ARSD Article 17:60 — BOARD OF PARDONS AND PAROLES

CORRECTIONS CORRECTIONS

Chapter 17:60:01 General provisions

ARSD 17:60:01:00 Definitions

Words used in this article mean:

(1) "Parole," discretionary action by the Board of Pardons and Paroles as defined by SDCL 24-15-1.1;

(2) "Board," the Board of Pardons and Paroles as established by SDCL 24-13-1;

(3) "Executive director," the director of the Board of Pardons and Paroles as defined by SDCL 24-13-9 with the duties defined by SDCL 24-13-10;

(4) "Clemency," actions as defined by SDCL 24-14-2;

(5) "Pardon," an act of the Governor to remove disabilities suffered by an individual as the result of a conviction;

(6) "Parolee," an individual who has been conditionally released to parole or suspended sentence from a South Dakota Department of Corrections facility prior to the expiration of the individual's sentence under the supervision of the Department of Corrections.

History

Source: 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7.

ARSD 17:60:01:01 Repealed

Regular meetings of the board.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; repealed, 30 SDR 198, effective June 23, 2004.

ARSD 17:60:01:02 Meetings of the board to consider clemency

Applications for executive clemency shall be considered at any meeting of the board.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-6, 24-14-1.

ARSD 17:60:01:03 Repealed

Changing date of regular meetings -- Notice required.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; repealed, 30 SDR 198, effective June 23, 2004.

ARSD 17:60:01:04 Location and schedule of meetings

The regular meetings of the board shall be at South Dakota Department of Corrections facilities. Prior to the first day of each calendar year, the board shall publish a schedule of hearing dates and locations for the upcoming calendar year. The board may hear special cases at any other time and at any place within the state by giving written notice to the inmate whose case is to be heard at least five days before the hearing. The notice shall be furnished also to the inmate's attorney, if known to the board.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004; 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-4, 24-13-6.

ARSD 17:60:01:05 Repealed

Voting.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.

ARSD 17:60:01:06 Hearings -- Representation

Any verbal argument or petition before the board favoring or opposing an application for parole or an application for executive clemency by a person not officially connected with the Department of Corrections shall be considered. Any written statement that may have a bearing on the case shall be accepted.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-13-11.

Chapter 17:60:02 Paroles

ARSD 17:60:02:01 Purpose of parole hearing

A parole hearing with the board shall provide to each inmate whose application is considered an opportunity to present to the board a statement of the inmate's needs, desires, problems, evaluation of present progress, and plans for the future. The board shall consider the presentation by the inmate; shall consider the presentations of other persons favoring or opposing parole; shall review all available history, medical, social, and psychological information, past and present difficulties, institutional adjustment, and progress of the inmate; and shall consider treatment possibilities or other plans for the inmate.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-15-8.

ARSD 17:60:02:02 Time for hearing

Each inmate applying for parole shall be offered a hearing during the regular meeting of the board in the month immediately preceding the date the inmate is eligible for parole or, at the discretion of the board, in the month during which the inmate becomes eligible for parole. If the victim submits a request to be notified of the hearing, the executive director shall provide notice to the victim at least ten days before the hearing. The notice shall be forwarded to the place of notification provided by the victim.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-3. 24-15-8.

ARSD 17:60:02:03 Continuance of hearing

The board may continue the hearing on an application for parole for a period of time not to exceed seven months and may make recommendations to the inmate on rehabilitation needs. The inmate shall be advised of any such continuance.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-10.

ARSD 17:60:02:04 Repealed

Reapplication after denial.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.

ARSD 17:60:02:05 Reapplication after revocation

An inmate whose parole has been revoked may reapply for parole eight months after the date of revocation. If the revocation is at the parolee's own request, this provision does not apply.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7.

ARSD 17:60:02:06 Effect of detainers

The board may not take final action on an application for parole until all felony detainers have been disposed of by the inmate except as follows:

(1) The board may take tentative action which would become final when all such detainers have been removed; and

(2) The board may grant parole to any jurisdiction which has lodged a detainer for the purpose of effecting dual supervision of the inmate.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7, 24-15A-42.
Law Implemented: SDCL 24-13-7, 24-15A-41.1.

