Gov. Dennis Daugaard announced a major reform of the state’s criminal justice system as a centerpiece of his State of the State address today, and there’s a lot to digest.
Hopefully, this walk-through will help you understand the components of the legislation as proposed.
First, let’s talk terminology. Trust me, it will help. If you’re a lawyer or a smarty-pants, you can skip to the bolded items.
There are (more or less) two places a person goes for punishment in South Dakota: Prison and jail. The state’s prisons are run by the Department of Corrections, and the people in them have committed crimes that are classified as felonies.
The maximum prison sentences for felony crimes are as follows:
Class A: Mandatory life without parole or the death penalty
Class B: Mandatory life without parole
Class C: Up to life
Class 1: Up to 50 years
Class 2: Up to 25 years
Class 3: Up to 15 years
Class 4: Up to 10 years
Class 5: Up top 5 years
Class 6: Up to 2 years
Keep these in mind as you read about the governor’s proposal. He’s concerned mainly about felons, because felons are the people who go to prison and cost the most to deal with.
Also, let’s note the difference between Scheduled drugs. There are penalty distinctions in the bill between Schedule I and II drugs and Schedule III and IV drugs. Schedule I and II includes heroin and methamphetamine. Schedule III and IV drugs include oxycontin and clonazepam. Here’s the DEA’s explanation of scheduled drugs.
Jails are run by the county sheriff (except in Winner. They have a city jail). People arrested on new charges go to jail. At that point, they either bond out or stay in jail until they can see a judge, who lets them go or sets a cash bond for them. People who can’t make bond sit in jail until their trial is complete.
People can also be sentenced to jail for misdemeanors. There are two types of those:
Class 1: Up to a year in jail
Class 2: Up to 30 days
A person with a felony doesn’t always get prison. Prison is the harshest placement. Many felons, such as drug and DUI felons, are given probation, jail time and suspended prison sentences. They only have to serve the prison time if they screw up on probation and their probation officer and a prosecutor decide the screw-up is bad enough to ask a judge to impose the sentence. This is called a motion to revoke.
A person released from prison doesn’t have a probation officer. They have a parole officer. The parole officer doesn’t need to ask a judge for permission to haul a felon back to prison for screwing up.
Okay, primer complete. Let’s talk about the bill.
The reform package has several sections. Let’s go through the major ones bit by bit, shall we?
Drug and alcohol courts: In these courts, a person arrested on a drug or felony alcohol charge who’s been identified as having addiction issues can avoid prison time by staying sober and complying with the terms of intensive probation and monitoring. To join, the person pleads guilty and gets a suspended prison sentence. Those who graduate don’t get locked up.
There are drug courts in Sturgis, Sioux Falls and Yankton, and DUI courts in Pierre and Aberdeen. DUI courts are planned for Pennington and Minnehaha County, and Davison County will get a drug court.
The bill calls for the creation of an advisory council for drug courts and authorizes the Supreme Court to establish rules for who can participate. Generally, violent offenders are barred from drug and alcohol courts.
Quotable point: “No statement made by a drug court participant in connection with the court’s program or directives, nor any report made by the staff of the court or program connected to the court, regarding a participant’s use of controlled substances is admissible as evidence against the participant in any legal proceeding or prosecution”
That means a person who falls off the wagon and talks about it wouldn’t be confessing to a new crime.
Additional consideration for veterans: Probation officers will be asked to consult with the U.S. Dept. of Veteran’s Affairs to find appropriate alternatives and treatment programs and/or mental health treatment for any veteran or current service member who pleads guilty or no contest to a Class 1 misdemeanor or higher.
South Dakota HOPE Program: The provision essentially creates a 24/7 sobriety program for drug users. It’s modeled after a program developed in Hawaii. Participants with drug charges would be required to submit to frequent drug testing and face jail time if they are found to be using drugs. HOPE stands for Help and Opportunity through Probation with Enforcement. Here’s a link to Hawaii’s HOPE website.
Tribal parolee monitoring: The bill calls on the DOC and Dept. of Tribal Relations to develop a pilot project for the monitoring of parolees on tribal land with the help of a tribal-state liaison officer. The DOC would be required to establish rules for monitoring and sanctions.
Graduated sanctions for probation: The Supreme Court would be asked under the new law to create a graduated sanction grid for probationers and monitor the use and effectiveness of those sanctions. Essentially, the grid would guide probation officers in what punishments to dole out to probationers who break the rules, with the most severe sanction, save a revocation, being a short jail stay. The new law would create a similar grid for parolees.
Training for judges/parole/probation officers/parole board members: All circuit and magistrate court judges, parole or probation officers and parole board members would be required to complete training in alternatives and evidence-based practices and the use of behavioral health assessments, which determine if an offender has specific addiction or mental health treatment needs.
Quotable point: “The form and length of this training requirement shall be determined by the Chief Justice.”
That means we don’t know yet how often judges will be required to be renew their training.
