Decriminalization A Step In The Wrong Direction
by Representative Mary J Fitzgerald, District 31
Effective July 1, 2025, Senate Bill 83 will decriminalize the use of controlled substances like fentanyl, fentanyl mixed with xylazine-the so-called zombie drug, heroin, cocaine, methamphetamine, PCP, and all other dangerous drugs. This is why I voted against the bill. It is not good for our children, and it is not good for South Dakota.
Effective July 1, the new law reduces the penalty from a felony to a misdemeanor for those convicted of ingesting dangerous drugs. This approach may encourage some offenders to swallow dangerous drugs when they are encountered by law enforcement to avoid a felony possession charge and significantly increase the risk of overdose. The change in this law in South Dakota will have negative consequences and will not deter this crime.
More significantly, individuals can be convicted for using dangerous drugs a number of times before the crime is a felony conviction and even then, it’s a probationary offense. First and second offenses will be a misdemeanor charge. Third and fourth offenses are felony charges but under our law the offender is still eligible for a deferred imposition of sentence, and/or a suspended imposition of sentence. Under a deferred imposition of sentence, if the offender completes probation for one year without violation the charge is reduced to a misdemeanor. Under a suspended imposition of sentence if the probationer is successful on probation the charges are dismissed, the file sealed, and the felony conviction is erased.
Potentially, by the time it becomes a fifth offense, the offender will be become a convicted felon. But the crime is then reduced from a Class 5 felony to a Class 6 felony, the lowest grade felony in South Dakota. Under our law, a Class 6 felon is still entitled to a presumption of probation and offenders will not serve time in prison but will receive probation. Decriminalizing drugs does little to deter drug use and it does nothing to stop offenders from using drugs.
Addictive drugs and substances that are outlawed are outlawed for good reasons because there is a link between drug use, health problems and crime. Crimes like theft, forgery, robberies and burglaries are linked to drug abuse. The new more powerful methamphetamine produced by the cartels is linked to psychosis and can result in schizophrenia. The use of fentanyl-xylazine combination is linked to severe wounds including necrosis that may lead to amputations. Fentanyl and heroin overdoses and deaths continue to rise.
A quick look at other states, such as Oregon, proves that the decriminalization approach is not effective. Oregon was the first state in the nation to decriminalize small possession amounts of dangerous drugs. But Oregon reversed its decision in September 2024, after noting increases in crime, homelessness and the deterioration of families. Oregon now serves as an example that decriminalizing is not the way to reduce drug abuse.
Senate Bill 83 undermines the work at the border. We are trying to stop drugs from entering the United States. U.S. Attorney General Pam Bondi and FBI Director Kash Patel, under the direction of President Trump, are working tirelessly to stop the flow of illegal drugs into the United States. The FBI reports that fentanyl and other illegal narcotics are killing an American citizen every seven minutes. Now is not the time to decriminalize drugs.
Reducing this crime from a felony to a misdemeanor is a ploy. It was sold to the legislature as a way to reduce prison population. But it will do little to reduce incarceration rates. There is nothing wrong with our current law. We already have two forms of leniency in place—a suspended imposition of sentence and a deferred imposition of sentence. A felony conviction is only handed down after multiple, deliberate violations of the law and probation violations. This ensures that individuals have ample opportunity to change their behavior before facing a felony conviction.
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Does Ms. Fitzgerald know the definition of “decriminalize”? The second paragraph contradicts the first by talking about the criminal penalties still in effect for drug ingestion. Furthermore it’s pretty difficult to swallow drugs without possessing them in the first place, which is still illegal. And lastly, using/possessing a drug in a jurisdiction where it is legal should not be penalized when that person is within SD’s borders, but that is still illegal, albeit a misdemeanor penalty.
Well said, Representative Fitzgerald.
Not, it wasn’t. These drugs were not decriminalized, Cliff. She even admits as much later in her release. Why are you ok with legislators lying to you?
With due respect to the good representative, who is a very goof and thoughtful legislator, this information is not accurate. SB 83 does not decriminalize anything. SB 83 only reduces the offense for ingestion of a controlled substance from a felony to a misdemeanor for the first two convictions, and focuses on treatment instead of incarceration for those offenses, somewhat similar to how we treat DUIs. Essentially, it means if you have a failed urine or blood test but have no drugs or drug paraphernalia on your person, you would be charged with a misdemeanor instead of a felony. No other state makes ingestion a felony, and we will still have either the most, or at least one of the most, severe penalties for ingestion of a controlled substance in the United States, as the third offense would be a felony. It simply recognizes that incarceration isn’t always the answer, similar to what the Trump administration did with the First Step Act.
SB 83 also leaves it a felony to be in the unauthorized possession of any controlled substances, even if just trace amounts left on paraphernalia. It does nothing to stop the work the DEA or FBI is doing, and, as a reminder, ingestion isn’t a felony under federal law and simple possession of a controlled substance is only a misdemeanor for the first two offenses. Just like possession is not “decriminalized” at the federal level, ingestion is not decriminalized in South Dakota.
