Bizarre legal debate shows it’s time to talk about the death penalty

Read the next paragraph and see if it doesn’t seem like the plot of a dystopian science fiction novel in which the future is going horribly wrong. Or maybe it’s the plot of a social satire in which society has gone horribly, well, wrong.

Lawyers are arguing over the future of a young man accused of murder to decide if he has the mental acuity to qualify for the death penalty. In other words: Is he smart enough to be executed by the state? Prosecutors want to get an answer from the South Dakota Supreme Court since the laws on that sort of thing are vague. They’re doing this before, yes, you read that right, before the man’s conviction for murder.

It seems like overkill, pardon the pun, to worry so much about the execution of a prisoner before achieving a conviction. It’s difficult to understand why there’s such a rush. When the death penalty is involved, justice is seldom swift. A recent South Dakota Searchlight story about the plight of Amir Beaudion Jr. highlights all the lawyering going on for a penalty that’s rarely used in South Dakota.

Some states use the death penalty early and often. That hasn’t been the case in South Dakota where the death penalty was first used on March 1, 1877, when Jack McCall was hanged for killing Wild Bill Hickok. In the 146 years since then, the death penalty has been used in South Dakota 19 times. The most recent was on Nov. 4, 2019, with the execution of Charles Rhines for the murder of Donavan Schaeffer.

Although it is seldom used in this state, the death penalty can be a topic of debate. In the 2016 legislative session, a bill to abolish the death penalty got a lengthy hearing by the Senate State Affairs Committee. The bill’s main sponsor was Vermillion Republican Arthur Rusch, a former circuit court judge. In his role as judge, Rusch carried out a jury’s verdict and sentenced Donald Moeller to die for the murder of 9-year-old Becky O’Connell.

Death penalty dispute could go to state Supreme Court

It was clear that Rusch was still feeling the emotional effects of sentencing another man to die. He also noted the cost to counties that host a death penalty case, explaining that if death is on the line, the sitting judge will make sure that the defendant has a first-class defense.

A proponent of the bill was Rep. Timothy Johns, a Republican from Lead who had also served as a circuit court judge. Johns noted the irony of a pro-life state like South Dakota having a death penalty. Former state Attorney General Roger Tellinghuisen spoke in favor of the bill, noting that while he backed the death penalty as a young prosecutor he came to believe that it wasn’t a deterrent for criminals.

Speaking against the bill was Marty Jackley, who was then and is once again the state’s attorney general. He explained that the penalty is used only against the most deserving criminals. Also speaking against the bill was Lynette Johnson, the wife of corrections officer Ronald Johnson, who was beaten to death by Rodney Berget and Eric Robert. Robert was executed in 2012; Berget in 2018.

After lengthy testimony, the committee rejected the bill and South Dakota’s death penalty lives on to this day. But, like any relic, it is rarely taken out and used.

A recent op-ed in the Washington Post was written by two former governors of Alabama, one Republican and one Democrat. They both presided over executions during their tenures as governor and now have come to regret it. They noted research by the Death Penalty Information Center that says one person on death row is exonerated for every 8.3 executions. That means that the wrong judgment is levied about 12% of the time. If those numbers hold true through the ages, that means there’s a statistical chance that two of the people executed in South Dakota were not guilty.

The death penalty gets more of a workout in Alabama than it does in South Dakota. In Alabama, 167 people are on death row. In South Dakota, there’s one. The lone inmate on death row, still fighting his conviction in the courts, is Briley Piper, convicted of murder in 2000.

Consider the ever-mounting cost of Piper’s court battles. Include the fact that South Dakota’s death penalty obviously wasn’t a big enough deterrent to keep Piper from participating in the murder of Chester Allan Poage. It all adds up to a rarely used law that isn’t worth having on the books.

South Dakota banned the death penalty in 1915 only to bring it back in 1939. With only one prisoner on death row, it may be time to consider banning it again. If nothing else, a new ban would squelch the oddball debate about whether a man with an I.Q. of 60, who has yet to be convicted of murder, should be eligible for a state execution.