South Dakota
Restoration of Rights & Record Relief

 

 

Last updated:  May 2, 2020

I.  Loss & restoration of civil/firearms rights

A.  Civil rights

Pursuant to 2012 legislation, persons convicted on or after July 1, 2012, and “serving a sentence for a felony conviction” are removed from the voter rolls for the duration of their sentence, including a sentence to probation.  S.D. Codified Laws § 12-4-18, as amended by HB 1247. According to a summary of South Dakota’s felony disenfranchisement scheme prepared by the Secretary of State, the vote is restored only after payment of fines and fees. https://sdsos.gov/elections-voting/voting/register-to-vote/felony-convictions.aspx.  The vote is not lost for those subject to the 2012 law if imposition of sentence is suspended.  Id.  

The 2012 legislation disenfranchising probationers appears to render them ineligible to run for legislative office and to sit on a jury.  See S.D. Const. art. 3, § 3 (disqualifying from legislative office those who cannot vote); S.D. Codified Laws § 16-13-10 (persons convicted of a felony may not sit on jury unless “restored to civil rights”). 

Persons convicted prior to July 1, 2012, lose the right to vote, hold office and sit on a jury only if they were sentenced to a prison term, and includes a period of parole, even if the prison sentence is suspended.  See S.D. Codified Laws § 23A-27-35:1   

A sentence of imprisonment in the state penitentiary for any term suspends the right of the person so sentenced, to hold public office, to become a candidate for public office and to serve on a jury.  Any such person so sentenced forfeits all public offices and all private trusts, authority, or power during the term of such imprisonment. After a suspension of sentence pursuant to Section 23A-27-18, upon the termination of the time of the original sentence or the time extended by order of the court, a defendant’s rights withheld by this section are restored. However, the voting rights of any person sentenced to imprisonment in the state penitentiary shall be governed by Title 12.

Upon issuance of a discharge certificate by Secretary of Corrections, a person is considered “restored to the full rights of citizenship.”  S.D. Codified Laws §§ 24-5-2, 24-15A-7.  A discharge certificate is not issued until the entire prison sentence is completed, including any period of parole.  Id.  However, the certificate is issued upon grant of early final discharge from supervision as a parolee.  § 24-5-7.

Federal and out-of-state convictions:  According to the website of the Secretary of State, supra, those with federal and out-of state convictions are subject to the same regime, and disqualification from the franchise continues during a period of supervised release for federal offenders convicted after July 1, 2012. 

B.  Firearms

Firearms rights are not lost unless a person is convicted of a “crime of violence” or certain drug felonies, in which case rights are restored automatically fifteen years after completion of sentence.  S.D. Codified Laws § 22-14-15; see also § 22-1-2(9) (defining “crime of violence”).  Earlier relief by pardon is available only if specified in the pardon document.  § 24-14-12.

II.  Pardon policy & practice

A.  Authority

According to the Supreme Court of South Dakota, there are two legally distinct types of pardons in South Dakota.  See Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004).  Under the first type of pardon, the governor may act independently and privately under article 4, section 3 of the South Dakota Constitution.  S.D. Const. Article IV, § 3.  Under the second type, the governor may pursue the public route recognized in the South Dakota Code and delegate, by executive order, authority to make pardon recommendations to the Board of Pardons and Paroles.  S.D. Codified Laws § 24-14-1 et seq. of Only pardons granted by this second route result in sealing of the record of the conviction and, after an additional five years, the pardon itself.  See § 24-14-11; see also Doe, 680 N.W.2d at 313.   The Board may also recommend to the governor first offender “exceptional pardons.”  § 24-14-8, discussed below.  Answers to “FAQs” are posted on the Board’s website.  Frequently Asked Questions, S.D. Dep’t of Corrections, http://doc.sd.gov/about/faq/clemency.aspx.  Prior to 2002, many pardons were issued privately by the governor each year without consultation with the Parole Board or notification to the legislature.  See AP, Disclosures of Secret Pardons Touch Off an Uproar in South Dakota, New York Times, Mar. 22, 2003, https://www.nytimes.com/2003/03/22/us/disclosures-of-secret-pardons-touch-off-uproar-in-south-dakota.html.   That practice has now evidently ceased, and since the adoption in 2004 of the second statutory route to a pardon, the governors of South Dakota have refused to grant a pardon except upon the Board’s recommendation. 2  The statutory pardon process has been a very efficient one: between sixty and seventy people apply for a pardon each year, the Board recommends more than half of them to the governor, and the governor customarily accepts the Board’s recommendations. The entire process takes less than six months from beginning to end.  See Bob Mercer, State saving time with streamlined pardons, Rapid City Journal (October 10, 2014), available at http://rapidcityjournal.com/news/local/state-saving-time-with-streamlined-pardons/article_2abf9435-711b-59a4-b31d-50d0c2cc92a6.html

