Reversing probation policy on new AG’s agenda

SIOUX FALLS (AP) – South Dakota’s incoming attorney general plans to follow through on his tough-on-crime campaign plan to reverse the state’s presumptive probation policy for some lower-level felonies, a measure credited with helping avert expensive prison population growth but criticized by some for tying judges’ hands.

Attorney General-elect Jason Ravnsborg told The Associated Press recently that ending presumptive probation would be the cornerstone of his legislative agenda for the upcoming session, saying the move would give the courts more flexibility. But critics argue it would open the floodgates to imprisoning significantly more people after South Dakota in 2013 passed a Republican-led justice system overhaul to tackle prison overcrowding, cut costs and expand drug addiction treatment options.

“It’s groundhog day again, and we’re looking down the barrel of potential criminal justice laws that will increase the number of people who are suffering from health problems like addiction being in our prison,” said Libby Skarin, policy director at the ACLU of South Dakota. “I think if we eliminate presumptive probation, we’re going to be washing away some of the very real advances and gains that we have seen over the past five years.”

Officials said at the time of the overhaul that if nothing was done to curb the rapid increase of inmates, the state would have to spend more than $200 million to build and operate new prisons over the following decade. The package Republican Gov. Dennis Daugaard and other officials championed included presumptive probation for some nonviolent crimes – including drug possession and ingestion – in the two lowest classes of felonies. A 2016 report from the Urban Institute found presumptive probation and other changes played a major role in avoiding growth in the state prison population, and the latest state analysis credits the overhaul with saving taxpayers more than $30 million.

The state report says South Dakota spent roughly $22 million on the overhaul during state budget years 2014-2017 and avoided more than $52 million in costs, including $36 million in building expenses.

Ravnsborg, a Republican lawyer and Army Reserve officer, said he’s not sure the change would increase the prison population. But he said it would add a “stick” to the justice system and give judges the discretion they were trusted with before the overhaul.

“To end presumptive probation gives a formidable and necessary tool back to our prosecutors and our courts,” Ravnsborg said. “Just because we give them the tool back doesn’t mean they have to use the stick, per se, but you have to have deterrence.”

But opponents contend courts have enough discretion now: Judges can deviate from probation if they find aggravating circumstances that pose a major risk to the public. Judges sent 20 percent of people eligible for presumptive probation directly to the penitentiary in the 2017 budget year, according to the state report.

“Presumptive probation is just that – it is a presumption, and under the law judges can and do rebut that presumption by finding certain aggravated circumstances,” Skarin said.

Prison is the most restrictive, most expensive and least effective method of dealing with drugs, said Eric Whitcher, director of the Pennington County Public Defender’s Office.

Ravnsborg argued drug offenders have no incentive to work with law enforcement to turn in dealers because they know they’ll be sentenced to probation. He said he’s after distributors and would hope to get users treatment. Drug arrests have jumped significantly in recent years, growing roughly 50 percent from 2013 to 2017, according to attorney general’s office statistics.

Lincoln County State’s Attorney Tom Wollman, who supports ending presumptive probation, said he hasn’t seen the same level of cooperation with law enforcement since the justice overhaul passed. He said it’s driven up county jail budgets across the state as courts send offenders there rather than prison.

Staci Ackerman, executive director of the South Dakota Sheriffs’ Association, said the group has attempted to dig deeper into why jails are full, but discovered the necessary data isn’t being collected to identify the cause. She said sheriffs believe anecdotally that presumptive probation is causing some of the issues they’re having.

“We just can’t prove it through data,” said Ackerman, who added that the group hasn’t yet taken a position on Ravnsborg’s proposal.

The future of presumptive probation will fall to the incoming Republican-controlled Legislature and GOP Gov.-elect Kristi Noem. Daugaard, who leaves office in January, signed the justice system overhaul in 2013 after legislators overwhelmingly approved it.

A spokesman for Daugaard said the governor wouldn’t comment on proposals for the next session; a Noem transition team spokeswoman said she wouldn’t commit to legislation until she can look over the text.

House Majority Leader Lee Qualm said recently that he supports ending the policy.

“I think it would be a good thing to get rid of,” he said.

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