Felony ingestion vote in state Senate, embrace of HOPE program mark shift in Pierre

PIERRE — On Thursday in Pierre, state senators did something no previous Senate had been willing to do: Endorse a bill to change South Dakota’s unique-in-the-nation felony drug ingestion law. 

Under the statute, the presence of a controlled substance in someone’s urine carries the same criminal weight as a controlled substance pulled from their pocket by a police officer. 

A person found guilty can spend time in state prison. With or without a prison sentence, the guilty party typically has a felony record that can make it harder to get a job, housing or schooling for years thereafter.

In South Dakota, only a pre-sentencing plea bargain or a governor-backed pardon can clear a felony from a person’s record. 

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This year in Pierre, lawmakers are once again discussing the wisdom of felony ingestion. 

Senate Bill 83 passed 18-17, a few days after clearing a Senate committee that needed two separate deliberative days. 

The legislation calls for misdemeanor charges on first- or second-ingestion offenses. Its language calls out the state’s drug-focused HOPE probation program by name as a more effectual response to failed drug tests.

Thursday’s vote was a big moment for the bill’s sponsor, Sen. Tamara Grove, R-Lower Brule, as well as for the other lawmakers in the room who’d tried and failed to make similar proposals stick during every legislative session but one since 2020.

The state is in the throes of debate over the most expensive capital project in its history: an $825 million men’s prison south of Sioux Falls, proposed to be built on the heels of an $87 million women’s prison under construction in Rapid City. 

The prison population is expected to keep growing, Grove said on the Senate floor.

“Where are we going to go with these people after we’ve already spent a billion dollars to build a new prison?” Grove said. “What we are doing right now does not work. If it worked, I wouldn’t be here, because this bill has been brought way too many times. It’s actually kind of embarrassing.”

By funneling people into things like the HOPE program, the state can deal with drug abuse “on the front end, when we can actually support these individuals in addressing the addiction,” said Sen. Red Dawn Foster, D-Pine Ridge, “not after this harm has grown so far that it has destroyed families, the community, and costs us as taxpayers a billion dollars.”

Softer approach fails (so far)

The legislation is the latest shot at a perennial target. No one tried to change the law in 2024, but Republican Sen. Mike Rohl of Aberdeen tried in 2023. That effort came closer than any previous one had until Thursday, failing by one vote on the Senate floor. He gave it a try in 2021, as well, with less success.

Sen. Jamie Smith, the Sioux Falls Democrat who challenged Gov. Kristi Noem in 2022, carried the anti-felony mantle in the statehouse that year. Former Democratic Sen. Craig Kennedy took aim in 2020.

They all said charging people with felonies for failing drug tests — at times conducted as a person is booked at a local jail on a separate charge — contributes to South Dakota’s swollen prison population. 

According to the latest numbers from the state Department of Corrections, ingestion is the most serious offense for 19% of the men in state prison for nonviolent crimes. For women, ingestion is the top charge for 23% of nonviolent prisoners (more than half of all female inmates are in prison for nonviolent offenses; drug charges represent 77% of those offenses). 

In total, at the end of 2024, ingestion was the most serious charge for 231 state prison inmates.

The ingestion law erodes hope for drug users whose lives grow more difficult to manage with a felony on their record, its opponents argue, and does little to lessen the number of people hooked on controlled substances like methamphetamine.

“For far too long, we’ve looked at addiction as a moral failure,” Smith said Thursday on the Senate floor. “Addiction is not a moral failure. It’s an illness.”

The law’s supporters have a different take. They tend to note, correctly, that state law requires judges to put people convicted of drug ingestion on probation, absent aggravating circumstances. 

A person needs to fail repeatedly before they catch a whiff of prison air, they argue, and the threat of the penitentiary time serves as a powerful motivator for positive personal growth.

Felony ingestion does what its opponents want, they say: Funnels users into programs that can help them get sober and grow into productive, law-abiding citizens.

Authorities, after all, often find out someone’s been using drugs when they fail tests administered after they’re charged for crimes like burglary, assault or robbery.