ARSD 17:60:02:07 Repealed

Factors considered.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.

ARSD 17:60:02:08 Notification of action

If an application for parole is granted or denied, the board shall give written notice to the inmate and the warden within ten days after adjournment of the meeting at which the action was taken. The denial may set forth the factor or factors listed in SDCL 24-13-7 as guidelines for assisting an inmate in assessing his rehabilitation needs. If the victim has requested notification, the executive director shall forward notice pursuant to SDCL 23A-28C-1 and SDCL subdivision 23A-28C-5(3) to the victim within ten days after adjournment to the place of notification provided by the victim.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7.

ARSD 17:60:02:09 Supervision agreement

Before being released on parole or suspended sentence, the inmate shall execute a supervision agreement setting forth the general and special limitations, restrictions, and conditions that are imposed by the board, the executive director, a parole supervisor, and a parole agent. Any violation of institution rules after being paroled but before actual release may be considered a violation of parole.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-11.

Chapter 17:60:03 Revocation of parole

ARSD 17:60:03:01 Issuance of warrant

17:60:03:01 Issuance of warrant. Upon receipt of a report by a parole agent or other supervising authority that reasonable grounds exist to believe that a parolee has violated a condition, special limitation, or rule of supervision, the executive director shall issue or refuse a warrant of arrest.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-20, 24-15-21.

ARSD 17:60:03:02 Arrest warrant as detainer

If the parolee is in custody on another charge, the arrest warrant may be lodged as a detainer at the institution where the parolee is being held if the executive director determines it is in the best interest of society and the inmate.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7.

ARSD 17:60:03:03 Final hearing

A parolee charged with violating a condition, special limitation, or rule of supervision shall be afforded a final hearing within 90 days following the return of the parolee to a South Dakota Department of Corrections facility. The final hearing shall determine whether the parolee has violated a condition, special limitation, or rule of supervision and whether the violation warrants supervision revocation or some other less restrictive disciplinary action, including continuance of supervision with new restrictions. If the parolee admits the violation the parolee may waive an appearance at the revocation hearing with the board.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-23, 24-15-30.

ARSD 17:60:03:04 Preliminary hearing

A preliminary hearing is not required if the parolee is not under arrest on a board warrant, has signed a waiver of preliminary hearing, has left the State of South Dakota or other approved jurisdiction without authorization and was apprehended outside of that jurisdiction, or has been convicted of a felony or misdemeanor in a South Dakota court, a court of another state, or a federal court. If a preliminary hearing under SDCL 24-15-23 is required and a parolee fails to either receive or waive a preliminary hearing prior to the parolee's return to a South Dakota Department of Corrections facility, the parolee shall receive a preliminary hearing within ten working days of the parolee's return to a South Dakota Department of Corrections facility.

After the preliminary hearing, the hearing officer shall submit to the board a written report on the officer's findings and on the officer's decision resulting from the findings. The report shall be submitted to the board within ten days after the preliminary hearing.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-23.

ARSD 17:60:03:05 Notice of final hearing

The board shall notify the parolee and counsel, if any, in writing of the following:

(1) The date, time, and place of the final hearing;

(2) The charges against the parolee, specifying each condition, special limitation, or rule of supervision violated and setting forth the circumstances of the alleged violation;

(3) That the parolee has a right to a hearing, to have witnesses testify on the parolee's behalf, and to present evidence on the parolee's behalf;

(4) That the parolee has a right to be represented by counsel at the hearing; and

(5) That the parolee or counsel has a right to cross-examine witnesses appearing against the parolee unless the board finds good cause for denying this right. "Good cause" includes a situation in which a witness before the board would have legitimate concerns about the witness's safety and well-being if the witness's identity would become known to the parolee.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-23, 24-15-24.

ARSD 17:60:03:06 Right to counsel

If the parolee appears without counsel at the final hearing, the board shall determine that the parolee understands the right to counsel. If the board is satisfied that the parolee's waiver of counsel is knowingly, intelligently, and freely made, the board shall accept a waiver of counsel. If the parolee desires counsel and is without means to obtain counsel, the board shall notify the sentencing court and request the appointment of counsel.

