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SB 52 Revises Corrections Laws, Transfers Many Warden Powers to Secretary, Violates Single-Subject Rule

Bubbling on out swift Senate’s stove is Senate Bill 52, an extensive revision of laws related to prisons, sentencing, executions, and other matters. The Department of Corrections requested these changes, most of which consist of replacing “penitentiary” to “state correctional facility”. However, tucked into the 98 sections of this multi-subject bill are a few changes of apparent substance:

  • Section 37 puts the Corrections Secretary, not the penitentiary warden, in charge of carrying out executions. Sections 38, 40, 41, 43, and 44 elaborate on this transfer of authority to various details of executions.
  • Section 39 repeals the law that segregates death row inmates from other prisoners and that requires a court order to authorize visitors other than family, clergy, and counsel.
  • Section 50 authorizes the Secretary to designate prisons as having Romanly numerated security levels ranging from I (lowest: no fence required) to V (highest: continuously patrolled double fencing “with razor wire and detection devices or equivalent security architecture” and “controlled sally ports”).
  • Section 57 moves purchasing power from the warden to the Secretary.
  • Section 58 expands a ban on penitentiary employees’ having any pecuniary interest in contracts or business conducted by the penitentiary to apply to all Department employees, contracts, and business.
  • Section 70 subjects the warden’s decision to modify discipline on inmates for bad behavior to approval of the Secretary.
  • Section 72 transfers from the warden to the Secretary the power to extend the limits of where an inmate may be confined.
  • Section 78 removes job-seeking from the list of reasons for which the warden may release an inmate on supervision.

We may debate the merits of reducing the power of wardens and moving several decisions to the top of the prison chain of command. But we should immediately tap the brakes on Senate Bill 52 as a clear violation of the single-subject rule. Warden authority, Secretary authority, executions, security levels, inmate discipline, work release—those are all different subjects, and Article 3 Section 21 of the South Dakota Constitution requires that every law embrace only one subject. No one on Senate Judiciary noticed that unconstitutional multi-subjectivity—the committee deemed SB 52 uncontested Thursday and placed it on the Senate’s consent calendar.


  1. Cully Williams 2023-01-16 08:59

    One bill isn’t a law. Each section is a law. This is why Code Counsel gets unilateral power to change title on laws. There’s no violation of 3-21 here, just perceived issues to make a more clickable title.

  2. Jake 2023-01-16 08:59

    So how do the “People”-being next to God in South Dakota’s constitutional motto-end up ruling over this squirming ball of snakes in charge of our governance when they so blatantly ignore our laws?????????

  3. Nix 2023-01-16 10:52

    The single subject rule only applies
    when our Dope in Pierre needs to call
    out her Circus Fleas in a panic because she was asleep at the wheel.
    Otherwise, it’s no big deal.
    Once again , proof positive that the
    SDGOP is a criminal organization.
    Can’t you smell that ?
    It’s the leftover stink from Bill Janklow that Kristy Noem uses for perfume.

  4. Donald Pay 2023-01-16 10:53

    Cully Williams points out the difficulty of interpreting 3-21. It sort of mirrors the problem of interpreting subspecies from species in biology. Are you are “lumper” or a “splitter?” Still, no one would lump an amoeba with a gorilla, so there has to be some basis on which to judge what violates 3-21.

    I know it when I see it. Much of what passes for “important” legislation (mostly large bills encompassing a number of code titles) seems to me to violate 3-21. Certainly those huge bills that repeal “obsolete” statutes were multiple subjects. I have described how we did two initiatives on surface mining in 1988 because of the possibility of the two subject rule being used against our mining proposals. We also split the matters because we thought the increase in the severance tax would be the one the mining companies might target most.

    Interestingly, I once witnessed the Legislature have to deal with this. I believe it was Rep. Lars Herseth who made a request for an interpretation of a bill that would split the question, separating the vote on part of a bill from the vote on the remaining part. Speaker at the time was Walter Dale Miller, who ruled that the two parts of the bill had to have separate votes. The body proceeded to vote on the sperate parts of the bill. Both parts got majority vote, so the bill passed. I’m not sure what would have happened if one part passed and the other failed.

  5. larry kurtz 2023-01-16 11:06

    How is the price of putting people to death either conservative or sustainable? The litigation costs of trying capital crimes persuaded Nebraska to rethink state-sponsored killing.

    A state-ordered lethal injection isn’t criminal justice; it’s suicide by cop and it’s the view of this progressive that anyone convicted of any felony requiring incarceration should be able to ask for a death with dignity rather than living a life of Hell in the South Dakota State Penitentiary.

  6. Mark Anderson 2023-01-16 14:20

    If I recall larry kurtz, a reporter from the Argus Leader wrote about an immediate relative whom the state executed. Another person, on their deathbed, confessed to the crime. Sometimes mistakes are made. This was reported decades ago.

