Days before deadline, presumptive probation repeal still in limbo in South Dakota legislature

PIERRE, S.D. — Time is running out for the legislature to take action on what was expected to be one of the 2019 session’s hot-button issues: the repeal of presumptive probation.

Thanks to South Dakota’s 2013 criminal justice overhaul, current statute requires judges to sentence offenders of nonviolent, low-level felonies — like drug use and possession — to probation, rather than prison, unless the offender poses a “significant risk” to the public.

Attorney General Jason Ravnsborg argues that presumptive probation allows drug users to remain in the public and continue using controlled substances while on probation, potentially committing other crimes, rather than facing “consequences” in the criminal justice system. In the midst of a statewide methamphetamine epidemic, Ravnsborg has made the repeal of presumptive probation one of his key platforms and introduced Senate Bill 19.

With just days before Friday’s deadline for bills to pass through committees, Ravnsborg on Tuesday, Feb. 19, testified on behalf of his bill. He told the Senate Judiciary committee that presumptive probation has “taken discretion away from our judges, tying their hands and not allowing them to do what is best in individual situations before them.”

He said SB 19 would give power back to judges and law enforcement and deter people from using drugs in the first place if they know they could be sentenced to jail time on their first offense.

SB 19 has the support of South Dakota Sheriffs Association, Police Chiefs Association and State's Attorneys Association.

Opponents like the American Civil Liberties Union of South Dakota and Americans for Prosperity of South Dakota argue that increasing rates of incarceration will not win the state’s battle with drug addiction.

Though Republican Gov. Kristi Noem hasn’t publicly taken a strong stance on the bill one way or the other, the state Department of Corrections and Bureau of Finance and Management both opposed the bill, saying that the state’s prisons are already at or near capacity, and repealing presumptive probation would increase inmate population and skyrocket costs.

In a cost analysis of SB 19, Brittni Skipper of the Bureau of Finance and Management told committee members Tuesday that a conservative estimate projects that with over 600 new potential inmates, ongoing costs to the DOC could increase by nearly $8.8 million annually. And without enough beds to house these potential inmates, Skipper said two additional state prisons — one male and one female — would need to be built at a cost exceeding $33 million.

The bill is at a standstill, though. After hearing over an hour of testimony on Tuesday, committee members could not take action to move the bill forward or kill it because legislative staff still have not conducted their own fiscal analysis of its impact. The committee will reconvene Thursday — when the fiscal note is expected to be complete — to vote a single day before the Friday deadline.