Cross-Reference: Compensation of assigned counsel, SDCL 23A-40-8.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-15-24.

ARSD 17:60:03:07 Hearing to determine violation and mitigation

The final hearing shall include a determination of any contested facts. The parolee may introduce evidence to establish that the conditions and rules of supervision have not been violated or, if a violation has occurred, that mitigating circumstances do not warrant revocation.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-24.

ARSD 17:60:03:08 Evidence

Evidence at the final hearing may include testimony, affidavits, letters, and other material not ordinarily admissible in a criminal proceeding.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-15-24.

ARSD 17:60:03:09 Standard of proof

If the board is reasonably satisfied that one or more conditions, special limitations, or rules of supervision have been violated, the board may revoke supervision. The board shall give full consideration to any mitigating circumstances presented by the parolee.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004; 35 SDR 47, effective September 8, 2008.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-15-24.

ARSD 17:60:03:10 Continuance

The board may order a continuance of a hearing on the request of the inmate, the state, or counsel for either party, or on the board's own motion, if it appears to be in the best interest of justice or for good cause.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-13-7, 24-15-24.

ARSD 17:60:03:11 Revocation order in writing

If a revocation is ordered, the decision shall be in writing and shall specifically state the findings of fact and conclusions of law which support the order.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-24.

ARSD 17:60:03:12 Decision -- Transmittal to parolee

The decision of the board at a final hearing shall be furnished as soon as practical within ten days to the parolee and any counsel.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-24.

ARSD 17:60:03:13 Loss of good time

A notice of good time which the board orders withheld because of supervision revocation shall be furnished to the inmate. The inmate may request the return of withheld good time when next appearing for parole. The board may consider the inmate's institutional record since the inmate's return to the institution and may return any or all of the good time previously withheld.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; 30 SDR 198, effective June 23, 2004.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-15-24.

Chapter 17:60:04 Sentencing, Repealed

ARSD 17:60:04 Repealed chapter

CHAPTER 17:60:04

SENTENCING

(Repealed. 33 SDR 43, effective September 18, 2006)

Chapter 17:60:05 Executive clemency

ARSD 17:60:05:01 Applications accompanied by signed statement

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.

History

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.

ARSD 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.

History

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.

ARSD 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.

Cross-Reference: Warrant executed by arrest -- Advise defendant as to warrant -- Manner of service of summons, SDCL 23A-2-9.

History

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.

ARSD 17:60:05:04 Repealed

Contents of notice -- Publication in newspaper or posting on courthouse door.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.

ARSD 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.

History

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.

ARSD 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.

History

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.

ARSD 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.

History

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.

ARSD 17:60:05:08 Repealed

Time for filing.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; 12 SDR 162, effective April 20, 1986; repealed, 33 SDR 43, effective September 18, 2006.

ARSD 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.

History

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.

ARSD 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.

History

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.

ARSD 17:60:05:11 Repealed

Submitting new application after denial.** Repealed.

History

Source: 4 SDR 54, effective February 23, 1978; repealed, 12 SDR 162, effective April 20, 1986.

ARSD 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.

History

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.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 17:60:05:14 Request for application

The executive director shall submit executive clemency application materials to an applicant upon receipt of a written request.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1, 24-14-4.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1, 24-15A-10.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

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.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1, 24-14-11.

ARSD 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.

History

Source: 33 SDR 43, effective September 18, 2006.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-1.

ARSD 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.

History

Source: 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-13-7.
Law Implemented: SDCL 24-14-8, 24-14-9.

Chapter 17:60:06 General provisions under SDCL chapter 24-15A

ARSD 17:60:06:01 Board meetings

The provisions of §§ 17:60:01:04 and 17:60:01:07 apply to parole hearings pursuant to SDCL chapter 24-15A.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-12, 24-15A-42.

Chapter 17:60:07 Parole date review under SDCL chapter 24-15A

ARSD 17:60:07:01 Application for board review of established parole date

An inmate who is aggrieved by the parole date established by the Department of Corrections may apply to the board for a review by the board and a determination of the true parole date. The application shall be in writing and shall specify the inmate's factual and legal contentions concerning the application.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-33.

