South Dakota Governor Signs Bill To Loosen Penalties For Using Illegal Drugs

As of February 28, there were 133 men and 71 women imprisoned by the state Department of Corrections with ingestion as their highest-level offense.

By John Hult, South Dakota Searchlight

South Dakota Gov. Larry Rhoden (R) has signed a bill that will loosen his state’s felony ingestion statutes, which are among the nation’s strictest laws on drug use.

Senate Bill 83 reduces first- and second-offense ingestion of controlled substances from class five felonies to class one misdemeanors. Maximum penalties for the charges, which typically stem from urine test results, will fall from five years in prison and a $10,000 fine to a year in jail and a $2,000 fine.

Rhoden penned a letter to lawmakers explaining his decision to sign the bill and affixed it to a press release announcing he’d signed it and 18 other bills into law on Wednesday.

The letter noted law enforcement’s stiff opposition to the bill, but also that third and subsequent offenses will remain felonies, and that South Dakota needs to focus more squarely on rehabilitation. His “difficult decision” to sign the bill, he said, “cannot be the end of the discussion.”

“We need all three branches of government—the legislature, the executive branch, and the judiciary—to continue working toward solutions,” he wrote. “We must expand treatment opportunities and make sure that the punishment fits the crime.”

Next steps for courts, prisons

He also wrote that the Unified Judicial System (UJS) will “assemble a task force” to look into the state’s treatment resources and its treatment courts.

One mismatch between the bill’s verbiage and the state’s treatment setup within UJS rules is apparent already.

SB 83 suggests the use of the Honest Opportunity for Probation Enforcement (HOPE) program as a probation option for those convicted of first- and second-offense ingestion. That program requires participants to call a phone number every day to find out if they’re required to take a drug test. Those who fail see jail time.

According to current UJS rules, however, HOPE is only available for people charged with felonies.

Data from the UJS, requested by South Dakota Searchlight, shows 14,968 felony ingestion charges have been filed in the state in the past 10 years. Thousands of those cases resulted in prison sentences; thousands more in jail and probation terms.

As of February 28, there were 133 men and 71 women imprisoned by the state Department of Corrections with ingestion as their highest-level offense, according to DOC spokesman Michael Winder.

Those inmates are not receiving adequate treatment, Rhoden said in his letter. The governor had hoped to secure funding for a new men’s prison this legislative session, but was rebuffed by lawmakers. The governor subsequently signed an executive order creating a task force to reevaluate the state’s correctional needs.

“With the limited availability for rehabilitation at the current State Penitentiary, all we can really do is lock ’em up,” he wrote.

No inmates released, no records cleared

The law will take effect July 1, but will not retroactively remove previous felonies from a person’s criminal record or cause state prison inmates to be immediately released.

South Dakota is the only state in the U.S. with a specific law that allows prosecutors to charge people with felonies for failed drug tests if the drugs in question are controlled substances like methamphetamine or cocaine. Ingestion of marijuana can draw misdemeanor charges.

SB 83 was the latest in a yearslong effort to overturn or adjust the felony ingestion law. Bills seeking to do so had appeared in every legislative session but one since 2020.

The 2025 iteration came from freshman Sen. Tamara Grove (R-Lower Brule). It passed her chamber by a single vote and the House of Representatives by five.

In a Wednesday press release, Grove said felony convictions follow people around their whole lives, making it difficult to find work or housing and contributing to the stressors that drive continued addiction.

South Dakota’s use of “heavy penalties and prison time has cost taxpayers millions of dollars, shattered communities and our families,” she wrote.

“Sadly, the children who are connected suffer the most.”

A full list of the bills signed Wednesday is available online.

This story was first published by South Dakota Searchlight.

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Photo courtesy of Dominic Milton Trott.