A hallway and secured room doors at the Minnehaha County Juvenile Center in Sioux Falls, as pictured on Oct. 21, 2022.
A quick look at the annual report from an oversight council might suggest that the 2015 juvenile justice reform act that created the group has been a smashing success.
The 2015 reforms were meant to keep non-violent offenders out of Department of Corrections (DOC) custody, in the interest of improving outcomes for both kids and public safety.
The Juvenile Justice Public Safety Improvement Act Oversight Council’s statutory charge is to monitor the impact of those changes.
The group’s 2022 report runs through the number of young offenders who finish probation without a new charge (93%), the jump in offenders who don’t reoffend within three years (79%), the reduction in misdemeanor charges since 2015 (40%), and the drop in children on probation overall since 2015 (43%).
On Wednesday, however, the oversight council spent much of its time during a Zoom meeting talking about a series of legislative proposals that could make it easier to incarcerate children. The annual legislative session begins in January.
Three strikes proposal
One proposal in particular stood out for the council: a “three strikes” rule that would commit a child to the DOC if they commit three offenses in six months.
The change was one of several advanced by a legislative summer study on juvenile justice, all of which could be rewritten prior to the session or amended during it.
The general idea of a three strikes rule, though, earned plenty of support from the summer study group.
Wade Pogany of the Associated School Boards of South Dakota told the study group that a period of nine months – the length of the school year – might be more helpful for the teachers who see repeat offenders back in the classroom.
If a child is charged three times in six months, “that probably signals that there’s something going on with that individual,” Greg Sattizahn, state court administrator and member of the oversight council, said on Wednesday.
Sattizahn had testified in favor of advancing the three strikes rule earlier this month, but he also told the study group it wouldn’t affect many children.
He reiterated that data point to the oversight council this week, this time with additional details. In the last fiscal year, 35 South Dakota kids faced a charge three or more times in the space of six months. Of those, 12 were placed in DOC custody.
In total, 2,849 kids were adjudicated for a misdemeanor, felony, or as a child in need of supervision (CHINS) during the 2022 fiscal year.
The fact that 12 of the 35 repeat offenders wound up in DOC custody in the absence of a three strikes rule is telling, according to Kristi Bunkers, the head of juvenile services for the DOC and a member of the council. The reform law already gives judges the discretion to consider repeat offenses and public safety, she said.
There were 63 kids committed to DOC custody in the last fiscal year. More than half, Bunkers said, got there after a judge overrode the presumption of probation attached to most non-violent offenses after the 2015 reforms passed.
The draft bill doesn’t account for the severity of an offense, Bunkers said, only the frequency. That approach would be a mistake, she said.
“That’s not a policy we use in adult criminal justice sentencing that I’m aware of. I’m not sure it makes sense for children,” said Bunkers, who also testified in opposition to the proposal earlier this month.
School district complaints
Statistics might not tell the whole story, however, at least according to Wayne Steinhauer, an oversight council member and outgoing state senator from Hartford who sat on the summer study group that pitched the three strikes idea.
During the group’s rundown of its annual report, Steinhauer told the council that the study group learned about school districts that no longer bother to report some offenses.
“Our second largest district in Rapid City doesn’t write citations for truancy, because the kids have figured out, ‘Gee, all I’ve got to do is pay a fine and I don’t have to go to school,’” Steinhauer said.
Superintendents across the state are among the most vocal proponents of a push for an easier path to DOC custody, said Rep. Kevin Jensen of Canton. The 2015 reforms came on the heels of a pilot project in Sioux Falls called the Juvenile Detention Alternatives Initiative, or JDAI, which Jensen said has earned the ire of educators.
“What we heard last year was that JDAI has turned the school system into the law enforcement system,” Jensen said.
The council took pains not to talk about taking a position as a group on any proposals at such an early stage, however. The group’s charge is to monitor data, not make policy recommendations, though its members may well testify on behalf of their own agency.
A lack of communication on best practices has been a throughline for many of the struggles that have put the 2015 reforms in the crosshairs of some lawmakers, according to South Dakota Supreme Court Justice Janine Kern.
The reforms were evidence-based, she said, but police, educators and mental health providers weren’t on the same page as to how they might play out in practice.
When the pitch for tougher penalties arrives in January, she said, those stakeholders will need to help lawmakers refine the proposals in a way that addresses their public safety concerns and also preserves the benefits of diversion programs.
“Some of that’s going to have to be vetted by the Legislature to find that balance,” Kern said.
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