Analysts say reversing presumptive probation would cost $53M

PIERRE, S.D. (AP) - South Dakota would spend more than $53 million over the next decade to reverse a law largely compelling judges to sentence certain lower-level felons to probation rather than prison, according to a legislative analysis released Thursday as a Senate panel advanced the change.

The Senate Judiciary Committee voted 5-2 to send the cornerstone of Attorney General Jason Ravnsborg’s legislative agenda to the floor. The move comes a day after Republican Gov. Kristi Noem said she’s asking that lawmakers hold off on reversing the policy, citing the cost.

Ravnsborg said he hopes the committee’s vote sends a strong message to the rest of the Senate. Ravnsborg said he and Noem may not be on the “same page exactly,” but he believes they both want safety for South Dakota citizens.

“I do believe that we are having a good discussion, and I think that we’re all seeking a solution and to give more tools to law enforcement and our local communities,” said Ravnsborg, whose platform also focuses on prevention, rehabilitation and bolstering work programs.

The state’s presumptive probation law requires judges to sentence people who have committed certain nonviolent, lower-level felonies - including drug possession and use - to probation rather than prison, unless there’s a “significant risk” to the public. It’s credited with helping avert expensive prison population growth, but critics say it ties judges’ hands.

The policy was part of a 2013 Republican-led justice overhaul to tackle prison overcrowding, cut costs and expand drug addiction treatment options. The push to end presumptive probation has put South Dakota’s top law enforcement officer at odds with the state’s chief executive over legislation that two estimates released this week projected would come with a huge price tag. Noem and Ravnsborg both took office last month.

The legislative analysis predicted that repealing presumptive probation would result in more people getting sent to prison at an annual cost of nearly $4 million. Housing those inmates would spur about $14 million in one-time construction costs, according to the estimate.

But Noem’s administration previously outlined projections that anticipated far higher construction expenses and annual operating costs. Officials projected the measure could add yearly costs ranging from more than $8.7 million to $35 million annually, depending on the number of presumptive probation offenders who would instead get sent to prison. Building costs to house the additional inmates could range from $33.3 million to $150 million, according to the analysis.

“I would like to have us have a discussion on the best approach to this rather than just repealing the entire presumptive probation,” Noem told reporters Wednesday.

Despite Noem’s words of caution, the Senate panel pressed ahead. Committee Chairman Lance Russell called the 2013 justice overhaul an “unmitigated failure,” saying the state foisted a huge unfunded mandate on counties in South Dakota and then walked away from its responsibility.

Supporters of ending presumptive probation contend it’s driven up county jail budgets across the state as judges send offenders to jail rather than state prison terms. Law enforcement representatives back the change.

A 2016 report from the Urban Institute found presumptive probation and other changes played a major role in avoiding growth in the state prison population, and the latest state analysis credits the overhaul with saving taxpayers about $28 million. In an unusual alliance, local chapters of the ACLU and Americans for Prosperity have opposed the attorney general’s bill.

“The concept of putting fewer people behind bars may seem like a difficult stance to take in a state as conservative as South Dakota, but tough-on-crime policies can’t fix society’s problems - especially in regards to addiction,” ACLU of South Dakota policy director Libby Skarin said in a statement after the vote.