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For more than a generation, politics around the death penalty have become increasingly partisan. In 1994, when president Clinton signed the now notorious Crime Bill, support for the death penalty stood at 80% nationwide. Now, while that number has dipped to 54% nationally, 77% of Republicans still favor capital punishment. In 2020, the GOP reaffirmed its support for the death penalty in its official party platform.
But in the deep red state of South Dakota, one Republican senator is bucking political platforms to lead efforts to overhaul and end the death penalty.
Arthur Rusch is a former prosecutor, a former judge and a popular Republican state Senator from southeastern South Dakota.
Rusch, who is entering his eighth and final legislative session, has been fighting this effort since taking office.
“I am the first legislator in the history of South Dakota who has personally sentenced a man to death,” Rusch said in an interview with The Black Wall Street Times.
When Rusch was a judge, he presided over the 1997 trial of Donald Moeller. In that trial, prosecutors sought the death penalty for what Rusch agreed was an “horrendous” crime.
“I had no question that [Moeller] was guilty,” Rusch said. But the cost of the trial; both the financial burden on the taxpayers and the human toll on the jurors was “substantial”.
“They had PTSD (Post Traumatic Stress Disorder) as a result of going through that,” he said, referring to the jurors.
It’s an experience Rusch sees little benefit in repeating again.
Efforts to end capital punishment continue, despite opposition
South Dakota has executed only 20 people in its nearly 200 year history. Five of those executions, however, have taken place in just the last decade.
“It concerns me,” Rusch said, “to see these numbers stepping up”.
In addition to concerns about the cost to taxpayers and the emotional toll of sentencing someone to death, Rusch simply doesn’t believe the practice is effective.
“I don’t think it acts as a deterrent to crime,” he remarked. “As a prosecutor, I never had someone tell me they took the time to look up the possible penalties before committing crime.”
“People aren’t thinking about that when they commit these crimes,” Rusch said.
In his first few years in the Senate, Rusch worked with both Democrats and Republicans to try and pass legislation to abolish the death penalty altogether. None of the legislation was able to make it out of committee.
Last year, he sought to reform death penalty sentencing by significantly narrowing the type of cases where juries can consider the death penalty. Rusch’s 2021 bill would have limited death penalty cases only to those who commit pre-meditated, first-degree murder of a an on-duty officer or firefighter. The bill made it out of committee, but failed on the Senate floor.
“The big problem is that most of my colleagues look at the death penalty as retribution,” Rusch said when talking about the challenges he’s faced to pass this type of legislation.
“The courts have repeatedly said that retribution is only one of the reasons for punishment,” he continued. Rusch cited the need for deterrence and rehabilitation, “but retribution is all they can focus on.”
In his final year, Rusch and some Republican colleagues will try pass one more reform bill. The bill would prevent those who are “severely mentally ill” from being executed.
Rusch says inequities in death sentencing practices as ‘troubling’
Last year, thousands of Oklahomans flooded the State Capitol to stop the execution of Julius Jones. Jones, who has maintained his innocence for more than two decades, had his sentence commuted to life in prison at the last moment.
One of the more critical details in Jones’ case was the fact that Christopher Jordan, a man who fit the description of the killer and admitted to the crime, was given a shortened sentence for testifying against Julius.
“That troubles me that those kind of plea bargains are made in death penalty cases,” Rusch said. In his experience, these deals tend to happen “when [prosecutors] don’t have any clear evidence of who the perpetrator was.”
It’s not only the death penalty that troubles Rusch, but the number of life sentences handed down to young people.
Rusch cited multiple studies showing that the brain “is not fully developed until the age of 25”.
“If you look at statistics,” he said “most of the crime committed in this country is by people under 25.”
There are two men scheduled to be executed in Oklahoma in the coming weeks. Donald Anthony Grant is scheduled to be killed on January 27th and Gilbert Postelle on February 17th. Both committed their crimes at the age of 25 or younger.
Rusch often asks his colleagues to “raise your hand if any of you can really tell me you didn’t do something stupid at that age.”
So far, he says, no hands have gone up.