(dissenting).
[¶ 27.] I dissent. I can not agree with the majority’s conclusion that there has been no parole eligibility for life prisoners since 1913. Accordingly, I would reach the issues of whether the 1978 statutory amendment violated ex post facto constitutional provisions and whether Brim waived his right to have a parole eligibility date set.
[¶ 28.] 1. STATE LAW REQUIRED THAT A PAROLEE ELIGIBILITY DATE BE SET FOR BRIM AT THE TIME OF HIS 1958 SENTENCE TO LIFE IMPRISONMENT.
[¶ 29.] In 1978, the Legislature enacted SDCL 24-15^1, which provides: “A person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles.” The statute became effective January 1, 1979. 1978 SD Laws, ch. 186, § 43. In its memorandum decision, the circuit court conceded that, prior to 1978, “the South Dakota Code reflected the ability of a defendant to a sentence of life to have the possibility of parole set.” A person serving a life sentence prior to January 1,1979 clearly was parole eligible. The provisions dictating that persons sentenced to life imprisonment could be afforded a pardon by complying with their parole provisions clearly evince a legislative intent to parole such persons. “This court assumes that statutes mean what they say and that legislators have said what they meant.” In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (citation omitted).
[¶30.] The same statements by former Board members which were offered in Stumes have been presented to us in this appeal. Just because the Board did not consider a person serving a life sentence as “being someone eligible for parole” did not make it so.13
The purpose of rules regarding the construction of statutes is to discover the true intention of the law, and said intention is to be ascertained by the court primarily from the language expressed in the statute.
In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.
Famous Brands, 347 N.W.2d at 884-85 (emphasis added) (citations omitted). The Board does not have the power to deviate from statutory procedures.14 Provisions of parole acts relating to parole board procedures, including the time for eligibility to apply for *819parole, are viewed as creating mandatory duties on the board. People ex rel. Abner v. Kinney, 30 Ill.2d 201, 195 N.E.2d 651, 654 (1964) (“Neither the Parole Board nor the Department of Public Safety can by rules change the statutory provisions of eligibility for parole.”).
[¶ 31.] When Brim entered prison, the Board was obligated to set a parole eligibility date: “Whenever any person becomes an inmate of the Penitentiary it shall be the' duty of the Department to immediately establish in their record the date when such inmate will be eligible to parole.” 1955 SD Laws, ch. 31, § 2 (codified today in essentially the same language at SDCL 24-15-3) (emphasis added). No exception for those sentenced to life imprisonment appeared in' any provisions relating to parole eligibility dates until 1978.15 When the law dictates that a parole date be set, an inmate is entitled to a “binding presumptive parole release date as mandated by clear legislative language.” Holston v. Florida Parole & Probation Comm’n, 394 So.2d 1110, 1111 (Fla.Ct. App.1981) (citation omitted). Cf. People v. Joyce, 246 Ill. 124, 92 N.E. 607, 613 (1910):
[A sentence of imprisonment] is not all of the sentence. The provisions of the parole act are incorporated into the sentence by virtue of law, and become a part of it as much as if the provisions were actually written into it.
“The law does ... mandate a ‘date,’ and, in the absence of evidence of an intent to use the term in an unusual sense, no express legislative definition should be required for an apparently unambiguous word.” Holston, 394 So.2d at 1111 nl.
[¶32.] An inmate has no constitutional right to parole. See Board of Pardons v. Allen, 482 U.S. 369, 377 n. 8, 107 S.Ct. 2415, 2420 n. 8, 96 L.Ed.2d 303, 312 n. 8 (1987):
It is true that a State has no duty to establish a parole system or to provide for parole for all categories of convicted persons ... and that a State may place conditions on parole release; only in this sense is parole a privilege, not a right.
However, once the Legislature uses mandatory language, it may well create a constitutional right to a parole date. See, e.g., Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (holding that even though the presence of a parole system, standing alone, did not give rise to a constitutionally protected liberty interest in parole release, the use of “shall” regarding criteria which must be met before parole will be granted creates a presumption that a parole release will be granted, and hence, a liberty interest in parole release protected by the Due Process Clause).
