In South Dakota, the laws on pardon and parole are provided under S.D. Codified Laws §§ 24-13-1 through 24-14-12. Pursuant to the statutes, the Board of Pardons and Paroles must consist of nine members. Three members must be appointed by the Governor; at least one must be an attorney. Three members must be appointed by the attorney general; at least one must be an attorney. Three members must be appointed by the Supreme Court; at least one must be an attorney. Moreover, each member of the board must be a resident of South Dakota and be appointed with the advice and consent of the Senate.
Pursuant to chapter 1-26, the Board of Pardons and Paroles may promulgate procedural rules for the effective enforcement of chapters 24-13 to 24-15, inclusive, and for the exercise of powers and duties conferred upon it. Additionally, the Board of Pardons and Paroles may utilize the following standards in granting or denying paroles or in assisting inmates in an assessment of their rehabilitation needs:
- The inmate’s personal and family history;
- The inmate’s attitude, character, capabilities, and habits;
- The nature and circumstances of the inmate’s offense;
- The number, nature, and circumstances of the inmate’s prior offenses;
- The successful completion or revocation of previous probation or parole granted to the inmate;
- The inmate’s conduct in the institution, including efforts directed towards self-improvement;
- The inmate’s understanding of his or her own problems and the willingness to work towards overcoming them;
- The inmate’s total personality as it reflects on the possibility that the inmate will lead a law-abiding life without harm to society;
- The inmate’s family and marital circumstances and the willingness of the family and others to help the inmate upon release on parole from the institution;
- The soundness of the parole program and whether it will promote the rehabilitation of the inmate;
- The inmate’s specific employment and plans for further formal education or training;
- The inmate’s plan for additional treatment and rehabilitation while on parole;
- The effect of the inmate’s release on the community;
- The effect of the inmate’s release on the administration of justice; and
- The effect of the inmate’s release on the victims of crimes committed by the inmate[i].
In South Dakota, parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of the inmate’s term of imprisonment. The prisoner remains an inmate under the legal custody of the Department of Corrections until the expiration of the inmate’s term of imprisonment. A prisoner is not required to accept a conditional parole. A prisoner is never entitled to parole. However, parole may be granted if in the judgment of the Board of Pardons and Paroles granting a parole would be in the best interests of society and the prisoner[ii].
Eligibility for Parole
The South Dakota law provides that an inmate is eligible for parole, subject to § 24-15-4, after deducting from the inmate’s sentence the statutory time granted for good conduct pursuant to § 24-5-1:
(1) If convicted of a felony for the first time, when the inmate has served one-fourth of the time remaining;
(2) If convicted of a felony for the second time, when the inmate has served three-eighths of the time remaining; or
(3) If convicted of a felony three or more times, when the inmate has served one-half of the time remaining[iii].
Standards for Granting Parole
Pursuant to S.D. Codified Laws § 24-15-8, when an inmate becomes eligible for consideration for parole, the inmate must be called before the Board of Pardons and Paroles to personally present the inmate’s application for parole. If the inmate is housed in an institution outside of this state, the board may request that the paroling authority in the receiving state hold a courtesy hearing pursuant to the rules and regulations of the receiving state and submit to the board their findings regarding the inmate. Moreover, an inmate may decline parole consideration and waive the right to a hearing. The board may issue an order to the Department of Corrections that the inmate must be paroled if it is satisfied that:
(1) The inmate has been confined in the penitentiary for a sufficient length of time to accomplish the inmate’s rehabilitation;
(2) The inmate will be paroled under the supervision and restrictions provided by law for parolees, without danger to society; and
(3) The inmate has secured suitable employment or beneficial occupation of the inmate’s time likely to continue until the end of the period of the inmate’s parole in some suitable place within or without the state where the inmate will be free from criminal influences.
The statutes further provide that the Board of Pardons and Paroles may, in the board’s discretion, permit a parolee to leave this state and go to any other state, if satisfied that suitable employment or beneficial occupation of the parolee’s time has been secured in the other state where the parolee will be free from criminal influences. Moreover, a parole agency or department of the other state will undertake supervision of the parolee within the other state in conformity with the laws of South Dakota relating to parolees. The parolee is subject to all the laws of South Dakota relating to parolees, in the same manner and to the same extent as if the parolee had not been permitted to leave the state of South Dakota[iv].
Discipline of Parolee
Pursuant to the statutes of South Dakota, if the purposes or objects of parole are not being served, the Department of Corrections and its parole agents may use any necessary means to establish discipline, arrest, or take custody and control of the parolee pending the issuance of a warrant of arrest by the executive director[v]. S.D. Codified Laws § 24-15-24 provides that if the Board of Pardons and Paroles is satisfied that any provision of § 24-15-20 has been violated, it may revoke the parole and reinstate the terms of the original sentence and conviction or it may modify conditions of parole and restore parole status. In addition, the board may order the reduction of time in full or in part for good conduct granted under § 24-5-1. If the board does not find that the provisions of § 24-15-20 have been violated, the board may restore the parolee to the original or modified terms and conditions of parole. If the parolee, the Department of Corrections, or the agent wish to modify board-ordered terms, conditions, restrictions, and requirements contained within a parolee’s parole agreement, the request must be forwarded to the executive director for submission to a panel or board. However, no board-ordered terms, conditions, restrictions, or requirements in a parole agreement may be modified without the concurrence of two board members[vi].
Pursuant to S.D. Codified Laws § 24-15A-36, at least thirty days prior to an inmate’s parole date, the inmate must submit a parole release plan to the executive director of the board. The plan will include the inmate’s proposed residence, employment, or means of support, and any specialized treatment, counseling, or educational services the inmate proposes to be involved with upon parole. The plan is subject to approval by the executive director of the board. Each inmate must be released from incarceration to parole supervision, without a hearing with the board, at the time of the inmate’s initial parole date, if the inmate has substantively met the requirements of the individual program directive established by the department, agreed to the conditions of supervision and has an approved parole release plan[vii].
Furthermore, any inmate objecting to conditions of parole supervision or a required modification of a release plan may seek a review of the plan or conditions with the board. The board may determine if the proposed conditions or release plan modifications are acceptable or the board may remove or modify proposed conditions or release plan provisions. This review may be of the inmate’s record, release plan, or release conditions. An inmate must agree to the parole conditions and have an acceptable release plan prior to parole release[viii].
Standards for Parole Release
Pursuant to chapter 1-26, the board may promulgate procedural rules for the effective enforcement of this chapter and for the exercise of the powers and duties conferred upon it. Additionally, the board must utilize the following standards in determining if the inmate has substantively met the requirements for parole release at the initial parole date:
(1) The inmate’s compliance with work, school, and program directives;
(2) The inmate’s compliance with the rules and policies of the department;
(3) Conduct by the inmate evincing an intent to reoffend; and
(4) Mitigating factors impacting the warden’s determination of substantive noncompliance.
Pursuant to S.D. Codified Laws § 24-15A-42, in considering a discretionary parole for an inmate who previously violated parole, the board may consider the nature and seriousness of the conduct leading to the parole revocation.
[i] S.D. Codified Laws § 24-13-7.
[ii] S.D. Codified Laws § 24-15-1.1.
[iii] S.D. Codified Laws § 24-15-5.
[iv] S.D. Codified Laws § 24-15-15.
[v] S.D. Codified Laws § 24-15-19.
[vi] S.D. Codified Laws § 24-15-27.
[vii] S.D. Codified Laws § 24-15A-38.
[viii] S.D. Codified Laws § 24-15A-40.