SIOUX FALLS, S.D. – A pending U.S. Supreme Court ruling could impact a South Dakota case that shocked the Sioux Falls community in 2016.

This month, the high court justices heard arguments in Kahler v. Kansas, a case that could determine the constitutionality of the insanity defense.

South Dakota lawmakers have considered but rejected legislation to exempt people with mental illness from the death penalty.

Aya Gruber, a professor of criminal law at the University of Colorado, says the Supreme Court has so far relied on a "shock to the conscience" doctrine as grounds for a death sentence.

"Is it possible that a state can go ahead and punish a severely mentally ill person, the same way that they would punish a completely sane person?” Gruber questions. “Or would that be such a grossly disproportionate punishment that it would shock the conscience?"

A Sioux Falls man eligible for the death penalty awaits trial. In 2016, 24-year-old Heath Otto was charged with killing his mother and nephew, and two counts of first-degree murder make him eligible for the death penalty. His defense lawyers later hired experts who diagnosed Otto with schizophrenia and schizoaffective disorder.

In the case before the Supreme Court, James Kahler was convicted and the death sentence was recommended for fatally shooting his ex-wife, her mother and his two daughters. He appealed, claiming his constitutional rights were violated by not being allowed to present an insanity defense.

Gruber notes that insanity is argued in very few cases.

"And of those cases, they're very rarely successful,” she states. “So, this is not like a defense that people are using all the time – this is a rarely used, rarely successful defense."

In death penalty cases, South Dakota currently relies on the M'Naghten Rule, meaning the burden of proof for insanity is on the defendant.

Capital punishment cases typically cost 10 times more than a first-degree murder case, or an average of $1 million more per case than life imprisonment.


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Maryland could become the second state in the nation to provide specific support for the health and well-being of incarcerated people who are pregnant and their newborns.

In the next General Assembly, a bill will recommend community-based alternatives to jail or prison for pregnant women with nonviolent offenses, for up to one year after the birth. Current Maryland law requires separating an incarcerated mother and infant after two to three days.

Del. Lesley Lopez, D-Montgomery County, is co-sponsoring the legislation, which she said would allow a child to be near his or her parent to bond in the first crucial year of life.

"I myself am going to deliver any day now, and so I'm looking ahead to those next few months of what it's like to bond with your child for a lifetime of parenting," she said. "And if we are a society that really puts a family as the center of what community means, then we need to emphasize that."

She said the Prevention of Forced Infant Separation Act is modeled after Minnesota's Healthy Start Act, which went into effect in August. That bill had bipartisan support, and Lopez said she thinks hers will, too, when the General Assembly convenes in January.

Anushka Vakil, who is working on the bill with the Maryland Justice Project on the bill, noted that infant bonding in the first year is biologically and socially important, and numerous studies show show babies who lack this contact can have serious issues later in life.

"From the research we have found," she said, "we know that when infants are separated at this really young age, it increases baby stress levels, these babies are more likely to develop Post Traumatic Stress Disorder when they become adults, and a lot of these effects are permanent."

An estimated 58,000 pregnant people enter U.S. jails and prisons every year, according to research from the Prison Policy Initiative. In some state prison systems, it said, miscarriage, premature birth and cesarean section rates are higher than those for the general population.

BALTIMORE -- With Maryland's General Assembly session set to start next month, a new proposed bill aims to help nonviolent offenders continue in their caretaking roles after sentencing.

Sponsored by Del. Lesley Lopez, D-Montgomery, and Sen. Jill Carter, D-Baltimore, the bill would allow judges to send offenders to community-based alternatives to prison or home confinement if they're primary caretakers of children or elderly relatives.

Ava Levine, intern for the Maryland Justice Project, pointed out the legislation will be a boon to women because research shows about two-thirds of incarcerated women in the United States are the primary caretaker to a child.

"When you send these primary caretakers to prison, it prevents parents from being with their children," Levine explained. "A lot of these children will end up in foster care, or they'll end up being cared for by a different family members. And we really just believe in keeping that family unit together."

She noted anyone convicted of an offense the judge thinks would pose harm to a child would not be eligible for the proposed law. The Primary Caretaker Bill will be introduced when the 2022 session opens January 12th.

Levine noted similar legislation was recommended in 2018 but did not get much traction among Maryland lawmakers. She thinks it will have more impact now because it will especially help women and men of color. Over the past few years, studies have shown they are incarcerated at much higher rates in Maryland than white residents.

"Incarceration statistics are quite appalling as to how they affect people of color in the state," Levine asserted. "Maryland's population is only about 30% Black whereas the prison population is about 70% Black. So that is quite shocking the difference in that statistic."

Studies have shown a connection between the incarceration of a parent and the development of children's behavioral issues, according to the Maryland Governor's Office for Children. Data also pointed to poor academic outcomes for kids with incarcerated parents.

ANNAPOLIS, Md. -- Maryland lawmakers voted this week to repeal the governor's ability to reject parole decisions for people serving life sentences, taking itself off a list of just three states where governors have that power.

Monica Cooper, executive director of the Maryland Justice Project, said for years, state delegates have put forward legislation to end the practice, which disproportionately impacted African Americans.

She thinks it is inhumane to watch elderly incarcerated folks who are not a danger to their communities deteriorate in prison. She pointed out even during the height of the COVID pandemic, Maryland prison officials were releasing older inmates who have not since re-offended.

"It's a win for the African American community," Cooper asserted. "And it's a win for families, children, children who are now 40 years old who haven't seen their parent since they were three. It's a win for the community all around."

The House voted 92 to 46 late Tuesday to override Gov. Larry Hogan's veto of Senate Bill 202 after the Senate approved it the day before. Opponents of the bill say it allows dangerous people back onto the streets and sends a wrong message to communities looking for help with violent crime.

But Cooper maintained everyone should be given a second chance, especially incarcerated people who are falsely imprisoned or committed crimes as teenagers and have reformed after years in prison.

Her group has been working for the veto override with advocates including Lea Green of Maryland CURE, whose son is serving a life term, and Walter Lomax, a Marylander who was finally exonerated after spending 39 years in prison for fatal robberies he did not commit.

They argued parole committees, who have worked with incarcerated people, are better to judge release than a governor reading a profile.

"Parole and probation make decisions based on people's institutional records, based on the amount of programs that you've done," Cooper explained. "These are actual people who over years upon years upon years know this individual."

Older offenders are much less likely than younger offenders to re-offend following release, according to a study by the U.S. Sentencing Commission. Over an eight-year follow-up period, about 13% of offenders age 65 or older at the time of release were re-arrested compared with about 67% of offenders younger than age 21.