B.  Administration

The Board of Pardons and Paroles is a nine-member board charged by law with the authority to make decisions relating to granting or revoking parole, to develop parole policy and procedure.  By executive order, the Board also makes recommendations to the governor on pardons and commutations.  Three of the board members are appointed by the governor, three are appointed by attorney general, and the remaining three are appointed by the South Dakota Supreme Court.  S.D. Codified Laws §§ 24-13-1, 24-13-2.  One of the appointees by each appointing authority must be an attorney.  Id.  Each member of the board must be a resident of South Dakota and be appointed for a four-year term with the advice and consent of the Senate, and may be reappointed.  Id.; see also Board of Pardons and Paroles, S.D. Dep’t of Corrections, http://doc.sd.gov/parole/.  The Board is required by law to meet at least every three months, and names its own chair.  §§ 24-13-4, 24-13-6.  The Board is administered under the jurisdiction and direction of the Department of Corrections but retains “quasi-judicial, quasi-legislative, advisory and other non-administrative functions” independent of the Department of Corrections.  § 24-13-3.

C.  Effect

Per S.D. Codified Laws § 24-14-11, persons pardoned pursuant to statutory provisions are

released from all disabilities consequent on the person’s conviction [except for firearms privileges if not specified, § 24-14-12] . . . . The pardon restores the person, in the contemplation of the law, to the status the person occupied before arrest, indictment, or information. No person as to whom such order has been entered may be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of such person’s failure to recite or acknowledge such arrest, indictment, information, or trial in response to any inquiry made of such person for any purpose.

In addition, upon the granting of a pardon under the provisions of the statute, the records are sealed:

[T]he governor shall order that all official records relating to the pardoned person’s arrest, indictment or information, trial, finding of guilt, application for a pardon, and the proceedings of the Board of Pardons and Paroles shall be sealed. The governor shall file a public document with the secretary of state certifying that the governor has pardoned the person in compliance with the provisions of this chapter. The document shall remain a public document for five years and after five years that document shall be sealed.

§ 24-14-11. The pardoned offense shall be considered a prior conviction for the purpose of sentencing for subsequent offenses, determination of habitual offender status, or prior DUI convictions.  Id.  Sealed records are routinely available to law enforcement and prosecutors.   The South Dakota Supreme Court has held that records of a pardon issued by the governor alone pursuant to his constitutional power, “without following the provisions of this chapter,” may not be sealed.   See Doe v. Nelson, 680 N.W.2d 302, 309 n.8, 313 (S.D. 2004) (quoting S.D. Codified Laws § 24-14-11); see also 3 S.D. Op. Att’y Gen. 01 (2003), 2003 WL 21406288.  

D.  Eligibility

Standard pardons:  A person may apply for pardon immediately after completion of sentence, but as a general standard the Board applies a five-year eligibility waiting period.  All aspects of the sentence must be completed, including payment of court debt.  Out-of-state and federal convictions are ineligible.  See United States v. Capito, 992 F.2d 218, 219-20 (8th Cir. 1993); Thompson v. United States, 989 F.2d 269, 270-71 (8th Cir. 1993).  The on-line application form is available at https://doc.sd.gov/pardon/default.aspx.  

“Exceptional pardons“:   First felony offenders and misdemeanants may qualify for an “exceptional pardon” five years after sentencing or release from prison, if their offense was not punishable by life imprisonment.  S.D. Codified Laws § 24-14-8 (amended by 2005 S.D. Laws 132, § 7).  Applicants must comply with all procedures applicable to ordinary pardons except for the requirement of newspaper publication in § 24-14-4 of the South Dakota Code.  § 24-14-9.  According to the Board of Pardons, as of August 2012 no exceptional pardons had been granted.  The application process may be expedited. 

