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A history of capital punishment in South Dakota

November 14, 2019
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Scott Thompson and Mary Wipf stand in support of the Schaeffer family and the death penalty during the execution of Charles Rhines on Monday, Nov. 4, 2019 at the South Dakota State Penitentiary in Sioux Falls. Wipf knew Donnivan Schaeffer from visiting the donut shop he worked at. "I'm here for the family ⁠— to support the family, let them we are with them and feel their pain," Wipf said. (Abigail Dollins/The Argus Leader via AP)(Abigail Dollins/The Argus Leader via AP)
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Scott Thompson and Mary Wipf stand in support of the Schaeffer family and the death penalty during the execution of Charles Rhines on Monday, Nov. 4, 2019 at the South Dakota State Penitentiary in Sioux Falls. Wipf knew Donnivan Schaeffer from visiting the donut shop he worked at. "I'm here for the family ⁠— to support the family, let them we are with them and feel their pain," Wipf said. (Abigail Dollins/The Argus Leader via AP)(Abigail Dollins/The Argus Leader via AP)

SIOUX FALLS, S.D. (AP) — Wild Bill Hickok died holding a pair of black aces and a pair of black eights — the dead man’s hand.

He was shot by Jack McCall, whose death later marked South Dakota’s first recorded execution.

McCall was hanged for the killing in Yankton on March 1, 1877.

The ultimate punishment has been used sparingly since then, with a total of 20 men being put to death for “wantonly vile or heinous” crimes. After a string of nine in the late 1800s, decades would pass between executions, the Argus Leader reported.

Across the United States, the use of the death penalty has declined sharply over the last 25 years, according to the Death Penalty Information Center (DPIC), a national nonprofit that doesn’t take a stance on the death penalty but often criticizes the way the sentence is administered.

New death sentences have decreased by more than 85% since the mid-1990s, according to the DPIC.

In South Dakota, there have not been many executions, but the state’s track record of avoiding policy change on the punishment shows the option will likely stay in statute.

How many people has South Dakota executed?

The most recent cluster of South Dakota’s executions began in 2007, when Elijah Page was put to death for the brutal beating and torturing of 19-year-old Chester Allen Poage near Spearfish. His execution was the first in 60 years, and the first use of lethal injection in the state.

Now, the state’s lone inmate on death row is set to be put to death for the same crime as Page’s. Briley Piper is awaiting a South Dakota Supreme Court decision on an appeal of his guilty plea in 2001. In the appeal, Piper says his attorneys didn’t properly advise him of the risks he’d be facing when they led him through a guilty plea of first-degree premeditated murder and let him waive his right to a jury trial on the death sentence. His case was sent back for a jury trial sentencing, and after a three-day hearing, a jury sentenced him to death in 2011.

South Dakota’s selective use of the death penalty is indicative of how seriously prosecutors, judges and juries take the ultimate punishment, said former South Dakota Attorney General Marty Jackley, who witnessed three executions during his 10 years as the state’s highest prosecutor.

“It is reserved for the most heinous of crimes,” said Jackley, who is now serving as the Jones County State’s Attorney.

A history of South Dakota capital punishment law

South Dakota joined the union with capital punishment in 1889, though five executions occurred before established statehood.

Nine people were killed by the state before South Dakota banned the death penalty in 1915. It was reinstated it in 1939 and was used only once until the United States Supreme Court deemed capital punishment “cruel and unusual,” therefore unconstitutional, in the 1972 case of Furman vs. Georgia. The case’s ruling ended capital punishment in the United States until states tweaked laws to address the high court’s concerns four years later.

South Dakota reintroduced the death penalty soon after Gov. Bill Janklow took office in 1978. Janklow said he favored capital punishment in cases of “cold, calculated murder.” The bill to re-introduce the death penalty passed the state House by two votes before Janklow signed it into law, with Republican majority leader Joe Barnett and speaker George Mickelson voting against it.

Since South Dakota reinstated the death penalty in 1978, there have been five executions.

How have executions been carried out?

The majority of South Dakota’s executions have been done by hanging. The first 14 people killed by the state were done so in this way. George Sitts was electrocuted in 1947 for the murders of two law enforcement officers in Butte County. That execution was the first in 34 years, and the only one done by electric chair.

After Sitts’ death, another six decades passed before the state executed its next inmate.

In 2007, Elijah Page was put to death by lethal injection, the state’s method of execution since 1984. That year, the Legislature adjusted its laws to shift from a two-drug protocol to a three-drug protocol, but added a line to statute to allow inmates to choose the manner of death to be done by current law or the law at the time they were sentenced. This was one of the last legs Charles Rhines stood on in his appeals process, but each level of the court appeals process ultimately declined his appeal.

South Dakota used pentobarbital to kill Robert and Donald Moeller in 2012 and Rodney Berget in 2018.

South Dakota statute keeps who provides the drugs confidential, something other states are doing in light of an attitude shift nationwide of decreasing death penalty support.

