Former South Dakota Prosecutor and Judge Introduces Bill to Limit the State’s Death Penalty

A South Dakota state sen­a­tor who pre­vi­ous­ly served as a pros­e­cu­tor and a state court judge has intro­duced a bill to lim­it the breadth of the state’s death penal­ty statute. Senate Bill 98, intro­duced by Senate Judiciary Committee Chairman Arthur Rusch (R – Clay, pic­tured) on January 25, 2021, would restrict cap­i­tal pun­ish­ment to a sin­gle aggra­vat­ing cir­cum­stance, pre­med­i­tat­ed mur­ders in which a defen­dant killed a police offi­cer, cor­rec­tions offi­cer, or fire­fight­er dur­ing the per­for­mance of their official duties. 

Sen. Rusch said his expe­ri­ence of adju­di­cat­ing cap­i­tal cas­es influ­enced his deci­sion to intro­duce the bill. ​“I am the first leg­is­la­tor in the his­to­ry of the state of South Dakota who has per­son­al­ly sen­tenced a man to death,” he said. Rusch served as a judge in South Dakota’s first judi­cial dis­trict for 18 years and imposed a death sen­tence on Donald Moeller, who was exe­cut­ed in 2012. Rusch said, ​“During all those years as a pros­e­cu­tor I would have said the death penal­ty doesn’t both­er me, but once you are real­ly look­ing it in the face, you real­ly have to ques­tion whether that’s the way we ought to be going.”

Rusch’s bill has bipar­ti­san sup­port, with twelve Republicans and three Democrats co-spon­sor­ing the leg­is­la­tion. Both cham­bers of the state leg­is­la­ture have Republican super­ma­jori­ties and Democratic co-spon­sor Senator Troy Heinert said he is unsure how much oppo­si­tion the bill will face. In addi­tion to apply­ing only to mur­ders of first respon­ders, the bill would also lim­it the death penal­ty to those defen­dants who are ​“the actu­al per­pe­tra­tor, rather than an accom­plice, aider, or abettor.”

The South Dakota bill is part of a nation­wide trend towards reduced use of the death penal­ty, which has been par­tic­u­lar­ly strong in the West. No state west of Texas has per­formed an exe­cu­tion since 2014. In that time, Colorado and Washington have abol­ished the death penal­ty, California has declared a mora­to­ri­um on exe­cu­tions, and Oregon, which also has a mora­to­ri­um on exe­cu­tions, has dra­mat­i­cal­ly nar­rowed the scope of its death penal­ty. In 2019, Oregon passed a bill to restrict the use of the death penal­ty to cas­es involv­ing one of four aggra­vat­ing fac­tors. Like the pro­posed bill in South Dakota, Oregon’s law still allows cap­i­tal pun­ish­ment for the mur­der of police or correctional officers. 

A bill to restrict the death penal­ty has also been pro­posed in Indiana this year. That mea­sure would allow the death penal­ty for defen­dants con­vict­ed of killing a police offi­cer or more than one vic­tim in a sin­gle inci­dent. Seven states, plus the U.S. Congress, have bills before them to abol­ish the death penalty. 

South Dakota has car­ried out five exe­cu­tions in the mod­ern era of the death penal­ty, most recent­ly in 2019. The state’s last death sen­tence was hand­ed down in 2014, and only one per­son is cur­rent­ly on death row.