“This is a great idea, because everybody knows that abortions are a classic impulse buy -- one of those things you toss into the cart at checkout, like Us Weekly or Sugar Babies! ...That's why I am giving a well-deserved tip of my hat to South Dakota. Now let's be clear, folks: this abortion law (requiring a three-day waiting period to get an abortion) is not limiting a woman's rights. As South Dakota Dennis Daugaard said, 'I hope that women who are considering abortion will use this three-day period to make good choices.' See? He's clearly pro-choice, in that he sometimes uses the word 'choice.' Now personally, I think any procedure a doctor performs should have a three-day waiting period -- unless that procedure is to save the life of a handgun, because in South Dakota, there is no waiting period for guns of any kind! South Dakota backs a woman's right to choose -- as long as it's between a .45 and a semi-automatic.”
—STEPHEN COLBERT, on South Dakota’s Neanderthal laws restricting abortion, on The Colbert ReportSouth Dakota allows armed teachers
reuters.comgod i love my state
donnaclt reblogged your link: GOP governors who don’t implement Affordable Care Act exchanges are giving the feds *more* control over reform in their states, not less. - The Washington Post
Nobody ever accused Bobby Jindal of being smart.
You pretty much have to include all the Republican Governors who are taking this stand, like Dennis Daugaard of South Dakota and Florida’s Rick Scott. No doubt there are others I have not read about. Rick Perry of Texas has talked about the Medicaid aspects, but I an not sure he has taken a direct stand on implementing the exchanges.
South Dakota anti-abortion law breaks new ground - CSMonitor.com
csmonitor.comSouth Dakota today became the first state in the country to require women seeking an abortion to visit anti-abortion counseling centers.
Gov. Dennis Daugaard (R) signed legislation that is precedent-setting in several ways. It also mandates a 72-hour waiting period – the longest in the country – and requires two visits to a physician and a screening for risk factors, in addition to the visit to a pregnancy crisis center.
So basically, women in South Dakota will either need to rummage up the money to TRAVEL OUT OF STATE or they’re gonna be going with the coat hanger.
Fuck this, I’m moving to Finland.
More #WarOnWomen insanity: South Dakota Legislature Approves 'Women Can't Think on Weekends' Bill
rightwingwatch.orgSouth Dakota’s state senate today passed a bill that would extend the mandatory 72 hour waiting period women face when seeking an abortion in the state to specifically exclude weekend days and holidays from counting towards the 72 hour period. Apparently, South Dakota’s Republican lawmakers think women aren’t able to think as well on weekends.
The state House of Representatives approved the anti-choice legislation earlier this month, and it now heads to the governor’s desk.
South Dakota Governor Asks For Another $1 Million To Defend Anti-Abortion Law In Court
thinkprogress.orgThis year the GOP-led South Dakota legislature passed a law requiring women seeking abortions to face a three-day waiting period – the nation’s longest – and undergo counseling at pregnancy “help centers” that discourage abortion. Recognizing that the law is an assault on women’s constitutional right to an abortion under Roe v. Wade, a federal judge granted an injunction in September to prevent the law from taking effect while it’s being challenged in Court. U.S. District Chief Judge Karen Schreier noted that the law creates an undue burden andwould humiliate and degrade women.
A guide to the Governor’s criminal justice reform package
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.
South Dakota Governor Signs Controversial Abortion Bill.
PIERRE, S.D. - South Dakota Gov. Dennis Daugaard signed a law Tuesday requiring women to wait three days after meeting with a doctor to have an abortion, the longest waiting period in the nation.
Abortion rights groups have already said they plan to file a lawsuit challenging the measure, which also requires women to undergo counseling at pregnancy help centers that discourage abortions.
Daugaard, who gave no interviews after signing the bill, said in a written statement that he has conferred with state attorneys who will defend the law in court and a sponsor who has pledged private money to finance the state’s legal costs.”I think everyone agrees with the goal of reducing abortion by encouraging consideration of other alternatives,” the Republican governor said the statement. “I hope that women who are considering an abortion will use this three-day period to make good choices.”
