VIEWPOINT | Presumptive probation safeguards liberty

Guest column by Ryan Kolbeck, former president of South Dakota Association of Criminal Defense Lawyers

The South Dakota attorney general recently stated that the sentencing of Jason Shields, a man who plead guilty but mentally ill, is an example that necessitates South Dakota to reevaluate presumptive probation, which would put the liberty of all South Dakotans at risk.  

As stated in our Constitution, South Dakota should not deprive someone of their life, liberty, or property without due process of law. Presumptive probation aides in securing our liberty right by requiring the judge to find a defendant to be a significant risk to the public before taking a person’s liberty. Removing the necessity for a court to find a person to be a significant risk to the community is a threat to all South Dakotans’ right to liberty.

In a July 1, 2024, article in The Dakota Scout, the South Dakota attorney general used the sentencing of a mentally ill man, Jason Shields, to advocate for the repeal of a decade old presumptive probation statute that half-heartedly reduced sentences for non-violent crimes. Mr. Shields was arrested for violating a separate statute that prohibits sending threatening fax messages to our elected officials. He was then determined to be incompetent (meaning he didn’t understand the proceedings) and served 614 days in jail. After nearly two years of incarceration, a state circuit court judge accepted a “guilty but mentally ill” offense (meaning he did the act but did not fully understand the consequences). The Judge determined that nearly two years in jail was enough at this time, suspended the execution of a penitentiary sentence, and ordered the man to probation and treatment.

 The article would have readers believe that a man who has been deemed mentally ill should thank a “sweeping overhaul of the state’s criminal justice system for keeping him out of jail.” However, this flippant response overlooks the fact that Mr. Shields sat almost two years in jail without access to proper treatment before having his case resolved.

I understand many people do not know the difference between jail and prison. In general, a prison is a state facility for those who are convicted where we do have some (though unfortunately currently limited) resources for mental health treatment. People in prison have more freedom to walk around the facility than those in jail. 

Conversely, a jail is a county facility that is primarily used to detain individuals before they appear for court and their case resolved. In my nearly 20 years of defending South Dakotans, many jails do not provide meaningful mental health treatment. Instead, “those” individuals who are suffering from mental illness are often locked in a cell prohibited from contacting other inmates.

Here, Mr. Shields was in custody for 614 days, either in a county jail or the state hospital, with the bare minimum mental health treatment. From talking with my clients, prison time is easier to serve than jail time as the time goes much faster because there are things to do, such as treatment. Jail time often intensifies mental illness.

Worse, though, is the conclusion that somehow the presumptive probation reforms lead to this “light” sentence. That conclusion completely overlooks the text of the law itself. For those interested in the statute, SDCL 22-6-11 applies to drug cases and some other lower-level felonies, and specifically states that the judge only had to state a finding of aggravating factors that Mr. Shields posed a “significant risk to the public” to depart from presumptive probation and send him to prison. Evidently the state could not persuade the judge to do so in this case. But from my experience in drug cases, our judges routinely make this finding when the person continues to use drugs while the case is pending. If that occurs, the court simply needs to state the person is still using drugs and therefore a significant risk to the public, write those words in the judgement, and then the person goes to prison. Voila! It happens nearly every day.

For violent offenses, the judge does not need to make this “significant risk” finding before sending someone to the penitentiary. Requiring the judge to make the finding that the person is a significant risk to the public is the only difference between a presumptive probation sentencing and a sentencing for a violent crime.  

Staying on the topic of non-violent drug offenders, it makes sense that those that remain clean and are not a risk to the public should receive probation to continue working on sobriety while being monitored with the 24/7 drug detection programs. The opportunity to get clean, to restore one’s own dignity on their own, is the cornerstone of a person’s liberty. The state should not intervene unless a judge finds the person continued to use drugs and are a significant risk to the public. Then, we recognize that everyone’s liberty has limits, and the judge should be able to send that person to prison. This is not crazy woke talk but good conservative policy.

The ultimate question is this: How many days should we have locked this mentally ill man up without giving him any help? Our attorney general says nearly two years is not enough, and instead he should be sent to prison though the court did not find him a significant risk to the public. Why?

Can you imagine your property being taken away without the state proving a current need to do so? That’s what occurs when a drug user is sent to prison without being a significant risk to the public. As a result, presumptive probation is constructive legal check on the state’s ability to take our liberty interest. There are not many.

As we celebrate our liberty during this Independence Day festivities, I would urge readers to think about our future prison that is on the horizon. Think about the standard the state should meet before removing someone from society and taking their liberty.  Should the person have to be a significant risk to the public, or should we allow the state to take our liberty at a lesser standard? That’s what repealing presumptive probation would do.

Ryan Kolbeck has been practicing criminal defense in Sioux Falls for nearly 20 years and now owns and operates Kolbeck Law Office, LLC. He has previously been president of South Dakota Trial Lawyers and Criminal Defense Lawyers and has testified before the legislature in the past on criminal justice topics.