South Dakota's aggravating circumstances on trial.

• Author: Dutton, Lance

With the recent execution of Elijah Page, South Dakota has once again become a state active in administering capital punishment. In 1972, the landmark decision of Furman v. Georgia held that all current state death penalty statutes were unconstitutional because they did not properly narrow the class of defendants who are eligible for the death penalty. In response, several states, including South Dakota, enacted revised death penalty statutes which contained aggravating circumstances to adhere to the mandate imposed by Furman. Currently, several of South Dakota's aggravating circumstances are vague and overbroad. As a result, South Dakota should amend or repeal these aggravating circumstances that do not follow the mandate left by Furman.

1. INTRODUCTION

   On March 12, 2000, a teenager invited three friends over to his house to play video games. (1) Eventually, the three friends convinced him to leave his house. (2) After arriving at a new location, the fun quickly ended when one of the friends pulled out a pistol and ordered the teenager to get on the floor before knocking him unconscious with a kick to the head. (3) The three friends had decided to rob him of his valuable belongings. (4) While the victim was unconscious, his friends tied him to a chair with an electric cord. (5) When he woke up, he started to cry. (6) Two of the teenagers openly talked about their plan to kill the victim as they forced him to drink a mixture of hydrochloric acid, crushed pills, and beer. (7) As the victim complied with this request, he pled for his life and offered to give them everything he owned. (8) The friends refused this offer; instead they transported him to a remote location and forced him to remove most of his clothing in the freezing weather. (9) For no apparent reason, the friends repeatedly kicked the victim in the head. (10) As the victim screamed and pleaded for his life, his friends only kicked him harder. (11) Finally, the friends dragged the victim down to an icy creek where they laughed at the pain he endured as they used a knife to stab him in the head and neck. (12) At one point, one of the friends stood on the victim's neck while another friend tried to drown and stab him. (13) Yet, "[d]espite the drowning attempts, stabbings, beatings and stoning, [the victim] was still alive." (14) After three hours of torture, the ordeal came to an abrupt end when two of the friends dropped several heavy rocks on the victim's head. (15) The victim's half-naked body lay in the icy creek for more than a month before it was discovered. (16) The victim's name was Chester Allan Poage. (17)

   These facts are from the South Dakota Supreme Court cases of State v. Page, (18) State v. Piper, (19) and State v. Hoadley. (20) Two of these defendants pled guilty and were sentenced to death by a judge; the third defendant pled not guilty and was given a life sentence by a jury. (21) On July 11, 2007, seven years after he murdered his friend, Elijah Page's death sentence was carried out; he was the first person executed in South Dakota in over sixty years. (22)

   The death penalty is a controversial topic that brings out some of the strongest emotions in people. (23) Regardless of one's personal views on the death penalty, under South Dakota law, an individual may be sentenced to death if the fact finder determines the presence of at least one of ten aggravating circumstances. (24) Since several of these aggravating circumstances are vague and overbroad, however, there is a higher number of defendants who are eligible for the death penalty. (25) This directly contradicts the United States Supreme Court's mandate in Furman v. Georgia, (26) where it held that aggravating circumstances must narrow the class of defendants who are eligible for the death penalty. (27) In order to meet this mandate, aggravating circumstances must be narrowly defined so that they are applicable only to a specific group of defendants whose conduct has warranted the death penalty. (28) Thus, if South Dakota wants to avoid a successful appeal of a death sentence for vagueness and over-broadness, the South Dakota Supreme Court or legislature must modify some of the existing aggravating circumstances. (29) Since Furman, South Dakota has had relatively few capital cases result in a defendant receiving the death penalty; therefore, its case law provides only a limited discussion regarding South Dakota's aggravating circumstances. (30) As a result, it is necessary to determine which states have aggravating circumstances similar to South Dakota's, and then examine those states' interpretations of aggravating circumstances. (31)

