After decades of tough, SD gets smart on crimeReforms will allow more nonviolent offenders to remain in communities.
By: Tom Lawrence, The Daily Republic
Denny Kaemingk started in law enforcement as a Mitchell police officer in 1976, chasing down people who broke the law.
“Catch ’em and lock ’em up,” Kaemingk said during a lengthy interview at The Daily Republic. Now, as secretary of the South Dakota Department of Corrections, he is overseeing a major reform in the state’s prison system that will mean locking up far fewer people.
“I think this is a very exciting time to be in corrections,” Kaemingk said. “It’s going to have a very positive influence on the offenders. They’re in charge of their own destiny.”
That will be a dramatic change from the past three decades. Drug use spiked, fueled by the highly addictive form of homemade speed known as methamphetamine. At the same time, alcohol use continued in a state where drinking has long been a part of the culture. All that partying has left South Dakota with a hangover. The prison population was 3,642 earlier this week.
That’s a 500 percent increase since 1980. In addition, 2,800 people are on parole. Meanwhile, the Department of Corrections’ budget has tripled in the last 20 years. South Dakota also locks up more people than its neighboring states. It puts 75 percent more men in prison than North Dakota. It locks up four times as many women as Minnesota. But while those other states saw their crime rates plummet in recent years, South Dakota’s went down at a far slower pace.
Those stark facts led to action by Gov. Dennis Daugaard and other state leaders.
Senate Bill 70, dubbed The South Dakota Public Safety Improvement Act, passed the Legislature this winter, based on the recommendation of a task force formed last year by Daugaard, state Supreme Court Chief Justice David Gilbertson and legislative leaders from both parties.
“This is not about being hard or soft on crime,” Daugaard said when he introduced the proposal. “This is about being smart on crime.”
Gilbertson said the new system could mean up to half the people who now are sent to prison will be eligible for the alternative sentencing program.
“We don’t know the figure for sure,” he said. “That will depend on how long it takes for the alternative programs to expand. It takes up to two years. You don’t just wave your finger. It will be a graduated process.”
But he said more than than 50 percent of South Dakota’s inmates are in prison for nonviolent crimes. While serious offenders — people convicted of violent crimes, sex offenders, large-scale drug dealers — will still be put behind walls, almost everyone else will have a chance to remain in their homes.
“Long-term, we hope for a significant reduction,” Gilbertson said. “That would be a goal.”
He said a person who is in the legal process would have to apply for the alternative program. A group made up of local officials, including probably the sheriff, state’s attorney, a defense attorney and perhaps a judge, would screen applications, Gilbertson said.
“They decide if the person who applied gets in or not,” he said. “Just because you apply doesn’t mean you’re in.”
If the person is allowed to serve their sentence while remaining in their community, they will still have a suspended prison sentence hanging over their heads, Gilbertson said. Along with supervision, possibly drug and/or alcohol testing, that should help keep them in line, he said.
Expanding prison system
South Dakota has prisons located across the state. The South Dakota State Penitentiary and the Jameson Annex to the Penitentiary are both in Sioux Falls; the Mike Durfee State Prison is in Springfield; the South Dakota Women’s Prison is in Pierre; and there are “minimum security unit” prisons in Sioux Falls, Rapid City, Pierre and Yankton.
The state also contracts for minimum security beds in various communities across the state, including the old Elks building in Sioux Falls, where some female inmates are kept in a Minnehaha County work release unit.
The Jameson Annex holds “maximum-security” inmates, while the State Penitentiary’s inmates are classified as “high medium.” The Mike Durfee State Prison is classified as “low medium,” while the Women’s Prison holds inmates of all custody levels.
While there are many beds for people convicted of serious crimes, without the new policies, South Dakota almost assuredly would have had to spend up to $224 million to build two more prisons, one for men and one for women, Daugaard said in a telephone interview with The Daily Republic.
In the 1980s, South Dakota had 32 beds set aside for female inmates, and Gilbertson said they were never full. Now, there are nearly 450 women in prison.
The male prison population has increased from about 600 to more than 3,000. Why did South Dakota lock more people up than its neighboring states?
“Different states are so different,” Kaemingk said.