Supporters of the measure say South Dakota’s only abortion clinic, Planned Parenthood in Sioux Falls, gives women little information or counseling before they have abortions done by doctors flown in from out of state. The bill would help make sure women are not being coerced into abortions, they said.
Opponents say the law forces women to go to pregnancy help centers that harass them, rather than providing sound medical advice. They also say the waiting period and the counseling are an undue burden for women who have a constitutional right to have an abortion.
The law, which takes effect July 1, says an abortion can only be scheduled by a doctor who has personally met with a woman and determined she is voluntarily seeking an abortion. The procedure can’t be done until at least 72 hours after that first consultation.Before getting an abortion, a woman also will have to consult with a pregnancy help center to get information about services available to help her give birth and keep a child. The state will publish a list of pregnancy help centers, all of which seek to persuade women to give birth.
About half the states, including South Dakota, now have 24-hour waiting periods, said Elizabeth Nash of the Guttmacher Institute, a research organization that supports abortion rights. No other state requires women to visit pregnancy crisis centers before getting abortions, she said.
The South Dakota Legislature has passed several other measures restricting abortions in the past decade.
Voters rejected statewide ballot measures in 2006 and 2008 that would have banned most abortions in the state. Those measures sought to provoke a court challenge of the U.S. Supreme Court’s 1973 Roe v. Wade ruling that legalized abortion in the United States.
A 2005 law passed by the Legislature already requires that women be told that an abortion will end the life of a human being. That law remains tied up in a court appeal.
Daugaard task force plan already in court
It didn’t take long for the recommendations of Gov. Dennis Dauggard’s Criminal Justice Initiative to show up in a courtroom.
It took less than 24 hours , to be more exact.
Tom Deadrick, the lawyer for Taylor Cournoyer and soon-to-be prosecutor, asked during his client’s sentence hearing today in Charles Mix County that his client be placed on a form of supervised release that would shave 15 days off his supervision period for every 30 days he stayed sober and complied with his parole officer’s instructions.
“I’d like to take credit for the idea, but it came from the Governor’s criminal justice panel,” he said.
The CJI is recommending a parole change that goes even further, with parolees cutting 30 days off their supervision time for every 30 days
Neither of those things happened for Deadrick’s client, but it was an interesting request.
Deadrick said after the hearing that he was intrigued by the concept of motivating parolees to follow the rules with incentives, calling it a “common sense idea.”
The concept actually mirrors something that already happens inside the prison, where inmates get an automatic release date within their first three months that they can earn by complying with the terms of what’s known as an “Individual Program Directive.”
That’s one of dozens of proposed changes in the CJI report.
The group, which was called together at the governor’s request, met all summer to discuss ways of dealing with the state’s ballooning prison population. Their report’s findings call for some massive changes to the way the state deals with nonviolent offenders.
The day-for-day proposal for parole one of the least serious changes in the report, which also suggests lowering penalties for controlled substances, expanding drug and DUI courts across the state, and creating a rebuttable presumption of probation – as opposed to prison time – for low-level felonies.
Here’s the whole report.
Criminal Justice Initiative Report
Gov. Daugaard Announces $39 Million in Environmental Grants, Loans
http://www.americanclarion.com/wp-content/plugins/php-image-cache/image.php?path=/wp-content/uploads/2013/03/recycling.jpgSouth Dakota Gov. Dennis Daugaard announced today that the state Board of Water and Natural Resources has approved nearly $39 million in grants and loans for drinking water, wastewater, storm water, and recycling projects. The $38,617,000 total includes $9.95 million in grants and grant…
Read More: (http://www.americanclarion.com/18841/2013/03/28/gov-daugaard-announces-39-million-in-environmental-grants-loans/)
Daugaard's Mall trip isn't about the handshakes
Gov. Dennis Daugaard’s plan to visit the Mall of America and spend an hour meeting shoppers, encouraging them to consider living and working in South Dakota, has drawn some criticism lately.