[¶ 33.] Similarly, our.Legislature employed “shall” in describing the Board’s duty to immediately set a parole eligibility date for any person becoming an inmate; use of such mandatory language creates a presumption that a parole date will be set upon incarceration. Cf. Christopher v. United States Bd. of Parole, 589 F.2d 924, 927 n8 (7th Cir.1978) (“Although an inmate being considered for parole does not have a per se right to be released on parole, he does have a right to be considered for parole.”) (emphasis added); People ex rel. Jones v. Russi, 199 A.D.2d 1043, 608. N.Y.S.2d 914, 914-15 (1993) (“[Inmate] has the right to be considered for parole [but] does not have the right to be granted parole.”); see also People v. Toth, 224 Cal.App.2d 130, 36 Cal.Rptr. 417, 418, cert. denied, 377 U.S. 983, 84 S.Ct. 1893, 12 L.Ed.2d 751 (1964):
Defendant shows great concern over the court’s use of the term “rest of your natural life” in sentencing him. He seems to feel that this sentences him to life imprisonment without possibility of parole. He is mistaken. The sentence in no way restricts the normal possibility of parole.
*820[¶ 34.] When the Legislature enacted SDCL 24-15-4 in 1978, it set a policy which “totally rejects rehabilitation as a basic goal of our criminal justice system by imposing a life sentence without parole.” Helm, 684 F.2d at 585. Perhaps the enactment of the 1978 statute reflected a nationwide shift in public policy regarding rehabilitation for certain offenders. However, it was for the Legislature to delineate that policy by statute, not for the Board to prematurely incorporate it into its policies and procedures. See Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 756 n. 1 (S.D.1994) (observing that the Legislature is the final arbiter of public policy); see also Patterson v. State, 660 So.2d 966, 969 (Miss.1995), reh’g denied:
The [plea bargain] provision providing for life without parole was not a permissible option provided by the legislature ... thus, the court had no authority to issue such a sentence.
(Citing Lanier v. State, 635 So.2d 813 (Miss. 1994) (reaching an identical conclusion and holding that sentence of life imprisonment without possibility of parole was contrary to public policy because it was not authorized by statute)); accord Stevenson v. State, 674 So.2d 501 (Miss.1996) (noting also that the Mississippi statute was amended effective July 1,1994 and only since then is a sentence of life imprisonment without parole lawful).
[¶ 35.] It is incredible that the majority calls the Board “an expert in this area of the law” when it (not once but twice) requested opinions of the Attorney General on this very topic and then apparently ignored or rejected them. The majority correctly points out these opinions are not binding on this court, citing Stumes v. Delano, 508 N.W.2d 366, 372 (S.D.1993). What the majority apparently overlooks is the Stumes statement that for someone sentenced to life imprisonment pri- or to January 1, 1979 “a parole date should have been set immediately.” Id. at 373 (emphasis added).
[¶ 36.] Also curious is the majority’s statement that “much of the records have been lost with time” — this has no support in the record.16 The Board did not even advance this argument in its brief. Instead of producing records, the Board (and the majority) blindly rely on statements from Arthur Canary, former Executive Director of the Board, who contends that persons serving life sentences were never considered for parole. This is interesting, considering he is the named defendant in the case of Bush v. Canary, 286 N.W.2d 536 (S.D.1979), where Justice Morgan, writing a unanimous majority opinion discussing a parolee’s appeal of revocation, began the opinion with the following recitation of the facts:
Appellant Bush was convicted in South Dakota in 1960 of various felony offenses and sentenced for life to the state penitentiary. He was released on parole in April of 1974.
