Death penalty repeal fails by one vote in Senate committee

The G. Norton Jameson Annex at the South Dakota State Penitentiary in Sioux Falls. (John Hult/South Dakota Searchlight)

PIERRE — A Senate panel narrowly shot down a bill to repeal the death penalty in South Dakota on Thursday.

The 4-3 vote from the Senate Judiciary Committee came after about an hour of emotional testimony from a judge who presided over a death penalty case, the widow of a slain correctional officer and multiple members of the clergy.

Senate Bill 106 came from Sen. Reynold Nesiba, D-Sioux Falls, who has sponsored similar bills in the past.

Nesiba told the committee that the proposal would not undo the death sentence of Briley Piper, the state’s only death row inmate, then deferred most of his time to supporters to make the case for why no one else should face a death sentence in South Dakota.

Sen. Reynold Nesiba, D-Sioux Falls, talks with other legislators on the House floor after Gov. Kristi Noem’s budget address on Dec. 5, 2023. (Makenzie Huber/South Dakota Searchlight)

The leader of South Dakotans for Alternatives to the Death Penalty, Denny Davis, told the committee that a survey of county auditors on capital murders – cases for which the death penalty could conceivably be imposed – revealed that death penalty cases cost 10 times as much to prosecute and manage after convictions than those where the defendant is sentenced to life without parole.

“This is an unnecessary burden for counties that are up here every year begging for money,” Davis said.

The fiscal point underscored Davis’ main concern, which is the idea that the state would sanction the taking of a life.

“Is the death penalty really what we want to do as a people?” Davis said.

Pastor, former judge support bill

Art Rusch, a former judge and state lawmaker, presided over the death penalty trial of Donald Moeller, who was executed in October 2012 for the 1990 rape and murder of 9-year-old Becky O’Connell.

“All of you can talk about the death penalty in an abstract sense. But I spent a year of my life preparing for that death penalty case,” Rusch said.

Such cases exact a heavy mental toll on jurors, he said. Death penalty cases have two phases: an initial trial to determine a defendant’s innocence or guilt, and a second trial that weighs the possibility of a death sentence. Rusch dismissed one juror in the Moeller case due to the stress their decision had caused.

All that stress and all the knock-on expenses from doubled-up trials and post-conviction appeals does not deter crime, Rusch argued, citing his own experiences and the words of former Attorney General Mark Meierhenry.

Another former legislator, Pastor Steve Hickey, also testified in favor of the bill. Hickey opposes the death penalty on moral grounds, but also political ones. In a time when government has been “weaponized,” in his words, the authority to impose the death penalty is too much.

“I’ve come to the conclusion that conservatives will rue the day they supported the death penalty, a government big enough to decide who lives and who dies,” Hickey said.

Life without parole would suffice as an ultimate punishment, the bill’s supporters said.

Attorney general testifies in opposition

Attorney General Marty Jackley was the first opponent to Nesiba’s bill. He opened his defense of death for murderers by acknowledging the deeply held beliefs behind the opposition.

But one of Jackley’s first points was a refutation of the efficacy of life without parole as a final solution for justice.

South Dakota Attorney General Marty Jackley testifies before the House Judiciary Committee on Feb. 22, 2023, at the Capitol in Pierre. (Courtesy of Attorney General’s Office)

A sentence of life without parole can be commuted by a governor. That happened for Deb Jenner, who stabbed her infant daughter to death with a toy aluminum airplane and served nearly two decades before earning a commutation from former Gov. Bill Janklow.

She was eventually released by the state Board of Pardons and Paroles.

“Life does not mean life in South Dakota,” Jackley said.

The penalty does serve as a deterrent, he argued, but it also serves to expedite justice for victims. Prosecutors are required to give notice of their intent to pursue the death penalty, and Jackley has done that four times.

On two of those occasions, the defendants pleaded guilty to avoid the death penalty.

“But for the notice to seek the death penalty, those cases would still be litigated today,” Jackley said.

The other two cases were tied to the same crime – the murder of Correctional Officer Ron “R.J.” Johnson in 2011. Eric Robert and Rodney Berget, both of whom have since been executed, wrapped Johnson’s head in plastic, beat him to death with a lead pipe, stole his uniform and tried to walk out of the South Dakota State Penitentiary.

Both were serving life sentences.

“If you take away the death penalty, there would have been absolutely no penalty for what they did,” Jackley said.

Lincoln County State’s Attorney Tom Wollman, who managed the appeals for Moeller until his execution in October of 2012, used the details of that gruesome killing in part as an answer to the question “is it worth the expense?”

The death penalty is used sparingly, Wollman said, and only for the worst cases.

“Absolutely, it costs money. All important things in our lives cost money,” Wollman said.

Slain officer’s widow testifies

Officer Johnson’s widow, Lynette Johnson, wept as she described learning that her husband had been murdered on his birthday, a day he’d come in to work to cover someone else’s shift.

Johnson’s testimony recounted the moments in their family’s life that her husband missed as a result of his murder, holding up photos of her grandchildren as she listed off the milestones they’d hit without their “Papa” there to see them.

“We have to protect the law enforcement,” Johnson said.

In his rebuttal, Nesiba told the committee “Ron Johnson should be here today.” The state prison system failed to protect him, said Nesiba, who argued that the case points to why it’s important for the state to build a newer, safer prison.

But the situation doesn’t support the notion that the death penalty protects law enforcement, he said.

“The death penalty was in place,” Nesiba said. “It didn’t deter them.”

In the end, the committee voted 4-3 in favor of a motion to move the bill to the 41st day of the 38-day legislative session, effectively defeating it.

Sen. Jim Stalzer, R-Sioux Falls, referenced the repeat attempts to ban the death penalty before casting his vote.

“I worked with Ron Johnson for six years. I had morning coffee with him. I had lunch with him,” Stalzer said. “It just breaks my heart to see Lynette have to come up here every year.”

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