93rd Legislative Session _ 2018

Committee: House Judiciary
Friday, February 02, 2018

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Barthel
P    Diedrich
E    Bordeaux
P    Jensen (Kevin)
P    Kaiser
P    Lust
P    Peterson (Kent)
P    Reed
P    Rozum
P    Turbiville
P    Wismer
P    Johns, Vice-Chair
P    Stevens, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Representative Mike Stevens, Chair.

MOTION:    TO APPROVE THE MINUTES OF WEDNESDAY, JANUARY 31, 2018.

Moved by:    Turbiville
Second by:    Reed
Action:    Prevailed by voice vote.

    HB 1109: provide for parole eligibility and early final discharge for certain inmates.

Presented by:    Representative Brunner

MOTION:    AMEND HB 1109

1109oa

    On the printed bill, delete everything after the enacting clause and insert:

"    Section 1. That the code be amended by adding a NEW SECTION to read:

    Notwithstanding any contrary provision in chapter 24-13, 24-15, or 24-15A, an inmate who:
            (1)    Has a terminal illness;
            (2)    Is seriously ill and not likely to recover;
            (3)    Requires extensive medical care or significant chronic medical care;
            (4)    Is at least sixty-five years of age, has served at least ten consecutive years of the inmate's sentence incarcerated, whose current sentences are for convictions of a Class 1 felony or below and whose medical care needs exceed the average need and cost of the inmate population; or
            (5)    Is at least seventy years of age and has served at least thirty consecutive years of the inmate's sentence incarcerated and is not serving a capital punishment sentence;
is eligible for compassionate parole consideration.

    Section 2. That the code be amended by adding a NEW SECTION to read:

    The secretary of corrections may consider referrals for compassionate parole consideration from the inmate's health care provider or the warden. If the secretary determines the inmate meets the criteria for compassionate parole consideration as set forth in section 1 of this Act, the secretary may refer the inmate for a compassionate parole hearing. The executive director of the Board of Pardons and Paroles shall schedule a discretionary, compassionate parole hearing with the board within three months of receipt of the referral.

    Section 3. That the code be amended by adding a NEW SECTION to read:

    The Board of Pardons and Paroles shall consider the following factors in determining the grant or denial of a compassionate parole:
            (1)    The inmate's assessed risk level;
            (2)    The inmate's conduct in prison;
            (3)    The inmate's conduct while on extended confinement, if applicable;
            (4)    Sentence served and sentence remaining;
            (5)    Offense and chronicity of criminal behavior;
            (6)    Prognosis and incapacitation level;
            (7)    The inmate's compliance with medical care ordered by a health care provider;
            (8)    Release plan including provisions for medical care;
            (9)    Input, if any, of the sentencing judge, the prosecuting attorney, and the victim;
            (10)    If the care and supervision that the inmate requires and is anticipated to require can be provided in a more medically appropriate or cost effective manner than the Department of Corrections; and
            (11)    Allowing a geriatric or terminally ill person to live at a location outside of prison prior to

death.

    Section 4. That the code be amended by adding a NEW SECTION to read:

    An inmate may not be released on compassionate parole if the inmate meets the eligibility requirements of a medically indigent person under the provisions of chapter 28-13. In order to be released on compassionate parole, the inmate's release plan shall effectively address arrangements for medical care, which may include Medicare, Medicaid, Indian Health Services, veteran's assistance, private insurance, or self-pay arrangements.

    Section 5. That the code be amended by adding a NEW SECTION to read:

    The board may grant or deny a compassionate parole. If denied the board shall set the date for the next consideration of compassionate parole not to exceed one year. The board may elect to review the inmate sooner than one year. If the inmate no longer meets the criteria for compassionate parole as set forth in section 1 of this Act, the inmate's health care provider or the warden shall notify the secretary of corrections. The secretary may remove the inmate from compassionate parole consideration. An inmate removed from compassionate parole consideration is subject to applicable parole provisions under chapters 24-13, 24-15, and 24-15A notwithstanding the provisions of this Act or a pending compassionate parole hearing. If an inmate is released on compassionate parole and is compliant with the terms of the inmate's supervision, no longer meeting the criteria for compassionate parole does not constitute grounds for parole revocation.

