Last updated on 2019-11-26
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With all that is going on in the impeachment inquiry and with Republicans breaking into secure areas with cell phones, I had many things to write about, but as my editor likes me to try and stick to state-related topics (and I seldom do), I felt I should look at the “Ingestion Investigation” last Tuesday in Pierre.
As I reported last week, Minnehaha County State’s Attorney Aaron McGowan notified people he was going to be out of the office at a task force meeting in Pierre, and as it turned out, that task force met to discuss whether “ingestion of a controlled substance” should continue to be a felony in South Dakota.
I am not sure how much of a “task” it could have been for the “task force” to discuss the merits of keeping something as a felony that every other state in the nation has decided not to do.
Yes, South Dakota is the only state in the Union to have ingestion of a controlled substance listed as a felony.
Now, that either means a majority of past lawmakers in South Dakota are way smarter than everyone else, OR they are way more stupid than everyone else. (I am going to pick the latter.) Fortunately, there are several law enforcement people and lawmakers who want to change this.
I have written about how McGowan had been villainized for his own “ingestion” habits, but at the task force meeting, that Sioux Falls paper quotes McGowan as advocating for keeping ingestion as a felony.
Minnehaha County State’s Attorney Aaron McGowan agreed that an ingestion misdemeanor would be disastrous. The nature of addiction is “so volatile” that his office typically sees an escalation to more serious crimes, including theft and homicide, he said.
“I don’t think the response to a drug epidemic is to water down the drug laws,” McGowan said. “I think that is a recipe for disaster” [Lisa Kaczke, “Should Ingestion Be a Felony? Legislative Committee Split,” that Sioux Falls paper, 2019.10.22].
Hey, Mr. McGowan, if you see an escalation to more serious crimes, then charge them with the more serious crimes!
I personally know of people in the South Dakota State Penitentiary who are there solely on the charges of “ingestion of a controlled substance.” In past weeks, I referred to compassion for people with substance abuse problems, and how these people can learn from their mistakes.
When people are put in prison, what they will probably learn is how to become better criminals. And guess what else? People like McGowan and Attorney General Jason Ravnsborg (who, no doubt, likes the idea of having more laws on the books to overcharge people with, making plea bargaining easier, since he has most likely never tried a case in front of a jury) can advocate for the incarceration of people for ingestion, but it is the taxpayers who are on the hook for paying more than $20,000 a year for each one of them.
McGowan must realize this, because in a Sept. 25th article in the Brookings Register, he is reported as saying “if treatment was done when those individuals were arrested the first time, their addiction would get addressed and tax dollars would be saved because they wouldn’t be in the criminal justice system long term.”
He is also quoted as saying that “many defendants don’t choose treatment options because it’s easier to plead guilty and get probation.”
Ummm…don’t prosecutors make recommendations for sentencing and couldn’t that sentencing mandate treatment?
Just like the alcoholic, a person who uses “controlled substances” needs help, not incarceration. I suppose people like McGowan and Ravnsborg, who are paid plenty of money by taxpayers, seem to have no qualms about having those same taxpayers pay over $80 per day per person who has been charged with “ingestion of a controlled substance.”
According to State Senator Craig Kennedy of Yankton, this costs the state about $5.1 million per year.
Now, to be fair to McGowan, it is possible that the difference in what he told the Register on Sept. 25 and what he told that Sioux Falls paper on Oct. 23 may be a difference in how reporters interpreted his comments. I hope it is not SA McGowan thinking that because of his own situation, he has to seem to be extra tough on people who ingest things.
Retired judge Pat Riepel, who was instrumental in starting the Minnehaha County Drug Court, told the Legislative task force that (Kaczke’s words) “lowering ingestion to a misdemeanor isn’t watering down the state’s drug laws”:
“I see it as approaching humanity in a way that gives these people an opportunity to get clean and not have a felony on their record,” Reipel said, “perhaps get a better job, feed their kids, pay their mortgages and move on with their lives” [Kaczke, 2019.10.22].
Follow The Money … Who profits from college students discovered with a small amount of pot and then facing felony charges from a pee test?
One of President Trump’s only legislative achievements was the First Step Act, which, of many things, decreased penalties for non-violent drug dealers. It passed with bi-partisan support and was spearheaded by Republicans.
The South Dakota Attorney General’s proposal is not following President Trump’s lead, and South Dakota is the ONLY state that penalizes ingestion as a felony (for example, under federal law, ingestion and possession are misdemeanors). I respect the AG, and he is doing a very good job. He is wrong on this issue. Opposition to presumptive probation was prominent on the American Conservative Union and American’s for Property’s scorecard this year (opposition being the conservative side). One does not need to be in favor of legalization of drugs to realize the same thing that the President and these conservative organizations have figured out, which is overpenalization is NOT the conservative side on these issues, and in fact, is wasting everyone’s tax dollars for what has proven to be a failure and requires increased taxes. – JLB
What I fail to understand is just how “ingestion” can even be a misdemeanor. Example: person goes to visit a friend in Colorado and smokes a (Legal) joint there. Driving back, they are pulled over for speeding in SD. Patrolman suspects something and orders a blood test – probable cause(?). No weed or other substance found except the presence of THC in blood.
