First of multiple ‘truth in sentencing’ bills to see debate Tuesday morning

Repeat offenders and people who commit violent crimes would serve more time if lawmakers pass one of the “truth in sentencing” bills on the legislative docket this session.

Sen. Brent Hoffman, R-Sioux Falls, worked with Minnehaha County State’s Attorney Daniel Haggar and other criminal justice officials to draft Senate Bill 146. The bill is set for a hearing in the Senate Judiciary Committee on Tuesday morning at the Capitol in Pierre.

The bill would undo parole eligibility altogether for some violent crimes. 

Inmates convicted of manslaughter, aggravated assault against an infant or law enforcement officer, kidnapping, commission of a felony with a firearm, and a handful of other high-level felonies could earn credits for good behavior, but those credits could “only be used for increased privileges and may not be used to reduce the sentence imposed by the court.”

For other violent crimes, such as aggravated assault or second-degree burglary, inmates would be required to serve at least 85% of their sentences.

The Hoffman bill seeks to upend the Department of Corrections’ Individual Program Directive (IPD) parole system. That system releases inmates early without a parole hearing if they have a clean disciplinary record and complete a battery of personalized programming requirements in prison, such as earning a GED or completing chemical dependency treatment.

The goal is to align the sentences served by inmates with the sentences the public might hear in court or learn about from news reports.

“If someone is sentenced to manslaughter for, let’s say, a 20 year term with 10 suspended, the people who walk out of that courtroom would rightly assume that, ‘oh, that person is going to be in prison for 10 years,’” Hoffman said. “But that’s not the case.”

Sioux Falls Republican Rep. Chris Karr has two bills with similar aims. House Bill 1160 would keep repeat offenders behind bars for longer, but draws fewer distinctions between violent and non-violent offenses than Hoffman’s bill. HB 1171 would undo the IPD system for inmates with four or more felony convictions.

Karr also wants to require mandatory sentences for people convicted of four or more driving under the influence charges with House Bill 1170. Karr’s grandmother was killed by a drunken driver who had six previous DUI convictions.

“I started to ask the question, ‘What’s happening in our system in this process to somebody that is given a second chance, a third chance, a fourth chance, a fifth chance, and they’re not serving any time or rehabilitating?’” Karr said. “There’s an overall bigger systemic issue here, not just this one situation.”

Bills prompted by Sioux Falls, Rapid City crime

The proposals from Karr and Hoffman come on the heels of high-profile crimes allegedly committed by parolees in the state’s two largest cities: Sioux Falls and Rapid City. 

The officials have largely placed the blame on an increase in parolees ducking supervision – a number that’s doubled since 2015 – as well as on criminal justice reforms passed in 2013 and 2015, and have urged legislators to take action.

“At the coffee shops, they’re telling me daily that they want public safety,” said Minnehaha County Sheriff Mike Milstead, who counts himself as a strong supporter of a push to build more prisons in the state.

“Some people have accused South Dakota of having too many people in prison, but we also have one of the safest states in the nation to raise a family,” the sheriff said. “So maybe having people behind bars who are violent offenders is a good thing.”

Public safety officials like Milstead hope to rein in crime, but at least one former Department of Corrections secretary and advocates with the American Civil Liberties Union see longer prison terms as a step backward that could cost taxpayers dearly. 

“This will cost, over the years, millions of dollars. Not right away, but it’s a cumulative effect,” said Denny Kaemingk, who served eight years as DOC secretary under former Gov. Dennis Daugaard. “In the long run, it’s going to fill a lot more beds and cost a lot more dollars. That’s passing the cost of this archaic return to prison and away from rehabilitation on to our children.”

The IPD system is a best practice, the former cabinet secretary said. Before the IPD system, South Dakota had a “good time” system, in which inmates had a certain percentage of their sentence shaved off at the start of their term, which could be added back to their sentences for misbehavior.

Assessing inmates at the start of their terms to determine which rehabilitation programs might work for them is a better way of managing inmates and encouraging positive change, Kaemingk said. 

DOC officials work to attend to each inmate and craft programming that serves the inmate and the public, knowing that most inmates will be released back to their families and communities. 

“The IPD puts together what your needs are. Your needs and risk. It puts that together and says, ‘If you want to get your early release, you need to do those things,’” Kaemingk said.

Kaemingk refers to truth in sentencing bills as “knee-jerk reactions” that disregard “the simplest understanding of professional correctional policies.”

The ACLU of South Dakota intends to testify against SB 146 on Tuesday. ACLU South Dakota Advocacy Director Samantha Chapman said the proposals don’t address the underlying issues behind public safety concerns and aren’t informed by thoughtful collaboration.

“Real criminal justice reform will require leadership and commitment from our legislators, police, district attorneys, judges and people in each part of the system – not just locking people up and throwing away the key,” Chapman said in an emailed statement.

National conversation

Senate President Pro Tem Lee Schoenbeck, R-Watertown, doesn’t see truth in sentencing as costly. Schoenbeck, an attorney, co-sponsors SB 146. Under a truth in sentencing scheme, judges would simply adjust their sentences downward to reflect the new guidelines. 

“If you want someone to serve two years in prison, don’t give them 20 years,” Schoenbeck said. “Give them two.”

Attorney General Marty Jackley has not endorsed any of the “truth in sentencing” bills, but said last week that he generally favors the concept of moving toward a system where prison terms align more closely with a judge’s sentence. That’s what happens in federal court, which abolished parole in the late 1990s and replaced it with a grid system for sentencing and a supervised release period at the end of a defendant’s prison term.

“Truth in sentencing is moving a little closer to that federal system,” said Jackley, who served as U.S. attorney for the District of South Dakota before his first term as attorney general began in 2009.

Larry Long, whose ascension to a judgeship in Sioux Falls paved the way for Jackley’s appointment that year, said he understands both sides of the debate. 

The public doesn’t appreciate early releases, particularly if the person released commits new crimes. 

“They might be trying to communicate reality, not so much to the judges, but to the general public,” Long said of the proposals. “The judges are going to have a pretty good idea of how much actual time the guy’s going to do. And I think that factors into almost every judge’s decision about how much time to give.”

But the carrot of early release through parole, particularly when there’s a system in place for early release that bypasses parole through good behavior, is important for reasons beyond rehabilitation, Long said. 

“The rationale for good time is control,” Long said. “It’s ‘we give you a good time off the top, and we take it back from you if you misbehave.’ That’s the incentive to behave while you’re in the joint.”

Tennessee lawmakers grappled with similar questions last year, when they passed their own truth in sentencing bill. Gov. Bill Lee opposed the idea, but allowed the bill to become law anyway, which is an option available to governors in that state.

Lee’s concerns, according to the Tennessee Lookout, mirrored those expressed by Kaemingk. 

“Similar legislation has been enacted before and resulted in significant operational and financial strain, with no reduction in crime,” Lee said in a statement to legislators last May. “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.”