    Section 6. That the code be amended by adding a NEW SECTION to read:

    An inmate is ineligible for compassionate parole once the inmate reaches the parole eligibility date pursuant to § 24-15-5 or the inmate's initial parole date pursuant to § 24-15A-32. However, if the inmate continues to meet the criteria for compassionate parole consideration as outlined in section 1 of this Act the factors listed in section 3 of this Act shall be considered in any subsequent discretionary parole release decision.

    Section 7. That the code be amended by adding a NEW SECTION to read:

    An inmate granted compassionate parole is subject to the provisions of chapters 24-13, 24-15, and 24-15A, including the provisions related to supervision, early final discharge, and revocation of
parole, so far as those provisions are consistent with this Act.

    Section 8. That the code be amended by adding a NEW SECTION to read:

    Nothing in this Act or its application may be the basis for establishing a constitutionally protected liberty, property, or due process interest in any prisoner. An inmate is not entitled to compassionate parole or to be considered for compassionate parole. Compassionate parole may be recommended by the secretary and granted by the board if, in the judgement of the secretary and the board, the

inmate meets the eligibility criteria for compassionate parole pursuant to section 1 of this Act and a compassionate parole release is unlikely to pose a detriment to the offender, victim, or community. The decision of the board regarding a compassionate parole is final.

    Section 9. That the code be amended by adding a NEW SECTION to read:

    Nothing in this Act or its application impacts the ability of the warden and the secretary of corrections to place an inmate on extended confinement pursuant §§ 24-2-25 and 24-2-27 or to place the inmate on extended confinement pending compassionate parole consideration.

    Section 10. That the code be amended by adding a NEW SECTION to read:

    Pursuant to chapter 1-26, the board may promulgate procedural rules for the effective enforcement of this Act and for the exercise of the powers and duties conferred upon it.

    Section 11. That § 24-15-4 be amended to read:

    24-15-4. No inmate sentenced to life imprisonment is eligible for parole by the Board of Pardons and Paroles except as provided in this Act.

    Section 12. That § 24-15A-32 be amended to read:

    24-15A-32. Each inmate sentenced to a penitentiary term, except those under a sentence of life or death, or determined to be ineligible for parole as authorized in § 24-15A-32.1, shall have an initial parole date set by the department. This date shall be calculated by applying the percentage indicated in the following grid to the full term of the inmate's sentence pursuant to § 22-6-1. The following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to commit, any of the following crimes shall be considered a violent crime for purposes of setting an initial parole date: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, or burglary in the second degree if committed before July 1, 2006, arson, kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-19.1, child abuse, felony sexual contact as defined in § 22-22-7.2, felony stalking as defined in §§ 22-19A-2 and 22-19A-3, photographing a child in an obscene act, felony assault as defined in § 22-18-26, felony simple assault as defined in § 22-18-1, commission of a felony while armed as defined in §§ 22-14-12 and 22-14-13.1, discharging a firearm at an occupied structure or motor vehicle as defined in § 22-14-20, discharging a firearm from a moving vehicle as defined in § 22-14-21, criminal pedophilia as defined in § 22-22-30.1, threatening to commit a sexual offense as defined in § 22-22-45, abuse or neglect of a disabled adult as defined in § 22-46-2, and aggravated incest as defined in §§ 22-22A-3 and 22-22A-3.1:
Felony Convictions  
Felony Class  
First  
Second  
Third  
    Nonviolent        
Class 6   .25   .30   .40  
Class 5   .25   .35   .40  
Class 4   .25   .35   .40  
Class 3   .30   .40   .50  
Class 2   .30   .40   .50  
Class 1   .35   .40   .50  
Class C   .35   .40   .50  
    Violent  
     
Class 6   .35   .45   .55  
Class 5   .40   .50   .60  
Class 4   .40   .50   .65  
Class 3   .50   .60   .70  
Class 2   .50   .65   .75  
Class 1   .50   .65   .75  
Class C   .50   .65   .75  
Class B   1.0   1.0   1.0  
Class A   1.0   1.0   1.0  

    Each inmate shall serve at least sixty days prior to parole release. Inmates with life sentences are not eligible for parole except as provided in this Act. An initial parole date through the application of this grid may be applied to a life sentence only after the sentence is commuted to a term of years. A Class A or B felony commuted to a number of years shall be applied to the Class C violent column of the grid. An inmate convicted of a Class A or B felony who was a juvenile at the time of the offense and receives a sentence of less than life shall be applied to the Class C violent column of the grid.