The motorist has committed NO crime yet will be charged with (at least) a misdemeanor and probably a few points in traffic court.
How do these guardians of the public morals get around this situation??
Yeah,but, ingesting prescribed drugs (aka controlled substances) should result in the whole population getting busted. Sheesh!
It is absolutely mind numbing
to think that there are people in
our state legislation that believe
that not only is our ingestion law
a good law, but that it actually
has a positive result in making
the unfortunate soul that is subjected
to it a better human being.
Think the ingestion law not going away is because the leader of the SD Republican Party owns bail bond companies in college towns? Thousands of bail bonds every year to kids with pot in their pee pays for Danny “Three Balls” Lederman’s and Pat Powers’ big houses, vacations, and toys.
One can choose to not emit second hand smoke when using marijuana. That would eliminate this particular legal issue for bystanders now instead of waiting for legislation to occur.
Better yet, ignore McTaggart on any marijuana related topics. He’s proven well his ignorance, bias, and closed mindedness. Plus, he works for the state (around kids) and can get fired for saying the wrong thing. Many here will agree.
I am mystified by people still talking about addiction treatment. I think the success rate is under 5%. I imagine owners of treatment centers are in favor of more opportunities for addicts to rotate through their doors. Since the main causes of addiction are know, it makes more sense to work on preventing addiction than fixing it. It is foolish to attempt to incarcerate our way out of addiction issues. It would be nice if Tim Bjorkman’s research on the problems be given to and actually used by our legal system, social services, education and community outreach. Also, please look up the Department of Corrections budget for South Dakota and ponder if this is a good use of our tax dollars on an annual basis.
Soooo a person who gets caught with pot in their system after coming home from Las Vegas will go on to “…an escalation to more serious crimes, including theft and homicide”
My question is, does anyone besides the folks who seem to think Reefer Madness was a documentary really think this is true?
If everyone else is wrong…you’re probably wrong.
https://en.m.wikipedia.org/wiki/Harry_J._Anslinger
Here is an interesting character in the drug war.
That’s where it began, Francis. The J.Edgar Hoover of cannabis.
Has anyone appealed by challenging the law itself? Since legalization, it shouldn’t be much different than the trucker hauling hemp through SD. It seems that ingestion laws are unconstitutional on the facts.
Dr. McT is wiser and more funny than most in his bloggings. The children in his classes have printed T-shirts with #4Science on the back and “Dr. McT” on the front.
Francis: 5%? The National Institute on Drug Abuse says the relapse rate for drug addicts after treatment is 40% to 60%—worse than the relapse rate for diabetes, better than the relapse rate for hypertension and asthma.
Porter,
If you do not trust the government, the government’s intervention is not necessary to solve this particular problem of accidental inhalations.
I would think that the “non-liberal” viewpoint would be that the people doing the smoking are ultimately responsible for the effects of their smoke upon others. Nobody is forcing one to smoke, but the smoker is imposing their smoke upon others. That is true for both tobacco and for marijuana.
All I am saying is that ingesting marijuana and not smoking it would solve the bystander issue without waiting for any legislation. However, this would not solve your set of issues with ingestion for the primary user.
Cory,
How is relapse defined? I found a statistic which claims 85% relapse within 1 year. I view relapse as any use after treatment until natural death. Addiction is a horrible part of many people’s lives and debating statistics isn’t helpful until we have agreement on definition of success. Recovery is a daily event and struggle for many so support can be helpful, whatever that looks like for each addict. Much information, data, statistics clearly shows unresolved childhood trauma leads to addiction. So most addicts are broken, wounded, damaged simply because of things over which they had no control.
This Russell Brand quote about gateways to drug use has made the rounds on the web because it’s so pithily accurate:
Cannabis is not the gateway.
Alcohol is not the gateway.
Nicotine is not the gateway.
Caffeine is not the gateway.
Trauma is the gateway.
Childhood abuse is the gateway.
Molestation is the gateway.
Neglect is the gateway.
Drug abuse, hyper sexuality, violent behavior, and self harm are often symptoms (not the cause) of much bigger issues. It almost always stems from a childhood filled with trauma, absent parents, and an abusive family.
____________________________
In my decades of work with adolescents, children and adults in the course of my professional life, I have NEVER seen that be untrue. Never.
I found his denial (the River Nile in Egypt) comments astounding. Like something grdz would say.
