South Dakota Considers Defelonizing Drug Ingestion

    South Dakota might change a drug law that makes it an outlier in the United States. It’s currently the only state that specifically classifies unauthorized ingestion of a controlled substance as a felony. A proposal to reduce this charge to a misdemeanor represents a small but symbolically important step.

    On January 30, members of the South Dakota Senate debated Senate Bill 83, which would reform criminal penalties related to drug use, as local outlet KXLG reported.

    The current felony charge can be triggered when you “knowingly ingest a controlled drug or substance or have a controlled drug or substance in an altered state in the body,” excluding medical use. The charge can apply on the first incident. 

    If passed, the bill would reduce the ingestion charge to a misdemeanor on the first or second incidents. The defendant could be sentenced to probation, with a requirement to undergo an evaluation and “complete any recommended course of treatment.” In the case of a third charge within five years of the first, prosecutors could charge a felony.

    The Senate Judiciary Committee is due to consider the bill again on February 4.

    Its sponsor is state Senator Tamara Grove (R-Lower Brule). She testified that a total of 279 South Dakota residents are currently incarcerated on a drug ingestion charge, at an annual cost of $33 million to taxpayers. In criticizing the state’s “terribly expensive $1 billion prison,” she proposed relying more on treatment courts, also known as drug courts, as a lower-cost alternative.

    Drug courts are another system with many ethical problems, in which prosecutors and a judge can force a defendant into a treatment program as an alternative to jail. If the person doesn’t complete the program, or doesn’t remain abstinent, they may face criminal consequences once again. The treatment mandated by these courts is often not evidence-based, and coerced treatment in itself is unethical and often harmful.

    Meanwhile at least one state official is pushing against Grove’s bill on that basis that it’s unnecessary. “It is very, very rare that an individual ends up one day ingesting methamphetamine and the next day wakes up in the penitentiary,” said Tom Wollman, Lincoln County state’s attorney, during Senate testimony. “It does not happen in practice.” Wollman claimed people are normally given probation—another harmful system—for a first conviction.

    “There isn’t a need to incarcerate individuals, especially for an ingestion charge where they haven’t truly done a crime.”

    Wendy White, CEO of FACE It TOGETHER, supports the changes proposed by the bill, however. Her organization provides peer coaching to people affected by substance use disorder in South Dakota, without requiring abstinence.

    “There isn’t a need to incarcerate individuals, especially for an ingestion charge where they haven’t truly done a crime,” she told Filter. “They need someone to help guide them along the path to wellness. Getting them the right support, finding people to believe in them and getting them connected to the right resources is a much better solution.”

    White said she’s a “big believer” that drug courts, with which her organization partners, are an improvement on incarceration. “We spend a lot of energy talking about building and expanding new prisons. I think there’s much that can be done by doing some reform [to] how people are treated.”

    This isn’t the first attempt to change this particular law. In 2023, according to South Dakota Searchlight, a similar Senate bill was defeated by one vote. The lawmaker behind that effort, Sen. Mike Rohl (R-Aberdeen), argued that it could divert more people away from prison into treatment. He noted that 15 percent of women imprisoned in the state were there for simple ingestion charges—and that over half of people incarcerated under this statute were Native American, despite under 10 percent of the state’s population being Indigenous.

    The debate in South Dakota highlights that even in this deep-red state, where Donald Trump won almost two-thirds of the vote in 2024, the drug war is being questioned—if only very incrementally. Like most places, South Dakota saw a surge in overdose deaths in recent years, though totals reflect a sparsely populated state of well under a million residents. In 2015, an estimated 65 people died of overdose according to the CDC; that figure rose to 106 deaths by 2021, falling to 86 in 2023. 

    “There’s been a lot of energy put towards reducing overdose deaths, which is critical,” White said. “There’s been a lot of effort made towards making naloxone available and education around it. Another area that is not as prevalent is having [fentanyl] testing strips available.”

    People who want support also face a number of obstacles. South Dakota is one of the few states where the Medicaid program does not cover peer coaching, as White explained, and people on lower incomes are left to pay out-of-pocket. 

    “We have some great treatment facilities,” she said. “But what’s [also] challenging is we’re a rural state—whether something is available in your hometown or you have to drive two hours, that’s a reality we face.”

     


     

    Photograph via South Dakota Highway Patrol  

    • Alexander is Filter’s staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it’s actually alright. He’s also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter‘s editorial fellow.

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