  7. DaveFN 2023-01-16 18:35

    This and similar matters must be given a context much more rigorous than the flattened out notion of the “single subject rule” being employed by the SD legislature.

    Why? Those in governing bodies invariably attempt to stack the deck in their own favor by gaming the system one way or the other. This is often done by adoption of sloppy, informal procedures for the sake of appearance rather than by an adherence to strict procedures which would themselves dictate and determine the final outcome of the body, allowing the ‘chips to fall where they may.’ The South Dakota legislature is but one example, although a good one.

    Of course, any governing system which conflates and confuses itself with the law itself isn’t going to want to subordinate itself to a rigorous and thoroughgoing mediating third (let along anything else) unless the latter is something malleable which they can manipulate one way or the other. Hence the problem: lack of rigor leads to an appearance of procedure for appearance’s sake only leading to laws that lack credibility.

    Instead, governing bodies must subordinate themselves to a mediating 3rd. Such a mediating 3rd is, for example, Robert’s Rules of Order or its revised editions.

    Robert’s Rules of Order, Section 24:

    (1) Division of a Question

    “The motion to divide a question can be applied only to main motions and to amendments. It takes precedence of nothing but the motion to postpone indefinitely, and yields to all privileged, incidental, and subsidiary motions except to amend and to postpone indefinitely. It may be amended but can have no other subsidiary motion applied to it. It is undebatable. It may be made at any time when the question to be divided, or the motion to postpone indefinitely, is immediately pending, even after the previous question has been ordered. But it is preferable to divide the question when it is first introduced. When divided each resolution or proposition is considered and voted on separately, the same as if it had been offered alone. The motion to adopt, which was pending when the question was divided, applies to all the parts into which the question has been divided and should not, therefore, be repeated. The formality of a vote on dividing the question is generally dispensed with, as it is usually arranged by general consent. But if this cannot be done, then a formal motion to divide is necessary, specifying the exact method of division.

    [Section 6 of H. R. Rule 16 is as follows : “6. On the demand of any member, before the question Is put, a question shall be divided if it include propositions so distinct in substance that one being taken away a substantive proposition shall remain.”]

    When a motion relating to a certain subject contains several parts, each of which is capable of standing as a complete proposition if the others are removed, it can be divided into two or more propositions to be considered and voted on as distinct questions, by the assembly’s adopting a motion to divide the question in a specified manner. The motion must clearly state how the question is to be divided, and any one else may propose a different division, and these different propositions, or amendments, should be treated as filling blanks; that is, they should be voted on in the order in which they are made, unless they suggest different numbers of questions, when the largest number is voted on first. If a resolution includes several distinct propositions, but is so written that they cannot be separated without its being rewritten, the question can not be divided. The division must not require the secretary to do more than to mechanically separate the resolution into the required parts, prefixing to each part the words “Resolved That,” or “Ordered That,” and dropping conjunctions when necessary, and replacing pronouns by the nouns for which they stand, wherever the division makes it necessary.

    When the question is divided, each separate question must be a proper one for the assembly to act upon, if none of the others is adopted. Thus, a motion to “commit with instructions” is indivisible; because, if divided, and the motion to commit should fail, then the other motion, to instruct the committee, would be absurd, as there would be no committee to instruct. The motion to “strike out certain words and insert others” is strictly one proposition and therefore indivisible.

    If a series of independent resolutions relating to different subjects is included in one motion, it must be divided on the request of a single member, which request may be made while another has the floor. But however complicated a single proposition may be, no member has a right to insist upon its division. His remedy is to move that it be divided, if it is capable of division, or, if not, to move to strike out the objectionable parts. A motion to strike out a name in a resolution brings the assembly to a vote on that name just as well as would a division of the question, if it were allowed to go to that extent, which it is not. If a series of resolutions is proposed as a substitute for another series, such a motion is incapable of division; but a motion can be made to strike out any of the resolutions before the vote is taken on the substitution. After they have been substituted it is too late to strike out any of them. When a committee reports a number of amendments to a resolution referred to it, one vote may be taken on adopting, or agreeing to, all the amendments provided no one objects. But if a single member requests separate votes on one or more of the amendments, they must be considered separately. The others may all be voted on together.”

