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Editor’s Note: Some NACDL affiliates are in the enviable position of being able to advocate for progressive legislative measures while also effectively staving off regressive legislative policies. This past session the South Dakota Association of Criminal Defense Lawyers (SDACDL) hired Lindsey Riter-Rapp of Riter, Rogers, Wattier & Northrup, LLP. Rapp helped neutralize some of the most odious features of a habeas corpus “reform” law that brings South Dakota’s state habeas law closer to the federal standard. She helped kill laws that would have redefined vehicular homicide and vehicular battery as “violent” offenses. She pushed through an amendment to a law eliminating the statute of limitations for rape, so that it only applies to forcible rape, not statutory rape or rapes when the alleged victim was too intoxicated to consent to sex.
Unfortunately, “Caylee’s Law” — implemented in response to the disappearance of Caylee Anthony — sailed through. But Riter-Rapp established SDACDL as a player on criminal justice issues, and even worked closely with the Governor’s Office, which is quite concerned about the fiscal cost of incarcerating nonviolent offenders.
2012 Legislative Session
The South Dakota Association of Criminal Defense Lawyers had a busy 2012 legislative session with over 15 bills that were of consequence to the Association. SCACDL was able to tackle divisive issues in a polarized political climate. Despite the fact that all of the bills of concern were not defeated, SDACDL was able to forge unlikely alliances, ensure criminal defense attorneys have a consistent and united voice, and strengthen its presence in the halls of the Capitol. The victories and the disappointments of this legislative session span a variety of policy areas.
This year, SB 42 extensively modified the statutes governing habeas corpus toward greater consistency with federal law and also limited the number of times a petitioner may file a habeas petition. SDACDL was successful in getting the statute of limitations amended in Senate Judiciary from the proposed one year to two years by a 5-1 vote. Additionally, SDACDL prevailed in its negotiations with the Attorney General’s Office by securing an amendment to the bill that would make it “mandatory” rather than “discretionary” to appoint counsel “if necessary to a full, fair, and impartial proceeding.” SDACDL opposed a provision that would eliminate the possibility of subsequent habeas petitions, including in circumstances of error by the first habeas counsel or a missed meritorious constitutional claim.
SDACDL actively opposed the passage of SB 43, “Caylee’s Law,” which dictates that it is a Class 1 misdemeanor for a parent or caretaker to knowingly fail to notify law enforcement within 48 hours of learning that a child under the age of 13 years is missing. In addition, the legislation provides that it is a Class 5 felony for any parent or caretaker to knowingly fail to notify law enforcement within six hours of learning of the death of a minor child in his or her care. The bill ultimately survived SDACDL’s opposition because the public sentiment was high for the young victim in the Casey Anthony case.
There were a number of bills related to operating a motor vehicle or boat while intoxicated. HB 1039 allows prosecutors to count earlier violations for the purpose of enhancing penalties. The bill creates a system that exacerbates the status of present offenses when there is separate determination of guilt for earlier offenses. Usually, an individual with a qualifying prior DUI who was arrested for a DUI in September and again in November could plead guilty to the November charge and have it considered a second offense DUI. If the individual is later found guilty of the September arrest, the passage of HB 1039 determines that it would be upgraded to a third offense DUI, even though it was not a third offense. SDACDL worked tirelessly to oppose this bill, but given the intense pressure from law enforcement on the dangers of drunk driving and the extensive media coverage of this issue, it ultimately passed.
SDACDL was instrumental in defeating the State’s Attorneys Association’s primary bill, SB 135, which was decided in committee by a 5-2 vote. This bill attempted to eliminate the element of negligence in crimes of vehicular homicide and battery. SDACDL also handily defeated SB 132, which would have defined vehicular homicide and vehicular battery as crimes of violence in order to influence enhanced sentencing. Lastly, the passage of SB 10 modified under-the-influence statutes for boating to be more consistent with under-the-influence laws for driving. SDACDL was the only visible opponent to the narrowly defeated SB 172, an effort to utilize the clauses in SB 10 for enhancement purposes.
SB 68 would have effectively abolished the statute of limitations for all rape offenses. SDACDL was able to successfully negotiate an amendment that ensured the final version of the bill eliminated the statute of limitations only for cases of forcible rape; the elimination did not apply to cases involving rape of those incapable of consent due to intoxication and/or mental deficiency and cases of statutory rape.
SDACDL successfully defeated HB 1139. This bill would have overturned the South Dakota Supreme Court’s recent decision in State v. Jones, which held that “a rape conviction requires proof that the defendant knew or reasonably should have known that the victim’s intoxicated state rendered her incapable of consenting.”
SB 133 attempted to define the act of committing disorderly conduct while in the presence of any officer or official as a Class 1 misdemeanor, allowing for overbroad interpretation of such behavior. Similarly, SB 134 would have included the refusal to obey the lawful order of a law enforcement officer and flight from the scene of a potential investigation as new Class 1 misdemeanors. Both proposals were defeated by a 6-1 vote.
The only assault bill of consequence that ultimately passed was SB 156. This measure establishes strangulation as one element of the crime of aggravated assault. SDACDL did not actively oppose this bill because it was much improved from last year’s version.
The one noteworthy change to the drug laws during the 2012 legislative session came with the passage of SB 23. This bill placed additional substances on the list of controlled substances by largely mirroring those on the federal schedule that includes items such as spice, K2, and night lights. These three synthetic drugs mimic cannabis and methamphetamine, and are often marked “not for human consumption” (i.e., they are sold as potpourri or incense), but young people buy them to abuse them as drugs. They were sold over the counter in South Dakota until they became a controlled substance, punishable by up to 10 years in prison. As chemical compounds continue to change, there will undoubtedly be further efforts to add those substances to the controlled substance schedule.
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A final highlight to the 2012 legislative session came with the partnership of SDACDL with Sen. Russell Olson (R) and Rep. Mitch Fargen (D) in advancing the passage of SB 78, which broadens the circumstances in which an individual can seek an expungement. Additionally, the passage of SB 172 allows an arrested person to apply for an order of expungement upon formal dismissal of the entire criminal case on record, but only with the consent of the prosecutor.
Angelyn Frazer and Erika Vera contributed to the writing of this legislative update.