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South Dakota Dodges Drug Debate
In early 2012, facing the prospect of spending nearly a quarter of a billion dollars to build two new prisons, South Dakota’s Republican governor, Dennis Daugaard, announced that he wanted to overhaul the state’s criminal justice system. With the help of experts from the Right on Crime project and the Pew Center for the States, a work group appointed by the governor began to explore ways to reduce the state’s prison population.
Emmett Reistroffer, a backer of South Dakota’s unsuccessful 2010 medical marijuana initiative, was one of more than 400 people who joined the work group. Reistroffer wanted to see if he could work some drug reform initiatives into the new package of laws. He learned quickly that it wasn’t likely to happen. “Right off the bat,” he says, “the governor’s staff told the work group, ‘There will be no discussion of decriminalization or legalization of any drugs.’ No discussion of what is or isn’t crime. No discussion of the sex offender registry, juvenile crime, or the root causes of poverty, crime, and addiction. They set the tone that this work group was not created seeking fundamental changes.”
Undeterred, Reistroffer recruited state Sen. Craig Tieszen (R-Rapid City), a retired police chief, to convince Daugaard’s office to discuss marijuana prohibition. But “one or two days before that meeting was supposed to take place in November,” Reistroffer says, “everybody in the work group got an email saying the governor’s staff is ready to start drafting the legislation.” Two months later, on February 6, 2013, without meaningful input from legalizers, Senate Bill 70, a.k.a. the Improve Public Safety Act, was law.
S.B. 70, like many criminal justice reform measures these days, expands funding for drug courts. These growing third-way institutions require nonviolent drug offenders who claim to be chemically dependent to undergo outpatient addiction counseling, group therapy, and frequent random urine tests for a period ranging from 12 months to several years. Offenders who relapse are sentenced to community service or several days in jail.
For drug offenders who aren’t addicts, South Dakota imports Hawaii’s HOPE Program. Instead of requiring one-on-one counseling or group therapy, HOPE, which stands for Help and Opportunity through Probation with Enforcement, simply assigns drug offenders a random color and requires them to call a hotline every morning to see if their color is getting a drug test that day. If offenders skip the drug test or fail it, they are immediately remanded to jail, usually for no more than two days.
Because not every nonviolent offender is a drug offender, S.B. 70 also created “graduated sanctions” for probation and parole. Probationers and parolees who break the rules get several slaps on the wrist (usually in the form of short jail stays) before they receive the ultimate punishment: prison for the full term of their sentence.
All of those programs and policies, while far from ideal in the eyes of civil libertarians and legalization advocates, are better than what had been South Dakota’s practice: Addicted drug offenders were more likely to be sent to prison than treatment, and low-level drug offenders who violated probation or parole were oftentimes immediately incarcerated. But as Reistroffer notes, the bill actually increased penalties for some drug crimes and “a lot of people in the media say it made ‘sweeping changes’ or ‘fundamental changes’ to criminal justice laws, when really it didn’t.”
South Dakota puts felonies in six categories, ranging from Class 1 (the most serious) to Class 6 (the least serious). While distribution of a controlled substance has always been a Class 4 felony, S.B. 70 upgrades distribution to Class 3 if the offender is caught with “three or more” of the following items: $300 in cash, a firearm, materials for packaging, drug manufacturing supplies, or records of sales. South Dakota, in other words, is trying to fight the same old drug war but for less money by monitoring drug offenders with urine tests, forcing them to pay fines and fees, mandating they attend treatment, and locking violators up for 48-hour stints. The state will spend less money than if it just incarcerated every felony drug offender and probation violator.
The same week Gov. Daugaard signed what supporters touted as a “sweeping reform,” the South Dakota House’s Health and Human Services Committee killed House Bill 1227, which would have allowed anyone charged with marijuana possession to mount a medical-necessity defense. A week after that, the state Senate Judiciary Committee voted to kill S.B. 221, which would have reduced the maximum penalty for misdemeanor marijuana possession from one year in jail to 30 days. In both instances, the same legislators who had just voted in favor of S.B. 70 voted against the mild relaxation of pot laws.
The Drug Court Machine
Drug courts play a prominent role in the prison reform movement. These partnerships between courts and substance abuse counseling centers are beloved by President Obama and the White House Office of National Drug Control Policy. They are also virulently opposed to marijuana reform.
In 2010, when California voters came close to legalizing marijuana with Proposition 19, the National Association of Drug Court Professionals (NADCP) issued a dire warning. If Proposition 19 passed, NADCP said in a position paper, it would “substantially increase ER visits, substance abuse treatment episodes, traffic accidents and fatalities, chronic medical conditions and crime rates for the State of California.”
In December 2012, two months after Colorado and Washington voters approved ballot initiatives to tax and regulate marijuana, the NADCP, which in 2011 received $5.7 million in government grants, and has spent half a million dollars since 2005 lobbying Congress, released another document on the dangers of legal marijuana. It featured five pages of spurious claims, including allegations that pot use has “been shown to negatively affect the central nervous system in ways that may promote violence” and is “associated with lower satisfaction with intimate romantic relationships, work, family, friends, leisure pursuits, and life in general.”
Last February the NADCP co-signed a letter to Attorney General Eric Holder from former Rep. Patrick Kennedy (D-R.I.), who now co-chairs, with former Obama drug policy adviser Kevin Sabet, a third-way anti-legalization group called Smart Approaches to Marijuana (a.k.a. Project SAM). The letter asked Holder to forcibly prevent Colorado and Washington from implementing their voter-approved marijuana legalization measures.