E.  Process

The process for applying for a pardon is burdensome and complex, though efforts have been made to streamline it in recent years.  See South Dakota becomes first state with online pardon application, Government Technology, May 19, 2017, https://www.govtech.com/public-safety/South-Dakota-Becomes-First-State-with-Online-Pardon-Application.html.  That said, an applicant must publish a notice of their intent to apply in an official newspaper in the county where the conviction occurred. S.D. Codified Laws § 24-14-4.  The notice must be published once a week for three consecutive weeks, and must contain the applicant’s name, the crime of conviction and date, and the sentence received. The last publication of the notice must occur at least twenty days before the hearing. A notarized affidavit of the publication from the newspaper must be submitted with the pardon application.  Only first felony offenders and misdemeanants filing for an “exceptional pardon” are excused from this publication requirement.

The applicant must also send a notice to the state’s attorney in the county or counties of conviction, and a standard form is provided by the Board for this purpose.  The applicant must also submit a “letter of personal plea” stating why they are seeking a pardon.  See https://doc.sd.gov/documents/forms/clemency/ExpeditedPardonInstructions.pdf.

There is no fee to apply.  However, the Board website notes that “some costs will be incurred with the gathering of documents and completion of assessments.”

Upon receipt of the application the Board schedules an “Initial Hearing” before a panel of the Board to determine whether the application should move forward, at which the applicant may be present.  If the Board decides to move forward, it will schedule a “Final Hearing” at which it will decide whether or not to recommend a pardon. This hearing is before all nine members of the Board. The Board notifies the State Attorney General, the prosecutor, the sentencing judge, and any relevant law enforcement official of the date, time, and location of the Final Hearing. The Board will also notify the victim, who may attend the hearing and submit their opinion on the application.  The hearing is open to the public, and any interested party may attend and submit oral or written statements on the application.

If the Board decides to recommend a pardon, it submits a non-binding recommendation to the governor for action.  § 24-14-5. The Board’s recommendation to the governor must be in writing. § 24-14-7.  

The Board meets in open session at facilities provided by the Department of Corrections, and it is required by law to meet “at least every three months” to hear applications for parole, to decide parole revocations, to discuss and adopt policy, “and upon request of the Governor, [to] make recommendation[s] for pardon, commutation, reprieve, or remission of fines or forfeitures.”  § 24-13-6.  The Board is required to “publish annually a schedule of hearing dates and locations for the next calendar year.”  S.D. Admin. Code § 17:60:01:04.   

Based on a law enacted in early 2019, a hearing panel of two Board members appointed by the chair may now make clemency recommendations to the governor.  See HB 1005 (January 31, 2019)(repealing the requirement in § 24-13-4.6 that pardon recommendations be made by a majority of the Board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11).  A new provision of § 24-15A provides for review of a panel’s decision to deny a  pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.”  Thirty days prior to the panel hearing at which the application will be considered, the Board must give notice to the prosecutor, attorney general, and sentencing judge.  S.D. Codified Laws § 24-14-3.   Unless the applicant qualifies for an exceptional pardon as a first offender (see above), upon notice that a hearing will be held the applicant must also publish notice of the application in a newspaper of general circulation in the county where the crime was committed once a week for three weeks.  § 24-14-4. 

Instructions and application form are available at https://doc.sd.gov/pardon/, and as noted the form may be filled out on line.  Typically, a case takes six to eight months from the Board’s receipt of an application to final decision by the governor.   

F.  Criteria

Factors to be considered by the Board in regulations that are relevant to post-sentence pardon include:

The applicant has shown remarkable rehabilitation; . . . Review of the totality of applicant’s circumstances indicates that applicant has carried the stigma of the crime for a long enough period to justify its removal; . . . The applicant wishes to pursue a professional career from which society can benefit, but a felony conviction prevents it.

S.D. Admin. R. 17:60:05:12 (2011).  According to an e-mail from Board staff in 2009, “typical reasons given for applying for a pardon include obtaining more gainful/beneficial employment, obtaining specific licensing and/or attend specific schooling, hunting/firearms rights, carrying the stigma long enough, etc.”

G.  Expedited process for certain misdemeanors

In 2014, the Board of Pardons and Paroles implemented a policy that expedites and simplifies the pardon process for certain misdemeanors.   Class II misdemeanors and petty offenses are eligible for expedited processing after five years, and non-violent Class I misdemeanors are eligible after ten years.  See Expedited Pardon Instructions 1, available at http://doc.sd.gov/documents/forms/clemency/ExpeditedPardonInstructions.pdf.  Expedited processing is not available for persons convicted of another offense (other than a traffic offense) during the waiting period.    Pardons sought to regain firearms rights are not eligible for expedited processing.  Id.  The expedited pardon process differs from the traditional process by eliminating the initial two-member screening, allowing for an immediate initial panel consideration followed by recommendation to the full Board.  Id. at 3.  Additionally, applicants for an expedited pardon are not required to appear in person at a hearing.  Id. The expedited process is expected to take 30 to 60 days.  Expedited processing is currently being carried out by Board policy, though the process will be formalized in the Board’s rules.  Id.  Instructions and application form available at https://doc.sd.gov/pardon/.  The new expedited process is discussed in Mercer, Saving Time, supra.

