Caught in the web

By Jason Ferguson


This is part three in a series of articles this newspaper hopes will highlight problems with our approach to drug addiction, penalties, laws and policies that cost South Dakotans millions of dollars and lifetimes of pain and heartache.

Only a few short years ago, Seventh Judicial Circuit Court Judge Matt Brown was prosecuting drug addicts, seeking prison sentences with fervor for those who would dare bring drugs into his community.

For him, it was all about punishing criminals and little about treating addiction. Locking them up meant doing his job.

How times change.

These days, Brown has “flipped like a pancake” on his thoughts on how to treat addicts. Sentencing them to long prison terms does little, if anything, to solve the problem, he says.

It might even exacerbate the problem, he said. There is no question methamphetamine and other drugs are  available in both the local jails and in the state prison system.

“It isn’t like you are sneaking a metal file or an elephant into the jail,” he said. “The idea that locking a person up is going to ‘dry them out’ is a farce. Locking addicts in jail without treatment does absolutely nothing to help with their addiction.”

Instead, addicts become entangled in a never-ending cycle of addiction and incarceration, never getting the help they need and unable to break the stranglehold their addiction has on them. The first time someone uses drugs is a choice. For many, there is no choice after that.

“Most of the people I deal with would cut their leg off to be done with meth,” Brown said. “It is great for awhile; then you lose everything. People don’t want to be meth addicts.”

Custer County State’s Attorney Tracy Kelley said her office handled 40 drug cases in 2017. Of those, 27 are felony-level cases. The most prevalent substances are marijuana and methamphetamine, with some cases involving heroin, cocaine and LSD. Her office has prosecuted approximately 120 individuals for Class I misdemeanors and felony-level offenses to date this year. At least one-third of those cases are drug related.

Brown said on any given Friday, when he has all phases of criminal cases, he generally sees 30 to 40 cases. Of those, 85 percent are either Possession of a Controlled Substance or Unauthorized Ingestion of a Controlled Substance, and 98 percent of those cases involve meth. The other 2 percent, he said, are cocaine or other opioids. Brown said people easily become addicted to prescription drugs, and that addiction is not illegal as long as that person has a prescription.

“They are out there and their numbers are growing,” he said.

Of the remaining 15 percent of cases that don’t involve a controlled substance, which includes robbery, rape, burglary, grand theft, forgery, DUI, arson, murder, etc., nine out of 10 of those cases are meth-related or include some aspect of drug or alcohol abuse.

In short, drug abuse is a scourge that is drowning the court system.

“You can do the math and assume that if you are there any Friday you will likely see — if I’m doing my math correctly — that around 98 percent of my criminal caseload has to do with meth addiction in one way or another.”

Even the rest of his week involves drug cases, if only indirectly. There are abuse and neglect cases he says are mostly driven by drug addiction and addicts who lose their children because they cannot take care of them because they are either addicted to meth or are in jail because of meth, in alternative court (drug court) or civil divorce cases where there are oftentimes allegations of drug abuse (meth) being leveled against each other.

“So most of my job is six degrees of separation from meth,” he said. “Maybe one degree.”

Drugs take up a lot of time of the Custer County Sheriff’s Office, as well. Drug investigations often drag out for months, and those arrested for drugs almost always have to report to the sheriff’s office at least once a day to be tested for continued use via the 24/7 program. Cases can take over a year to prosecute, so there are many drug tests, transports to and from court and to other appointments for those in jail as their cases are adjudicated.

“We spend more time after the arrest with the individuals than before the arrest,” said Custer County Sheriff Marty Mechaley.

In many cases, the only reason a serious addict does not have more than one file open is because they are not testing enough or have skipped testing procedures.

It is almost a given, Brown said, that meth addicts get additional charges, though state’s attorney’s offices have the discretion (which they use quite often) not to charge every failed drug test or possession charge while the original case is being dealt with.

“I don’t often see an intentional stacking of charges against the addicts by the state,” Brown said.

Mechaley agrees with that sentiment and the numbers bear the same. A quick look at some of Custer County’s drug offenders show how hard it is to quit using drugs after being arrested. One female, now in prison, violated the 24/7 program eight times. Another violated it 12 times. The addicts fail a drug test, are taken to jail for a couple of days, get out and repeat the cycle.

The 24/7 program is basically a sheriff’s office probation, Mechaley said.