Id. at 538 (emphasis added). The “experts” may have been picking and choosing which inmates serving life sentences they wished to parole, but Bush unequivocally proves 1) they were paroling some of them and 2) Arthur Canary knew it.17
[¶ 37.] The Board argues the “impossibility” of calculating a parole date for a person serving life imprisonment. There are probably numerous methods by which this could be accomplished, and that argument is without merit. Parole eligibility dates are set for prisoners imprisoned to terms of years by simply establishing a requisite minimum based on a percentage of the sentence. See SDCL 24-15-5. It would not be “impossible” to do the same by consulting actuarial *821tables to calculate a prisoner’s life expectancy from the time he began his sentence. Jerry Bush was paroled after spending fourteen years of a “life” sentence in the penitentiary — apparently there was some formula being used to determine a parole eligibility date. Bush, supra.
[¶ 38.] 2. RETROSPECTIVE APPLICATION OF SDCL 24-15-4, ENACTED IN 1978 AND DENYING PAROLE ELIGIBILITY TO INMATES SERVING LIFE SENTENCES, VIOLATES EX POST FACTO CONSTITUTIONAL PROVISIONS.
[¶ 39.] The statute denying parole eligibility to persons sentenced to life imprisonment was not enacted until twenty years after Brim began to serve his life sentence. Whether a statute should be accorded retroactive effect is well-settled:
The general rule is that newly enacted statutes will not be given a retroactive effect unless such an intention is plainly expressed by the legislature. SDCL 2-14-21; Schmaltz v. Nissen, 431 N.W.2d 657 (S.D.1988); Sheehan v. United Pacific Ins. Co., 439 N.W.2d 117 (S.D.1989).
State v. Galligo, 1996 SD 83, ¶ 6, 551 N.W.2d 303, 304 (noting an exception to this rule when the statute affects only procedural matters, as opposed to substantive rights). SDCL 24-15-4 has no language indicating the Legislature intended retroactive application, nor can a statute denying any possibility of parole to a whole class of persons be considered “procedural.”
[¶ 40.] There are constitutional prohibitions against ex post facto laws. See U.S. Const, art. I, § 10; SD Const, art. VI, § 12.
The ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.... Our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto; it must be retrospective, that is it must apply to events occurring [before] its enactment, and it must disadvantage the offender affected by it.
Delano v. Petteys, 520 N.W.2d 606, 608 (S.D. 1994) (citations and internal quotations omitted). Our analysis according to Petteys is twofold:
[¶ 41.] 1. First, is application of SDCL 24-15-4 to Brim “retrospective,” i.e., does it apply to events occurring before its enactment? Obviously, this is easily answered in the affirmative. Brim was in prison for twenty years before the Legislature abrogated parole eligibility for persons serving life sentences.
[If 42.] 2. Next, does application of SDCL 24-15-4 to Brim disadvantage him as an “additional punishment to that then prescribed”? He was disadvantaged because he has not been allowed to take advantage of the right granted by the Legislature to be considered for parole and therefore, his term of confinement may have been increased. That denial of parole eligibility constitutes “punishment” is expressly stated in the United States Supreme Court opinion of Warden v. Marrero:
[O]nly an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole. For the confined prisoner, parole — even with its legal constraints' — is a long step toward regaining lost freedom ....
“[W]hen [the legislature] expressly removes all hope of parole upon conviction and sentence for certain [offenses], this is in the nature of an additional penalty.”
417 U.S. 653, 662-63, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383, 392, reh’g denied, 419 U.S. 1014, 95 S.Ct. 334, 42 L.Ed.2d 288 (1974) (citations omitted); see also Helm, 684 F,2d at 585, (“A life sentence without parole differs qualitatively from a sentence for a term of years or a life sentence with the prospect of parole.”); Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 176 (7th Cir.1979) (“Denial of any meaningful opportunity for parole by retroactive application of [rule] violates the ex post facto elause[.]”). Brim was eligible for parole prior to the enactment of SDCL 24-15-4. Therefore, retroactive application of that statute eliminates any opportunity.he *822had to shorten his time in prison and thus levies a punishment more serious than the life sentence imposed on him in 1958 with the possibility of parole.