H.  Frequency of grants

Fiscal Year Number of applicants Recommended to governor
2015 86 69
2014 78 64
2013 43 36
2012 47 39
2011 35 30

Source: Board of Pardons and Paroles

In the fall of 2014, after implementation of the expedited process described above, the Board reported hearing six to eight regular requests for pardons and three to four expedited requests each month. See Mercer, Saving Time, supra.  Pardon applications increased significantly in 2014 after the implementation of the expedited process described above. Most of the pardons recommended by the Board are granted by the governor.  Governor Dennis Daugaard issued 137 pardons between January 2011 and September 2014.  Grants are made at regular intervals through the year.  Source: Board of Pardons and Paroles.  Between 2002 and 2012, there were a total of 315 pardons granted by the South Dakota governor upon recommendation of the Parole Board.  Between 1995 and 2002, 279 pardons were issued, many by the governor alone without involvement of Parole Board.  See note 4, supra

I.  Contact

Mike Vonsik
Parole Board Office Manager
(605) 367-5040
Vonsik@state.sd.us 

Ed Ligtenberg
Director, S.D. Board of Pardons and Paroles
Box 5911 Sioux Falls, SD 57117-5911
Phone (605) 367-5040
Fax (605) 367-5025
Ed.Ligtenberg@state.sd.us.  

III.  Expungement, sealing & other record relief

A.  Automatic sealing for minor misdemeanors & petty offenses

S.D. Codified Laws § 23A-3-34 authorizes automatic removal from a defendant’s public record any charge or conviction resulting from minor misdemeanors and petty offenses after ten years.  Enacted in 2016, the new law provides in full:

Any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a Class 2 misdemeanor was the highest charged offense shall be automatically removed from a defendant’s public record after ten years if all court-ordered conditions on the case have been satisfied. However, the case record will remain available to court personnel or as authorized by order of the court.

Prior to enactment of § 23A-3-34 in June 2016, the only mechanism available to seal conviction case records from public view was an executive pardon.  See Part II A, supra

See also S.D. Codified Laws § 23-6-8.1, authorizing director of the Bureau of Criminal Statistics to destroy information and records of misdemeanor offenses whose final date of disposition occurred at least ten years prior to authorized destruction date.

B.  Deferred adjudication and sealing for first offenses

“Suspended imposition of sentence” (deferred adjudication) is available for persons with no prior convictions charged with any felony or misdemeanor except those punishable by death or life imprisonment.  “The purpose of suspended imposition of sentence is ‘to allow first-time offender to rehabilitate himself without the trauma of imprisonment or the stigma of conviction record.’”  State v. Schempp, 498 N.W. 2d 618, 620 (S.D. 1993) (quoting State v. Marshall, 247 N.W. 2d 484, 487 (S.D. 1976)).3  Under section 23A-27-13 (felony) and 23A-27-12.2 (misdemeanor) of the South Dakota Code, a court may suspend imposition of sentence and place the person on probation; upon successful completion of probation, the person is discharged without an adjudication of guilt, S.D. Codified Laws 23A-27-14, and the court “shall order” that the records be sealed.  § 23A-27-17.

The effect of such order is to restore such person, in the contemplation of the law, to the status he occupied before his arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of his failure to recite or acknowledge such arrest, indictment or information, or trial in response to any inquiry made of him for any purpose.

Id.  The recipient of a suspended imposition of sentence may continue to vote even though serving time in jail or the penitentiary was part of the conditions of a suspended imposition of sentence.  S.D. Op. Att’y. Gen. No. 05-01 (2005). The proceeding shall not be deemed a conviction for purposes of disqualification from licenses and employment, except for sex offenders seeking to obtain teaching certificates.  However, probation without adjudication may be considered by court in imposing subsequent sentence.

C.  Pardoned convictions

When a person has been pardoned in accordance with the statutory scheme described in Part II above, the record is sealed:

[T]he governor shall order that all official records relating to the pardoned person’s arrest, indictment or information, trial, finding of guilt, application for a pardon, and the proceedings of the Board of Pardons and Paroles shall be sealed. The governor shall file a public document with the secretary of state certifying that the governor has pardoned the person in compliance with the provisions of this chapter. The document shall remain a public document for five years and after five years that document shall be sealed.