In South Dakota, three drivingunder-the-influence convictions in 10 years is a felony and can lead to a prison term. As a result, South Dakota has more than 400 people behind bars for DUI offenses, while North Dakota, where a person can have five DUI convictions in seven years and still do just 10 days in a county jail, has 20 inmates on DUI convictions.
Overall, North Dakota has fewer than half as many people in state custody as South Dakota. There are 1,099 prisoners in North Dakota DOC facilities, according to spokeman Tim Tausend. Another 413 are outsourced to private facilties, in county jails and in prisons in other states for a total of 1,512 people in custody as of October.
Most are men, but about 200 women are also in custody. The state does not have a female prison, so they are being held in a privately owned facility.
The North Dakota Legislature is weighing tougher penalties for multiple DUIs. Someone with four convictions for drunken driving in 10 years would face a mandatory one year in prison, with a possibility of serving at least two years with a maximum sentence of five years.
Substance abuse fuels rise in prison population
Substance abuse is tied to crimes other than drunken driving, the officials said.
“I think a lot of it stems from drug and alcohol addiction,” Gilbertson said. “I’ve seen a lot of figures, but I think it’s realistic to say a lot of the people in prison, while they committed felonies, a lot of it is tied back to alcohol and drugs. They keep coming back to the system because the underlying problem is still there.”
He said to qualify for the new system, and remain in their communities, people convicted of felonies will have to work full-time, maintain a home, support their children, be tested twice a day tested for drugs and/or alcohol, and take part in a “rigorous counseling program.”
The goal is to “slowly wean them off” drugs and/or alcohol, Gilbertson said, and that may take 18 months or longer. He said while meth seems to have cut a destructive swath through the state, many addicts will use whatever they can afford or obtain.
And the legal drug, alcohol, remains a major problem for law enforcement, Gilbertson said.
“You have to rank alcohol right up there with it,” he said. “We are attempting to break this revolving door syndrome by ridding them of the addiction.”
Drug court was start
The Northern Hills Drug Court, which was originally based in Sturgis, was the first step toward a new approach in handling convicted criminals in the state. It offers inmates a chance to remain in their communities and avoid prison — if they can stay clean, sober and out of trouble.
Fourth Circuit Judge Jerome Eckrich had the idea for the drug court, and after he was given the go-ahead, it was launched in 2007, Gilbertson said.
“He came to me and said, ‘I would like to try this. It’s had great success in other states,’ ” Gilbertson recalled. “It was a proven program, and a successful program.”
The state’s first drug court has done better than was hoped for. Of the people who were allowed to take part in it, 80 percent have graduated or have remained in the program. That means they completed the program, and were able to remain free of meth and/or other drugs, Gilbertson said.
Meanwhile, the recidivism rate for those outside of such programs –— the percentage of released prisoners who re-offend and end up back in the system — is much higher, the chief justice said.
DOC spokesman Michael Winder said there are several factors to consider when looking at who will commit more crimes and return to prison.
The recidivism rate measures the percentage of inmates who were released during a particular year and came back to prison for either a parole violation or a new crime, Winder said in an email to The Daily Republic. The most recent numbers, compiled in January since the 2011 releases had been out of prison for one calendar year, are as follows: For 2011 releases, the one-year rate was 26.1 percent; for 2010 releases, the two-year rate was 39 percent; for 2009 releases, the three-year rate was 43.8 percent.
Gilbertson said the drug court and the general prison population cannot be judged side-by-side.
“In fairness to them, they have to take everyone they get,” he said. “We get to select people we think have a chance to succeed.”
But the success of the drug court, and the fact that Sturgis supports the program, persuaded state leaders to take that concept and spread it statewide. It also led to the statewide prison reform plan.
“It would have been a much tougher sell to the legislators if it had been a theory out of a book,” Gilbertson said.
Legislators agreed to invest $2.6 million in one-time costs, and $4 million in ongoing costs, of which $3 million is for treatment, Daugaard said.
“Drug courts are kind of an expensive tool,” he said. “These are for the real hard-cores that have terrible addiction.”
In addition to the Northern Hills Drug Court, which now includes Rapid City, there are drug courts in Sioux Falls and Yankton, and alcohol courts in Pierre and Aberdeen. The next addition is a drug court in Mitchell.