“You cannot arrest someone on Monday for methamphetamine and expect them to quit on Tuesday just because they are on testing,” Mechaley said. “In my mind, there absolutely has to be immediate treatment and someone for them to speak with.”

In a tourist community such as Custer, there are inevitably people passing through who are stopped and subsequently arrested for narcotics. However, there are a number of people caught in the drug cycle that the sheriff’s department sees over and over. It is those “frequent fliers” who take up so much of the county’s time and resources.

“A very high percentage are the same people over and over and over again,” Mechaley said. “We deal with them long-term.”

Kelley agreed.

“We have our share who find it difficult to remain law-abiding and repeatedly find themselves in the court system,” she said.

Kelley said it is frustrating to see the same people over and over. While some work hard to overcome their addictions, albeit with failures along the way, many have no intent or desire to overcome their addictions.

“It becomes increasingly frustrating as I see the impact on children and families over time,” she said.

Mechaley said virtually everyone who is continuously arrested in Custer County on drug charges sits down and has a “come to Jesus” meeting with him, where he tells them they need to straighten their life out and become productive members of society.

“This going back and forth to jail does them absolutely no good,” he said. “It does them no good and it does us no good because they are wasting our time, too.”

“The destruction it wreaks on people’s lives is astounding,” Brown said. “They have lost everything: home, job, family, self esteem, money, trust, friends, support — everything. I no longer blame the people. They are slaves to the addiction. It is the meth that is the problem. It is very difficult to stand up and deal with meth addiction alone.”

Brown says meth addicts are good liars who lie to family, friends and themselves as part of a learned survival mode.

“Who is going to go around telling people they are addicted to meth?” he said.

Brown said most of them say they don’t have a problem or can handle the addiction on their own and promise they won’t touch it again.

“It is like watching a drowning person whose hands are tied together behind their back and a brick tied to each foot tell you they can swim to shore,” he said. “It’s hard to watch.”

However, while addiction is real, at what point does personal responsibility come into play? That can be a tricky question to answer.

Mechaley points out that frequently addicts aren’t simply doing the drugs while obeying other laws. Many criminal activities go along with drugs, he said, as people do what they have to do to get drugs or collect a debt owed to them because of drugs. Violence, burglary and robbery often go hand-in-hand with drug addictions.

“There are people being murdered because of drugs,” he said. “A lot of our burglaries and robberies are drug related. I believe in second chances, but after they continually fail, they probably need to go to jail and dry out and minimize the risk.”

“I agree with the statement ‘addiction is real,’” Kelley said. “I also believe that personal responsibility should be expected and demanded with the first arrest. Enabling defendants and supporting excuses only perpetuates the problem.”

Brown said locking up addicts does keep those who have turned to burglary, theft, forgery and other crimes from affecting the public, but does little to get them off drugs. He laughs when asked about personal responsibility or a drug offender getting their act together. Nothing can happen before the addict gets clean, he said.

“Forget it. You can’t be both addicted to meth and get your act together, although most of the addicts I see tell me they can,” he said. “It’s a revolving door with the system and addiction until they have some structured treatment plan.”

So what is a fair sentence for an addict? One that both punishes and helps the offender overcome their addiction.

That, too, is tricky.

The recent overhaul of the South Dakota Justice System makes both Possession of a Controlled Substance and Unauthorized Ingestion of a Controlled Substance a Class V Felony, punishable by up to five years in the state penitentiary, as opposed to the laws pre-overhaul that punished the same offenses by up to 10 years in prison. Those two charges are also now presumptive probation cases, which means the law presumes the offender will receive a probationary sentence. The court has the ability to deviate from the probation, but must make finds on the record as to why. Few offenders are sent to the penitentiary on their first offense.

“Ideally, we should be able to find a good sentence mix that, on one hand supports treatment and recovery, and on the other instills some level of punishment and accountability,” Kelley said. “The drug reform efforts that were instituted have only served to fuel the problem in counties like Custer.”

“There has to be swift, meaningful punishment with treatment,” Mechaley said. “Not just testing every week to see if they fail and put them back in jail. If you don’t give them some type of treatment or counseling to go along with that, I think it’s very difficult for them to quit.”

Brown said, unfortunately, because of the difficulty of the addiction and lack of treatment options, it’s only a matter of time before offenders break the rules of probation by using and are back in front of a judge on a probation violation. It happens time after time, Brown said, and eventually the court decides probation is not working and sends the offenders to the penitentiary.