ARSD 17:60:07:02 Hearing on application

Before determining the inmate's true parole date, the board shall provide the inmate with an opportunity to present the inmate's factual and legal arguments at a hearing. Notice of the hearing shall be given to the inmate at least ten days before the hearing.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-33.

ARSD 17:60:07:03 Continuances

The board may continue a scheduled hearing for a period of time up to six months and shall give notice of the continuance to the inmate.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-33.

ARSD 17:60:07:04 Evidence at hearing

The board may consider at the hearing any evidence, affidavit, testimony, letter, or other material not ordinarily admissible in a criminal or civil proceeding.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-33.

ARSD 17:60:07:05 Order setting parole date

The board's decision on the determination of parole date shall be in writing and shall state the findings of fact and conclusions of law which support the order.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-33.

Chapter 17:60:08 Noncompliance with individual program directives under SDCL chapter 24-15A

ARSD 17:60:08:01 Hearing on noncompliance or insufficient information.

Hearing on noncompliance or insufficient information.** An inmate, who has been reported by the warden to be out of compliance with the inmate's individual program directive or who the warden reports that there is insufficient information to determine the inmate's compliance or noncompliance, shall be scheduled for a hearing. This hearing shall be commenced within 60 days after the board's receipt of the warden's report of noncompliance or insufficient information.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-10, 24-15A-35, 24-15A-39.

ARSD 17:60:08:02 Notice of hearing

The board shall notify the inmate, legal counsel, if any, and the warden in writing of the following:

(1) The date, time, and place of the hearing and the legal authority under which it is being held;

(2) The reasons asserted for noncompliance with the individual program directive or the reason for undetermined compliance;

(3) The right to a hearing, to have witnesses appear on the inmate's behalf, and to be represented by any retained counsel, and that these and other due process rights are forfeited if they are not exercised at the hearing;

(4) The right to cross-examine any witness appearing against the inmate unless the board finds cause for limiting or denying this right;

(5) The right to offer testimony that includes any letter, affidavit, or other written material not normally admissible in a criminal or civil proceeding; and

(6) The right to appeal the board's decision to the circuit court and the Supreme Court of South Dakota as provided by SDCL chapter 1-26.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-39.

ARSD 17:60:08:03 Continuances

The board may order a continuance of a hearing on the request of the inmate, the state, or counsel for either party, or on the board's own motion if it appears to be in the best interest of justice or for good cause.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-39.

ARSD 17:60:08:04 Evidence at hearing

The board may consider at the hearing testimony, affidavits, letters, or other material not ordinarily admissible in a criminal or civil proceeding.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-39.

ARSD 17:60:08:05 Standard of proof

If the board is reasonably satisfied that the conditions of the individual program directive have been violated by the inmate, the board may find noncompliance. The board shall give full consideration to any mitigating circumstances offered by the inmate.

History

Source: 24 SDR 136, effective April 14, 1998; 35 SDR 47, effective September 8, 2008.
General Authority: 24-15A-42.
Law Implemented: 24-15A-39.

ARSD 17:60:08:06 Insufficient information

If an inmate does not have an individual program directive or the inmate's compliance status with the inmate's individual program directive is not available and the warden has reported a finding of undetermined compliance to the board, the board shall use the following standards to make a determination of compliance or noncompliance:

(1) The inmate's compliance with work, school, and program directives;

(2) The inmate's compliance with the rules and policies of the department and the institution where the inmate was housed;

(3) Conduct by the inmate evincing an intent to reoffend; and

(4) Mitigating factors impacting noncompliance.

If the board is reasonably satisfied that the inmate has violated these conditions, the board may find noncompliance.

History

Source: 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-15A-42.
Law Implemented: SDCL 24-15A-39, 24-15A-42.