    An alternative to the Division of a Question is, according to Robert’s Rules, is Consideration by Paragraph (consideration seriatim):

    “Where an elaborate proposition is submitted, like a series of resolutions on one subject, or a set of by-laws, the parts being intimately connected, it should not be divided. The division would add greatly to the difficulty of perfecting the different paragraphs or by-laws by amendments. If the paragraphs are adopted separately, and amendments to succeeding paragraphs make it necessary to amend a preceding one, it can be done only by first reconsidering the vote on the preceding paragraph. In the case of by-laws the trouble is increased, because each by-law goes into effect as soon as adopted, and its amendment is controlled by any by-law or rule that may have been adopted on the subject. When the paragraphs are voted on separately no vote should be taken on the whole. But in all such cases the proper course is to consider the proposition by paragraph, or section, or resolution, or, as it is often called, seriatim. The chair should always adopt this course when the question consists of several paragraphs or resolutions, unless he thinks the assembly wishes to act on them immediately as a whole, when he asks if they shall be taken up by paragraph, and the matter is settled informally. Should the chair neglect to take up the proposition by paragraph, any one may move that the proposition be considered by paragraph, or seriatim.

    The method of procedure in acting upon a complicated report, as, a set of by-laws or a series of resolutions that cannot well be divided, is as follows, the word “paragraph” being used to designate the natural subdivisions, whether they are paragraphs, sections, articles, or resolutions. The member submitting the report, having obtained the floor, says that such and such a committee submits the following report; or, that the committee recommends the adoption of the following resolutions. In either case he reads the report, or resolutions, and moves their adoption. Should he neglect to move their adoption, the chair should call for such a motion, or he may assume the motion and state the question accordingly. The chairman, or the secretary, or the member who reported it, as the chair decides is for the best interest of the assembly, then reads the first paragraph, which is explained by the reporting member, after which the chair asks, “Are there any amendments to this paragraph ?” The paragraph is then open to debate and amendment. When no further amendments are proposed to this paragraph, the chair says, “There being no further amendments to this paragraph the next will be read. In a similar manner each paragraph in succession is read, explained if necessary, debated, and amended, the paragraphs being amended but not adopted. After all the paragraphs have been amended, the chair says the entire by-law, or paper, or resolution is open to amendment, when additional paragraphs may be inserted and any paragraph may be further amended. When the paper is satisfactorily amended, the preamble, if any, is treated the same way, and then a single vote is taken on the adoption of the entire paper, report, or series of resolutions. If the previous question is ordered on a resolution, or series of resolutions, or on a set of by-laws, before the pre-amble has been considered it does not apply to the preamble, unless expressly so stated, because the preamble cannot be considered until after debate has ceased on the resolutions or by-laws. It is not necessary to amend the numbers of the sections, paragraphs, etc., as it is the duty of the secretary to make all such corrections where changes are rendered necessary by amendments.”

    —Robert, Henry M. (Henry Martyn, 1837-1923). Robert’s Rules of Order Revised for Deliberative Assemblies; Chicago and New York: Scott, Foresman and Company, 1915, pp 89-95.

    Alternatively, for the Wiki-minded:

    1) Division of a Question

    ** A motion for division of a question used to split a motion into separate motions which are debated and voted on separately.

    ** This motion is applicable when each of the different parts, although relating to a single subject, is capable of standing as a complete proposition without the others.

    Class Incidental motion
    In order when another has the floor? No
    Requires second? Yes
    Debatable? No
    May be reconsidered? No
    Amendable? Yes
    Vote required Majority

    2) Consideration by Paragraph

    ** A motion whereby a complex motion is broken up to be deliberated part by part.
    ** Each part is considered tentatively and amended as necessary, then the whole motion is considered and voted on as a whole.
    ** Differs from the motion to divide a question which splits the motion into two or more independent motions that are taken up in sequence. Each new motion is deliberated and voted upon before taking up the next part.

    Class Incidental motion
    In order when another has the floor? No
    Requires second? Yes
    Debatable? No
    May be reconsidered? No
    Amendable? Yes
    Vote required Majority

    Chairs of governing bodies need be expert on these matters. If not, a trained parliamentarian is the alternative.

    Any law must subordinate itself to, and is no better than, the rigor of the procedure that gave rise to it.

  8. DaveFN 2023-01-16 20:01

    Sniggering comments I’ve heard by members of governing bodies such as “we all know that the REAL agreements are not made in convened meetings but behind-the-scenes, in bars, etc” are every reason the governed do not, cannot, and must not have confidence in either governing bodies or their conclusions.

    Down-on-the-farm with a smile and a handshake behind-the-scenes doesn’t cut it in a legislative body, and if it does it’s but corruption and short-circuiting formal process. Assuming rigorous formal process even exists, as I’ve suggested above.

  9. Cory Allen Heidelberger Post author | 2023-01-17 04:43

    No one raised Cully’s interpretation during the lawsuit that led to the overturning of Amendment A. The single-subject rule applies to laws as they are voted on, not to laws as they are written in the books. The whole point of the single-subject rule is to prevent logrolling an ensure that when legislators vote, they are voting on a single, narrow law, not a whole bunch of severable laws that might not pass on individual votes.

    SB 52 deals with multiple subjects. Each vote cast on SB 52 is a vote on multiple subjects. SB 52 is as illegal as Amendment A.

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