    Section 13. That chapter 24-15A be amended by adding a NEW SECTION to read:

    An inmate on parole through a compassionate parole release is ineligible for earned discharge credits until the inmate reaches an initial parole date pursuant § 24-15A-32 or an initial parole eligibility date pursuant to § 24-15-5.
    Section 14. That chapter 24-15A be amended by adding a NEW SECTION to read:

    If an inmate on parole through a compassionate parole release has the inmate's parole revoked, a subsequent consideration of compassionate parole on the same sentence requires a new referral for consideration pursuant to section 2 of this Act.

    Section 15. That the code be amended by adding a NEW SECTION to read:

    As a condition of compassionate parole release, any inmate released pursuant to subdivision (1) to (4), inclusive, of section 1 of this Act shall be compliant with medical care."


Moved by:    Johns
Second by:    Reed
Action:    Prevailed by voice vote.

        THE CHAIR DEFERRED HB 1109 UNTIL ANOTHER LEGISLATIVE DAY

    HB 1059: revise certain provisions regarding payments of higher education expenses.

Proponents:    Pat Dougherty, self, Sioux Falls

MOTION:    AMEND HB 1059

1059ja

    On page 2 of the printed bill, delete lines 23 and 24, and insert:

"

    (g) A parent or legal guardian shall receive reasonably equivalent value for a transfer made to a public institution of higher education in the State of South Dakota on behalf of a dependent, as defined in 26 U.S.C. 152, in furtherance of the dependent's undergraduate education if the transfer was for a past or current academic year.".

    On page 3, delete lines 1 and 2.


Moved by:    Johns
Second by:    Peterson (Kent)
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1059 AS AMENDED
Moved by:    Johns
Second by:    Peterson (Kent)
Action:    Failed by roll call vote. (4-8-1-0)

Voting Yes:    Peterson (Kent), Turbiville, Wismer, Johns

Voting No:    Barthel, Diedrich, Jensen (Kevin), Kaiser, Lust, Reed, Rozum, Stevens

Excused:    Bordeaux

    HB 1073: provide for the protection of free speech on the campuses of public institutions of higher education.

Presented by:    Representative Clark (Handout(s): #1-13)
Proponents:    Joe Cohn, Foundation for Individual Rights in Education, Philadelphia, PA
        Lance Kinzer, 1st Amendment Partnership, Washington, DC (Handout(s): #14-25)
        Blake Meadows, Alliance for Defending Freedom, Washington, DC
        Dr. William Richardson, self, Vermillion
        Florence Thompson, South Dakota Parents Involved In Education
        Norman Woods, Family Heritage Alliance Action
        Tim Morgan, self, Mitchell
Opponents:    Will Mortenson, South Dakota Board of Technical Education
        Mike Rush, Board of Regents
        Alan Aldrich, self, Vermillion
        Teagan McNary, USD Student Government Association, Vermillion (Handout(s): #26)
        Taylin Albrecht, SDSU Student Association, Brookings (Handout(s): #27)
        James W. Abbott, USD
        Mary McCorkle, South Dakota Education Association
        Guilherme Costa, Board of Regents

MOTION:    DEFER HB 1073 TO THE 41ST LEGISLATIVE DAY

Moved by:    Turbiville
Second by:    Rozum
Action:    Prevailed by roll call vote. (9-3-1-0)

Voting Yes:    Barthel, Diedrich, Lust, Reed, Rozum, Turbiville, Wismer, Johns, Stevens

Voting No:    Jensen (Kevin), Kaiser, Peterson (Kent)

Excused:    Bordeaux

    HB 1138: revise certain provisions regarding prostitution.