Chapter 17:60:09 Procedures for parole under SDCL chapter 24-15A

ARSD 17:60:09:01 Purpose of discretionary parole hearing

A discretionary parole hearing with the board shall provide to each inmate an opportunity to present to the board a statement of the inmate's needs, desires, problems, evaluation of present progress, and plans for possible future parole.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-17, 24-15A-29, 24-15A-39, 24-15A-41.

ARSD 17:60:09:02 Time for hearing

Except as provided in SDCL 24-15A-29, each inmate who is eligible for discretionary parole following revocation of parole or following initial denial shall be afforded a hearing during the month designated by the board for the inmate's discretionary parole hearing.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15A-10, 24-15A-29, 24-15A-39, 24-15A-41.

ARSD 17:60:09:03 Continuance of hearing

For cause the board may continue a hearing for discretionary parole. The inmate shall be advised of any continuance.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-29, 24-15A-39, 24-15A-41.

ARSD 17:60:09:04 Effect of detainers

Except as follows, the board may not take final action on a discretionary parole until each felony detainer has been disposed of by the inmate:

(1) The board may take tentative action which becomes final when each felony detainer has been removed; and

(2) The board may grant parole to any jurisdiction which has lodged a detainer for the purpose of effecting dual supervision of the inmate.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-17, 24-15A-29, 24-15A-39, 24-15A-41, 24-15A-41.1.

ARSD 17:60:09:05 Notice of action

If a discretionary parole is granted, denied, or continued, the board shall give written notice to the inmate and the warden within ten days after adjournment of the meeting at which the action was taken.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-17, 24-15A-29, 24-15A-39, 24-15A-41.

ARSD 17:60:09:06 Supervision agreement

Supervision agreement** Before being released on parole or suspended sentence, the inmate shall execute a supervision agreement setting forth each general and special limitation, restriction, and condition that is imposed by the board, the executive director, a parole supervisor, or a parole agent. Any violation of institution rules after being paroled but before actual release may be considered a violation of parole.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15A-17, 24-15A-29, 24-15A-37, 24-15A-39, 24-15A-41.

ARSD 17:60:09:07 Hearings -- Representation

Any verbal argument or petition before the board favoring or opposing parole or an application for executive clemency by a person not officially connected with the Department of Corrections shall be considered. Any written statement that may have a bearing on the case shall be accepted.

History

Source: 41 SDR 107, effective January 5, 2015.
General Authority: SDCL 24-15A-42.
Law Implemented: SDCL 24-15A-41.

Chapter 17:60:10 Review of parole supervision or release plans under SDCL chapter 24-15A

ARSD 17:60:10:01 Written objections to conditions imposed

Any inmate who objects to the conditions, special limitations, or rules of supervision or required modifications of a release plan, and who seeks review of the objections before the board, shall make the objections in writing stating fully the inmate's factual and legal contentions. The inmate's objections must be filed with the board within 30 days after the provisions of the supervision or release plan being objected to has been required of the inmate.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15A-36, 24-15A-40.

ARSD 17:60:10:02 Consideration by board

The board may consider the objections of the inmate, the inmate's record, release plan, or release conditions, and may also consider any information provided by the executive director of the Board of Pardons and Paroles, the Department of Corrections, or a warden of a state penitentiary.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-36, 24-15A-40.

ARSD 17:60:10:03 Notice of decision

The inmate shall be provided a written notification of the decision of the board after the board has had an opportunity to review the material and render a decision.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-36, 24-15A-40.

Chapter 17:60:11 Revocation of parole under SDCL chapter 24-15A

ARSD 17:60:11:01 Issuance of arrest warrant

Upon receipt of a report by a parole agent or other supervising authority that reasonable grounds exist to believe that a parolee has violated a condition, special limitation, or rule of supervision, the executive director shall issue or refuse to issue a warrant of arrest.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15-21, 24-15A-28.

