Title 23A — CRIMINAL PROCEDURE

Pursuant to §§ 23A-27A-2 to 23A-27A-6 , inclusive, in all cases for which the death penalty may be authorized, the judge shall consider, or shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the following aggravating circumstance…

The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence. Sou…

Except as provided in this chapter, the procedure on appeal from a decision in which capital punishment has been imposed shall be the same as is prescribed by law or Supreme Court rule in other criminal cases. Both the defendant and the state shall have the right to submit briefs…

With regard to the sentence, the Supreme Court shall determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating c…

The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to: (1) Affirm the sentence of death;…

In the event the death penalty for a Class A felony is held to be unconstitutional by the South Dakota Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a Class A felony shall have such person brought b…

Whenever judgment of death is rendered, the judge shall also sign and provide to the Governor, the secretary of corrections, and the sheriff of the county where the crime was committed a warrant of death sentence and execution, along with a brief statement of the facts and circum…

Within ten days after the issuing of a warrant of death sentence and execution under § 23A-27A-15 , the sheriff shall deliver the defendant together with certified copies of the warrant of death sentence and execution and the judgment of conviction to the state correctional facil…

The week so appointed may not be less than six months or more than eight months after the date of judgment of death. The time of execution within the week is in the discretion of the secretary of corrections to whom the warrant is directed. The secretary shall cause the execution…

23A-27A-19 Investigation by Governor. 23A-27A-20 Reprieve or suspension of sentence by Governor during investigation. 23A-27A-21 Power to reprieve or suspend sentence limited to Governor--Exception. 23A-27A-22 Mental incompetence of defendant--Notice to Governor, secretary of cor…

The Governor may make such investigation of the case as the Governor may deem proper and may require the assistance of the attorney general. Source: SL 1939, ch 135 , § 4; SDC Supp 1960, § 34.27A04; SDCL § 23-49-5; SL 1979, ch 160 , § 21; SL 2008, ch 117 , § 6.

In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted to hear additional evidence …

The Governor may reprieve or suspend the execution of the sentence for such reasonable time as the Governor may see fit for the purpose of completing an investigation or other like proper purpose but the period of reprieve or suspension shall not in any event, exceed ninety days.…

No judge, officer, commission, or board, other than the Governor, may reprieve or suspend the execution of a judgment of death. However, the secretary of corrections is authorized so to do in a case and in the manner prescribed in this chapter or as provided in §§ 23A-27A-24 and

If a defendant confined under sentence of death does not appear to be mentally competent to be executed, the warden having custody of the defendant shall notify the Governor, the secretary of corrections, and the sentencing court. Source: SL 1939, ch 135 , § 6; SDC Supp 1960, § 3…

If the warden notifies the sentencing court that a defendant under a sentence of death does not appear to be mentally competent to be executed, or if the prosecuting attorney or the defense attorney moves for a determination of whether the defendant is mentally competent to be ex…

Any psychiatric examination ordered pursuant to § 23A-27A-22.1 shall be conducted by a licensed or certified psychiatrist, or, if the court finds it appropriate, by more than one such psychiatrist. Each psychiatrist shall be designated by the court. For the purposes of a psychiat…

A defendant is mentally competent to be executed if the defendant is aware of the impending execution and the reason for it. If the defendant has previously been determined to be competent to be executed under this chapter and there is a subsequent motion to the sentencing court …

Upon written request of defense counsel, the court may order a video tape record made of the defendant's psychiatric examination conducted pursuant to §

At any hearing ordered pursuant to § 23A-27A-22.1 , the defendant shall be represented by counsel and, if financially unable to obtain adequate representation, counsel shall be appointed for the defendant. The defendant shall be afforded an opportunity to testify, to present evid…

23A-27A-24 Defendant incompetent to be executed--Suspension of sentence--Confinement--Periodic review. 23A-27A-25

If the sentencing court finds the defendant is not mentally competent to be executed the sentencing court shall suspend the execution of sentence until the defendant is mentally competent to be executed. The defendant shall remain confined under the physical custody of the Depart…

23A-27A-26 Defendant mentally competent to be executed--Warrant of death sentence and execution--Time of execution. 23A-27A-26.1 Death penalty not to be imposed on intellectually disabled person. 23A-27A-26.2 Intellectual disability defined. 23A-27A-26.3 Procedures for determinin…

If the sentencing court determines the defendant is mentally competent to be executed, the sentencing court shall certify the fact to the Governor, the secretary of corrections, and the warden having custody of the defendant. The sentencing court, upon determination the defendant…

Notwithstanding any other provision of law, the death penalty may not be imposed upon any person who was intellectually disabled at the time of the commission of the offense and whose intellectual disability was manifested and documented before the age of eighteen years. Source: …

As used in §§ 23A-27A-26.1 to 23A-27A-26.7 , inclusive, intellectual disability means significant subaverage general intellectual functioning existing concurrently with substantial related deficits in applicable adaptive skill areas. An intelligence quotient exceeding seventy on …