That may take two years to set up, Gilbertson said. Other courts will be established in the coming years.
The concept of putting fewer people behind bars may seem a difficult stance to take in a state as conservative as South Dakota, but Daugaard, Gilbertson and Kaemingk all said they have heard nothing but positive feedback.
They said the process was long, almost a year, and involved a great deal of public input. In addition, advocates spread out across the state, making pitches at community club lunches and in other settings.
“We went to all the players in the system,” Gilbertson said, from police chiefs to sheriffs to county commissioners to social workers. “There was remarkable consensus from all the players: We needed to deal with the underlying problem.”
Daugaard said it seems there has been complete agreement that this is worth trying.
“I was certainly pleased by that,” he said. “Part of the reason we were so thorough and careful with the process was to have people informed on what the process would be.”
Daugaard said it was also clear that most people getting put behind prison bars were not a risk to the public. About 80 percent of the people put in prison in South Dakota each year are nonviolent offenders. Daugaard hastened to point out that’s not 80 percent of inmates, but 80 percent of new prisoners.
“We’re not afraid of them,” he said. “They’re nonviolent. We’re mad at them.”
Daugaard and others interviewed for this story agree with a noted prison reform expert, Edward J. Latessa, a professor and the director of the School of Criminal Justice at the University of Cincinnati, who said the goal is to lock up the people society fears, and “try to find something different for those individuals we are mad at or disappointed in.”
Crime rate to go down?
Daugaard said he is convinced these changes will also make people safer.
“Other states that have implemented these types of measures, not only has the prison population gone down, but the crime rate has gone down as well.”
The South Dakota sheriffs’ and police chiefs’ associations, victims’ advocates, state’s attorneys, county commissioners, the State Bar and treatment providers all endorsed the plan. The governor said it was also important to point out “the cost of doing nothing,” and that helped make the case for change as well.
The new system will offer other answers, primarily allowing people to serve probation and remain in their communities. There is a need to make people more accountable, and put them in charge of their own futures, Daugaard said.
He said it’s one thing for inmates to succeed in a “controlled, temptation-free environment” in a prison. That doesn’t help create self-discipline.
Once they are back in the same environment, they fall into old habits, and that often leads to trouble and a return to jail or prison.
A better approach, Daugaard said he now believes, is to let them be in charge of themselves. At the same time, there will be harsh consequences if they fail.
“It’s going to be a carrot-andstick approach,” the governor said.
The entire process will be evaluated annually. If it doesn’t work, it will be changed.
The proponents also made it clear that drug dealers, violent offenders, and career criminals will still go to prison. In addition, the bill adds a section calling for improved victim notification and restitution collection.
The Department of Social Services will be in charge of offender treatment in communities. People will be evaluated for mental health issues and chemical dependency
“You can’t treat one or the other,” Kaemingk said. “You have to treat the whole person.”
People who are deemed not to be a risk to the public will be working in a community, not sitting in prison, he said. They will be supporting family, who will not be on public assistance and welfare.
“It’s a win if you can keep that person in the community,” Kaemingk said.
“I think that reward system, that positive reinforcement system, is going to have a very positive effect on recidivism,” he said. “In addition to protecting the citizens of today, we need to protect the individuals of tomorrow as well.”
“If he is a risk to the community, he is going to prison,” Kaemingk said.
“Part of that assessment is looking at their background.”
It will be similar to what the DOC does when people enter prison, where they are evaluated and offered a path to success — and freedom.
Prison closures possible
While the prisons are crowded now, they are not full, Kaemingk said. Yet.
“We have room for people if we need to,” he said. “We’re looking to the future, three to five to seven years away. We knew that planning would need to start.”
At the rate South Dakota was putting people behind bars in the seven prisons located on five campuses in the state, the prison population would have increased by an estimated 25 percent by 2022, meaning there would be 4,500 total prisoners at that point, and likely forcing South Dakota to build two new prisons.
Instead, the state may be able to close one or more prisons at some point, Gilbertson said.
“That would be a great outcome,” Daugaard said. “We wouldn’t be the first state to shut down a prison with reform.”
