South Dakota Pardon Information

Authority

The Constitution of South Dakota gives the Governor the power to “grant pardons, commutations, and reprieves.” The Governor also has the power to “suspend and remit fines and forfeitures.”

There is a body called the Board of Pardons and Paroles (we shall refer to it here as the “Board”), which may, if the Governor chooses, accept, investigate, and make recommendations on pardon applications. In other words, depending on who the current Governor is, you may either apply directly to the Governor for a pardon, or the Governor may require that you submit your application to the Board first. At the time of this writing, it appears all pardon applications must first be sent to the Board.

The Board is made up of nine members who are appointed by the Governor, the Attorney General, and the Supreme Court. Each appointment requires the consent of the Senate. Board members each serve a four-year term.

Because the focus of this site is on pardons, we will not discuss reprieves, commutations, parole, remission of fines and forfeitures, amnesty, or other types of executive clemency that may be available in South Dakota here. We will also not discuss judicial alternatives such as record expungement, record sealing, setting aside or dismissal of convictions. You should talk to an attorney if you think any of these alternative options may be more appropriate for you.

Eligibility

There is no waiting period before you are eligible to apply for a regular pardon. However, if you are a first-time felony offender (meaning this was your first felony conviction, and the offense was not one punishable by life imprisonment), you must apply for what is called an “exceptional” pardon.

In order to apply for an exceptional pardon, you must have been released from prison for at least five years before you can apply. If you were never sent to prison for the offense (for example, you received probation instead), then five years must have passed since the date you committed the crime before you can apply for an exceptional pardon.

If you are a sex offender, you must have been discharged from your sentence for at least five years before the Board will consider your application for a pardon, whether you are applying for a “regular” pardon or an “exceptional” pardon. If you have been convicted of two or more felony sex offenses, you will not be considered for a pardon. Furthermore, all sex offenders will be required to complete a psychosexual evaluation by a recognized sex offender specialist within South Dakota.

If you were convicted of a drug- or alcohol-related offense, the Board will not consider your application for a pardon unless at least five years have passed since you were discharged from your sentence. If you have had any new alcohol or drug incidents within the last five years, the Board will not consider your application for a pardon.

You must have paid all fines, court costs, and restitution before you will be considered for a pardon. You are required to submit along with your application receipts or other proof that you have paid all of your fines, court costs, and restitution. You can obtain proof of payment from the clerk’s office of the court where you made your payments.

The Board can only recommend, and the Governor can only grant, a pardon for a South Dakota state conviction. If you want a pardon for a federal conviction, you must do that through the United States Department of Justice, Office of the Pardon Attorney (see our page on this site on federal pardons). If you want to pardon for an out-of-state conviction, you should find the appropriate page on this site dealing with pardons in that particular state.

The Board receives between 60 and 70 pardon applications annually, and a little more than a half of them are granted. In 2012, 43 applications were received. 39 pardons were granted and 4 applications were denied. Your chance of getting a pardon largely depends on your individual circumstances. Naturally, the older and less serious your conviction, and the more compelling your life story, the higher your chance of getting a pardon. Your chance of getting a pardon can also depend on who is serving as Governor at the time your application is reviewed; some Governors are simply more lenient than others in handing out pardons.

The Application Process

There are no application fees to apply for a pardon in South Dakota. The Board has conveniently provided an Executive Clemency Pardon Application form for you to access on the Internet at http://doc.sd.gov/forms/clemency/. If you cannot access the Board’s website or the application form itself, you can call the Board directly at 605-773-3478. You can also write to the Board at:

South Dakota Board of Pardons and Paroles
1600 N. Drive
P.O. Box 5911
Sioux Falls, SD 57117-5911

There are detailed instructions that precede the application. You should read the instructions carefully to make sure you submit all of the required documents. Failure to follow the instructions carefully can delay your application or even cause it to be rejected or denied. The form should be rather simple and self-explanatory, as it was created for the non-lawyer to use; however, you still must follow the instructions carefully.