[¶ 43.] The Board argues “not every statutory enactment constitutes a change in the law by reason of its enactment.” It claims there was never a right for a person sentenced to life imprisonment to receive a parole eligibility date, and impliedly, that enactment of SDCL 24-15-4 was simply the codification of existing law. This court rejected a similar argument in Petteys, 520 N.W.2d 606. In that case, the State argued that a statutory amendment which authorized the discretionary revocation of an inmate’s “good time” was not “an affirmative grant of power that did not exist prior [to the amendment], but rather [a] ‘legislative rationalization of the discretion that already existed.’” Id. at 608. In disagreeing with that interpretation of legislative action, we stated:
This interpretation conflicts with the presumption that the 1993 legislature did not intend a meaningless or ineffective result when adding the new language.... This court will not construe a statute in a way that renders parts to be duplicative and surplusage. This court is to presume that the legislature’s [amendment] was passed to change existing law[.]
Id. at 609; see also Sutherland Statutory Construction § 22.30 (5th ed. 1993) (“[I]t is presumed that the provisions added by amendment were not included in the original act.”); accord John Morrell & Co. v. South Dakota Dep’t of Labor, 460 N.W.2d 141, 145 (S.D.1990); State v. Heisinger, 252 N.W.2d 899, 903 (S.D.1977). Key to the Petteys court’s decision was the Legislature’s use of the word “revise” in stating its purpose in amending the statute. Similarly, the enactment clause accompanying SDCL 24-15-4 states it is “An Act to revise the organization, powers, and duties of the board of pardons and paroles.” See 1978 SD Laws, ch. 186, enactment cl. (emphasis added).
[¶ 44.] The majority argues that the reason for retaining § 2 of the 1911 act on the books, which allowed inmates sentenced to life imprisonment to be pardoned after 5 years compliance with parole provisions, was to deal with those paroled prior to July 1, 1913. This claim is made with no supporting authority. It is incredible the Legislature, if it thought it had done away with parole for life prisoners in 1913, would, 65 years later, finally feel compelled to say so. To make such a claim is to ignore a basic tenet of statutory construction, i.e., that provisions added by amendment are presumed to change existing law. We could just as easily “guess” that the reason the 30-year minimum sentence requirement was dropped was because the Legislature decided it was too long, too short, or that it was unfair to impose a blanket requirement which ignored individual characteristics.
[¶ 45.] 3. BRIM DID NOT WAIVE HIS RIGHT TO HAVE A PAROLE ELIGIBILITY DATE SET.
[¶ 46.] The Board arg-ues Brim waived his light to ask for, or to receive, a parole eligibility date by not requesting it before the old statutes were repealed.18
A waiver must be made voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences. The waiver of a constitutional right must be positively established, and the burden is on the party alleging waiver as courts closely scrutinize such allegations, indulging every reasonable presumption against waiver. When determining whether a constitutional right has been waived, this court looks to the totality of the circumstances.
Smith v. Board of Pardons & Paroles, 515 N.W.2d 219, 225 (S.D.1994) (quoting State v. McCormick, 385 N.W.2d 121, 123-24 (S.D. 1986)). In McCormick, circumstances weighing against a conclusion that a probationer waived certain rights included no showing that the court or counsel ever advised him his actions would constitute a waiver. 385 *823N.W.2d at 124. Here, there has been no showing that the Board ever advised Brim that his failure to request a parole eligibility date would amount to a waiver of his right to have a date set. In fact, the Board argues there never was such a right; it follows that any request may have been futile.
[¶ 47.] There is no language in the statute delegating to incoming prisoners an affirmative role in requesting or receiving a parole eligibility date. On the contrary, when Brim was incarcerated, it was the duty of the Board to calculate and assign a parole date. See 1955 SD Laws, eh. 31, § 2, reproduced supra at ¶ 31.
[¶48.] Furthermore, Brim’s request was prompted by language 'in Stumes, 508 N.W.2d 366. That opinion was handed down November 3,1993. Brim filed his application for a parole eligibility date nine days later, on November 12, 1993. Stumes noted that there was a right to a parole eligibility date for persons under life imprisonment prior to the 1978 statute:
The issue is whether or not the law changed the legal consequences of acts completed before the law’s effective date [January 1, 1979]. Stumes was sentenced to life on March 27, 1974. Under the statute, a parole date should have been set immediately.