Not later than ninety days before the commencement of trial, the defendant may upon a motion alleging reasonable cause to believe the defendant was intellectually disabled at the time of the commission of the offense, apply for an order directing that an intellectual disability h…

If the court enters an order pursuant to § 23A-27A-26.3 finding that the defendant was intellectually disabled at the time of the commission of the offense, the state may appeal as of right from the order. Upon entering such an order, the court shall afford the state a reasonable…

If a defendant serves notice pursuant to § 23A-27A-26.3 , the state may make application, upon notice to the defendant, for an order directing that the defendant submit to an examination by a psychiatrist, licensed psychologist, or licensed psychiatric social worker designated by…

The provisions of §§ 23A-27A-26.1 to 23A-27A-26.7 , inclusive, apply only to offenses alleged to have been committed by the defendant after July 1, 2000. Source: SL 2000, ch 112 , § 6.

The provisions of §§ 23A-27A-26.1 to 23A-27A-26.7 , inclusive, are essentially and inseparably connected and interdependent. Source: SL 2000, ch 112 , § 7.

If there is reasonable ground to believe that a female defendant sentenced to death is pregnant, the warden having her in custody shall arrange for an examination of the defendant to determine her condition. Upon the completion of the examination, the warden shall make a report i…

If the examination under § 23A-27A-27 finds that the defendant is pregnant the execution of the sentence shall be suspended by the sentencing court. The defendant may not be executed until a new warrant of death sentence and execution is received from the sentencing court so dire…

If the execution of a sentence is suspended pursuant to § 23A-27A-28 , as soon as the sentencing court is satisfied the defendant is no longer pregnant, the sentencing court shall forthwith issue a warrant of death sentence and execution appointing a week for her execution, pursu…

Upon the conclusion of the evidence, the judge shall give the jury appropriate instructions. After arguments of counsel, the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in § 23A-27A-1 , exist. The instructions as determined by th…

23A-27A-31 Warrant appointing new time for execution issued by sentencing court if defendant not executed within original time period. 23A-27A-31.1 Repealed. 23A-27A-31.2 Confidentiality of identity of person or entity supplying or administering intravenous injection substance--V…

If the time period for the execution of any defendant in a capital case has passed by reason of a stay of proceedings incident to appellate review or by reason of the issuance of a writ of habeas corpus, certiorari, or other original remedial writ of the Supreme Court, or for any…

Source: SL 2008, ch 117 , § 24; SL 2023, ch 82 , § 39.

The name, address, qualifications, and other identifying information relating to the identity of any person or entity supplying or administering the intravenous injection substance or substances under chapter 23A-27A are confidential. Disclosure of the foregoing information may n…

The punishment of death must be inflicted within the walls of some building at a state correctional facility. The punishment of death must be inflicted by the intravenous injection of a substance or substances in a lethal quantity. The secretary of corrections or a designee of th…

Any person convicted of a capital offense or sentenced to death prior to July 1, 2007 may choose to be executed in the manner provided in § 23A-27A-32 or in the manner provided by South Dakota law at the time of the person's conviction or sentence. The person shall choose by indi…

The Department of Corrections shall arrange for and provide a proper and suitable place at a state correctional facility for the custody of persons awaiting sentence of death and for the execution of the death sentence together with any and all proper equipment and appliances for…

The secretary of corrections shall request, by at least two days' previous notice, the presence of the attorney general, the trial judge before whom the conviction was had or the judge's successor in office, the state's attorney and sheriff of the county where the crime was commi…

The secretary of corrections or a designee of the secretary shall arrange for the attendance of a person trained to examine the defendant and pronounce death and for the attendance of such correctional facility staff, Department of Corrections staff, and law enforcement officers …

The original or a certified copy of the death certificate, postmortem examination, and any autopsy report shall be filed with the clerk of the sentencing court within ten days of receipt by the warden or corrections official. Source: SL 2008, ch 117 , § 39. 23A-27A-41. Repealed b…

23A-27A-36 Other persons not permitted to attend. 23A-27A-37 Secrecy of execution time--Disclosure as misdemeanor. 23A-27A-37.1 Repealed. 23A-27A-37.2 Postmortem examination by county coroner. 23A-27A-37.3 Autopsy. 23A-27A-38

The warden may not permit any person to be present at the execution other than those designated in §§ 23A-27A-32 , 23A-27A-34 , 23A-27A-34.1 , and 23A-27A-34.2 and may not permit the presence of any person under the age of eighteen years. Source: SL 1939, ch 135 , § 13; SL 1939, …

Prior to the announcement required in § 23A-27A-17 , the scheduled day and time fixed by the warden for the execution shall be kept secret and in no manner divulged except privately to the persons invited or requested to be present as provided by §§ 23A-27A-32 , 23A-27A-34 , 23A-…

Source: SL 2008, ch 117 , § 34; SL 2023, ch 82 , § 45.

After the execution, the county coroner shall conduct a postmortem examination of the body of the defendant. The county coroner shall report in writing the result of the examination, stating the nature thereof and the finding made. The report shall be annexed to the certificate o…