Why lawmakers are calling for a fix to South Dakota's drug laws

South Dakota's prosecutors and law enforcement are asking legislators to not "kick the can down the road" when it comes to fixing the state's drug laws. 

Laws differ from state to state for the controlled substance possession and intent to distribute, but South Dakota is the only state that criminalizes ingestion of a controlled substance as a felony offense, a legislative committee heard on Monday. 

The committee of legislators and court and law enforcement officials are studying South Dakota's laws regulating controlled substances to determine if changes need to be made during the 2020 legislative session. After hearing the South Dakota's statistics at its meeting last month, the committee dug into those number further on Monday. 

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Dropping ingestion from a felony to a misdemeanor doesn't make the addiction go away, and the state needs to do more work in drug treatment and prevention, Pennington County Sheriff Kevin Thom said. Retired Judge Patricia Riepel said any changes the committee comes up with need to include treatment as an option, and the state needs to be "proactive versus reactive." 

The state is doing a lot of things right, including drug courts, but many defendants don't choose treatment options because it's easier to plead guilty and take the probation, said Minnehaha County State's Attorney Aaron McGowan.

"I see them time and time again in this revolving door of addiction," McGowan said. "We need treatment, but if we do it on the front end in that first arrest and have something in place as far as leverage or encouragement for them to do it the first time, think of all the tax dollars we've saved throughout the process because the nature of that addiction, they're going to be in our criminal justice system long term." 

How do penalties in S.D. compare to other states?

South Dakota has two laws regulating ingestion crimes: One law adopted in 1981 criminalizes inhaling items such as paint thinner as a misdemeanor and the other criminalizes ingestion of a controlled substance as a felony, which went into effect in 2014.

Other states include ingestion as a misdemeanor in public intoxication laws, although Legislative Research Council research analyst Matt Frame noted that Arizona penalizes ingestion with felony probation. 

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Data from the Federal Bureau of Investigation shows about 14% of South Dakota's 63,625 arrests in 2017 were for drug offenses. South Dakota is No. 1 for the number of drug arrests in 2017 when the number of arrests is compared to the state's population, Frame said. About 86% of South Dakota's drug offense arrests are for possession, and the remainder are for the intent to distribute. The FBI's data doesn't include tribal data.

However, Frame cautioned that the statistics shouldn't be taken at face value because a number of factors could affect the numbers, including differing state laws regulating drug crimes. He also noted that South Dakota ranks very low in its number of violent crimes compared to other states and law enforcement may be able to focus more on drug offenses than in other states, he suggested.

There's a few ways that states dole out penalties for controlled substances, according to Frame. Arkansas and Mississippi have penalties based on the type of drug and the drug's weight. Minnesota uses a tiered system where the penalty is based on the severity of the offense. South Dakota uses a simplified system that penalizes offenders with a blanket felony for any type of controlled substance and any weight amount.

What about people arrested for ingestion?

South Dakota's law is unique in that trace drug amounts can result in a charge of possession of a controlled substance. 

A total of 1,843 people were charged with possession of a controlled substance and 877 people were charged with ingestion of a controlled substance during the 2019 fiscal year. Only 156 were charged with both possession and ingestion, according to State Court Administrator Greg Sattizahn.

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Twenty-five of those who pleaded guilty to ingestion were sentenced to the penitentiary without probation, but those cases had extenuating circumstances. In one of those cases, a man found with meth in Marshall County had recently completed parole for a felony child abuse conviction, and he had previously been acquitted of murder. When officers searched his home for meth, they found his daughter was sleeping on a bare mattress on the concrete floor of a moldy basement, Pierre attorney Paul Bachand said.

"It appears to me that the judges (in those 25 cases) were faced with no other alternative," Bachand said.

Pennington County State's Attorney Mark Vargo began 45 cases of possession or ingestion of a controlled substance in the first week of 2019 and three-quarters would still move forward if the state required a measurable amount instead of a trace amount of the controlled substance.

Of the 45 cases that started at the beginning of the year, the defendants in 31 of those cases have committed new criminal offenses since then, including violent crimes. The defendants' new offenses have resulted in Vargo's office opening 19 new controlled substance cases on top of the 45. Nearly all of the cases involved parole, probation or bond violations.

"What these numbers show me is, regardless of the amounts we're talking about, we're failing utterly to address behaviors. If you want to change people's behaviors, we need to be doing something different than we are doing right now," Vargo said.