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Legal battle: SB 70 creating rift between officials, judicial process

CHAMBERLAIN -- A bill designed to keep nonviolent offenders out of prison may be driving a wedge between law enforcement and the judicial system. "A lot of the time, we arrest somebody, even for distribution of methamphetamine, and within a few d...

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CHAMBERLAIN - A bill designed to keep nonviolent offenders out of prison may be driving a wedge between law enforcement and the judicial system.

"A lot of the time, we arrest somebody, even for distribution of methamphetamine, and within a few days, they wind up right back on the street doing the same things they did before," Chamberlain Chief of Police Joe Hutmacher said recently.

Hutmacher said drug-related crime has increased sharply in the years since Senate Bill 70, also known as the Public Safety Improvement Act, took effect July 1, 2013, and many Chamberlain arrestees are repeat offenders.

"I can tell you, without a doubt, the drug problem has gotten worse in my 26 years of law enforcement in South Dakota and particularly in the last two years," Hutmacher said. "Here in Brule County in the last two years, I've served more search warrants for drugs than the entire 24 years prior."

Senate Bill 70 was designed to keep non-violent offenders out of prison to reduce incarceration costs and reserve prison space for dangerous and chronic criminals, as well as increase supervision for other offenders by keeping them in the community.

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Hutmacher, however, said the bill has caused significant problems, and the bill has even caused a strain in relations with a local judge.

Hutmacher and Brule County State's Attorney Dave Natvig have been frustrated with some felony drug sentences recently issued by Judge Bruce Anderson, who typically presides over those cases in Brule County.

Natvig said the bill basically requires drug users to be put on probation instead of serving prison time even though that's not what his office is recommending.

"We do our job every day to prosecute these guys, and we're getting lots of felony convictions," Natvig said. "What happens to them after that is pretty much out of our hands."

Natvig said offenders in Lyman County, which is in the sixth judicial circuit, often get stricter penalties than those in Brule County, which is in the first circuit.

Hutmacher and Natvig say they attempted to schedule a meeting with Anderson to discuss their concerns, but Anderson declined, allegedly on grounds that he considered a meeting to be inappropriate and didn't want such a conversation to sway his decisions.

In one instance, Hutmacher said police arrested a woman for ingesting methamphetamine five days after she was released on bond for the same crime. When the woman appeared in court, Anderson allegedly said he didn't want to hear the case and told police they should not have arrested her.

"That would be the equivalent of a person getting a DUI on Friday, they go to jail. The following Friday, they get another DUI. That's two separate crimes," Hutmacher said.

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Anderson did not return multiple calls for comment for this story.

Jim Seward, general counsel for Gov. Dennis Daugaard's office, is the chair of the 13-member Public Safety Improvement Act Oversight Council, which meets multiple times annually to discuss SB 70. He said it will take three to five years to see the full impact of SB 70 because, "We're in the initial implementation phases."

Seward is a former prosecuting attorney who said he would see repeat offenders "because they never changed their behavior." But, he said, that's changing with SB 70.

"Treatment in the community is more effective," he said. "Does that get difficult and messy sometimes? Absolutely, it does."

Seward explained that every time a drug offender "makes a mistake," the probation or parole departments have a sanction and response guideline to follow to address the problem. The offenders are also entered into treatment for their abuse.

"Early snapshot data from people who have successfully completed treatment shows over 90 percent of them have not reoffended with a felony in that first year after they've had treatment," Seward said. "Hopefully the changes the locals see is they're going to see people's behavior changes over time. ... There are dozens and dozens of people who are successfully completing the program and not being rearrested."

Poorly interpreted

Hutmacher said Senate Bill 70 was putting a strain on the judicial system, but he also said the bill was being poorly interpreted.

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"There's really nothing in Senate Bill 70 that says they can't sentence somebody to jail time when they're repeatedly caught for possession of a controlled substance," Hutmacher said. "I think Senate Bill 70 had good intentions, but personally, I think it's being interpreted poorly and, as far as I'm concerned, Senate Bill 70 is a failure."

The frustration led Hutmacher, Chamberlain Mayor Chad Mutziger, Police Commissioner Clint Soulek and City Engineer Greg Powell to schedule a meeting with Attorney General Marty Jackley and Jim Seward, general counsel for the governor.

Jackley said he supports some aspects of the bill but shares the concern regarding the methamphetamine problem.

"I am supportive of many parts of (Senate Bill 70), such as alternative sentencing when they are done right with considerations for protecting the public," Jackley said. "But I am concerned at the continued increases with meth in our state and the challenges that it creates for law enforcement, treatment and local government."

The bill also handicaps probation officers, Hutmacher said. If a court services officer in Chamberlain finds a controlled substance in a urinalysis test, the drug user is allowed to drive off, and the officer is not allowed to report the incident to law enforcement.

Jackley said the problem was caused by a wrong interpretation of the law, and he has requested help from an oversight committee to address the situation.

"That is not my reading of the law, and it is an implementation problem to the extent it is occurring," Jackley said, adding that he was concerned about the danger a drug-influenced driver poses to the public.

Jackley said he wanted to allow the oversight committee to address the concerns before he recommended any changes to the bill.

'Methamphetamine epidemic'

Possession of a controlled substance may not be a violent offense, but according to Hutmacher, some people are willing to commit violent crimes to get their hands on illegal substances.

Hutmacher said many thefts, burglaries and robberies, which are rising every year, can be linked to drug use or the desire to purchase controlled substances.

Hutmacher said the drug that is causing the greatest problem in Chamberlain is methamphetamine, and police chiefs across South Dakota have told him the same thing.

According to Jackley, 2,125 methamphetamine arrests were made in 2015, a rise from 1,517 in 2014 and 1,229 in 2013. Meth arrests were far lower in 2012, the year before Senate Bill 70 was passed, when 669 arrests were made.

According to statistics from the Unified Judicial System, 10,696 felony drug charges were filed in 2015 in South Dakota. There were 8,537 felony drug charges filed in 2014, 6,780 in 2013 and 4,754 in 2012. So far, 2,182 felony drug charges have been filed in 2016.

The trend can also be seen in Brule County. There were 149 felony drug charges filed in the county in 2015, three times as many as in 2014, when 52 charges were filed. The county saw 79 felony charges in 2013 and 29 in 2012.

But South Dakota Corrections Secretary Denny Kaemingk said those numbers are skewed. He explained that meth crime has increased in all of the surrounding states, but said South Dakota has the only felony ingestion law in the United States, meaning a person can be charged with a felony if they're found with certain drugs in their system when tested.

"If you're saying drug arrests are higher in South Dakota than some other states, I'll give you that," Kaemingk said. "But you cannot say drugs are going up in the last few years. It was going up prior to Senate Bill 70."

But Hutmacher called the problem "a statewide methamphetamine epidemic."

Chamberlain police commonly find bottles of clean urine in refrigerators when executing a search warrant, Hutmacher said, which often comes from drug users' children so they can pass a urinalysis test.

He also said prison is required for some addicts who can only break their addiction by being placed in a facility where drugs are not available.

"I have sat and talked with people who have used (methamphetamine)," Hutmacher said. "They said if they were in the same room with that drug that they would not be able to stop themselves. They would use the drug. The only way they were able to stay clean was really to complete remove themselves from that environment."

Hutmacher said he doesn't have a solution for the state's drug problem, but he is certain that Senate Bill 70 could be improved to help the situation.

"I don't know what the answer is, I just know currently what we're doing is not working with the court system," Hutmacher said.

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