If you were looking for a case to highlight the problematic nature of South Dakota’s one-size-fits-all penalties for controlled substances, you could do worse than looking at the multiple busts of Lester Estenson.
Estenson, as we now know, was nabbed for alleged meth possession and intent to distribute for the second time in the space of a month on Wednesday.
The first time, he had 143.2 grams of meth and nearly 2,000 of the pseudoephedrine pills used to make the drug. On Wednesday, detectives found 45 more grams of completed product.
That’s a lot. The street value on the 45 grams alone is $3,500.
So what could happen to Estenson?
In state court, he was eligible for a possible 10-year sentence on a possession count, another 10 years for distribution, another 10 years for manufacturing. Throw in a count of possession within a school zone (his house is within 500 feet of Joe Foss school), and he could get another two.
Let’s put a finer point on this: Possession of meth, possession with intent to distribute, and manufacturing all carry the same maximum penalty in South Dakota: Up to 10 years in prison. Also, a possession charge is a possession charge, regardless of the amount.
Keep in mind that the chance of a drug dealer getting the maximum sentence is impossibly low. In felony cases, prosecutors offer a plea deal. Normally, they offer to drop some charges and cap prison time in exchange for a guilty plea to one or more counts. This saves taxpayers the time and expense of a trial, and it’s generally a good deal for a defendant caught red-handed. A jury could convict the person of everything and get them a lot more prison.
Also, the time Estenson or anyone else gets from a state court judge only represents the absolute most time he could serve.
Every prison inmate who follows their DOC-designed Individual Program Directive and avoids major rule infractions has an opportunity to make parole without a hearing. Depending on the offense and the person’s history, that amounts to anywhere from 30 to 60 percent of the sentence.
If Estenson took a plea deal that capped his prison time at 15 years and he got all of them, for example, he could be out in seven years, give or take a few.
OK, so that’s Estenson.
A clear case of drug dealing, the cops would say.
Now, let’s imagine a different scenario.
Let’s say you’re a recovering meth addict who falls off the wagon. You mix up some meth in a pop bottle, using the “shake and bake” method that’s become so popular with users. First, you shoot up some of it. Then you sell some of it to an old buddy, who just happens to be wearing a wire as a confidential informant for the SFPD. Let’s say you live near a school, and this informal transaction happens on your back porch.
The next day, the cops show up at your door and arrest you. At the jail, you do a urine test and it pops for meth. Meth in the urine amounts to meth in your hand in South Dakota (and in no other state).
So there you are, a distributor of meth and a possessor of meth - and you’re in a school zone - just like Estenson. Ten years possible for possession, another 10 for distribution and another two for the school zone charge.
Maybe you and Estenson could share a cell.
Sound silly? It shouldn’t. Nearly 25 percent of the people charged with meth who were represented by the public defender’s office in fiscal year 2011 were charged for hot UAs.
In reality, a judge will almost always give a harsher sentence to someone with a lot of meth in their house than to a person with meth in their pee. A felony pee charge, especially in Minnehaha County, is more likely to bring jail time and a suspended prison sentence.
Even so, drugs in the urine can and do land people in prison. If a person with a suspended sentence uses more meth or gets busted for a separate crime, their probation can be revoked (at the will of the prosecutor, mind you), and they could end up serving their time.
The controlled substance laws contribute heavily to the state’s growing prison population, and fixing those laws is one of the goals of the Criminal Justice Initiative.
That’s the group that recommended changes to the way the state deals with nonviolent felons as a way to reduce the cost of corrections in South Dakota.
Among a wide range of changes are three options for changing the controlled substance statutes. Here they are, with explanations taken from the CJI report:
Option 1: Create a structured punishment statute based on the weight of a controlled substance, the seriousness of the criminal conduct, and criminal history. Penalties would range from a Class 1 misdemeanor (up to one year in jail) for ingestion/internal possession of a controlled substance to a Class 2 felony (up to 25 years) for manufacturing or distribution of more than 14 grams. Create a possession with intent to distribute offense characterized by additional factors such as carrying large amounts of cash, customer lists, or scales.
Option 2: Create a structured punishment statute based on the seriousness of criminal conduct. Penalties would range from a Class 6 felony (up to two years) for ingestion/internal possession of a controlled substance and possession of Schedule III and IV drugs to a Class 3 felony (up to 15 years) for an aggravated manufacturing offense. The existing habitual criminal enhancement structure would apply. Create a separate offense definition for ingestion/internal possession of a controlled substance and exempt this offense from the misprision of a felony offense.
Option 3: Create a structured punishment statute based on the seriousness of criminal conduct. Penalties would range from a Class 5 felony (up to five years) for possession to a Class 3 felony (up to 15 years) for manufacturing, distribution and possession with intent. The existing habitual criminal enhancement structure would apply.
Some people, especially defense attorneys, hope the first option goes through, even though they’d like the possession by ingestion statute struck down entirely.
Last week, I talked to defense lawyer Ryan Kolbeck, who threw a not-entirely- hypothetical situation my way:
What if a biker from Wyoming shows up for at the Sturgis Motorcyle Rally a day or two after a party at which they swallowed, shot up or snuffed some manner of controlled substance. Now let’s say that person gets nabbed for DUI by a Sturgis officer.The blood test that South Dakota forces all her DUI arrestees to take would then turn up those controlled substances.
When that happens, Kolbeck said, our biker friend switches from tourist to felony defendant. The felony charge could net him a potential prison sentence that amounts to a meal ticket on the dime of South Dakota taxpayers for a guy who partied too hard in a place that wasn’t even South Dakota.
Kolbeck’s question: Is it worth it to treat meth in the blood as meth in the hand when it can potentially put taxpayers on the hook like that? What about hot UAs by probationers? Do we really want to add more potential prison time every time someone uses dope?
Other people (prosecutors, law enforcement) don’t want to see the penalties for possession shrink at all. Charles Mix County State’s Attorney Pam Hein said felony penalties for meth act as a hammer over the heads of users who might otherwise be reluctant to seek treatment or to give serious consideration to cleaning up their act.
“Get clean or go to prison” can make a person think awfully hard about their life choices.
Hein pointed to perhaps the most high-profile drug case to appear this year in the state: That of Taylor and Laurie Cournoyer. Taylor Cournoyer had meth in his blood when authorities found the body of 2-year-old RieLee Lovell in the couple’s closet on July 4.
Lovell was dead in the closet for 22 hours as the Cournoyers continued to live it up with meth, pot and pills.
Taylor Cournoyer took a plea deal to meth possession and maintaining a place where drugs are used or sold. Due to his status as a habitual offender, his potential prison time was increased. He ended up with a 13-year sentence.
Hein’s reason for pointing to that nightmarish case: Kids can be victims of the “victimless” crime of drug use. Kids suffer through their parents’ or caregivers’ addictions in tragic and repugnant fashion.
Lowering penalties for use might send the message that drugs and their consequences are seen as less serious crimes. It might send the message that meth users are people who, for lack of a better characterization, just “party too hard.”
The thrust of the CJI report is to force users and other non-violent offenders to be held more accountable for their actions in more effective ways that keep South Dakotans safer. Meth users monitored closely in drug court are more likely to stay clean than meth users who go to prison, for example, so why not funnel more people into those instead of prison, the report asks?
It will be interesting to see what sort of compromise that legislators come up with on this.
None of the CJI changes, had they been instituted last year, would ultimately have helped Estenson. Due to the size of his alleged operation, his case will be handled in federal court. There, he’s eligible for up to 40 years in prison. And in federal prison, there is no parole.