During his four terms as Clay County state’s attorney, Art Rusch didn’t think much about the death penalty.
But that was many years, a lot of contemplation, and one defining death sentence ago for Rusch, a 75-year-old Republican state senator from Vermillion.
“During those years when I was state’s attorney, I would have said the death penalty wasn’t really a problem,” Rusch said in a recent interview. “But when you look across the bench at somebody and sentence them to death, it changes you.”
Rusch did just that, looking across the bench as a circuit court judge in 1997 and sentencing convicted murderer Donald Moeller to death. The jury made the decision, of course. But Rusch imposed it. And in doing so, he also separated, as best he could, his Catholic-inspired, pro-life position that the death penalty was wrong from his obligation as a judge in a state where the death penalty is used.
Nobody said it would be easy. It wasn’t.
“After I got assigned that case, I spent a lot of time talking with my pastor, about the death penalty and the church’s position on it,” Rusch said. “He basically said that I had to do what I had to do. And I always said, as a prosecutor and as a judge, that I would do that, but …”
But it was hard. Really hard. It changed him. And the effects linger today, 24 years after he pronounced Moeller’s sentence and nine years after Moeller was executed.
That change has inspired Rusch to bring the issue a number of times to the South Dakota Legislature, where he is serving in his fourth two-year term in the state Senate. He is both articulate and passionate about the cause.
During testimony before the Senate Judiciary Committee on one of his death-penalty bills this year, Rusch spoke of the impact the Moeller case had on those directly involved in his death sentence.
“It had a horrible effect on the jurors,” Rusch said. “I had one juror who had a nervous breakdown during the trial.”
A sentence that affects everyone involved
Rusch believes other jurors in the Moeller case struggled to less pronounced degrees. He made counseling available to them at no charge, although privacy provisions mean he doesn’t know how many used it or what the results were.
But he knows there were struggles because family members of jurors told him so.
“I had calls from the wives of jurors who said, ‘My husband has changed,’” Rusch says. “In the long run, I wonder what impact it has on them.”
Rusch doesn’t have to wonder about himself. The Moeller case changed him. It didn’t hit him as hard as it might have hit others, he said because the 6-week trial was held in Rapid City. That gave Rusch the opportunity to isolate himself when he was at the trial and separate the gruesome realities of his work from his life when he went home to Vermillion.
“I was living at the Alex Johnson the whole time. My family wasn’t there, and I was able to keep things separated a little bit more,” he said.
Others without such separation struggled more to come to terms with their work, Rusch said.
And even with the separation, he managed to keep, Rusch believes he has PTSD from the case. The realities of it certainly caused traumatic stress.
Moeller was convicted and sentenced to death in 1992 for the horrid 1990 kidnapping, rape, and murder of 9-year-old Becky O’Connell of Sioux Falls. But Moeller’s first conviction was overturned by the state Supreme Court because of submitted evidence that was ruled inadmissible.
Rusch presided over the second trial, held in Rapid City, which again resulted in a guilty verdict and death sentence in 1997. Moeller was executed in 2012, after finally admitting his guilt.
A damaged human being who was hard to defend
Moeller was in no way a sympathetic character and it’s easy to argue that his life wasn’t worth much. But that misses the pro-life point. Because Moeller’s life was a life. And what mortal being gets to decide that human life is not worth preserving?
Art Rusch’s pro-life, anti-death-penalty values don’t make determinations on the use of the death penalty based on how much the life of a convicted murderer might or might not be worth. He simply believes it is wrong for the state to take any life in a process that he believes isn’t a deterrent, costs a lot of money, diminishes society, and is a lot more about vengeance than it is about justice.
So it wasn’t surprising that capital punishment became a point of focus for Rusch when he headed for the state Senate in January of 2015, after winning an election that then-Gov. Dennis Daugaard urged him to take on.
“Dennis twisted my arm a little bit to run for the Legislature,” Rusch says. “I was not looking for that at all. It’s a lot of work. And it keeps you from going somewhere else in the winter.”
But as long as he was in Pierre in the winter, he wanted his time to be meaningful. And that included a meaningful effort to address the death penalty. During that 2016 legislative session, Rusch introduced a bill to eliminate the death penalty in South Dakota. It didn’t make it out of committee.
And it was a sign of things to come for him, and his efforts on capital punishment.
Rusch wept when he pitched that first bill in committee. And he is still unabashed in his emotions when he presents his case in legislative committee rooms or in the South Dakota Senate.
“I talk about the death penalty on the floor of the Senate and it draws tears to my eyes,” he says.
He tried again with legislation to ban capital punishment, followed by different approaches to restrict its use for such things as those with severe mental health problems. This year, he sponsored SB 98, which would have allowed the death penalty only in cases where law enforcement or corrections officers, or firefighters were murdered while on duty.
This session Rusch also sponsored a bill that wasn’t directly about the death penalty but carried a measure of mercy of its own. SB 146 would have allowed for the possibility of discretionary parole after age 50 for people sentenced to life in prison if their crimes were committed when they were younger than 25 years old.
That would mean the state parole board could consider such a request, as it considered the history of the convict and behavior over the years in prison.
Call for compassion passes Senate but falls in House
“There is just so much brain research that indicates that kids who are 18 to 25 just do a lot of stupid things,” Rusch says. “And I think South Dakotans need to be more compassionate.”
SB 146 passed the Senate Judiciary Committee on a 6-0 vote and squeaked through the Senate on an 18-17 vote. The bill died, however, in the House Judiciary Committee on a 9-2 vote.