Presented by:    Representative DiSanto
Proponents:    Kelly Patterson, self, Rapid City
        Sally Richardson, self, New Underwood
Opponents:    Paul Bachand, SD States Attorneys Association

MOTION:    DEFER HB 1138 TO THE 41ST LEGISLATIVE DAY

Moved by:    Kaiser
Second by:    Barthel
Action:    Prevailed by roll call vote. (10-2-1-0)

Voting Yes:    Barthel, Jensen (Kevin), Kaiser, Lust, Peterson (Kent), Reed, Turbiville, Wismer, Johns, Stevens

Voting No:    Diedrich, Rozum

Excused:    Bordeaux

    HB 1139: revise the applicability of adverse possession to certain partition fences.

Presented by:    Representative Marty
Proponents:    Tom Barnett, self, Pierre
Opponents:    Darla Pollman Rogers, South Dakota Rural Electric Association

MOTION:    AMEND HB 1139

1139ka

    On page 4, after line 16 of the printed bill, insert:

"    Section 3. That chapter 15-3 be amended by adding a NEW SECTION to read:

    No agreement, judicial determination, or notice of adverse possession shall affect existing utility lines.".


Moved by:    Turbiville
Second by:    Diedrich
Action:    Prevailed by voice vote.

MOTION:    DO PASS HB 1139 AS AMENDED

Moved by:    Johns
Second by:    Jensen (Kevin)
Action:    Prevailed by roll call vote. (7-5-1-0)

Voting Yes:    Barthel, Diedrich, Jensen (Kevin), Kaiser, Peterson (Kent), Reed, Johns

Voting No:    Lust, Rozum, Turbiville, Wismer, Stevens

Excused:    Bordeaux

    HB 1149: prohibit the sale of certain industrial and construction equipment at a price higher than is offered to other buyers.

Presented by:    Representative Peterson (Kent)
Proponents:    Dan Healy, self, Sioux Falls (Handout #28)
        Lorin Pankratz, DMI
Opponents:    David Owen, SD Chamber of Commerce & Industry
        Dean Krogman, Minnesota/South Dakota Equipment Dealers

MOTION:    AMEND HB 1149

1149ja

    On page 2, line 1, of the printed bill, after "." insert "For purposes of this section the term, merchandise, does not include a skid steer loader or a crawler track loader.".


Moved by:    Turbiville
Second by:    Rozum
Action:    Prevailed by voice vote.

MOTION:    DEFER HB 1149 TO THE 41ST LEGISLATIVE DAY

Moved by:    Rozum
Second by:    Turbiville
Action:    Prevailed by roll call vote. (10-2-1-0)

Voting Yes:    Barthel, Diedrich, Jensen (Kevin), Kaiser, Lust, Reed, Rozum, Turbiville, Johns, Stevens

Voting No:    Peterson (Kent), Wismer

Excused:    Bordeaux

    HB 1243: revise provisions related to the hold or sale of certain livestock.

Presented by:    Representative Marty
Proponents:    Tom Costello, self, Newell (Handout(s): #29, 30)
Opponents:    Margo Northrup, SD Livestock Auction Market Association
        Dani Hanson, Department of Agriculture
        Debbie Trapp, Brand Board

MOTION:    DEFER HB 1243 TO THE 41ST LEGISLATIVE DAY

Moved by:    Turbiville
Second by:    Rozum
Action:    Prevailed by roll call vote. (10-2-1-0)

Voting Yes:    Barthel, Diedrich, Kaiser, Lust, Peterson (Kent), Reed, Rozum, Turbiville, Wismer, Stevens

Voting No:    Jensen (Kevin), Johns

Excused:    Bordeaux

MOTION:    ADJOURN

Moved by:    Jensen (Kevin)
Second by:    Wismer
Action:    Prevailed by voice vote.

Liz Markley

____________________________

Committee Secretary
Mike Stevens, Chair

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