Before you submit your application to the Board, you must publish a notice of your application in an official newspaper in the county where you committed the crime. The notice must be published once a week for three consecutive weeks, and must contain your name, the crime you were convicted of, the date you were convicted, and the sentence you received. The last publication of the notice must occur at least twenty days before the hearing. The Board has provided a standard notice (form SDPA-2) you can use, which is attached at the end of the application. Fill the notice out, send it to an official newspaper in the county where you committed the crime, and then wait for the newspaper to send back a notarized affidavit of the publication. Once you receive the notarized affidavit back, you can send it to the Board along with the rest of the application materials.

Before you submit your application, you must also send a notice to the state’s attorney in the county or counties where you were convicted. The Board has provided a standard form (form SDPA-3) for you to use for this purpose as well. Fill it out, send it to the attorney, and then wait for the attorney to send the form back to you. Once you receive it back, you can send it along with the rest of your application materials.

You must also submit a “letter of personal plea” along with your application, stating why you would like a pardon. This may be the most important part of your application.

In your letter of personal plea, don’t simply state that you want to have a clean criminal record again. Tell the Board/Governor how your conviction has negatively affected you and/or your family. For example, explain how you have been denied housing or employment opportunities because of your conviction, and how this has prevented you from providing you and your family an adequate standard of living. Submit any proof you may have (such as denial letters) to support your claims.

If you are facing deportation because of a conviction, explain how being separated from your family will negatively affect you as well as them. If you are pursuing a career in a field that requires you to obtain a pardon, submit documents, letters, or other proof from a prospective employer, licensing agency, or attorney verifying this necessity. If you need to regain your gun rights, explain why you need this—for example, you are pursuing a career that requires the use of firearms, or you want to take part in your family hunting traditions, or you simply want to feel more secure and able to defend yourself and/or your family after a recent traumatic event.

Also indicate on your personal statement all the positive things that have occurred in your life—for example, educational achievements, new or stable employment, marriage and children, community involvement, charitable services or donations, law-abiding behavior, etc. Submit copies of your college transcript, high school diploma or GED, military certificates, marriage certificate, honors and awards, and other proof of your rehabilitation and good character. Explain what your future plans are and how a pardon would help you.

In writing your letter of personal plea, keep in mind that the Board/Governor will not be retrying you for the offense. Although you may feel the need to explain the facts of the crime from your perspective, avoid trying to make excessive excuses for your crime and arguing away your guilt. However you feel about the crime, you have already been found guilty. The Board/Governor is probably more interested in seeing your remorse for the crime, and your understanding of its effects on the victim and society, than anything else.

Also, although not required, you should submit letters of recommendation from credible people (such as your boss) who know you well and can say good things about you. These letters should indicate to what extent the writer knows you and why he or she thinks you should be granted a pardon. The letters should also indicate the writer’s contact information for verification purposes. If possible, you should choose individuals who are not related to you, in order to avoid the appearance of bias.

If you choose to submit letters of recommendation, the letters must be notarized—signed in front of a notary public—and must indicate that the writer knows you are seeking a pardon. The writer’s daytime and evening telephone numbers must be indicated on the letters because the Board will contact them for verification. There is no limit on how many letters you can submit (in fact, the Board encourages you to submit as many as possible).

Your completed application, along with your letter of personal plea, all supporting documents (including the publication notice and notices to the prosecutor) and letters of recommendation, should be mailed to:

South Dakota Board of Pardons and Paroles
1600 N. Drive
P.O. Box 5911
Sioux Falls, SD 57117-5911

Everything must be sent at the same time. Make sure you keep a copy of everything you send for your records.

Once the Board receives your application, two hearings will be scheduled. The first hearing—called the “Initial Hearing”—is used by the Board to determine whether your application should even move forward. You will be allowed to attend the Initial Hearing. The Initial Hearing is held in front of a panel of the Board.

If the Board decides to move forward with your application, it will schedule the second hearing—called the “Final Hearing.” At the Final Hearing, the Board will decide whether or not to recommend you for a pardon. This hearing is before the full Board (all nine members of the Board). The Board will notify you, the State Attorney General, the prosecutor, the sentencing judge, and the Sheriff (or other law enforcement official) of the date, time, and location of the Final Hearing. The Board will also notify the victim about your application and the hearing. The victim may attend the hearing and submit his or her opinion on your application.

