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Republican Jason Ravnsborg speaks after winning the South Dakota attorney general;s race during the Republican election party on Nov. 6, 2018, in Sioux Falls, S.D. Matt Gade / Forum News Service

Debate over presumptive probation revived in SD Legislature's talks on drug law

RAPID CITY, S.D. — As South Dakota lawmakers and experts spend the summer taking a look at the state's drug laws — which are among the strictest in the country — there appear to be two sides to the debate: Crack down, or loosen up.

At their Monday, Sept. 23, meeting in Pierre, members of the Legislature's summer study on drug offenses compared South Dakota's felony drug ingestion laws to other states' statutes. According to Legislative Research Council analyst Matt Frame, South Dakota is one of 11 states in the country where just ingestion of a controlled substance — not necessarily possession — is illegal.

Two of those states, California and Colorado, have legalized recreational marijuana. And South Dakota is even more unique in that it is the only state where ingestion is a felony offense, as opposed to a misdemeanor.

The summer study's meeting came less than one week after the nonpartisan group Prison Policy Initiative released a report finding that South Dakota leads the nation in local jail admissions per capita, with 2,888 unique admissions per 100,000 residents in 2016. With 25,000 total admissions, nearly 3% of all South Dakotans were jailed in 2016, — nearly twice the national rate of 1.5%. Per the state attorney general's office, drug offenses made up the largest portion of arrests — 18% — in 2018.

The Legislature's study has revived one of the state's most lively debates: Is presumptive probation — the state's requirement to sentence low-level offenders to probation rather than prison — working?

South Dakota Fraternal Order of Police President Mike Walsh argued no. During public testimony at Monday's meeting, he said that before the state's 2013 criminal justice overhaul, police were able to strike deals with drug users, coaxing out information about dealers in exchange for probation sentences. Now that probation is presumptive, he said, police have little leverage.

"The unintended consequence of presumptive probation is that virtually no one talks to law enforcement after their arrest, even if that is truly the best thing they can do to break that cycle," Walsh said. "There are no consequences and the addict isn’t necessarily thinking about what’s best for them."

Walsh said if legislators "truly want to help" users, "keep probation on the table, but not presumptive."

Attorney General Jason Ravnsborg attempted to do just that earlier this year, after having made the repeal of presumptive probation the cornerstone of his election campaign. But legislators shot down his Senate Bill 19, after the Legislative Research Council estimated that the repeal could ultimately cost the state $54 million over the course of 10 years.

On the opposite side of the issue, the American Civil Liberties Union of South Dakota, which opposed SB 19 during the 2019 legislative session, is advocating for a different approach: reclassifying controlled substance ingestion as a misdemeanor.

In a Monday news release, ACLU-SD Policy Director Libby Skarin said making ingestion a misdemeanor could save the state $50 million over 10 years. She said that money that could be reinvested in prevention and treatment programs that "would go a long way in helping to solve the underlying problems leading to drug abuse."

“Though drug use is undoubtedly a serious issue, we can’t incarcerate our way out of addiction,” Skarin said. “The enormous amount of money South Dakota spends on jailing people for drug-related offenses is disproportionate and causes more harm than good to individuals struggling with addiction, their families and their communities.”