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The South Dakota Capitol building in Pierre.

Two organizations that people may not expect to be allies have joined forces to prevent the overturn of the state's presumptive probation policy. 

The state chapters of the American Civil Liberties Union (ACLU), a civil libertarian group that often aligns with progressive causes, and Americans for Prosperity (AFP), a group that usually supports conservative and libertarian policy, announced their support for presumptive probation in a recent joint press release. 

"On this issue, we've been aligned," Don Haggar, director of AFP's South Dakota chapter, told the Journal. "The way we approach public policy is we'll unite with anybody to do good, and we appreciate what the ACLU has brought to the table in this area."

Libby Skarin, policy director of the South Dakota ACLU, said the collaboration proves that criminal justice reform isn't a partisan issue.

"It shows that criminal justice is an issue that is not strictly the purview of this party or that party. It really is an issue that affects so many people. It can bring people together, and we can create consensus and work on making our system better," she said.

Skarin said this is the first time the two organizations have collaborated in South Dakota, but she thinks it could happen again. Haggar pointed out that on the national level, both groups supported the First Step Act, a criminal justice reform law recently passed by Congress and signed into law by President Donald Trump.

Presumptive probation means that judges must give probation to people convicted of most low-level, non-violent felonies unless there are aggravating factors, such as the person having previous convictions or violating their bond conditions. The policy, which was part of the Legislature's 2013 criminal justice reform package, applies to many drug-related crimes and has been credited with helping to slow down the state's booming prison population. 

But Attorney General Jason Ravnsborg — who proposed Senate Bill 19 that would overturn presumptive probation — and other opponents of the policy said it has shifted costs to county jails, taken away judicial discretion, and removed the incentive to get help or participate in drug court. 

Ravnsborg, Skarin and Haggar testified during a Tuesday hearing on SB 19 before the Senate Judiciary Committee. Officials from the Department of Corrections and Bureau of Finance and Management recommended lawmakers vote against the bill, saying it would be too costly for the state

Gov. Kristi Noem's administration estimated that SB 19 could add operating costs ranging from more than $8.7 million to $35 million annually, depending on the number of offenders sent to prison. Building costs to house the additional inmates could range from $33.3 million to $150 million. The Judiciary Committee is scheduled to vote on the bill today.

"We want to see our criminal justice laws actually try to solve the problems we're facing rather than just lock people up," Skarin said.

She said it's better for people convicted of low-level felonies to stay in the community so they can work, be with their families and receive treatment.

"That is more beneficial to society and to offenders versus locking them up and incarcerating them," Skarin said.

Haggar connected AFP's support of presumptive probation to its belief in the concept of the American dream.

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"At the end of the day, we want people to achieve the American dream and fulfill their potential" and using drugs and committing crimes gets in the way of that, he said.

Haggar said conservatives aren't wrong to focus on their traditional value of being tough on crime, but he said it's also important to address why crimes are committed in the first place. 

Many crimes are tied to meth use, so focusing on preventing and treating addiction could prevent crime and save money, Haggar said.

"Putting people in prison does not make them better," since it only addresses the symptom, he said.

Haggar and Skarin both agreed the state should focus on expanding drug courts and preventing and treating addiction. They also believe that presumptive probation saves money.

The state also needs to make it easier for those with felony convictions to re-enter society since they can be banned from certain jobs and housing options, Haggar said. 

"Are we surprised when these folks revert to their old habits?" Haggar asked. "Because we've basically said there's no other options for you."

When asked why a libertarian group would support presumptive probation since it adds state regulation to what a judge can do, Haggar said the law already gives "ample discretion" to judges due to the aggravated circumstances exception. He said the fact that about 25 percent of those convicted of low-level felonies do get sent to prison shows that judges are using discretion. 

One of the main criticisms of presumptive probation is that it leads to a cycle in and out of courts since drug users know they can get probation and aren't motivated to stop using or enter drug court. 

But Haggar and Skarin said while they've heard this anecdotally, they've seen no hard evidence proving this is a problem. 

"We're applying this very analytical framework to people who are addicted to meth as though they're sort of weighing the options of 'should I do meth today, if I know I get caught then presumptive probation applies,'" Skarin added. 

Haggar agreed that this doesn't make sense. "Meth addicts don't go, 'well am I going to really get in trouble if I do this meth or if I steal this snowblower so I can afford another hit.'" 

Looking toward the future of criminal justice reform, Haggar and Skarin said lawmakers should reclassify drug ingestion from a felony to a misdemeanor. 

A resolution to create a task force that would make legislative proposals about alternatives to prison for committing that crime passed the Senate Judiciary committee and is scheduled for a hearing today with the Senate Appropriations committee. 

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— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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