Controlled substance offenses in SD: Drug problem or law problem?


RAPID CITY, S.D. – With felony drug arrests on the rise, South Dakota is taking a look at controlled substance offenses. Friday in Pierre, state representatives and local officials will be discussing possible changes to current law after multiple meetings over previous months.

There has been no question that the numbers have grown but the source of the problem, some argue whether it’s a drug problem or a law problem.

Regardless, defense attorneys and state prosecutors are seeing the rise in paperwork come across their desks.

“Ten years ago, we probably handled about 140 total felony drug cases,” said Eric Whitcher, Director of the Public Defender’s Office in Pennington County.

In 2018, the public defender’s office handled over 828 possession of controlled substances cases and 460 unauthorized ingestion cases.

“Most of the cases we see are like a used needle or a plastic baggy found in the trash or in the car and in most states, that’s considered paraphernalia or a misdemeanor,” said Whitcher. “Here they’re considered a felony.”

Whitcher argues that the felony then sticks with a person for the rest of their life, preventing them from obtaining a job or professional license, ultimately snowballing the problem.

But does that felony stick with a person? South Dakota legislation passed in 2013 allows for that stamp to be wiped away if the person abides by certain rules.

“We take people without a conviction, we don’t send them through probation, we’re not increasing their numbers, and if they’re successful at whatever program we assign we dismiss the case and we seal an expunge of the record so you don’t get a misdemeanor, you don’t get a felony and even your arrest is not visible,” said Pennington County State’s Attorney Mark Vargo.

Instead of reclassifying the offense, Vargo hopes to see more opportunities for diversion programs to keep people sober so that they make it to a point where their felony is removed.

“What we don’t have and haven’t gotten state support for, we do not have the right places to put people so they have a chance to be successful and use the tools that we have,” said Vargo.

Gov. Kristi Noem says a change to legislation is not something she has supported in the past but she’s receptive to options aimed at reducing the jail population.

“I think the research they’re doing this summer will bring us information and we can certainly take a look at,” said Gov. Noem. “I’m not 100 percent opposed to it or learning new information I just think that I want to be effective and look at results.”

Friday’s committee is expected to make possible recommendations that will then go to the 2020 legislative session.

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