This is a fair policy debate, but lets keep the debate limited to what is in the bill. We have a higher incarceration rate for drug use than almost any state, and it isn’t working. I hope we use this opportunity to invest more resources in treatment, which is needed, and less on incarceration. It leads to better outcomes and better public safety.
good* (not goof)
I have the utmost respect for Rep. Fitzgerald.
Ms. Fitzgerald’s statements are wildly inaccurate and brought forward with extreme prejudice. SD has the most archaic law that allows for criminal charges for substances in your blood. By the time you are being tested for a controlled substance you are already involved with law enforcement for something it could be as small as a traffic ticket where they smell cannabis or a DUI. These incidents include a drug test and all SB83 does is takes away the felony for what’s in your blood to stack on top of your other charges. A misdemeanor possession should not be a felony because you ingested it. Imagine your kid accidentally overdosing and having to be resuscitated with Narcan only to be hauled to jail instead of a hospital. God gives grace and forgiveness, Mary should lean into her Christian values instead of trying to get the public wound up over a complete BS “opinion piece” with big words like Fentanyl to scare people. That’s NOT what this bill is.
Mary is very Pro putting SD residents in prison for whatever reason. I’m sure she will have some clever little zingers in response. I however trust our court systems to handle this in a manner that doesn’t cause harm to the people or the culture of SD.
Decriminalization sounds similiar to the load of malarkey we were sold called SB70 which was supposed to keep us from having to build a prison….but oh wait they want to do that now
What a joke sb70 continues to be
I see we are in the “just making stuff up” phase of bill explaining. A little bit of lost respect here for Fitzgerald for such a blatant misstatement of the proposed bill.
Mary, I have lost two relatives under the age of 30 to drugs in the past 5 years. I can assure you, branding them as felons before they were 21 did not help their cause. You can’t punish addicts out of addiction. Your position will only promote more costs for incarceration, less productive individuals in society, and more young people dying.
I agree with the Representative.. SB70 was not effective, and this one will not be either. Things that are in question: until the violator appears before the judge, will four more arrests prior to the conviction, be counted as just one?
Who will pay for suggested treatment for ingestion? I did not read anything about it. If the violator is extended treatment and cannot afford it, or will not accept the recommended treatment, then what? You cannot “will” people into sobriety. They have to want it; sometimes that means hitting the very bottom rock in the pile.
Rock bottom doesn’t need to include a felony. Are you aware that having a felony makes you ineligible for Financial Aid? It bars you from living in about 90% of all commercially managed properties, it makes it very hard to find gainful employment outside of food service positions and you also can’t work with kids, elderly or adults with disabilities.
Mary supports punishing those who make bad choices for LIFE. A felony is life alternating and those who have them can tell you the other side of sobriety with a felony is pretty bleak because that single act will forever follow them.
SD needs lawmakers who focus on rehabilitation NOT bulldozing youth and adults lives.
Don’t do the crime, if you can’t do the time.
“””””””” SD needs lawmakers who focus on rehabilitation NOT bulldozing youth and adults lives. “”””””””
I have an idea, let’s send the druggies to all those in support of rehab to live with them and get rehabbed.
Is there any penalty for elected officials spreading blatantly false information? Or is that decriminalized?
The repeal of the felony ingestion law was the right thing to do. As noted above South Dakota was the only state in the nation to have the law. It seems to me that the provision was used to punish addicts and did nothing to stem the flow of dangerous drugs in the state. It would be interesting to see if our drug problem was lower than states that didn’t have the ingestion law. I doubt it was effective at all but it did keep the pen full.
“””””””” SD needs lawmakers who focus on rehabilitation NOT bulldozing youth and adults lives. “”””””””
I have an idea, let’s send the druggies to all those in support of rehab to live with them and get rehabbed.
So, any suggestion of rehabilitation means people need to host the addicted in their home, regardless of qualifications? My, what a totally not insane suggestion! What are you, 12 years old?
You want to have them rehab’ed. Grow a pair and take some on to rehab them. You don’t have the guts to do it, but you want others to do it.a
Except the process of rehab is intensive requiring specialized training and facilities. Facilities best provided by the collective us, society. Read up on the social contract you jackoff.
Grow a pair? You mean, go back to college, get the appropriate degree to change fields, then change my house’s zoning to commercial, then open up my home rehab? How goddamn dumb can you be?
How Christian of you.
That’s literally rehab you imbecile.
When arrested for ingestion, will the offender be granted grace for the high speed chase involving an injury, grand theft auto, domestic violence, etc 1 that accompanies the drug arrest. After all, a person who has an ingestion problem is not acting in the right frame of mind. . I think we will find out that SB83 will be one the worst, most time consuming and expensive experiment for our courts and officers.
That doesn’t even make sense. All of the other things you listed are much more serious than drug ingestion. No, you would be arrested for domestic violence and then have an ingestion misdemeanor tacked on.
Somehow all 49 other states make it work without have an ingestion charge, SD somehow always thinks it’s unique.
Quite literally none of the other 49 states in the Union have had this problem. Go outside and touch some grass and turn off the OAN for a change.
Voluntary intoxication is not a defense to crimes, idiot.
Who’s this crazy cat lady?