Document Type
Article
Abstract
The American legal tradition generally distinguishes between cold-blooded, premeditated intentional killing and hot-blooded, spontaneous intentional killing. The former has traditionally been categorized as murder and the latter as the lesser crime of “voluntary manslaughter.” South Dakota’s homicide statutes, interpreted based on their plain meaning, depart from this deeply rooted tradition. The closest equivalent to the crime of voluntary manslaughter appears in South Dakota’s first-degree manslaughter statute, which includes a prohibition on homicide “[w]ithout any design to effect death . . . and in a heat of passion, but in a cruel and unusual manner.” The phrase “heat of passion” suggests hot blooded, voluntary manslaughter. But the phrase “[w]ithout any design to effect death” seems to limit the statute to unintentional killings. South Dakota’s first-degree manslaughter statute seems to refer to involuntary manslaughter, not voluntary manslaughter.
South Dakota inherited the confusing language in its first-degree manslaughter statute from a botched 1829 attempt to codify New York’s homicide law. Every state that adopted this language has since rejected it, with only two exceptions: South Dakota and Oklahoma. It is long past time for South Dakota to revise its first-degree manslaughter statute to clarify that the statute encompasses intentional, and not unintentional, hot-blooded killings. The current definition of first-degree manslaughter has resulted in conflicting judicial rulings, a lack of legal clarity for the public, and the risk of inconsistent and indefensible sentences.
In conclusion, the article notes that if the legislature revisits the state’s homicide statutes, it might also consider conducting an evidence-based study of the state’s extraordinarily punitive and costly sentencing laws, including the availability of life without parole for first-degree manslaughter. South Dakota’s extreme approach to sentencing has never been supported by empirical evidence, places exceptional financial burdens on the public, and may harm public safety in the long term through the destructive side effects of incarceration.
DOI
https://doi.org/10.70657/SDLR.V71.I1.1
Recommended Citation
Gregory Brazeal,
Does Voluntary Manslaughter Exist in South Dakota?,
71
S.D. L. Rev.
1
(2026).
Available at:
https://red.library.usd.edu/sdlrev/vol71/iss1/7