That secrecy opens a door to a slippery slope of keeping the public in the dark, said Death Penalty Information Center director Robert Dunham.

“There are a lot of issues when it comes to the way executions are currently being carried out in the United States,” Dunham said of states keeping secret the identity of the drug provider. “South Dakota falls within the group of states whose conduct is questionable.”

What makes a crime punishable by death?

A crime has to be “wantonly vile or heinous” to be considered a death penalty case. Only a Class A felony — like premeditated first-degree murder — is eligible for the death penalty in South Dakota.

A lot of whether a crime is put up for a death sentence depends on the prosecutor, said Dunham. There are some homicides that may meet the qualifications of death penalty eligibility, but are not sought as such because prosecutors and judges recognize the lengthy and costly road ahead of them.

″(The death penalty) is not sought often because of the time and expense,” said University of Sioux Falls associate professor of criminal justice Mike Thompson.

Jackley said he considered multiple factors before pursuing the death penalty. The first, if it was eligible, if the crime met the aggravating circumstances required in state statute. The next factor he considered was whether the victim’s family would be up to the likely years of litigation and appeals that usually follow a conviction and capital sentence.

The median time between initial sentencing and execution increased from between 14-16 years every year from 2012-2015 to 19 years in 2017 nationally, according to the Death Penalty Information Center. Nationally, 1 in 6 people on death row are actually executed, according to the DPIC, some avoiding the fate through appeals.

Eric Robert was put to death about one year after the murder he committed, a faster timeline than most murder cases take to reach a conviction or plea. But his case is an anomaly. Robert’s co-defendant Rodney Berget wasn’t executed for another six years, and Charles Rhines was executed more than two decades after his crime. Both men filed multiple appeals. Berget had said he wanted to go through with his execution, but others filed appeals on his behalf citing concerns of his intellectual capabilities.

In northeastern United States, no one has been executed in more than 50 years who has not voluntarily waived his or her appeals, Dunham said. Many of those who die have given up on the appeals process.

It should be difficult to sentence someone to death, said Dunham, but a lack of qualified death penalty defense attorneys and resources can shortchange defendants looking to appeal their sentence or get a proper review of their trial.

“If you want to have a fair death penalty, you need a robust appeals process,” Dunham said. “There are hundreds of people executed in United States whose cases, if they were heard on appeal today, would be overturned.”

No signs of stopping

The national movement is away from the death penalty, Dunham said.

The mid-1990s had three consecutive years with more than 300 new death sentences imposed. Last year was the fifth consecutive year in which there were fewer than 50 new death sentences, Dunham said.

South Dakota doesn’t seem to be letting up on the pursuit of execution.

Minnehaha County has had at least two recent cases in which capital punishment was put on the table.

The most recent South Dakota homicide to result in an execution occurred in 2011, with the killing of Ronald “RJ” Johnson, a correctional officer at the South Dakota State Penitentiary in Sioux Falls. Two men were executed for his death: Eric Robert in 2012 and Rodney Berget in 2018.

In Minnehaha County, prosecutors have put the death penalty on the table in two 2016 cases. Keith Andrew Cornett pleaded no contest to second-degree murder for the death of his 18-month-old stepson. The Minnehaha County State’s Attorney’s Office said it intended to seek the death penalty if Cornett had been found guilty of first-degree murder. Cornett changed his plea to avoid the death penalty, and was sentenced to life in prison.

In a separate 2016 homicide, Heath Allen Otto was accused of killing his mother, Carol Simon, 48, and nephew, Brayden Otto, 7. Otto, 27, has schizophrenia, and has been receiving competency restoration treatment for about one year at the Human Services Center in Yankton.

The death penalty is on the table in his case, but prosecutors haven’t outright said they intend to pursue it. Otto is facing two counts of first-degree premeditated murder and was just recently deemed competent to stand trial, three years after the homicide. The South Dakota Legislature has contemplated laws to prevent mentally ill defendants from being executed, but propositions haven’t passed.

Evolving standards of decency led the U.S. Supreme Court to rule that those who are intellectually disabled and those who had committed crimes as juveniles could not be executed. If the standards shift away from the death penalty overall, it could impact the conversation here, Thompson said, but it isn’t likely.

South Dakota doesn’t historically change its laws to follow national trends. For example, the state is the only to keep unauthorized ingestion of a controlled substance as a felony, and it’s one of the last to keep industrial hemp illegal.

“I don’t see culturally here the discussion happening,” Thompson said.

Jackley said keeping the death penalty on the books is a tool for South Dakota, especially with advances in science and technology that can lead to more certain convictions.

“People don’t necessarily like the thought of what happens in a death penalty case, but they support it because of the type of cases prosecutors have brought,” Jackley said. “I get why they ask, ‘Why does this take so long?’ Some who oppose the death penalty understand that in order to protect (the public), it’s a necessary thing because of the actions of the defendant.”

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Information from: Argus Leader, http://www.argusleader.com