Power of mercy: Gov. Noem decisions highlight outsized importance of pardons in South Dakota
Governor has issued at least 200 pardons since taking office
EDITOR'S NOTE: This story can be found on South Dakota Searchlight's website. South Dakota Searchlight provides free news and commentary on critical issues facing the state.
A father from Fort Pierre with five drunken driving convictions and more than a decade of sobriety wants to take his son hunting.
A construction manager with a similar story who now mentors recovering addicts wants to work on military bases.
A 25-year-old man who dated freshmen as a senior in high school wants his name off the sex offender registry so he can find a decent apartment.
A woman who molested two teenage girls nearly 30 years ago after suffering childhood sexual abuse wants to work outside her home, perhaps even in corrections.
A husband caught twice with drugs on the way to concerts in the mid-2000s wants to adopt children with his wife.
There’s just one person who can make any of those things possible: Gov. Kristi Noem.
That’s because each of them has at least one felony crime on their criminal record. Each made their case for clemency before the Board of Pardons and Paroles in public hearings earlier this year. Each convinced the board that they’d paid their societal debt for their felony crimes – some of which are decades old, and all of which were followed by years without serious criminal trouble. The board voted to recommend a pardon for each.
But only the governor can sign the pardon document that will clear their names and change their lives. That’s because the South Dakota Constitution, unlike the founding document of some other states, grants the sole authority to grant pardons and commutations to the governor.
It’s a power Noem has quietly used at least 200 times since taking office in 2019. Noem has never announced her pardon decisions.
The pardoned crimes for each individual have already been scrubbed from their public records. The actual pardon documents, on file with the Secretary of State’s Office and released to South Dakota Searchlight after an open records request, will be sealed after a period of five years.
More pardon recommendations from the board are in Noem’s queue for consideration.
Board Chair Myron Rau tells almost everyone who earns a pardon recommendation the same thing: don’t do cartwheels in the parking lot.
The governor has to say yes to the board’s recommendation, he’ll tell them, and she has no deadline.
“She’s a busy lady,” Rau said.
Noem’s clemency power came under scrutiny at the end of 2022, when she announced seven commutations – some of which disregarded the decisions of the parole board .
The December news release represented the administration’s only public notice about Noem’s use of her constitutional clemency authority.
A records request from South Dakota Searchlight later revealed that Noem has issued 12 commutations in total since taking office. The records request also asked for electronic copies of all Noem’s pardons.
Pardons differ fundamentally from commutations. A commutation is a request for freedom from captivity for a current inmate – or at least a shot at freedom through a sentence reduction. A pardon is a request for freedom from one’s past for a person who’s completed a sentence.
The records from the Secretary of State’s Office – which, by state law, is the official keeper of pardon documents – revealed at least 200 pardons. About 40% of the pardons cleared more than one crime from the recipient’s record.
A later request to the Department of Corrections for the raw number of pardons recommended, denied and granted each month since January 2011 suggests there may have been more.
DOC records indicate that Noem granted 60 of the 66 pardons the parole board recommended in 2020, for example. The Secretary of State’s Office sent 47 pardons to South Dakota Searchlight for that year.
Deputy Secretary of State Tom Deadrick told South Dakota Searchlight that he cannot explain the mismatch, and that his office provided every pardon it has on file.
The names of the pardoned individuals, their crimes and the restoration of firearms rights – if the person requested it – are listed on each one-page document sent by Deadrick’s office.
Gov. Noem’s spokesman, Ian Fury, confirmed that her office received a list of questions about her approach to pardons and an interview request, but had sent no response as of April 7.
Five years, real impacts considered
The laws surrounding pardons offer few hard-and-fast rules for applicants.
Generally, the board expects five years to pass after a conviction, and its members want the person making a request to present evidence of measurable hardship.
“The Board of Pardons and Paroles is very much looking for people impacted by their record,” said Raleigh Hansman, a Sioux Falls attorney who’s helped pardon-seekers prepare their requests. “It isn’t just, ‘Oh, I don’t like this and I want it to go away.'”
The expectations are related in part to a pardon’s extraordinary nature.
If a pardon is granted, the pardoned person is no longer obligated to tell anyone – potential employers, universities, coworkers or business associates, for example – that they were convicted of the pardoned crime. It will not appear in official public records searches, nor will it be listed on federal background checks for firearms.
Rapid City resident Bradley A. Olson’s request was tied to personal and professional consequences. He told the parole board in March that he’s stayed sober and become an active leader in his Pennington County addiction recovery community since his 2009 felony DUI conviction.
He met his wife through recovery and started a family. He’s also found professional success as a supervisor for building contractors.
But he had to jump jobs five years ago when his employer got a contract to work on a Minot, North Dakota, military base. Years of sobriety and personal growth weren’t enough to get him a security clearance.