Also, the hearing will be open to the public. Any interested party can attend the hearing and submit oral or written statements opposing your application. You should act and look your best at the hearing; dress in the same way you would if you were going to court for a trial. If possible, have your friends, family members, your pastor, an employer or co-worker, and others in your community attend the hearing to show their support. The hearing is an excellent opportunity for you to put a human face onto your application; it lets the Board not only see you in person but also see the support you have in your community. You should be upfront and cooperative with the Board and its agents at all times.

The following are some of the factors which the Board may consider in deciding whether or not to recommend you for a pardon:

• Whether there is substantial evidence indicating that your sentence was excessive or constitutes a miscarriage of justice.
• Your innocence at the time of the crime, proven by clear and convincing evidence.
• Evidence that you have shown remarkable rehabilitation.
• Your personal and family history.
• Your attitude, character, habits, and capabilities.
• The nature and circumstances of the crime you were convicted of.
• The effect your offense has had on the victim and the community.
• Your desire to pursue a professional career which society can benefit from.
• Your age and medical status.

If the Board decides not to recommend you, your application is over, and you cannot reapply until at least a year after the denial. If the Board decides to recommend you for a pardon, a written recommendation with the reasons will be sent to the Governor. You will be notified of the Board’s decision within ten business days after the Final Hearing. The Governor has the last word on whether or not you receive a pardon; he does not have to follow the Board’s recommendation.

The Effects

A pardon in South Dakota releases you of all legal disabilities and punishments that resulted from the conviction. Once the Governor grants you a pardon, she will issue an order requiring that all official records pertaining to the case (the arrest, the indictment, the trial, the finding of guilt, the application for a pardon, and the proceedings of the Board) be sealed.

Additionally, the Governor will file a document with the Secretary of State certifying that you have been pardoned. This document will be available for the public to inspect for five years, after which it too will be sealed.

The pardon essentially restores you to the status you had before you were even arrested of the crime. Once pardoned, you can legally deny that you had ever been arrested, charged, or convicted of that particular crime even if you are asked about it as a witness or defendant in a courtroom. However, there is a limited exception to this rule: your pardoned conviction can still be considered a “prior conviction” for sentencing purposes in any future criminal proceeding involving the “habitual offender” statute or a DUI.

A pardon will not restore your right to possess a gun unless the Governor specifically indicates that it is restored in the order granting you a pardon. However, in South Dakota your gun rights are automatically restored if fifteen years have passed since you were last discharged from prison, jail, probation, or parole for that conviction.

Under federal law, if you have received a pardon from any state, the pardoned conviction cannot be used by federal authorities to prosecute you for “unlawful possession of a firearm” under federal law, unless the pardon specifically says you cannot possess a gun. However, just because you cannot be prosecuted under federal law does not mean you cannot be prosecuted under state law. Some states have stricter gun laws than federal law. Thus, if regaining your gun rights is important to you, make sure you make you desire known during the application process.

Also, in most cases, federal immigration authorities cannot rely solely on a conviction that has been subject to a pardon for the purpose of deporting you from the country. If immigration is not an issue for you, this benefit is obviously irrelevant.

If you were sentenced to life imprisonment for a particular conviction, and then receive a pardon for that conviction, the pardon will not restore any marital rights you lost because of the conviction. For example, if you lost guardianship/custody over any children because of the conviction, the pardon won’t restore your guardianship/custody rights over those children.

Finally, keep in mind that the effects of a pardon can vary from one state to the next. For example, if you receive a pardon in South Dakota and then move to another state, that other state might take away your gun rights or require you to register as a sex offender again even if the pardon lifted these restrictions from you while you were living in South Dakota. Thus, you should always check with the laws of the state you move to rather than just assume that the benefits of the pardon moves with you across state lines. Fortunately, states tend and honor each other’s pardons.

External Links

• South Dakota on Wikipedia
• South Dakota State Bar
• ApplyForPardon .com - Pardon form completion service. Enter your information and get a neat and clean looking form sent to you.
• Record Clearing .org - post conviction information