S.D. Codified Laws § 24-14-11.

D.  Expungement (sealing) of non-conviction records

S.D. Codified Laws § 23A-3-27:

An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest: 

(1) After one year from the date of any arrest if no accusatory instrument was filed

(2) With the consent of the prosecuting attorney at any time after the prosecuting attorney formally dismisses the entire criminal case on the record; or

(3) At any time after an acquittal.

The court “may enter an order of expungement if satisfied that the ends of justice and the best interest of the public as well as the defendant or the arrested person will be served by the entry of the order.”§ 23A -3-30.  Expungement is defined to mean sealing, and not destruction.  § 23A -3-27.    

Expungement in diversion cases:  In 2018 new sections were added to § 23A-3 to authorize automatic expungement of arrests and charges (if any) in diverted cases where the defendant successfully completed conditions of diversion.  See SB 185, adding §§ 23A-3-35 through 37.  “Upon the filing of the dismissal and notice of completion of the diversion program, the court shall grant the expungement without the filing of a motion or any further action by the court.”

Effect of expungement:  “Expungement” is defined to mean “the sealing of all records,” and “does not imply the physical destruction of records,” § 23A-3-26.  In addition, expungement “restore[s] the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person’s arrest or indictment or information.” § 23A-3-32.   

E.  Juvenile records

Juvenile delinquency records may be sealed by the court one year after the youth is released from the court’s jurisdiction or discharged from the Department of Corrections, whichever is later.  S.D. Codified Laws § 26-7A-115.  The court will grant a petition to seal upon a finding that there have been no subsequent adjudications, there are no pending charges for a serious offense, and the youth is rehabilitated.  Id.  Upon court order, limited inspection of sealed files remains available.  § 26-7A-116.

Victim of human trafficking or sexual exploitation – A victim of human trafficking may petition the court directly or through a parent, guardian, or guardian ad litem, for the expungement of a delinquency record that resulted from being a victim of human trafficking, as defined in § 22-49-1, or sexual exploitation, as defined in § 22-22-24.3. An expungement under this section vacates the underlying delinquency proceeding.  26-7A-115.1.

IV.  Criminal record in employment & licensing

South Dakota has no laws restricting consideration of criminal record in employment or licensure, including limits on application-stage employer inquiries or fair chance licensing reforms.   However, the State Human Rights Division publishes a guide that classifies as “suspect” for discrimination any question on an application form or in an interview regarding an applicant’s conviction, arrest, or court record that is not substantially related to the functions of the job.  https://dlr.sd.gov/human_rights/publications/preemployment.pdf.

 

 

 


  1. The statement on the website of the Secretary of State that the vote is lost for those subject to the pre-2012 law only “as long as the individual is physically incarcerated or on parole” appears inconsistent with the terms of this statute.
  2. The history of pardoning in South Dakota has an interesting if somewhat convoluted history.  Under section 5 of the 1898 South Dakota Constitution, the Board of Pardons was originally composed of the presiding judge, the secretary of state and the attorney general, and its approval was required for executive clemency except in minor cases (sentence of two years or less in prison, fine of less than $200).  The 1960 amendment of section 5 reconstituted this board as the Board of Pardons and Paroles, required its approval for all cases of executive clemency, and gave the Board the power to parole.  In 1972, the Board’s statutory role in advising the Governor was eliminated, as was the requirement that the Governor report all pardons to the legislature.  See S.D. Const. art. 4, § 3 historical note.  The subsequent successful effort by the South Dakota legislature to regain control over the pardon process is described in Eric R. Johnson, Doe v. Nelson, The Wrongful Assumption of Gubernatorial Plenary Authority over the Pardoning Process, 50 S.D. L. Rev. 156 (2005).  See also Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L. Rev. 730, 750-51 (2013).  In 2004 the Supreme Court of South Dakota upheld the legislature’s indirect regulation of the governor’s authority in Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004)(holding that the governor had no authority to order the sealing of 279 pardons granted between 1995 and 2002 without consultation with the Board).  
  3. In Schempp, the South Dakota Supreme Court held that where two convictions were part of a single course of conduct (participation in student riot and subsequent assault on police officer), though separately indicted and separately sentenced, they would be treated as a single conviction for purposes of this ameliorative statute.  498 N.W.2d at 620.