipt of a granted pardon by the Governor, the executive director shall
notify the Division of Criminal Investigation and clerk of courts in the county
where the offense was committed of the pardon.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1, 24-14-11.
17:60:05:25. Suspended imposition of sentence. Any pardon
application submitted for a crime receiving a suspended imposition of sentence
shall not be considered eligible for a pardon. Upon receipt of an ineligible
application, the executive director shall return the application to sender.
Source:
33 SDR 43, effective September 18, 2006.
General
Authority: SDCL 24-13-7.
Law
Implemented: SDCL 24-14-1.
17:60:05:26. Expedited application -- Persons eligible. Any applicant who qualifies for an exceptional pardon may use an expedited process if the applicant's offense is a Class 2 misdemeanor or a petty offense that is at least five years old or a nonviolent Class 1 misdemeanor at least ten years old. A person who has a felony conviction or violent misdemeanor or is requesting restoration of firearms rights or has had a conviction within the proceeding five years, excluding traffic offenses, is not eligible for the expedited process. An expedited application may be presented directly to the full board without the necessity of a personal appearance or a hearing panel. Except for the foregoing, the provisions of the rest of this chapter apply to the expedited pardon process in accordance with the exceptional pardon process.
Source: 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-8, 24-14-9.
