South Dakota has a unique drug law on the books. If you are pulled over and have illegal drugs in your blood stream, you can be convicted of drug possession.
It doesn’t matter where you took the drugs. And you don’t have to physically possess the drugs. It’s called possession through ingestion and in the last three years, South Dakota convicted nearly 3,000 people for violations.
South Dakota is the only state where ingestion is a felony offense, which can mean prison time.
Democratic state senator Craig Kennedy says the law that makes having illegal drugs in your system a felony offense is putting a lot of people behind bars. And Kennedy says it’s happening at a time when state prisons are at or reaching critical mass. So he asked himself a question.
“Is this the best way to deal with this problem?" Kennedy says. "Because frankly it’s a costly way to deal with this problem.”
In 2018, Kennedy proposed a bill that reduces the charge of drug ingestion from a felony to a misdemeanor. That move could save the state $51 million over a ten-year period in prison costs, and $10 million in jail costs over the same period.
The state averages just under 470 prison convictions per year, and about 160 jail convictions, for schedule I or II controlled substances--typically methamphetamine. The state spends about $11,000 a year per inmate.
In 2018, Kennedy’s bill failed. He tried passing similar legislation earlier this year and now state lawmakers are studying the drug law again.
Greg Sattizahn is the state court administrator. He says before changes to the drug laws from reforms passed back in 2013, most prosecutors would charge possession and ingestion.
“The ingestion statute existed, it just was very rarely used,” Sattizahn says. “In 2014 with the legislative change, that made it clear ingestion of a chemical absorbed in the body that’s going to be charged has to be charged under the ingestion statute. We certainly saw a dramatic increase in those ingestion convictions.”
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“I believe that the South Dakota legislature has given prosecutors across the state the tools to really protect the public when individuals are possessing methamphetamine or ingesting it.”
That’s former Attorney General Marty Jackley. Now he’s the state’s attorney for Jones County. He says it’s common sense that if an individual has meth in their system they possess it.
“Those laws here in South Dakota are really geared to give prosecutors a couple of tools or choices in ultimately charging those cases where an individuals may have the actual substance on or near their person, or those that have already ingested the substance and maybe are driving down our interstate or doing other things that are dangerous to the public and children,” Jackley says.
The number of convictions for ingestion of a controlled substance spiked after the drug laws changed in 2013.
Jackley says felony ingestion charges are primarily geared toward methamphetamine.
South Dakota does have a misdemeanor ingestion charge. Jackley says that one is commonly used by prosecutors in marijuana cases.
Jackley says ingestion and possession are one and the same.
“Actually an ingestion case from a prosecutors standpoint is easier to prove because they’ve obviously had the substance and they took it,” Jackley says. “Whereas sometimes you might get a methamphetamine arrest where there’s two or three individuals in the car and its hard to determine who knew about it, who actually had it? Where on an ingestion case we know who actually had it because it’s in their urine or in their system.”
Jackley says he wants legislators to keep the state ingestion laws on the books. He says they can help prosecutors protect the public.
“To address the significant methamphetamine problems that we are facing in South Dakota, much like across the nation," Jackley says. "These are the tools that help us do just that in protecting the public.”
Jackley says ingestion gives prosecutors more leeway than just a possession statute.
In the past 15 months, more than 870 individuals were charged for ingestion of a controlled substance.
More than 90 of those were cases that involved other serious charges. However, the defendant ultimately pled guilty to ingestion and the other charges were dismissed.
That’s about 10 percent of drug ingestion cases.
Libby Skarin is the policy director for the ACLU of South Dakota. She says policymakers talk about keeping the ingestion charge as a bargaining chip to get after more serious drug crimes.
“If this data shows us that only 10 to 11 percent of cases in which ingestion was used as that bargaining chip—at least that we have a record of… I don’t think that to that alleged tool justifies the human or the financial cost of keeping this all on the books,” Skarin says.
Skarin says the $51 million spent keeping people behind bars for ingesting drugs is better invested elsewhere.
“Which is treatment for substance abuse and treatment that help folks kick their addition before they end up in a setting where they’re incarcerated,” Skarin says.
Legislators continue to study the subject and will meet again later this month. Senator Kennedy says he hopes to bring a recommendation to his colleagues about how to create a drug law that is more effective and efficient.