Kaemingk, who declined to estimate how many fewer inmates will be housed under the new plan, said he isn’t ready to start planning the closure of a facility.
“I think we’re a long ways from there,” he said.
But there may be a savings.
Parole costs $4.28 per day on average. That’s a fraction of what it costs to house an inmate at the state’s prisons, which ranges from averages of $16.45 per day to $69.36 per day.
South Dakota’s rise in people in prisons is part of a national trend, according to a 2008 report from The Pew Center on the States,
“Finding enough dollars to house, feed and provide a doctor’s care to a low-risk inmate is a struggle besetting states from Arizona to Vermont,” the report says. “In the absence of tax hikes, lawmakers may find themselves forced to cut or limit other vital programs — from transportation to education and health care — to foot the incarceration tab.
“That tab, meanwhile, is exploding, fueled in part by staff overtime expenses and a steep rise in inmate health care costs. In 1987, the states collectively spent $10.6 billion of their general funds — their primary pool of discretionary tax dollars — on corrections. Last year, they spent more than $44 billion, a 315 percent jump ... ”
Daugaard said he was asked about incarceration rates for South Dakota during his campaign for governor in 2010, and was surprised when told it far outpaced neighboring states.
“I was a little bit curious about it,” the governor said. “And in some ways, doubtful about it.”
He said he thought it was “a myth” or a perhaps a different counting formula. But the numbers were clear once he studied them. South Dakota’s approach simply was not working.
“That’s when I really became concerned and wondered, why is that?” Daugaard said.
He said he felt a need to “do the right thing, and discussed it with the chief justice when discussing 2012 budget plans in 2011.”
“The cost of doing nothing was pretty high,” he said.
Daugaard said he relied on three of his top advisers, General Counsel Jim Seward; Chief of Staff Dusty Johnson, a Mitchell resident; and policy analyst Will Mortenson.
More than 400 people took part in more than 30 meetings, Daugaard said. They took a close look at data and studied what other states had done to deal with prison population issues.
“We looked at evidence-based practices that other states had implemented and were effective,” he said.
The goals were clear: improve public safety, help people who were incarcerated free themselves of criminal behavior — and do both while reducing state costs.
Daugaard said in retrospect, South Dakota politicians who advocated tough policies with the belief that “if we locked up more bad guys,” things would improve, didn’t solve the problem.
“I think in South Dakota we’re a tough-oncrime state,” he said.
Legislators, including Daugaard, came to Pierre to push for putting more people behind bars. He said an example is making drug crimes all class 4 felonies. People who were once convicted of class 6 felonies, which carried lighter sentences, were soon facing longer prison terms.
“Everybody said, ‘Yeah, that’s right. Let’s get tougher,’ ” Daugaard said. “Pretty soon, it evolved to a point where there’s no differentiation between those drug crimes.”
He said in the case of many drug crimes, from “a kingpin” who distributed large amounts of drugs to a casual user, all were convicted of Class 4 felonies and given long sentences. The theory was locking them up would send a message to criminals, Daugaard said, and he admitted it was also a politically popular thing to do.
“We were actually less safe than places that have less incarceration,” he said. “I don’t know if it was a mistake. It’s not as fruitful as other methodologies.”
Kaemingk said it was apparent these gettough approaches were going to impact prisons.
“When laws are passed, or when you pass new laws or increase the penalty, you’re going to be sending more people to prison,” he said.
Those laws weren’t created in a vacuum. The state, and communities in it, were dealing with a new scourge: methamphetamine, homemade speed that wraps many of its users in a cycle of addiction, crime and reckless, often violent behavior.
“Methamphetamine really spiked for the last 10 to 15 years,” Kaemingk said. “It really spiked here in South Dakota. When I left the (Mitchell) police department, the methamphetamine issue was just starting to raise its ugly head at that point.”
He worked narcotics for the Mitchell police from 1978 until he was promoted to captain of detectives a decade later.
There was very little meth, Kaemingk said. Marijuana was the No. 1 drug, and cocaine was “very popular,” while other drugs were around as well. But in the 2000s, meth use, and the problems it brings with it, grew dramatically.
South Dakota judges, faced with a choice of prison or probation, have sent more and more people behind bars since 1980.