Cory, mandating rehab (we used to call it treatment before hipsters took over all forms of media in the world) lacks available beds, the court won’t pay for treatment, recovery rates are surprisingly low without science (big alcohol/pharma/NRA/climate denial ect) do NOT want the necessary medical studies out there!
Doc: “Nobody is forcing one to smoke…” makes me wonder if you understand the science of craving.
Also I’ll repeat the chilling stat: from time of abuse of alcohol and chronic use to successful recovery averages 25 YEARS of a human beings’s life. Kinda costly.
It occurs to me that penalizing BAC is ingestion, as is smoked injected eaten snorted pot, meth …
Recreationally, legalization and ingestion is a whole different concept. Leave it to SD to legislate ingestion and public speech in the face of militarization of the pipeline. Kristi, Kristi, Kristi…college would have been good for you :(
Sorry leslie, one can still choose to satisfy a craving without emitting the toxins in secondhand smoke to others or imparting legal issues related to ingestion to others.
I agree with Debbo that chronic drug use can be a symptom of other issues that are not being dealt with, but should be.
I agree with leslie that monies spent on improving said underlying issues would reduce overall costs related to chronic use.
Mac, I’d like to restate, reclarify a point. You said, “I agree with Debbo that chronic drug use can be a symptom of other issues that are not being dealt with, but should be.”
I said, “In my decades of work with adolescents, children and adults in the course of my professional life, I have NEVER seen that be untrue. Never.”
In my nonprofessional opinion, the trouble with rehab is that it is much, much too short. It should last at least 6 months at the minimum. 6 months of residential rehab/treatment. That should be followed up with one year of intensive outpatient which would consist of professionally led therapy sessions of various types – individual, groups, experiential, art, music, activities, etc, – 4 hours/4 days per week.
That type of program works. 12 step groups have a very low success rate. What I described above has at least double the success rate of 12 steps.
Yes, it’s not just that investment in treatment is needed, it is that we need better long-term treatment that builds up the person.
I am sad to be late to this conversation.
I was born and raised in South Dakota, but now work in the policy implementation in the addiction field in North Dakota.
The felony ingestion thing seemed counter intuitive to me as a kid, and seems asinine now. Substance use is an extremely challenging thing to treat, even more so when you place people in prison, force treatment on them, and give them a record that will make it extremely challenging to get employed and housed.
Recognizing our growing prison population, and being stuck at the decision point of paying for a new prison, or changing our sentencing rules, North Dakota established the Free Through Recovery program 2 years ago. The program provide case management and peer support services for individuals coming out of the criminal justice system or those at high risk for re offense who are on probation.
Private providers are given $400/month to provide case management to clients and receive an additional $80 if their clients meet 3/4 positive indicators – stable housing, employment, no involvement with the criminal justice system, and are maintaining recovery/making progress towards recovery from a mental health or substance use disorder.
Clients can be matched to providers based on the provider strength – some are more religion focused, some are more focused on addiction treatment, some are more focused on housing, etc.
The client still has a probation officer, but also now has a care coordinator to help them achieve their goals, and access to a peer support to help empower their positive changes.
So far, the outcomes have been good, though I do not have the published numbers off the top of my head.
We have also combined this initiative with a number of other supportive programs as well as a felony expungement policy as well. Our governor and first lady have made addiction a policy priority and it shows.
Maybe its a way for South Dakota could take steps in a new direction.
https://www.behavioralhealth.nd.gov/addiction/free-through-recovery
Sounds like an excellent plan, MD. Case management is critical because most people don’t know what services and programs are available or how to access them.
As for addiction/treatment Molly Ivins did a superb job reporting that the program for rehabbing addicts worked best when started early in the incarceration period and not as well when, like the state of Texas finally decided to rehab the last couple weeks before release.
https://tinyurl.com/y3f5spnz
These are excerpts from Ivins/DuBose book Shrub
I read “Shrub” when it was published. It’s great.
As usual, MD. ND appears to be the better Dakota. Felony expungement in South Dakota? Trying to help an ex-con and paying for it? Setting achievable goals? South Dakota already has a reliable, social services plan. i.e. A bus ticket to Minnesota and a stern warning not to come back or you’ll never see freedom again!
My husband was just sent to prison on an ingestion charge. He had his chemical dependency evaluation and they deemed him ineligible for a treatment program because there wasn’t enough in his system to be considered a problem. He pretty much begged them to let him into the program because he knows he struggles with addiction and they still denied him. How is that helping? Why is he even in there if it’s not enough to be a problem?
This article was written very well. Ingestion as a felony is a joke. Prosecutors think the key to any problem is to charge every crime imaginable. The thing none of these prosecutors realize is the effect that meth has on a person’s ability to think rationally. In other words a person high on meth doesn’t sit back and rationally consider how their conduct might fit into a specific area of the criminal code.