“This was the first time we’ve made it out of committee and off the Senate floor with something like that, so that was an obvious step forward,” Rusch says. “I just think South Dakotans need to be more compassionate.”
Rusch talked to Republican state Sen. Lee Schoenbeck of Watertown, the speaker pro tem of the Senate, about shaping that legislation.
“Art has tried to accommodate everybody in every way he can and stay true to his values. And those values are making it less likely that the government is going to be killing people in the criminal justice system,” Schoenbeck says. “I was one who suggested, ‘Why don’t we just limit it to people who appear to be too hard to safely incarcerate, people who would kill corrections officers.
“Art thought about it, drafted it, introduced it. His bills don’t look the same every time. He’s always trying to find a path that somebody will join him on,” Schoenbeck said.
Schoenbeck joined him on that path. As a pro-life Catholic who shares Rusch’s opposition to abortion, Schoenbeck also opposes capital punishment.
“I think being Catholic informs your decisions,” Schoenbeck says. “And I’ve always thought that it’s pretty hard for people to be pro-life if you’re not pro-life all the time.”
While there isn’t universal agreement on the death penalty among Catholics, the Catholic Church had long expressed serious reservations about and general opposition to the death penalty. And its opposition has grown stronger in recent decades.
Closing the narrow Catholic Church allowance on capital punishment
At one point the church policy was that the death penalty was only justifiable in situations where it was necessary to protect other lives, such as countries with weak incarceration systems. But even that thin exception has been closed.
In 1995, Pope John Paul II condemned the use of the death penalty except “in cases of absolute necessity” which he said were “very rare, if not practically non-existent.” Four years later, John Paul called for the abolishment of the death penalty worldwide.
Pope Francis has removed any doubt about the church and the death penalty, saying: "There can be no stepping back from this position. Today we state clearly that 'the death penalty is inadmissible and the Church is firmly committed to calling for its abolition worldwide.”
Rusch hopes to add a similar commitment to the state Legislature. But he’s outnumbered so far. And some legislators with anti-abortion beliefs disagree with Rusch and Schoenbeck on the death penalty. Republican Sen. Brock Greenfield of Clark is a past director of South Dakota Right to Life, and also a strong defender of capital punishment. Greenfield didn’t return a message sent to his legislative email address seeking comment for this story.
But former state legislator Bill Peterson of Sioux Falls got back to me right away to talk about why he believes the death penalty is needed in rare instances. Peterson knows the legislative process well, having served four terms in the South Dakota House, including two as majority leader.
Peterson also has a deeply personal connection to the question of whether convicted murderers should be put to death. He had a cousin, Mary Jeanette Stensland, who was shot and killed on Oct. 16, 1989, during a bank robbery in Fairview, S.D.
“She was on the way to do visitation at the nursing home and stopped at the bank to make a deposit for the church,” Peterson says. “Smith made some commands, and when she didn’t respond quickly enough, he shot her. She bled to death on the floor.”
James Smith was given two life sentences for the murder. He died in prison five years ago. His younger accomplice, Paul Wood, was given a 75-year sentence and is still in Mike Durfee State Prison in Springfield.
Should the killer have been sentenced to death?
Obviously, the murder was devastating to Stensland’s family, especially her children and husband, and had long-term effects on all who knew and loved her. Peterson said he thinks Wood’s 75-year sentence was appropriate for his role in the crime.
“I worked with Paul Wood’s uncle. And he described him as a not very bright person with bad judgment. Obviously, he had bad judgment in this case,” Peterson says. “But James Smith came in with the idea of committing a violent crime in order to facilitate another violent crime, which was a bank robbery. Why else would he have shot an innocent, unthreatening middle-aged woman?
Peterson said he wanted to see James Smith executed, but also understands that the court system decided otherwise. Even so, he believes there are crimes that merit death.
“There are just circumstances where I don’t feel justice is served unless the death penalty is on the table,” he says. “I certainly don’t advocate using it willy nilly. It needs to be used rarely and only for the most heinous of crimes.”
While giving sympathy for Peterson’s loss and respect for his opinion, Rusch believes the death penalty should be used not at all. But in his legislation, he has shown a willingness to accept some use of the death penalty in order to eliminate it in other cases. Or as Schoenbeck said, to find a path where others might join him in making progress against state-sanctioned killings.
That path was blocked this year. But there’s always next year if Rusch decides that his last year in the state Legislature will include another attempt at eliminating or further restricting the death penalty.
“I haven’t made any decision about next year,” he said.
Well, he has made one. Next year will be the final year of his fourth consecutive two-year term in the state Senate. And the state constitution prohibits him from seeking a fifth in a row. Many successful legislators have sought to continue their service beyond the term limits in one legislative body by running for a seat in the other.
But Rusch says he has no interest in running for the South Dakota House.
“Absolutely not,” he says. “The Senate is really a congenial group, and even more so this year than the last couple of years. Everybody there really gets along. And that’s just not the way it is across the way (in the House).”
Besides, Rusch has other projects to work on. He’s a former Boy Scouts leader and still serves on the board of directors for the Sioux Council of the Boy Scouts of America. He has a motorboat that his grandkids enjoy, which means he enjoys it, too. And he has a condo on Lake Okoboji.
Beyond that, he has some writing projects in the works. He has already written a history of South Dakota courthouses and plans a biography of Jefferson Kidder, a noted lawyer and judge back in the Dakota Territory days.
Rusch also plans to write a story about all of the executions in South Dakota history, which will take him back to the issue he has brought so forthrightly to the state Legislature.
It’ll probably bring some tears to his eyes as well.
