South Dakota Attorney General Marty Jackley’s take on the death penalty is strong yet nuanced.
He’s both prosecuted and defended death penalty cases.
And as a Catholic, he’s been able to justify capital punishment within his religious beliefs.
Protecting “innocent life” is what he’s obliged to do, Jackley told Northern State University criminal justice, sociology and political science students during a visit to campus on Thursday, April 4.
MORE:Â Brown County Commission seeks courthouse security grant
Among other things, students asked him how his personal morals and ethics affect his job. When it comes to the death penalty, Jackley referenced Genesis 9:6 in the Bible.
“Whoever sheds man’s blood, by man his blood shall be shed. For in the image of God, he made man,” the verse reads.
The students have been discussing capital punishment in class and have also heard from speakers with other viewpoints.
Jackley told the class about how his office works and detailed different capital punishment cases with which he’s been involved. He said that as far he knows, he’s one of only two attorneys in South Dakota who have defended and prosecuted death penalty cases.
It would be difficult to be the state’s top prosecutor were somebody flatly opposed to the death penalty, Jackley said. It is a part of state law, and the attorney general’s job is to uphold state law.
He said he would have to do that even if he testified against a bill during the legislative process and it became a law to which he objected.
How do prosecutors decide whether to pursue the death penalty?
There are 12 aggravating factors in state law that allow for pursuit of the death penalty upon conviction, Jackley said. He discussed a few of them and said that torture is the most complicated situation.
That’s because the definition of torture is ultimately subjective, Jackley said. It’s hard to explicitly define torture in a law or legal definition, he said.
MORE:Â Supreme Court to determine if Summit pipeline survey access is constitutional
Jackley discussed how the decision to seek the death penalty is made and the protections in place after a conviction and sentencing.
On the front end, the county state’s attorney, local law enforcement agency investigating the crime, state Division of Criminal Investigation and a death penalty eligibility team all have to agree that the punishment is appropriate, Jackley said.
After that decision, there’s another debate about whether using the death penalty is appropriate or right, he said.
If there’s a murder conviction, members of the jury also have to agree on a sentence of death, Jackley said. That’s one form of protection for a defendant.
Beyond that, a defendant can file a direct appeal. In prison, somebody convicted of murder can file one state and federal habeas corpus appeal, Jackely said. The final option is appealing to the U.S. Supreme Court.
In a habeas corpus appeal, somebody convicted of a crime can argue, for instance, that they are being unlawfully detained, had ineffective assistance of counsel or that their sentence was improper.
All of the protections are appropriate and important, Jackley said.
Legislative discussion about easing, eliminating death penalty is common
Nearly every year, there’s discussion about repealing or watering down the state’s capital punishment law during the legislative session, Jackley said. Often, the requests have to do with issues of faith for state lawmakers, he said.
This year, he said, there was a bill in Pierre that would have elevated rape to a crime for which the death penalty could be sought, Jackley said.
House Bill 1192 would have allowed a death sentence were a person convicted of raping somebody 12 or younger. The Senate Judiciary Committee essentially killed the bill.
South Dakota would have been a test state had that measure become law, Jackley said.
Once a prosecutor makes a decision to seek the death penalty, he or she can’t go back on that decision without a sound reason. Introduction of new evidence is a valid consideration, Jackley said. And sometimes, if a case lasts for years, the victim’s family might ask that a sentence of life in prison be accepted just because of the stress the family is facing, he said.
Jackely shared a story about former Gov. Frank Farrar, a Britton native, commuting a death sentence resulting from a case Farrar prosecuted as attorney general. Jackley said he asked Farrar how he justified the commutation and was told that a prosecutor and a governor have different jobs and obligations.
It’s not a prosecuting attorney’s job to get a conviction, Jackley said. The job is to try the case and present the evidence, though sometimes people forget that, he said.
Along those lines, he said, it’s not appropriate to charge a defendant with a host of crimes just to get the person to plead guilty. That’s unethical, Jackley said.
State public defender office a good first step, Jackley says
He also spoke briefly about the state’s new public defender office, which was approved during the legislative session. It established a committee that will handle criminal appeals, habeas corpus cases, and child abuse and neglect appeals for the poor.
MORE:Â Push for indigent defense office moves forward, but not with alcohol tax money
The commission is a good first step, Jackely said. Only a few counties in South Dakota have public defender offices. And many rural counties have limited options when it comes to defense attorneys, he said.
Jackely said he would like the state to hire trial lawyers to do defense work as opposed to having a commission. That would require more money, but it’s an investment the state should make, he said.
AG’s office has welcomed back attorneys, agents after tumultuous stretch
After being elected to his fourth term as attorney general in 2022, Jackley took over an office still recovering from the impeachment of Jason Ravnsborg. In 2021, Ravnsborg was impeached and convicted of two traffic misdemeanors related to the death of Joseph Boever. Ravnsborg struck and killed the 55-year-old, who was walking along a highway, on Sept. 12, 2020.
After class let out, Jackley said he doesn’t talk much about the Ravnsborg situation, but explains any changes he makes within the office and answers any questions.
MORE:Â Impeached attorney general Ravnsborg launches political action committee in South Dakota
Now, he said, spirits in the office are high and the staff was welcoming when he started. Likewise, Jackley said, he has welcomed back both attorneys and agents who had previously worked in the office and quit.
“I just think I put my head down and went to work,” Jackley said when asked how he handled the public’s perception of the office when he returned as attorney general.
Jackley also served as U.S. Attorney in South Dakota and ran for governor in 2018, losing in the Republican primary to Kristi Noem. His first stint as attorney general was from 2009 to 2019.