It’s routine to see probationers who have up to five probation violations—and those are not the only times they have been caught. Court services uses a sanctions grid to impose sanctions for a use before a “formal” violation is filed. Multiply that out, Brown said, and an addict who has four probation violations may have been caught 12 or more times during the course of those formal sanctions.

“So what we see in court is just the tip of the iceberg,” Brown said. “The struggles of addiction have been going on way before we see probationers on a formal violation.”

Absent aggravating circumstances, which could include the defendant’s criminal history, overall progress toward completing a probationary sentence or other arrests, most drug offenses involving use and possession results in that probationary sentence.

As part of that probationary sentence, the court can order a defendant to serve a limited amount of local jail time (no more than 180 days), require a defendant to obtain a chemical dependency evaluation, complete recommendations from that evaluation and participate in the 24/7 program.

In some jurisdictions, the courts have the ability to use the drug court program, which establishes stringent requirements of the defendant and provides a heightened level of supervision and continued accountability. There is no drug court program in Custer County and Kelley is unaware of any plans by the court system to begin one.

That’s unfortunate, because Brown says drug and DUI courts work well, changing the paradigm of how to treat addiction, rather than incarcerate and hope it gets better at parole time.

In drug court, Brown said, the participants are treated as people. He knows them by their first names, the names of their children, where they live, work, worship, their struggles and their successes. The process is slowed down and the team (treatment, mental health, law enforcement, prosecution, defense attorney, community advocate and probation officer) works together to address the needs of the people who strive to remain clean, sober and productive. It doesn’t work for everyone, Brown said, but the program is for the highest risk, highest- need clients.

Kelley said she, too, believes drug courts work, but said, not only are there limited resources in Custer County, as the criminal justice overhaul has shifted much of the cost of the system onto counties, but resources are dwindling across the state.

“While I do not intend to speak for any other state’s attorneys, it is clear there is a general level of frustration with all or most of the state’s attorneys resulting from the drug reform movement and efforts at the state level to keep drug offenders in their communities and out of the state prison system,” she said. “I believe a review of the numbers across the state would reflect an increase in drug and drug-related prosecutions over the past couple of years.”

There are a few inpatient treatment programs available for addicts, and some of them have great models, Brown said. One treatment is designed for mothers to have their children live  with them at treatment. Bed availability at this, and other treatment centers, is woefully inadequate, Brown said.

“It is like trying to empty the ocean with a thimble. If the state was really serious about getting ahold of the epidemic, they would fund, open and run a multi-bed long-term inpatient facility in the Hills, in the middle of the state and East River,” he said.

“If the true intent of the reform is to help addicts overcome their addictions while maintaining them within the community, then resources need to be put in place to support such efforts,” Kelley said. “Counties like Custer have very limited resources.”

Mechaley said the former State Treatment and Rehabilitation (STAR) Academy was a great place for juveniles to get treatment for addiction and  its closure causes those youth to become adults with worsening habits and escalating crimes in some cases.

“That was the biggest mistake this state has ever made. That should have never closed,” he said. “That was a treatment facility, and it worked.”

Brown said he understands the issue of what to do with drug offenders is a political one, but what is often lacking is an understanding of the issue or a staunch perspective on what the issues are.

“In the end, I believe most of us can agree that what we want are clean, law-abiding, productive citizens who are involved in a positive and pro-social way in their community who are working and taking care of their children and making efforts to better themselves,” he said.

South Dakota has an inadequate response to the meth epidemic, he said, but drug courts are working, save taxpayer money and help solve the problem better than locking people up. Without proper treatment, they go right back to the old environment, Brown said, into a merry-go-round process he said he never truly understood as a prosecutor. Examining the numbers reveals that the way things have been done aren’t fixing anything.

“I’m not saying there are not addicts who need to get locked up. Some need to be taken off the street. But treating addiction by locking a person up in a cage doesn’t work,” he said. “Judge (Heidi) Linngren and I (who run the DUI and drug courts in Pennington County) are excited about what we are doing.”

It’s two hard-nosed ex-prosecutors trying something different and watching it work in ways they never expected when they started on the bench.

“We need community and legislative support to deal with this issue. Listen to those who are in the tenches every day dealing with these issues,” he said. “Ask questions, but listen to those who have experience in treating, dealing with and fighting for a new approach to those who suffer. Instead of the public footing the bill to incarcerate addicts, they can actually be out in the work force, clean and productive. That should be the goal.”