508 N.W.2d at 373 (emphasis added). There can be no showing of waiver by Brim when there is no showing he was aware of his right to receive a parole eligibility date prior to Stumes.
The doctrine of waiver is applicable where one in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forebears the doing of something inconsistent with the exercise of the right. To support the defense of waiver, there must be a showing of a clear, unequivocal and decisive act or acts showing an intention to relinquish the existing right.
Norwest Bank v. Venners, 440 N.W.2d 774, 775 (S.D.1989) (citing Subsurfco, Inc. v. B-Y Water Dist., 337 N.W.2d 448, 456 (S.D.1983)) (emphasis added).
[¶ 49.] We should reverse and remand and require that a parole eligibility date be set as required by law.
[¶ 50.] AMUNDSON, J., joins this dissent.. It is possible that it was not Brim's life sentence, but rather the detainer in his file which precluded consideration by the Board. A 1966 letter from his counsel to the circuit court stated: "pf]his detainer has the effect of depriving him of ever being eligible for parole.” See Cooper v. Lockhart, 489 F.2d 308, 314 n. 10 (8th Cir.1973) (noting 10 generally recognized punitive consequences of a detainer, including: "the inmate is ... inhibited by the denial of possibility of parole or any commutation of his sentence[J”).
. It appears that perhaps the Board occasionally relied on commutations of life sentences to terms of years as a means to grant parole to those inmates sentenced to life imprisonment. In Helm v. Solem, the Eighth Circuit Court of Appeals took judicial notice of statistics on the frequency of commutations in South Dakota:
The statistics indicate that 22 prisoners in the South Dakota penitentiary had their life sentences commuted between 1964 and 1975. The statistics, however, do not indicate what percentage of requests during this same time period were denied. Moreover, since 1975, the Governor of South Dakota has commuted no life sentences but has denied requests for commutation of life sentences from 25 prisoners[.]
684 F.2d 582, 585 n. 6 (8th Cir.), cert. granted, 459 U.S. 986, 103 S.Ct. 339, 74 L.Ed.2d 381 (1982). While gubernatorial commutation of sentences is a wholly constitutional practice, (SD Const, art. IV, § 3), it is not intended to replace statutory procedures according to which parole eligibility dates are set, hearings are held, and parole granted or denied.
. The two attorney general opinions referenced in Stumes, and supra at ¶ 17 concurred that there was parole for life prisoners. The 1925 opinion expressly states "... that the legislature has not changed the statutes so as to make the holding in this opinion inapplicable.” (Emphasis added). This should have put the Board on notice that 1) it must set a parole eligibility date for those inmates, and 2) it was up to the Legislature to direct it otherwise. For the Board to request and then ignore these opinions may be bad faith. In any event, the Board should not be credited for its misconstruction of the law simply because it "always did it'that way.”
. As noted, the Eighth Circuit Court of Appeals relied on records provided by the penitentiary which covered, at a minimum, the years 1964 through 1982. See Helm, 684 F.2d at 585 n.6.
. The majority dismisses the language in Bush as a possible "error of law on the part of the Board” or an inaccuracy in the record before the Bush court. Instead, it focuses on the case of Cody v. Leapley, A-16 N.W.2d 257, 259 n2 (SD 1991). That footnote was written by then-Circuit Court Judge Gilbertson, who is now Supreme Court Justice Gilbertson and the author of the majority opinion. He wrote: "In South Dakota life in prison is without parole" and cited SDCL 22-6-1. That statute is not authority for that proposition, but merely discusses felony classes and penalties without a mention of parole. Obviously, at the time Cody was written in 1991, there was no longer parole eligibility for inmates sentenced to life after 1978.
. This contention by Board is at odds with its primary argument' — that there was never any right to make such a request, and that any discussion regarding parole in the statutes amounted to merely "passing” or "parenthetical” reference.