The state’s prison system is overcrowded. As a result, the state has been looking at options to move forward.
That includes both building new facilities and keying in on potential reforms to lower recidivism rates. The next steps could mean a pricey future.
The South Dakota men’s penitentiary was designed to house 426 individuals. It currently holds averages 775. That means its housing 180% of its intended capacity. The prison system as a whole operates on average at 133% capacity. That’s according to a 2024 Department of Corrections report.
South Dakota paid consultant Arrington Watkins to conduct a study for a new men’s prison. Their report said the state should prepare to fork over around $2 billion in the next decade to house additional inmates.
Lawmakers recently indicated there is no appetite for spending more than $650 million for a task force’s recommended 1,500-bed prison now, much less billions of dollars in the future.
In talking about that recommendation, Rep. Karla Lems said legislators are “concerned some of the policies aren’t working the way they should.”
“And so that’s where we have this other summer study, we have that’s going on at the same time that we’re trying to decide if we should build a new prison and how big and for how many dollars,” Lems said. “Where at the same time this other study is looking at recidivism rates and those kinds of things. So, if we can get those programs to work the way they should, we may not need a 1,500-bed facility. So those are the things I think that the legislators will be looking at going forward.”
One such law lawmakers might look at is a truth in sentencing law passed in 2023. Arrington Watkins said SB 146 could cost the state in the future. It lengthened the prison stay for some violent offenders.
In total, the state’s prison system needs a projected 1,200 more beds by 2036. Arrington Watkins said the truth in sentencing bill applies to about 600-800 of those.
Rep. Will Mortenson opposed the bill on the House floor in 2023. He, along with former Department of Corrections Secretary Tim Reisch, spoke out about its future consequences.
“The cost of this report is talking about which is north of $2 billion now is exactly what we were worried about when we were arguing against this bill several years ago. The folks that joined me in opposing this on the floor are from law enforcement — Tim Reisch, a former sheriff and correction secretary and Mike Stevens who's a very well-respected longtime attorney,” Mortenson said. “We knew that this bill would come through. It would mean more people locked up for longer. It wouldn't mean our streets were any safer, but it would mean that there are dollars that we'd rather be spending on education or law enforcement or roads and bridges that now we'd be spending on prisons.”
At the time the bill was passed, the long-term effects weren’t entirely hashed out. It was clear that some violent offenders would receive longer sentences. Supporters said this keeps streets safer from reoffenders and gives victims and their families justice.
In 2023 on the House floor, Rep. Jon Hansen asked people to put themselves in the shoes of a victim of a crime.
“You hear the sentence come down, and let’s say it’s 10 years. And you think, maybe a sense of relief comes over you, and you think, ‘Wow, okay, some measure of justice for what’s been done to me or my family,’” Hansen said. “And then a few years later, say maybe half the time, in some instances less than half the time, you find out that that person who you thought was going to be in prison for 10 years is now going to be walking your streets again.”
Hansen said that’s not truth in sentencing.
“And what this bill does, is it says to that victim and to that victim’s family, that when that sentence comes down from that judge and that judge says 7 years or 10 years, that means 7 years or 10 years,” Hansen said. “And I think that’s just for that victim and that victim’s family that’s sitting in that court room on that day. Now, to be clear there are some instances where supervised release would be appropriate.”
He added that under SB 146, a judge still has discretion to suspend a portion of a sentence they give.
The bill was largely supported in both the House and the Senate.
The law split offenders into two tiers. It ensured tier one offenders aren’t offered parole and must serve 100% of their sentence. That’s for serious violent crimes like rape. Tier two offenders must serve 85% of their sentence before eligible for release on parole. That’s for violent crimes like aggravated assault.
Arrington Watkins projects that could cause tier one offenders to stay about an extra 4.5 years on average, and tier two offenders more than an additional year. The report said lengthier stays mean less available cell space in the future.
Some supporters are fine with that if it means preventing future crime. Attorney General Marty Jackley supported the bill but didn't sponsor it. He said the conversation is fair, but it's too early to gather the necessary facts.
He said how it affects overcrowding is a conversation for the future, not now.
“But right now we don’t know the effect of it. I think the overwhelming testimony was this may actually reduce some of the prison population in a sense that many individuals will be given a suspended portion of their sentence," Jackley said. "And as long as they are complying with what rules are put in place, they won’t need to be housed in the penitentiary."
Jackley added what he’s seen as Attorney General there are “far too many parole and probation violations.”
He said there needed to be something done to address parole and probation issues in the state.
“This was a step in that direction, but really a step where on a suspended sentence, there’s going to need to be a level of keeping the public safe, keeping an eye on those defendants that have a suspended sentence and making sure that they’re doing what a law-abiding citizen would do," Jackley said. "That they are getting a job, they’re not violating the law, that they’re not, you know, hurting other people. And we’re just going to have to see down the road whether or not that successfully is working, or whether or not the Legislature will have to take a further look at Senate Bill 146."
Jackley said under the law, a judge is more likely to give a 10-year sentence and suspend five years, rather than giving 10 years and going through the previous parole grid.
"They would be on a suspended sentence, whatever conditions the judge put on them. Perhaps the judge would say, 'You can't commit any more violent crime, or you can't use a controlled substance.' So as long as that individual is out and complying with the judge's sentence, they are not going to be in the penitentiary. But if they violate then they're subject to the judge sentencing them up to five years on the suspended sentence."
Jackley said it is only going to change things for those individuals who don't comply and follow the rules of the suspended sentence. Then, it would be up to the judge to make a sentencing determination for the remainder of that suspended sentence.
He said as we go down the road, he encourages the Legislature to watch these numbers and make improvements then if needed.
However, Rep. Mortenson said he believes it’s time to look at the system as a whole.
“In the Legislature it’s politically easy to say, ‘Oh we’re tough on crime because we’re going to make these sentences really long,’” Mortenson said. “[That’s] without thinking about the impact on families, without thinking about the impact on our state budget, and without thinking about it doesn’t make our state any safer. And so, I think we’ve got to get a whole lot sharper on this whole topic.”
Arrington Watkins noted there are many uncertainties around SB 146’s continued implementation. The report said a host of factors could create a higher or lower impact of the law. As a result, the report suggested reviewing the law's effect on a regular basis.
Department of Corrections Secretary Kellie Wasko said although she didn't review the Arrington Watkins report's methodology for the 10-year sentence, she said it more so directly applies to judges when they're sentencing.
"It was for those high-level crimes to get those offenders to spend more time in prison for just those high-level crimes. But beyond that, I was neutral to the bill, the department was neutral to the bill, the administration [was neutral to the bill]. We didn't support it or oppose it either way," Wasko said. "It was very important to some people, and I think a lot of that led back to there was victim supporting."