Earned early discharge from probation/parole: Probationers would earn at least 15 days off their term of supervised release for every month they comply with the rules set out by their probation officer. Judges would have the discretion to give day-for-day credit or more. This wouldn’t apply to sex offenders.
Parolees would earn 30 days for every 30 days of good behavior.
Quotable point: “The State Court Administrator’s Office shall provide semiannually to the oversight council the number and percent of probationers who qualify for earned discharge credits and the average amount of credits earned by offenders.”
That means we’ll know how many people are off probation early, and how much time they shaved off their probation term through good behavior. There’s a similar record-keeping provision for parolees.
Quotable point: “A parolee who objects to a parole agent’s determination that the parolee is ineligible for the award of earned discharge credits may seek a review with the board.”
Preliminary hearings: The new law would remove a defendant’s right to a preliminary hearing unless they’re charged with a felony. This hearing, generally set 15 days after a defendant’s initial appearance, is meant to determine if prosecutors have enough evidence to proceed with a criminal charge. Most cases are dealt with through a grand jury, which determines if probable cause exists to proceed during a closed hearing. The charging document that comes from a grand jury is called an indictment. A person who’s indicted doesn’t get a preliminary hearing.
Presumption of probation: The law would create a presumption of a probation sentence for Class 5 and Class 6 felonies that aren’t classified as violent. A judge can forego the presumption by entering an explanation of the aggravating factors that justify a prison term.
Quotable point: “Neither this section nor its application may be the basis for establishing a constitutionally protected liberty, property, or due process interest.”
This means a defendant who does get a prison term for a low-level, nonviolent felony won’t be able to argue on appeal that their rights have been violated.
Altered penalties for drug crimes: Currently, both possession and distribution of a controlled substance are class 4 felonies. The proposal would make simple possession or ingestion of a Schedule I or II controlled substance a Class 5 felony.
Ingestion or possession of a Schedule III or IV drug would be a Class 6 felony.
Distribution of a controlled substance would remain a Class 4 felony, but a person can be charged with a Class 3 felony if a person is also in possession of three or more of the following:
1. $300 or more in cash
2. A firearm
3. Bulk materials for drug packaging
4. Manufacturing equipment, including chemicals, lab equipment, chemicals and ventilation devices
5. Drug transaction records or customer lists
Altered penalties for grand theft: Currently, grand theft means stealing something worth $1,000 or more (or stealing $1,000 or more). That’s a class 4 felony. Aggravated grand theft means stealing $100,000 or more. That’s a class 3
The new law would create separate classes of grand theft based on the amount of money stolen or the value of the property.
$1,000-$2,500 in loss: Class 6.
$2,500-$5,000: Class 5.
$5,000-$100,000: Class 4
$100,000-$500,000: Class 3
Altered penalty for third-degree burglary: Burglary in the third degree, which is entering or remaining in an unoccupied structure with the intent to commit a crime, is a class 4 felony right now. The law would make it a class 5 felony, making burglars of unoccupied structures eligible for a presumptive sentence of probation.
Aggravated DUI: Currently, a person with three DUIs in 10 years can be charged with a class 6 felony. A person with four or more can be charged with a class 5 felony. Daugaard’s proposal would create a more serious crime for those convicted of six or more DUIs within a 25-year period would be eligible for a class 4 felony. An aggravated DUI convict would lose their license for three years and be supervised for up to 10 years.
Revised jail time for felons: The way the law reads now, a person who’s given a suspended execution of sentence can get up to a half a year in jail. If they serve a half a year in jail and then do something to earn a revocation of their probation, prison is the only punishment option left. The new law would make a full year in jail possible for DUI 4 offenders and leave the number at 180 for everyone else. The difference is that now it would be split it into 60-day increments. That way a person who screws up on probation could be given more time in jail on more than one occasion.
Oversight council: The law would create an oversight council that would monitor the effectiveness of nearly everything in the law for five years. The council would have members appointed by the chief justice, the governor, the attorney general and the senate and house majority leaders. The council would meet semiannually for five years, and future legislatures could vote to keep it functional for longer than that.
Fiscal impact statement: If the law passes, future legislators would be required to attach a fiscal impact statements to their bills saying approximately how much the creation of a new crime or stiffening penalties for an existing crime is likely to cost the state in corrections and court costs. Ballot initiatives would need such a statement, as well, and the attorney general’s ballot explanation would include the cost. The Bureau of Finance and Management would crunch the numbers.
Victim notification: The Attorney General’s Office will be required to create a statewide automated victim information and notification (SAVIN) system. The system would allow victims of crime to dial a number and find out what’s happening with the person who committed an offense against them. The AG’s office would have to work out the details.
Reinvestment fund: The act calls for trend line projections of probation costs to be prepared for every county by the Unified Judicial System. The reinvestment fund would be used to compensate counties at a rate of $1,000 for every probationer or inmate beyond the trend line. Counties without jails would get an extra $200 per extra probationer to cover the cost of transporting them to and from jail.