During Olson’s hearing, attorney Ryan Duffy told the board that the impending arrival of the new bomber at Ellsworth Air Force Base near Rapid City has Olson worried. At this point, he’s cleared to work there, because that base has a lower security level than the base in Minot. If the bomber’s arrival coincides with tighter security requirements, Duffy said, Olson might not be admitted on site to supervise his employees.
That’s a fairly common reason to seek a pardon, according to Sioux Falls lawyer Ryan Kolbeck, who has helped other clients through the pardon process.
Security protocols tend to bar felons from even the most basic interactions with certain federal agencies.
“I’ve had truck drivers who couldn’t get on to a military base to make deliveries because of a 20-year-old conviction,” Kolbeck said.
Expungement laws boost importance of pardons
Aside from a pardon, South Dakota law lacks any provisions for the expungement of a conviction.
No judge can seal the record of a conviction after the fact. The parole board itself has no authority to grant a pardon or scrub certain charges from an official record. In some states, expungement for certain kinds of crimes is automatic after a certain number of years.
But in South Dakota, convictions for most serious crimes remain on a person’s record indefinitely. Criminal charges – even decades-old charges that do not result in a conviction – also remain in perpetuity.
A little over a decade ago, lawmakers passed a bill that allows judges to expunge criminal records if:
- No charging document is filed,
- all charges were dropped by a prosecutor, or,
- if a jury acquits a person of all charges at a trial.
Even in that process, prosecutors have a right to object before the judge.
“In my opinion, a pardon means more in a state like South Dakota than in a state where they have laws on the books where things naturally fall off after a period of time,” Hansman said.
Terra Eagle Feather’s pardon hearing showed just how stark South Dakota’s expungement statutes differ from some other states. The 49-year-old was able to scrub a DUI conviction in Georgia by visiting her local courthouse and filling out paperwork.
In South Dakota in 1994, Eagle Feather pleaded guilty to sexual contact with two teenage girls. This March, she drove 18 hours from her Georgia home, her 2-year-old granddaughter in tow, to tell the board that those crimes followed a childhood of sexual abuse in which she was the victim. She was impregnated by a family member, she told the board, but she lost the child.
The Pine Ridge native struggled with substance abuse for years afterward, but she eventually found her way in Georgia. She had children, one of whom she gave up for adoption but kept contact with through the adoptive parents, and persisted through the death of her husband to raise them.
She’d registered as a sex offender every six months for all those years in her adopted home without missing a deadline, parole board members noted.
But she’d never been able to find decent work, she said. There’s a stigma attached to sex offenses, and the work she could find didn’t pay well enough to justify taking it instead of caring for her kids.
“I’ve basically just stayed to myself,” Eagle Feather told the board on March 15. “I don’t even like to look at people … because I think they’ll know who I am, that I’m a sex offender.”
The parole board only knew about her 2003 DUI because she listed it on her South Dakota pardon application.
Her candor worked to her benefit at the hearing. Board members applauded her for fessing up when she didn’t have to. A decade ago, she’d been denied a pardon. She told the board she remembers that her paperwork hadn’t been complete enough at that time.
Ken Albers, who was not on the board 10 years ago, couldn’t find a reason to say no this time.
“I’ve read the paperwork, and now I’ve met her,” Albers told her. He then turned to the other board members and said “I like her.”
“I like her, too,” Rau said.
Eagle Feather wept when she heard the 8-0 vote.
“Y’all just made my life a whole lot better,” she said. “Thank you, everyone. Thank you.”
Reached by phone two weeks after her hearing, Eagle Feather told South Dakota Searchlight that she knew it was possible to testify remotely.
She never considered it.
“I wanted them to see me,” she said. “I wanted them to see that I’m not that same 20-year-old any more. I’m a 49-year-old woman. I have a family now. If it had been in Rapid City and it was a 24-hour drive, I still would have made it.”
Governors make the rules
The board didn’t actually change Eagle Feather’s life. They only made it possible for Gov. Noem to do so.
Governors in South Dakota are free to set their own priorities for pardons. They’re not required to announce the names or crimes of the pardoned persons or their reasoning, though the pardon documents themselves remain public for five years after pardons are granted. There’s also no timeline for the consideration of recommended pardons.
“I had recommendations that had been up there for six months, nine months, and we were just waiting,” Kolbeck said.
South Dakota Searchlight’s review of Noem’s pardons confirm that she signs them in batches, often with months passing between signing days. In 2022, she signed pardons on four separate days, with eight months passing between her first pardon of that year and her last for 2021.
That lack of official protocols has opened governors up to criticism, and no modern governor drew as much as Gov. Bill Janklow.
