The Senate Judiciary committee is passing a bill that repeals presumptive probation, a component of a criminal justice reform package from 2013.
It was a key issue for now Attorney General Jason Ravnsborg on the campaign trail. It’s now taking it’s next steps to the Senate floor.
HOST LORI WALSH: You just got out of the Senate Judiciary committee where they passed a bill repealing presumptive probation. Tell us what happened.
Reporter Lee Strubinger: The Senate Judiciary committee is passing Senate Bill 19 to the senate floor on a five to two vote.
Senators took testimony on this bill Tuesday, but delayed action until today because there wasn’t a cost estimate from the Legislative Research Council, which is required by legislative rules when voting on a bill that could impact prison populations.
Real quick, presumptive probation was a part of the Public Safety Improvement Act of 2013. For any Class 5 or Class 6 felonies, typically non-violent drug crimes, probation is granted instead of prison time. The idea being that these drug offenders are better rehabilitated in their communities as opposed to prison.
It was a key component of Attorney General Ravnsborg’s campaign.
“I’ve talked with judges all over our state,” Ravnsborg says. “They feel their hands are tied significantly. They have to find these aggravating circumstances. They’re not necessarily always there and they don’t have their discretion to use different tools and aspects to try and get someone’s attention.”
Prior to enacting presumptive probation, about 70 percent of individuals sentenced under class 5 or 6 felonies were given probation already. The other 30 percent were sent to prison.
LW: A big part of this discussion is cost. Let’s deconstruct the fiscal note from the LRC?
LS: Women’s prison units in South Dakota are already at capacity
LRC estimates incarcerating an additional 282 individuals as a result of repealing presumptive probation. According to the Department of Corrections, the average cost of construction for prisons is 62 thousand per bed. That's a roughly $14 million construction cost
The average time these individuals spend in prison on presumptive probation convictions is 344 days, at a cost of $41 a day. They say that would result in about $40 million operating cost for these additional prisoners over the next ten years.
The LRC says that results in a total prison impact of almost $54 million over the next ten years
That kind of cost has brought together some groups generally at odds with one another. Both the ACLU and AFP support presumptive probation and oppose this repeal, whereas various law enforcement groups support the attorney general’s bill.
LW: Part of the original discussion with the Public Safety Improvement Act was rehabilitating these offenders in their communities, as opposed to in prison. Critics of presumptive probation say it’s shifted the cost burden of dealing with these criminals to the counties, and the state hasn’t followed up with dollars for treatment. Does this indicate that lawmakers are leaning toward throwing these offenders back in prison?
LS: It’s important to note that under current law, judges do have the discretion to send class 5 or 6 felony offenders to prison, and they have. About 16 percent of offenders were sent to prison in Fiscal year 18.
Judges have to find aggravating circumstances to send them to prison.
Republican State Senator Lee Shoenbeck is a former states attorney. He says repealing presumptive probation would only reaffirm judicial discretion, which he says is important.
He says passing this bill will require the state to make a choice…
“Presumptive probation has become a lazy excuse for not doing our job on providing alternatives. If we pass this bill we are putting a gun to the head of the state saying, ‘you got two choices here,’” Shoenbeck says. “’Either you provide alternatives that work, or you’re going to build two new prisons.’ I think that’s really what’s going to happen, I think that’s the real choice.
Shoenbeck voted in favor of repealing presumptive probation.
Democratic State senator Craig Kennedy says he agrees with Senator Shoenbeck, that a choice must be made in how to spend money.
He points to the $54 million cost estimate and says the other option would be to allocate that money to probation, treatment and other options.
“The thing we always have to remember, and I remember this when I was a prosecuting attorney, I always told the people that worked for me, ‘Remember, that everyone you prosecute, except for someone charged with murder in the first degree, is likely coming home.’” Kennedy says. “Now, when they come back, are they going to be better after they spend a year or two in the prison system, or are they going to be better after you’ve tried to work with them through some sort of a rehabilitative process.”
LW: Where does Governor Kristi Noem stand on the issue?
LS: During a press conference yesterday, Governor Noem says she understands why the attorney general brought this bill forward.
“This is a concern that we have across the state. We want to make sure we’re addressing criminal activity appropriately,” Noem says. “My concern is on the fiscal side. If we repeal presumption as a whole we will see a lot more people going to prison, and jail time, and that will be a cost to counties and the state that we have to consider as this debate goes forward.”
However, she’s indicating to the legislature she’d like to see a pause on legislative action, and really give all interested parties a chance to address the issue, rather than an outright repeal.
“What I have asked for is that we hold on this bill,” Noem says. “That we bring groups together—all the stakeholders to the table—talk about the best path forward. We certainly don’t want there to be no consequences when a law is broken. We also know there’s a different routes to do dealing with that, than putting everyone in jail or prison. I would like us to have a discussion about the best approach to this, rather than just repealing the entire presumptive probation.”
LW: But the repeal is moving forward. What does the republican Attorney General make of her opposition to the legislation?
LS: Ravnsborg says he understands she’s got a lot of state issues to consider, which includes the entire state budget. He says he recognizes this is one aspect of that budget… but he considers it an important one.
He says the committee passing this bill is continuing the discussion.
“I do believe we both want the same thing, which is safety for South Dakota citizens,” Ravnsborg says. “I think we’re both working in the same direction. Obviously that’s why we’re having a discussion. We have a house and a senate and a governor to have a debate and see if we can find the best solution. Obviously we can make tweaks along the way.”
LW: The first week of legislative session, governor Kristi Noem says this issue is the biggest question facing lawmakers this session. Why are lawmakers just now handling this bill in committee? With some serious deadlines looming for bills…
LS: During a committee hearing on Tuesday, the chair of Senate Judiciary – Senator Lance Russell – expressed dismay at the lack of a fiscal note… which ultimately delayed voting on the bill.
This bill was not scheduled until last Thursday. But it was one of the first bills filed this session.
Some senators say this cost estimate should have been done weeks ago and they’re concerned by the timing.
The bill passed out of committee, and the Senate has until Monday to vote on the bill on the floor.
That gives State Senators two days to consider this bill because Monday is Crossover day… which means bills have to leave their chamber of origin by the end of the day.
Reporting on politics and public policy is supported by The Center for Western Studies at Augustana University.
