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.
.