“As a circuit judge, I had basically two choices: either send the felons to the penitentiary or release them back into the public on some type of probation program,” Gilbertson said in his State of the Judiciary Message in January. “Neither seemed to me to effectively, nor permanently, deal with the underlying problem of alcohol and drug abuse.”
National trends were on the same thorny path, he said.
“In the past 20 years, increased costs of incarceration have outpaced every other expenditure by the states,” Gilbertson said in the speech. “In large part, that is because nearly 50 percent of those who are sent to prison for drug crimes will be arrested for another drug offense within a few years of their release.”
He said South Dakota’s first reaction was to crack down and lock up the people using and selling drugs.
“If you have a little residue in your pocket, you might as well have 20 pounds in your backpack,” Gilbertson said in the telephone interview. “We don’t differentiate.”
But through a long, expensive learning process, it was determined that didn’t work. Gilbertson said he only saw people with alcohol and drug problems as a prosecutor and from the bench in his nearly 40 years of legal work.
“I didn’t have a lot of up-close contact with people who are addicted,” he said. “We don’t set the parameter of the sentence. The Legislature does that.”
South Dakota’s efforts to reform its prison system have captured national attention. The Daily Caller, in a column titled “Conservatives are leading on prison reform,” noted the state’s actions, and said across the country, states are making new choices on corrections.
“While some politicians may have once judged their success in corrections by how many people are in prison, today we are asking different questions,” Marc Levin wrote. “How much crime are we reducing with every dollar spent? How many victims are obtaining restitution? How many nonviolent ex-offenders are now in the workforce?
“In short, we must move from a system that grows when it fails to one that rewards results, and conservatives are on the front lines of this movement.”
Marc Mauer, the executive director of The Sentencing Project, a national nonprofit research and advocacy group on criminal justice issues, said it has been interesting to watch the shift on prison policies, as conservatives who once called for more prisons and more people behind bars now shift their stances.
“People sometimes learn the hard way,” Mauer said. “It’s taken quite a while because of the political climate — legislators want to crack down, get tough.”
He said politicians were worried they would be labeled soft on crime, and defeated on that issue in the next election. All too often, Mauer said, that drove policy.
“I think in many cases, fear was misplaced,” Mauer said in an interview with The Daily Republic. “It’s been encouraging to see there’s an openness now to see what works, rather than what looks to be the toughest.”
Prison reforms across the nation can save money while still promoting public safety, he said. While he hasn’t paid close attention to South Dakota’s plan, he said it seems encouraging.
“I think it all makes sense. The devil is in the details,” Mauer said. “Insuring all the policies in place have their intended impact is the goal. You need to target people who otherwise are likely going to prison.”
Daugaard tapped Kaemingk to lead the Department of Corrections in 2011.
The department manages the state’s adult and juvenile correctional facilities, adult parole services and juvenile aftercare. It has 845 employees and an annual budget of $104 million, which includes adult and juvenile corrections and parole services.
After leaving Mitchell as captain of detectives in 2000, Kaemingk served for nine years on the Board of Pardons and Paroles. He was starting his fourth year as chairman of that board when he was secretary of the DOC.
Kaemingk, 58, still lives in Mitchell, and in addition to his work for the DOC is a parttime criminal justice instructor at Dakota Wesleyan University.
Gilbertson, 63, has been the chief justice for 12 years. It’s a position selected by the five state Supreme Court justices, and his current term ends in September. His term as a justice concludes at the end of 2014, and Gilbertson, a registered Democrat who was appointed by and has served with Republican governors since being named to the state high court, said he’s not sure what the future will bring.
Daugaard, 60, is expected to run for a second term as governor in 2014. All three men are nearing the end of their public careers, and they believe they are promoting a change that will do the state a lot of good.
Kaemingk said it was time for a fresh approach. Locking offenders up and hoping for people to change just simply wasn’t working, he said.
Kaemingk said South Dakota has no intention of releasing people who are deemed as high-risk offenders, or a risk to the community. Instead, people who are considered low- to medium-risk will be given an opportunity to prove they deserve another chance to remain in their homes and communities.
“That’s where we should see the savings,” Kaemingk said. “It’s a win-win for everybody.”