ARSD 17:60:11:02 Arrest warrant as detainer

If the parolee is in custody on another charge, the arrest warrant may be lodged as a detainer at the institution where the parolee is being held if the executive director of the board determines that it is in the best interest of society and the inmate.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:03 Preliminary hearing

After the preliminary hearing, the hearing officer shall submit to the board a written report of findings and a recommended decision resulting from the findings. The report shall be submitted to the board within ten days after the preliminary hearing.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:04 Notice of final hearing

The board shall notify the parolee and counsel, if any, in writing of the following:

(1) The date, time, and place of the final hearing;

(2) The charges against the parolee, specifying each condition, special limitation, or rule of supervision violated and setting forth the circumstances of the alleged violation;

(3) That the parolee has a right to a hearing, to have witnesses appear on the parolee's behalf, and to present evidence on the parolee's behalf;

(4) That the parolee has a right to be represented by counsel at the hearing; and

(5) That the parolee or counsel has a right to cross-examine witnesses appearing against the parolee unless the board finds good cause for denying this right. "Good cause" includes s situation in which a witness before the board would have legitimate concerns about the witness's safety and well-being if the witness's identity would become known to the parolee.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:05 Right to counsel

If the inmate appears without legal counsel at the hearing, the board shall determine that the inmate understands the right to counsel. If the board is satisfied that the inmate understands the right to counsel and waives the right knowingly, freely, and intelligently, the board may accept the waiver of counsel and proceed. If the inmate raises any substantial reason which justifies or mitigates the inmate's action or if the reason is complex and otherwise difficult to develop or present, and if the inmate is financially unable to obtain counsel and requests counsel, the board shall notify the sentencing court, request the appointment of counsel, and continue the hearing until a later date.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:06 Hearing to determine violation and mitigation

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:07 Final hearing

A parolee charged with violating a condition, special limitation, or rule of supervision shall be afforded a final hearing within 90 days following the return of the parolee to a South Dakota Department of Corrections facility. The final hearing shall determine if the parolee has violated a condition, special limitation, or rule of supervision and if the violation warrants supervision revocation or some other less restrictive disciplinary action, including continuance of supervision with new restriction. If the parolee admits the violation, the parolee may waive an appearance at the revocation hearing with the board.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: 24-13-7, 24-15A-42.
Law Implemented: 24-15-23, 24-15-30, 24-15A-28.

ARSD 17:60:11:08 Evidence

Evidence at the final hearing may include testimony, affidavits, letters, or other material not ordinarily admissible in a criminal or civil proceeding.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:09 Standard of proof

If the board is reasonably satisfied that the conditions, special limitations, or rules of supervision have been violated, the board may revoke supervision. The board shall give full consideration to any mitigating circumstances presented by the parolee.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004; 35 SDR 47, effective September 8, 2008.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:10 Continuance

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:11 Revocation order in writing

If the board orders a revocation, the decision shall be in writing and shall specifically state the findings of fact and conclusions of law which support the order.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:12 Decision -- Transmittal to parolee

The board shall transmit the board's decision to the parolee and any counsel after the final hearing.

History

Source: 24 SDR 136, effective April 14, 1998.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

ARSD 17:60:11:13 Loss of credit for time on supervision

If the board determines that denial of credit for time served on supervision should be ordered, the board shall provide notice to the inmate and any counsel involved of this decision along with the board's order concerning revocation of supervision. An inmate may request the reinstatement of credit for this time when subsequently applying for parole. The board may consider the inmate's institutional record since return to the institution and may give or deny reinstatement of credit at the board's discretion.

History

Source: 24 SDR 136, effective April 14, 1998; 30 SDR 198, effective June 23, 2004.
General Authority: 24-15A-42.
Law Implemented: 24-15A-28.

Chapter 17:60:12 Executive clemency under SDCL chapter 24-15A

ARSD 17:60:12:01 Requirements

The provisions of chapter 17:60:05 apply to any person applying for executive clemency for a crime committed after July 1, 1996.

History

Source: 24 SDR 136, effective April 14, 1998; 41 SDR 107, effective January 5, 2015.
General Authority: 24-15A-42.
Law Implemented: 24-14-1.

Chapter 17:60:13 Indeterminate sentencing under SDCL chapter 24-15A, Repealed

ARSD 17:60:13 Repealed chapter

CHAPTER 17:60:13

INDETERMINATE SENTENCING UNDER SDCL CHAPTER 24-15A

(Repealed. 41 SDR 107, effective January 5, 2015)