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SD DPS will give victims three days before releasing crime-related information

Authorities respond to a two-vehicle crash in Mitchell in August. (Daily Republic file photo)

As state and local agencies attempt to decipher the ramifications of Marsy's Law, the South Dakota Department of Public Safety issued a policy of its own.

According to a statement released Wednesday, DPS and several local governmental agencies will implement a three-day information release policy to comply with Constitutional Amendment S, the victims' rights amendment commonly known as Marsy's Law.

DPS, Minnehaha County, Pennington County and the city of Sioux Falls have agreed to the new information release plan that will give crime victims three days to request the information not be released to the public. After the three-day period has elapsed, the information will be released to the public.

Unlike DPS and the other local agencies, the city of Mitchell will return to business as usual.

According to Mitchell City Attorney Justin Johnson, the city will continue with its "pre-Marsy's Law practices," and will not impose the three-day waiting period.

"Based on the Attorney General's opinion released on Marsy's Law, I don't see that any particular waiting period to allow a victim to invoke their right to prevent disclosure is necessary," Johnson said.

Marsy's Law passed in a landslide 59.57 - 40.43 percent margin on Election Day, providing South Dakotan crime victims with 19 separate rights, including the right to be free from intimidation, harassment or abuse, the right to be reasonably protected from the accused and the right to privacy. And, according to the amendment, rights would be extended "to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim's family."

But in an opinion issued last week, Attorney General Marty Jackley said the language of Amendment S does not bar agencies from releasing certain information.

Two weeks after DPS decided to withhold the names of crash victims until further notice, DPS Secretary Trevor Jones offered his stance on the newly enacted policy.

"This policy is designed to make sure that victims have a chance to have their pertinent information withheld if they wish," Jones said. "Marsy's Law provides that protection and we need to meet that requirement."

While waiting for Jackley's opinion — which was issued after a task force made up of victims' rights advocates, law enforcement agencies and the media met to discuss the amendment — many state and local agencies pondered whether to release information about potential victims. And many were hesitant to release specific information.

Following the enactment of the amendment on Nov. 16, DPS suspended access to the Office of Highway Safety's Accident Records Reporting website and the state Highway Patrol decided against releasing names of people involved in fatal or injury-related crashes.

In Wednesday's announcement, both Pennington County State's Attorney Mike Vargo and Minnehaha County Sheriff Mike Milstead spoke in favor of the policy.

"We have been working to find a reasonable solution to this issue ever since the election," Milstead said. "This three-day policy is a good compromise."

But Johnson said the three-day policy is "overly cautious and arbitrary," while also calling the opportunity to invoke the victims' rights as "vital." Johnson used the example of a victim who may be hospitalized for a week following a crime, leaving the victim unable to have a meaningful opportunity to invoke the Marsy's Law rights. Others, Johnson said, might have no desire to invoke the law no matter how long the waiting period.

"So although I agree with the reasoning behind the state's policy, I don't agree with the policy itself and have advised Mitchell PD not to adopt it," Johnson said.