South Dakota Bill To End Felony Drug Ingestion Law Heads To Governor

“Voting for this bill and decriminalizing drug use will send a mixed message to our children.”

By John Hult, South Dakota Searchlight

The future of South Dakota’s drug ingestion law—often described as the most severe in the nation—is in the hands of Republican Gov. Larry Rhoden.

The House of Representatives voted 37-33 on Thursday at the Capitol in Pierre to pass a bill that would, with Rhoden’s signature, reduce the use of controlled substances from a felony to a misdemeanor for the first two offenses.

The state is the only one in the nation with a law that allows a failed drug test for a felony-level narcotic to serve as the basis for a prison sentence. Marijuana ingestion is always a misdemeanor. Under Senate Bill 83, all other forms of ingestion would become a misdemeanor until the third offense.

A Rhoden spokeswoman told South Dakota Searchlight that he will consider the bill “once it reaches his desk.”

The governor previously signaled a willingness to consider alternative approaches to criminal justice.

“My philosophy is that the best way to fight crime is to hire more officers, not to increase penalties,” Rhoden told a joint session of the state House and Senate last month. “Increasing penalties just means we have to build even more prisons.”

The latter point hearkens to a yearslong debate over how best to deal with overcrowding in the state’s correctional facilities.

A bill to fund construction of a 1,500-bed, $825 million men’s prison in Lincoln County has failed to earn lawmaker support in the face of opposition from its neighbors, its hefty price tag and concerns about its size.

On the day the House opted to send him the ingestion change proposal, Rhoden inked an executive order to create a working group he hopes will find “a path forward” for a prison or prisons.

Critics of the state’s ingestion law, who’ve tried to repeal or otherwise adjust its severity nearly every year since 2019, argue that the law stigmatizes addiction and makes the problem worse. Ingestion also contributes to the state’s prison population, they say, and saddles users with felonies that make it harder to find jobs, get housing and stay sober.

“If you have ever loved somebody who has been trapped in that cycle of substance use, you can understand how them being charged with a felony is not going to help them get better,” said Rep. Kadyn Wittman, D-Sioux Falls. “It is not going to help them find rehabilitation. If anything, it leads to further shame and demonization.”

Rep. Brian Mulder, R-Sioux Falls, was the bill’s prime sponsor in the House. Sen. Tamara Grove, R-Lower Brule, introduced the bill in the Senate.

Mulder has pushed for restrictions on marijuana-like products made from delta-8 THC, as well as on an intoxicating substance called kratom and on foreign-made nicotine vape products. He talked about his passion for those issues during the debate on ingestion, but said “I work in addiction treatment,” and “what we are doing is not working.” Mulder is the managing director of Volunteers of America-Dakotas.

“We cannot continue to do the same thing and expect different results,” Mulder said.

The existing law’s backers argue that drugs in the hand and drugs in the system are one in the same and ought to be treated as such.

“We need to make a powerful statement today from the South Dakota House of Representatives that drugs are dangerous to the public, to their health and to their safety,” said Rep. Mary Fitzgerald, R-Spearfish. “Voting for this bill and decriminalizing drug use will send a mixed message to our children.”

Those charged with ingestion typically get several chances to complete treatment and probation before they go to prison, the existing law’s backers say. The law can also help prosecutors secure convictions via plea deal in cases where a user has more serious charges.

But Rep. Liz May, R-Kyle, was among several lawmakers to say that the current approach has done little to move the needle toward rehabilitation. Lawmakers have created nine new felonies this session alone, she said, instead of spending money on rehabilitation.

“If you keep putting felonies on the books, we’re going to have to build another prison,” May said. “So I would strongly encourage everybody: Get this off the books. Let’s try something different.”

This story was first published by South Dakota Searchlight.

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