“They’re not getting arrested because they’re using fentanyl quietly on a park bench,” Sen. Helene Duhamel, R-Rapid City, said Thursday. 

HOPE program helps 2025 effort

This year’s support for an ingestion statute revamp got a boost from its nod to the HOPE program.

The bill doesn’t mandate its use, just suggests it as an option for probationers.

Even so, committee members seemed pleased this week to know there was an evidence-based program a step beyond typical probation.

Grove, who represents tribal areas, told her fellow lawmakers that HOPE is used within tribal borders, but that it’s underutilized statewide. She’s talked about it as a sort of mini-drug court, which is what she’s familiar with in tribal courts. 

It’s true that it’s less widespread than other probation options. But at the state level, it’s not really akin to a drug court. It’s probation, but a more intensive version of it.

The original idea came from Hawaii in 2004. Out in the Pacific, HOPE is short for “Hawaii Opportunity Probation with Enforcement.” In South Dakota, the acronym stands for “Honest Opportunity for Probation Enforcement.” 

Drug users on HOPE supervision call a phone number every day to check with the probation office. On randomly assigned days, they’re told to appear for a drug test and expected to show up right away to take it. If they don’t – or if they fail the test – they might spend some time in jail, and they need to ask the judge for another chance. Judges have discretion in setting up sanctions, but once the wheels start turning, those sanctions are meant to be swift and certain.

Substance abuse evaluations and treatment might be part of a judge’s expectations, but aren’t necessarily a requirement.

HOPE is similar to the state’s 24/7 sobriety program, wherein people either take breathalyzer tests for alcohol every day, wear alcohol monitoring bracelets, or are tested for drug use on a set schedule. Failures bring sanctions. The primary operational difference with HOPE, according to a program document sent to South Dakota Searchlight by the state’s Unified Judicial System (UJS), is the moving-target nature of the testing schedule and the expectation of greater-than-average involvement by a participant’s probation officer.

In South Dakota, HOPE was added as an option during the same wave of mid-2010s criminal justice reforms that gave birth to the mandated probation for most drug felons now cited as a reason to hold firm to felony ingestion. 

The UJS says HOPE is available in every judicial circuit but one: the second, which covers the Sioux Falls area. 

Even so, Grove’s characterization of HOPE as an also-ran in the state’s probationary toolbox is accurate. 

None of the budget documents presented to lawmakers last month mention HOPE by name. The words “HOPE probation” were never spoken during the system’s budget hearing on Jan. 22.

HOPE’s participant numbers can’t hold a candle to those of the state’s 24/7 sobriety program or its alternative courts.

The UJS would not make anyone available to talk about HOPE, but a spokesperson did say that there are currently 37 participants statewide. Between July 2023 and last July, 197 people had taken part. 

For comparison, 43,433 people have done breath testing alone in the 24/7 program across its 19-year lifespan. In Minnehaha County, the state’s most populous, there are currently 334 people enrolled in some form of 24/7 – 158 of whom appear at the jail twice a day for a breath test.

Last month, State Court Administrator Greg Sattizahn told lawmakers that alternative courts served more than 800 people. Those courts involve weekly group meetings before a judge that play out more like support group meetings than criminal proceedings. There are incentives to encourage good behavior, treatment expectations and extra probationary support between meetings to help participants stay the course of sobriety.

At the moment, the HOPE program’s less rigorous probationary programming is only open to people charged with felonies. If Grove succeeds in changing the state’s ingestion law, she’d like to see it used for misdemeanor drug users, and she said she believes that could happen. 

On the floor of the Senate, she noted that the UJS has signaled that it expects to ask for more money to fund its probation services in the coming years, and said that Sattizahn had suggested HOPE as an option when she asked about what might fit with her bill’s goals.

The relative cheapness of probation compared with prison was a big selling point for Sen. Greg Blanc, R-Rapid City. 

“What moved my vote from a soft no to a relatively strong yes is that right now it costs $92 a day to incarcerate,” Blanc said. “It’s not just a judicial problem, it’s a fiscal problem. It costs $10 a day for probation.”

Having passed the Senate, SB 83 is headed to a House committee. 

 

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