During his first stint at the Governor’s Mansion in the 1980s, he commuted the sentences of 36 inmates and ordered them released from prison on the condition that they leave South Dakota and never come back. He issued pardons in secret during his second two-term tenure as governor without using the parole board as a screening panel. A request from the Argus Leader for pardons information sparked a legal challenge that landed in the South Dakota Supreme Court. Then-Attorney General Larry Long took the side of the media in the case, which ultimately resulted in an unsealing of 279 pardons.
Lawmakers soon passed a law to clarify that pardons issued by gubernatorial fiat without a recommendation from the parole board cannot clear convictions from a person’s record. The same law requires that pardons be open to inspection for five years.
By all known accounts, no governor since Janklow has issued a pardon without going through the board.
Former Gov. Mike Rounds, now South Dakota’s junior U.S. senator, committed to an open process and parole board involvement early on in his first term, but did not altogether avoid skirmishes in the press over his use of pardon and commutation power.
Rounds commuted the sentence of a man named Joaquin Ramos at the end of his term without hearing input from his victim’s family. The commutation made it possible for Ramos, who remains incarcerated, to request parole. Rounds later said he wouldn’t have commuted the sentence if he’d known about the family’s objections, and he has signaled his opposition to parole for Ramos multiple times since.
His successor, Gov. Dennis Daugaard, issued an executive order to independently review all clemency applications after the Ramos controversy came to light. No major changes were identified. The lack of notice to the family of Ramos’ victims was chalked up to the state having old addresses.
Tony Venhuizen, a Sioux Falls lawmaker who was Daugaard’s press secretary at the time, told The Associated Press that the 2011 executive order wasn’t directly related to the Ramos case.
Rather, he said, it was a matter of firming up the new governor’s management of clemency applications.
“Every governor’s office sets up its own internal process,” Venhuizen said in early 2011.
Changes could boost transparency, access
Venhuizen’s statement underscored a deeper truth about pardons in South Dakota: the governor’s portion of the process is opaque, even as pardon applications and board meetings play out in public view.
That’s at least partially because the state has yet to fully deal with the questions Janklow’s actions raised. There was discussion about a constitutional amendment to reform a governor’s pardon powers after the Supreme Court’s decision on the Janklow pardons, but that talk fizzled as Janklow left office for a seat in Congress. The Legislature passed the laws discouraging governors from bypassing the parole board and requiring five years of transparency, but took no further action.
Clint Sargent, a partner at Hansman’s Sioux Falls firm who helped push through the state’s expungement statutes, said clemency laws remain ripe for discussion by voters.
That a governor and governor alone has the authority to make the call was a factor in the way the 2011 expungement bill was crafted, Sargent said.
Originally, lawmakers had hoped to create an avenue for expungement of a criminal conviction beyond the gubernatorial pardon. But the South Dakota Constitution makes clear that only a governor – the executive branch – can expunge a record.
“The issue came up that it wouldn’t be constitutional to transfer the ability to expunge convictions to the judicial branch,” Sargent said.
Given that “there seems to be a constitutional amendment on the ballot at every election,” Sargent said, he could see a place for a review of South Dakota’s approach to pardons.
Sargent did not have any prescription for what could or should happen, but the expungement and pardon processes in several states offer some sense of how to expand the options for the clearing of criminal records.
According to the nonprofit Restoration of Rights Project , which tracks pardon and expungement laws state by state:
- In Georgia, a parole board appointed by the governor makes pardon decisions without the governor’s involvement.
- In Minnesota, pardons are considered by the governor, attorney general and the state’s chief justice, and pardon decisions must be unanimous.
- In Michigan, some crimes are eligible for expungement by the courts, but others are not; for those crimes, a person can seek a pardon from the governor.
- Several states have a setup similar to South Dakota’s, but require periodic notice to the legislature of gubernatorial pardons.
- Some states, including Arkansas and Ohio, require governors to include their reasoning for granting pardons.
Sargent said South Dakotans should be willing to at least consider changes to the clemency system, particularly given the restraints it places on expungement.
Five states offer automatic expungement of a range of felony and misdemeanor convictions: California, Connecticut, New Jersey, Michigan and Delaware. In South Dakota, only petty offenses and class 2 misdemeanors are expunged, and only if those crimes are the highest-level charges resulting from a single incident.
In a world where criminal histories are available to anyone with an internet connection, Sargent said, the stigma of a conviction makes second chances all the more important.
For employment specifically, many states have moved to limit the impact of a criminal record through efforts like “ban the box” legislation, which prohibits potential employers from asking about felonies up front.
Such legislation is a step beyond opening up new avenues for mercy under South Dakota law, but the same issues are at play.
“Employers have created a lot more policies that just categorically exclude certain people from certain positions,” Sargent said. “As we look at it from a societal point of view, while we do want the public to know if someone has a bad history, that also has to be balanced against second chances.”