Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

PLN editor quoted in article about banishment clemencies in South Dakota

Argus Leader, Jan. 1, 2008.
PLN editor quoted in article about banishment clemencies in South Dakota - Argus Leader 2008

April 29, 2008

Janklow stretched limits of clemency

Experts: Terms of release likely not enforceable

Matthew Gruchow and Steve Young
Argus Leader

The 36 commutations issued by former Gov. Bill Janklow in October 1986 came with an unusual set of conditions - leave South Dakota within 24 hours and do not return.

Governors in the United States are granted wide latitude to reduce and eliminate prison sentences as a check against the power of the court system. But some legal experts and state lawmakers question whether Janklow's stipulations might have crossed the line of what's enforceable and whether such executive powers should be used to regulate prison populations.

It's particularly unlikely that those terms could be enforced beyond the point of the original sentence, said Margaret Love, a Washington, D.C., lawyer and expert on pardon law. The modification could be interpreted as imposing a second sentence on a crime, which governors cannot do, she said.

"The only thing he can do is shorten or reduce the (sentence) the court imposed," Love said.

Janklow said at the time that the early release was intended to reduce crowding in the face of a rising population and a federal judge's order against putting two prisoners in one cell.

The former four-term governor declined further comment on the issue, but he was quoted then as saying if any of the 36 re-offended, they'd be shipped back to South Dakota.

Department of Corrections officials say there apparently was no system in place to monitor the whereabouts or actions of the inmates.

Janklow's commutations probably were legal but unenforceable because no agency was given charge of following up on the agreements, said Paul Wright, editor of Vermont-based Prison Legal News.

"Legally, it's kind of an uncharted gray area," he said.

Only one commutation was revoked, that of Ellis Howard, sentenced to three years for writing no-account checks in Pennington County.

Two months after his release, Howard was caught on a bus near Yankton and returned to prison to serve another 13 months.

"Basically, I was told I had to leave the state and never come back," he said.

Howard has been living in Kansas City but moved back to Sioux Falls in the past few months to be closer to his children.

He said he's tried to put his criminal past behind him, but it limits what he can do for work.

"I've gotten a little bit older and a little bit wiser," he said.

Governor has wide rein on commutations

The state constitution does not define the scope of the governor's pardon or commutation powers or define what conditions could be attached to commutation agreements.

A governor therefore has broad discretion in what commutation conditions are ordered, even if so-called "banishment" conditions are attached, said state Attorney General Larry Long.

Still, it's not clear that Janklow's stipulations would stand up if challenged, he said.

"I could make a straight-faced argument that those conditions are enforceable," Long said. "At some point, they get too old."

There is no legal requirement for a South Dakota governor to seek input from another agency before issuing a commutation, Long said. A governor also is not obligated to turn an inmate whose sentence was commuted over to a supervisor agency such as the pardons and parole board, he said.

"You could walk into the governor's office and say, 'Give me a commutation,' and he could scribble a commutation on a piece of paper," Long said. "He could crank out a commutation right there on his desk and skip the process entirely, and it would be just as valid had you gone through the whole process."

Releasing inmates had little effect on crowding

The commutations must be viewed in the context of the political climate of the late 1980s. At that time, South Dakota came under federal pressure because of its prison overcrowding and issues with how state inmates were housed, said state Rep. Garry Moore, D-Yankton.

"There was a point in time in South Dakota when we did have an issue of overcrowding, and we were suspect by the federal government of housing too many inmates in one cell, and the feds were going to make us do something," Moore said.

Releasing 36 inmates didn't stall prison growth, however.

Corrections Department data show that a year after the commutations, the inmate population continued to increase, as it has almost every year since.

In October 1986, there were 1,043 inmates in the state prison system. In October 1987, that number had increased to 1,147, according to Corrections Department data.

The "banishment" conditions are unusual but are some of the multitude of conditions that could be imposed, Moore said.

"Usually, the conditions say that you can't return to the county, or you can't leave the state," he said. "But there's hundreds of provisions that you could put in place on these commutations that these individuals would be expected to adhere to."

Any violation of the South Dakota commutation agreements should be enforced, said state Sen. Jason Gant, R-Sioux Falls. That includes moving back to South Dakota at any time.

"I think if the governor and an inmate agree to a commutation, they should be held accountable for that contract," Gant said.

'Make sure you're not ... throwing out the trash'

It isn't clear whether commutations or other early release options reduce the likelihood of inmates reoffending. Many of the inmates Janklow released in 1986 committed crimes both in South Dakota and elsewhere, sometimes within months of their release.

Recidivism among released prisoners appears to be common, according to a 2002 report from the U.S. Justice Department that looked at data from 15 states.

That report showed that 67.5 percent of 272,111 inmates released in 1994 were arrested again within three years.

At least 16 of the 36 inmates released by Janklow are confirmed to have committed some sort of criminal offense after their commutations. Those offenses range from petty driving and alcohol offenses to first-degree rape.

Janklow shortened the sentences of thousands of inmates during his time as governor, primarily as a reward for community service and other work details.

It's a practice continued by Gov. Mike Rounds.

The Board of Pardons and Parole is not involved in the commutation process, Rounds said in a written statement.

For Rounds, commutations serve "as a tool to modify inmate behavior."

They are used to motivate inmates to serve communities, which provides an added benefit to citizens, Rounds said.

"Furthermore, commutations allow inmates to maintain hope for an early release if they participate in public service projects and maintain appropriate conduct while incarcerated," he said.

Russell Butler, executive director of the Maryland Crime Victims Resource Center, said a commutation process should be open to the public and seek input from victims and others.

"You make a requirement that you hold a hearing before this is done. You allow people come in and testify, and it's done before the public eye," Butler said. "And you make sure you're not just throwing out the trash and making them some other state's problem."

Reach reporter Matt Gruchow at 331-2301 or Reach reporter Steve Young at 331-2306 or



CLN Subscribe Now Ad
Federal Prison Handbook - Side
Advertise here
Disciplinary Self-Help Litigation Manual - Side
The Habeas Citebook: Prosecutorial Misconduct Footer