   This comment will analyze three of South Dakota's aggravating circumstances listed in S.D.C.L. section 23A-27A-1; specifically S.D.C.L. sections 23A-27A-1 (6), (9), and (10). (32) This comment will begin by focusing on the history of the federal and South Dakota death penalties that were in existence leading up to the landmark decision of Furman v. Georgia. (33) It will then examine the emergence of aggravating circumstances and the purpose they serve following the United States Supreme Court decision of Gregg v. Georgia. (34) Finally, this comment will analyze three specific aggravating circumstances and argue that South Dakota should revise them to ensure equal application. (35)

2. BACKGROUND

   1. THE HISTORY OF THE DEATH PENALTY IN THE UNITED STATES

      1. The Origins and Methods of Capital Punishment

         In order to fully understand the death penalty in South Dakota, a brief overview of the history of the federal death penalty is necessary. (36) Although the United States Constitution does not expressly authorize the death penalty, it has been a pertinent and accepted part of American society since its inception. (37) English common law provided the blueprints for instituting capital punishment in America. (38) At the beginning of the sixteenth century, England recognized eight capital offenses: treason, petty treason, murder, larceny, robbery, burglary, rape, and arson. (39) Over time, however, the list of capital offenses in England grew to more than three hundred fifty. (40)

         Once the first colonies were established in America, it was not long before capital punishment was implemented. (41) George Kendall holds the infamous honor of being the first man executed on American soil in 1608. (42) By the time of the American Revolution in 1783, all of the original thirteen colonies authorized the death penalty. (43)

         In carrying out the death penalty, the American states followed the practice of public executions, which were the norm in England. (44) Although America won its independence from England in 1783, many Americans still believed that capital punishment was necessary to deter crime and that it was a proper form of retribution. (45) In fact, the states encouraged public audiences to watch the executions, which were usually carried out by hanging. (46) These spectacles were anything but humane, as

         Felons were either hanged, often so clumsily that they died in slow agony, or burned at the stake (a method usually reserved for blacks or Indians). In either event, the execution took place in public, with rowdy onlookers jockeying for the best view. In some cases, the publicity of the punishment did not end with the criminal's death. The authorities sometimes ordered the corpse exhibited in a public place-in rare instances for periods exceeding a year-for the edification of potential wrongdoers. (47) In the eighteenth century, however, some of the most prestigious American individuals began to oppose the death penalty and petitioned to abolish or limit its use. (48) Although these individuals were ultimately unable to completely abolish the use of capital punishment, several states did take notice. (49) Some states reduced their number of capital offenses, while others abolished the death penalty for all crimes except murder. (50) Thus, ever since the beginning of America's history, attempts to limit the number of defendants eligible for the death penalty has been a contested issue. (51)

         Although some states made efforts to limit the number of offenses that were punishable by death, the federal government did not follow this trend. (52) The first United States Congress enacted the first federal criminal code in 1790, which sanctioned the use of capital punishment even before the Federal Bill of Rights was ratified. (53) This criminal code mandated that anyone convicted of treason, willful murder on federal property, forgery, piracy, counterfeiting, and any one of several crimes on the high seas "shall suffer death." (54) Thus, America's first death penalty statute gave no discretion to juries and made death sentences mandatory for defendants found guilty of one of these enumerated capital offenses. (55)

      2. The Changing Dynamics of Capital Punishment

         Although capital punishment had been accepted in America, the nineteenth century ushered in a new period of enlightenment where more Americans began to focus on humanity and reason. (56) This enlightenment did not abolish capital punishment, but support for public hangings began to deteriorate as the demographic of the crowds changed and many Americans felt that public hangings had little, if any, effect on deterring future crime. (57) In fact, history has shown that these public hangings were more likely to cause additional crime than to prevent it. (58) As a result of this change of perception, in 1824, the Pennsylvania House of Representatives became the first American legislative body to recommend abolishing public executions. (59) One year later, in 1835, New York became the first state to officially end public executions. (60) Then, in 1846, the state of Michigan not only abolished public executions, but became the first state to abolish capital punishment. (61)

         This period of enlightenment also brought several challenges to the constitutionality of capital punishment. (62) In 1878, the first of...