January 4, 2017
PIERRE, S.D. – Attorney General Marty Jackley announces that the Attorney General’s proposed legislative package for 2017 will include a request that our Legislature consider and enact the following:
1. Prohibiting and criminalizing direct conflicts of interests and self-dealings resulting in personal financial benefit from taxpayer monies
Under current South Dakota law, it is only a misdemeanor to engage in self-dealings of taxpayer monies for personal benefit or gain. See SDCL 5-18A-17.4.
“A public official, who misappropriates taxpayer monies that have been entrusted to them, violates the public trust and should be held responsible for such actions. When a public official uses taxpayer monies for personal benefit or gain, it should be treated as any other criminal theft,” said Jackley.
The Attorney General’s proposed legislation narrowly defines a direct criminal conflict of interest to occur when “any public official who knowingly misappropriates funds or property which has been entrusted to the public official in violation of the public trust and which results in a direct financial benefit to the public official, commits a criminal conflict of interest.” A public official who commits a criminal conflict of interest would be guilty of theft under existing law. Under current theft law it is a Class 6 felony carrying a maximum penalty of two years imprisonment when the value of the theft is in excess of $1,000, a Class 5 felony, punishable up to five years, when the value is more than $2,500 but less than or equal to $5,000, and a Class 4 felony, punishable up to 10 years, if the value is more than $5,000. The bill also requests employee whistleblower protections.
Legislation being introduced by others will require notice to the Attorney General of conflict violations.
2. Releasing of booking photographs to the public
Under current South Dakota law, it is a criminal misdemeanor to release booking photos to the public.
“The release of criminal booking photographs to the public will result in greater transparency in the criminal process and will further assist the media and the public in the proper identification of individuals in the criminal process,” said Jackley.
Routine criminal booking photographs would be defined as a public record under South Dakota law. The statutes would not require a law enforcement agency to reproduce a criminal booking photograph older than six months. Furthermore, an agency requested to provide or reproduce a criminal booking photograph would be entitled to recover reasonable retrieval and reproduction costs.
3. Expanding the 24/7 Sobriety Program to include mobile alcohol testing devices
South Dakota’s 24/7 Sobriety Program is a voluntary offender-pay program that allows individuals to address their alcohol and drug addiction while protecting the public with constant monitoring.
“South Dakota’s 24/7 Alcohol Sobriety Program has helped over 62,582 South Dakotans address their addiction. The offender-pay program has been an effective alternative to incarceration allowing individuals with alcohol and drug addiction to remain employed and with their families while ensuring sobriety through intensive monitoring. To include mobile breath alcohol testing devices to our current technology would further assist law enforcement and participants to more easily and successfully complete the program,” said Jackley.
The current method used in the 24/7 program includes twice-a-day preliminary breath testing, electronic monitoring bracelets, ignition interlock, urinalysis, and drug testing patches. The Attorney General is requesting that the Legislature expand the testing methods to include the use of mobile breath alcohol testing devices at the discretion of the sheriffs and courts.
4. Improving the State Automated Victim Notification System (SAVIN)
“Serving victims of crime should remain a top priority in our state. South Dakota’s victim notification system helps inform and protect victims by making offender information readily available, and further fosters transparency within criminal proceedings by making public information more accessible,” said Jackley.
In August 2016, the Attorney General rolled out the State Automated Victim Information and Notification System (SAVIN), creating a free automated service that provides crime victims with vital information and notification 24 hours a day, 365 days a year. The proposed legislation makes the automated system more efficient by allowing participants to register directly with the system if they choose, and allows more notifications to come from the system instead of through other redundant agency information.
5. Addressing presumptive probation concerns
“Individuals that commit violent crimes and significant harm to victims should not automatically receive a presumption for a probationary sentence. More serious offenses justify having all the circumstances considered when balancing the need for incarceration with opportunities for rehabilitation. Promoting prostitution of a minor is one such serious offense that should not result in an automatic presumption of probation,” said Jackley.
As a part of the 2013 Criminal Justice Initiative, the Legislature enacted a presumptive sentence of probation for many Class 5 or 6 felonies. Based upon numerous Supreme Court challenges and concerns related to the use of presumptive probation and aggravating circumstances, the Attorney General requested the Smart on Crime Task Force to review three areas of concern:
1. The parole and probation grids with an interest toward ensuring swift and certain punishment for violations in order to protect the public;
2. The presumptive probation for Class 5 and 6 felonies should be modified to provide more discretion to our Judges for the more serious crimes; and
3. Explore opportunities to provide funding to local governments that are
experiencing cost-increases as a result of the legislation by evaluating any cost savings to the state attributable to SB 70.
Consistent with the Smart on Crime Task Force recommendations on presumptive probation, the Attorney General is proposing legislation to remove certain violent and other serious crimes from presumptive probation.
6. Strengthening vehicular homicide sentences
“While it is difficult to place a value on the loss of a human life, serving only a 4½ year sentence for the brutal vehicular homicide of another human being should carry with it more significance and deterrent value to better protect the public. Vehicular homicide is a violent crime and should be considered as such for purposes of parole calculations,” said Jackley.
On July 8, 2013, Ronald Fischer drove recklessly, impaired, and at high rates of speed through a Pickstown parking lot, killing 25 year old Maegen Spindler and 46 year-old Dr. Robert Klumb. Fischer was tried and convicted for two counts of vehicular homicide for his two victims. Because vehicular homicide is a Class 3 felony, the judge was only able to impose a sentence of 15 years for each conviction, the maximum allowed by law. Furthermore, because vehicular homicide is not statutorily defined as a “crime of violence,” Mr. Fischer may well only serve approximately nine total years for the deaths of his two victims.
On April 26, 2016, another tragic vehicle crash again occurred in Charles Mix County, taking the life of a 22-year old. Albert Fischer has been indicted for and pled not guilty to vehicular homicide. His case is still pending.
Vehicular homicide convictions over the past five years in South Dakota include: 2 in 2016 (6 charged in various stages of proceedings), 4 in 2015, 4 in 2014, 8 in 2013, 4 in 2012 and 5 in 2011.