I think that we would all agree, even though our system is great, it fails at least some people.
By John Hult, South Dakota Searchlight
According to a Senate committee that voted on a new bill in Pierre on Tuesday, drug consumption would not be considered a crime for the second or first time.
South Dakota is one of the few states in the country where failing a drug test can result in prison sentences if the substance in question has been classified as controlled. If you fail a marijuana test, you could be charged with a misdemeanor and face jail time.
Senate Bill 83 will remove the possibility of felony charges for ingestions such as methamphetamine and cocaine until the third charge. The first or second offense would result in misdemeanor charges, which could be punished by up to one year of jail. The judge will also require those convicted of pleading or being found guilty to undergo a chemical dependence evaluation and to follow the recommendations that result from this. They must also complete any probation periods, as well as any other jail sentences.
A third or subsequent offense in the space of 10 years would be a felony—a three-strikes setup similar to South Dakota’s laws on driving under the influence.
Last week the Senate Judiciary Committee heard testimony about this bill, but delayed taking any action until today. After adding an amendment meant to encourage the use of a specialty probation program, the committee opted to send the bill to the Senate floor on a 5–1 vote. Amber Hulse of Hot Springs is the only Republican Senator to vote against it. Helene Duhamel, R-Rapid City Senator, argued in opposition to SB 83 Thursday. She was not present at the vote on Tuesday.
Advocates: The law is causing more problems than it solves
A small group of bipartisan lawmakers has attempted to amend the law against felony ingestion on numerous occasions over the past few years. Most failed before they reached a vote on the floor of either the House or Senate.
Tamara Grove’s (R-Lower Brule), a first-term Senator, was the one who made this year’s attempt. She defeated Democratic incumbent Shawn Bordeaux to gain a seat which represents a predominantly Native American constituency.
Grove, copastor of Lower Brule’s Hope Center, has worked with drug-users ever since she began her recovery in 2012. It is clear that the law does not reduce drug use or the amount of drugs entering the state.
Grove explained that it is not a good idea to burden people who are struggling with felony charges. The felony conviction can hinder the ability to obtain a job and an apartment. That in turn makes it hard to take care of children or pay for bills.
Grove stated that “punishment doesn’t work” during the last debate about this measure.
She said that it is the courts and the correctional system of the state who are burdened. The latter, Kellie Wasko, Secretary of the Department of Corrections, has announced plans to build an 825-million dollar men’s prison in Sioux Falls, to address what she calls the overcrowded and dangerous conditions of the penitentiary. Rapid City is also planning a new women’s jail.
Denny Davis is also a pastor in Sioux Falls. He told legislators that he recently asked a new group of inmates at Sioux Falls Penitentiary, who had just arrived there, how many of them were charged with an ingestion offense.
Davis said, “Everyone raised their hand.”
The state’s defense and trial attorneys also spoke out in favor. They said that young people who experiment with drugs could end up facing felony charges and prison sentences due to the unique punitive nature of state law.
Ingestion laws are favored by opponents due to public safety concerns and the current probation system
Tom Wollman, Lincoln County State’s Attorney, said that while the calls for grace towards the young and foolish might sound persuasive, the truth is, people do not fail a test and end up in jail the following day.
Wollman stated that “it does not occur.” Wollman said that people who have been convicted for low-level drug crimes, such as possession and ingestion of a controlled substance, are placed on probation. There are many successful stories that result from this.
Wollman said that under state law, people who are convicted for low-level felonies of drugs have a presumption to be on probation. This means that, unless there is a compelling case against it, Grove’s first and second offense ingestion defendants would still be placed on probation.
In addition, he said the majority of people accused of ingestion were usually charged with assault or theft. Wollman says drug users create “all manner of victimization in our community” and that the ingestion laws gives prosecutors an additional tool to bring them to justice.
Grant Flynn spoke on behalf of Attorney-General Marty Jackley, (R). He said that he found the notion that drugs inside the body were different than drugs without it to be “perplexing”, in a criminal justice context.
Flynn stated, “We do not want this substance to be injected into someone because it has significant negative consequences.” “Then why do we want to reduce the severity of the crimes that are being committed?
Flynn said that a felony conviction signals to others the seriousness and danger of drug abuse, which should deter them from doing so.
On Tuesday, the amendments back probation program
In part, to let senators still undecided to consider the implications of this change, members of the Judiciary panel voted Thursday to delay a final vote on SB83.
Republican Senator Greg Blanc (a Rapid City-based pastor) told fellow members of his committee that the discussion left him torn between “responsibility and redemption.”
Grove introduced an amendment on Tuesday to encourage judges in cases of first and second offenses to use a probationary program known as HOPE. The program is an intensive form of supervision, which includes random drug tests as well as “swift-and-certain” penalties for violators.
Blanc was impressed. He said he’s troubled that South Dakota’s high incarceration rate—14th in the nation, Wasko has told lawmakers—is so high compared with its low population.
Blanc told the press on Tuesday, “Something must be done.” We can agree on this: despite our great system, we are failing a majority of the people.
The original publication of this story is South Dakota Searchlight.
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