Some of this is funny:
I can think of no better place to recruit Minnesota workers than a mall where no Minnesotans shop.argusne.ws/YqAWm3
— Fake SD Gov Daugaard (@DennyDogood)
But others seem to be missing the point. I’ve had people wonder about how much value the state can really get for the travel and its governor’s time by meeting shoppers.
To these critics, I would direct you to the opportune phrase here: “publicity stunt.”
The value South Dakota gets from Daugaard’s hour in Bloomington will have very little to do with any expatriates the governor glad-hands on the first floor of the Mall of America. The point is that by doing this unusual thing, Daugaard will get media attention in the Twin Cities (and possibly beyond). And a 30-second segment on the evening news in Minneapolis will reach tens of thousands of people. (As near as I can calculate, the about 140,000 people watch all stations’ 5 p.m. news combined in the Twin Cities, according to Nielsen ratings, though my math could be off.) Plus on top of that you have print and radio coverage, which all adds up.
How the the cost of a trip to Minneapolis compare to the cost of reaching all those people through advertising? That’s the real comparison.
Daugaard appoints Canton businessman, farmer to House seat
Gov. Dennis Daugaard has filled state Rep. Patty Miller’s state House seat with David Anderson, who owns several Canton insurance agencies and also farms in the region.
Anderson’s father, Larry Anderson, served in the state House from 1971 to 1981.
In picking Anderson, Daugaard bypassed two runners-up from the past election — Ann Tornberg, the Democrat who came in third place in the general election, and Kevin Jensen, the conservative who came in third in the GOP primary.
Daugaard said he picked Anderson because of his “business acumen,” “common-sense approach” and community connections.
Gov. Daugaard Signs Bill for New State Park
http://www.americanclarion.com/wp-content/plugins/php-image-cache/image.php?path=/wp-content/uploads/2013/03/Blood_Run.jpgSouth Dakota Gov. Dennis Daugaard signed legislation today that creates the first new state park in South Dakota since 1972. Senate Bill 186 establishes the 615-acre Good Earth State Park at Blood Run, which is located just southeast of Sioux Falls in Lincoln County.
Read More: (http://www.americanclarion.com/18577/2013/03/21/gov-daugaard-signs-bill-for-new-state-park/)
SD Gov. Daugaard Signs More Bills
http://www.americanclarion.com/wp-content/plugins/php-image-cache/image.php?path=/wp-content/uploads/2013/02/20070812_Pierre_132.jpgSouth Dakota Governor Dennis Daugaard signed several bills into law today on subjects including: education, wind energy tax, general appropriations, bingo games and lotteries, bail bonds, state parks, and more.
Read More: (http://www.americanclarion.com/18557/2013/03/21/sd-gov-daugaard-signs-more-bills/)
Daugaard declares 'Al Neuharth Day'
Gov. Dennis Daugaard just declared Friday to be “Al Neuharth Day” in South Dakota, in honor of the Eureka native and USA Today founder.
Neuharth, 89, died April 19. The University of South Dakota is hosting a public tribute to Neuharth on Friday starting at 10 a.m.
“From Eureka to USD to USA Today, Al Neuharth was a great South Dakotan who revolutionized the media industry,” Daugaard said in a press release. “Even as he became one of the nation’s top media figures, he never forgot his roots, and was a generous supporter and frequent visitor to Eureka and to the university.”
On a more personal note, in high school a scholarship from Neuharth’s Freedom Forum to attend a week-long journalism seminar in D.C. was instrumental in persuading me to pursue journalism as a career. If it wasn’t for him maybe I’d be an attorney today. You can decide whether or not society is better off for this.
What happens when a dealer and a user look the same on paper?
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.
