Exceptional Pardon Hearing Change

I recently found out about a change from the South Dakota Board of Pardons and Paroles with how they handle exceptional pardon and other clemency hearings, and as I know these are popular topics on this blog, I thought I would pass along this information to my readers.  

It used to be that the Board of Pardons and Paroles would handle all of the applications received in a given month at the next Board meeting.  This meant that the Board's meetings were not equal in length/time, and could vary greatly depending on the volume of clemency applications received.  The Board has recently made a change in that they only handle a certain number of applications in a given month (I believe they handle 5 per meeting, but don't know this for certain).  This means that there is a backlog of applications waiting for hearings.  

As a result, the process of attempting to obtain an exceptional pardon or other forms of clemency is a lengthier process  than it used to be.  Getting an application in to the Board for consideration as quickly as possible is important, as the applications are heard by the Board in the order they are received.  

Exceptional Pardons & Expungement of Convictions

After my previous post on expungements of arrest records and court files when charges have been dismissed or trial results in acquittal, I have received inquiries about whether South Dakota permits expungement of convictions. My initial answer was no, South Dakota law does not provide for expungement of convictions. However, after a bit more research, I have found that there is an additional procedure which may accomplish some of the same goals as expungement of a conviction, but which has several restrictions on its use--an exceptional pardon.

Exceptional pardons are considered "executive clemency" and are governed by SDCL Chapter 24-14 and ARSD 17:60:05. According to the South Dakota Board of Pardons and Paroles Executive Clemency Application, "[i]f it has been five years since your release from a Department of Corrections facility, and you have only been convicted of one felony, and your only felony was not punishable by life imprisonment, you are eligible for an Exceptional Pardon."

Once an individual receives an exceptional pardon, the records relating to that conviction are sealed, meaning that no one can look at the file without an order of the court. However, the exceptional pardon itself is maintained by the Secretary of State's office, and is a public record open to inspection for five years after the pardon is granted. After five years, the exceptional pardon document is also sealed. Immediately upon the granting of an exceptional pardon, the individual cannot be prosecuted for perjury for failure to disclose the conviction, arrest, information, indictment, or trial on the pardoned offense. Court files, from other types of executive clemency (i.e. anything other than an exceptional pardon), are not entitled to be sealed.

There are several documents that must be received by the Board of Pardons and Paroles to consider a request for an exceptional pardon:

- The completed Executive Clemency Application (with questions answered fully or with "N/A").

- The completed Notice to State's Attorney form.

- The completed Executive Clemency Application Release of Information.

- Letters of recommendation (referencing that the letter writer is aware that the applicant is seeking executive clemency) from minister, former & present employers, reputable persons in the community, family and friends are strongly encouraged, although not required. If the applicant does not include letters of recommendation, an explanation is required.

- A psychosexual evaluation (for sex offenders only).

- A chemical dependency evaluation (for those convicted for drugs and alcohol only).

- A psychological evaluation (for those with diagnosed mental health issues only).

- Proof of payment of court costs, fines and restitution for each conviction.

- A Department of Corrections Discharge Certificate.

- Certified Copy of Sentence and Judgment.

- Proof of Service on each State's Attorney.

- Written statement of the applicant describing the crime/incident.

- Letter of personal plea from the applicant.

It is possible for an applicant to submit these materials pro se (without being represented by an attorney). However, consulting with a criminal defense attorney is wise, as that individual will have experience in handling these types of applications, and can advise the applicant as to the likely merits of the application and how to best posture the application (i.e. whether certain letters are helpful, whether the applicant should seek treatment, counseling, etc.).

Whether the applicant chooses to apply pro se or chooses to seek the assistance of an attorney, it is wise for the materials to be presented in the most coherent and organized fashion as possible. Having the documents put into a binder or binding the application is a good idea, so that materials cannot be separated and lost. Using tabs and separating pages is a great idea, so that the Board is able to easily find the documents that they are looking for.

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement 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 the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."