Amicus lector
Ingestion statute used to charge mourning mother

There are a lot of people (civil libertarians, defense attorneys, etc) who’ve taken issue with South Dakota’s possession by ingestion statute over the years.

The introduction of Gov. Daugaard’s public safety improvement act, which is designed to cut the state’s prison population, has given those critics an opportunity to express their displeasure.

You see, South Dakota is the only state in the union where a person with a dirty urine or blood test is eligible for a possession of a controlled substance charge. That’s currently a Class 4 felony punishable by up to 10 years in prison.

As it stands, the reform bill lowers the penalty for possession by ingestion from a Class 4 to Class 5 felony (up to five years) for methamphetamine and from a Class 4 to a Class 6 (up to two years) for oxycodone and lesser drugs.

The American Civil Liberties Union and South Dakota Families First have both say possession by ingestion ought to be tossed to save space in prison for violent offenders.

Defense lawyers have said the same thing. Mark Meierhenry, a former South Dakota Attorney General who’s spoken up in the past about South Dakota’s penchant for locking up nonviolent criminals, also said me last week that the ingestion statute ought to go.

It’s one of many laws he calls “anecdotal laws,” or those that legislators pass as the result of tragic situations that don’t repeat themselves often enough to justify the creation of felony crime.

Meierhenry didn’t mention any specific cases or laws, but anyone who’s watched a legislative session closely knows what he’s talking about.

There are two 2012 cases that could appear if a debate about the validity of possession by ingestion actually happens this session. The first is the death of 2-year-old RieLee Lovell, who was dead in a closet for more than a day before her caregivers came down from meth and pills and reported her death.

Taylor and Laurie Cournoyer were charged with, among other things, possession of methamphetamine by ingestion. Taylor Cournoyer was sentenced to 13 years in prison for the crime (he got extra time for being a habitual offender); Laurie Cournoyer’s case is pending.

The second case appeared about an hour ago. Rhiannon White, a mother who lost all three of her children in a Dec. 22 fire, has been charged with possession by ingestion based on blood tests that showed meth and ecstasy in her system the morning of the blaze.

News of White’s arrest on possession charges broke today.

At Taylor Cournoyer’s sentence hearing, prosecutor Bill Golden said the neglect that lead to Lovell’s death at the hands of another child is clear evidence that drug use, especially meth use, is not a victimless crime.

I asked SFPD Chief Doug Barthel about possession by ingestion today during a call this afternoon. I told him that some people want to see the ingestion law go away as part of the criminal justice reform.

“I certainly don’t have a problem with people being charged with ingestion,” Barthel said. “Obviously, (the drugs) had to get in their system somehow.”

The White case, which started with a blood test at the emergency room and progressed as detectives gathered evidence through interviews with her and her family members, is a “prime example” of a case where a person wouldn’t be held accountable without an ingestion law.

I haven’t heard any lawmaker talk about bringing an amendment to alter the Daugaard bill’s handling of the ingestion statute so far. If those amendments appear, though, don’t be surprised if you hear about Rhiannon White or the Cournoyers.

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