Legislators seek update to South Dakota juvenile justice assessment system

One of the key tenets of juvenile justice reform in South Dakota – keeping low-level youth offenders out of custody in favor of rehabilitative services and a return to public school attendance – is causing headaches for South Dakota education officials, who say they are not equipped to deal with habitual offenders in school settings.

That balancing act is the backdrop for Senate Bill 4, one of several proposed bills resulting from a 2022 legislative summer study that explored ways to improve cooperation between schools, law enforcement and courts as the state continues to assess its youth corrections strategy amid major reforms enacted over the past decade.

Senate Bill 4 is a proposal to amend existing law so that a juvenile who re-offends after three “separate and distinct criminal episodes” in a 6-month period be committed to the South Dakota Department of Corrections system, which could mean hard detention, foster care or a placement such as McCrossan Boys Ranch in Sioux Falls or New Beginnings Center in Aberdeen.

The bill, being considered by the Senate Judiciary Committee, could be adjusted to increase the span of violations from six months to a year. The proposal comes as legislators are also considering legislation to study an optional educational path for troubled students and to improve communication between law enforcement and schools when a student is suspected of threatening violence or violating drug or alcohol laws.

These issues are the core of South Dakota’s quest to find the right balance between consequences for kids who commit serious crimes and encouraging counseling and family services for those determined to be less of a threat. The fact that the latter group frequently returns to public school classrooms has become a source of frustration for educators, who say they end up doling out discipline they feel should be handled by the courts while worrying that some potentially dangerous students may end up in schools.

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“No one wants to go back to the way things were before (reforms were adopted),” said Tim Graf, superintendent of the Harrisburg School District, the state’s third-largest system. “For a while, there were too many detentions, but like many things it could be that the pendulum has swung back too far. We’re trying to find solutions that are effective for schools and law enforcement while still addressing the initial concern.”

South Dakota ranked first per capita in the nation for locking up juveniles before implementing the Juvenile Detention Alternative Initiative (JDAI) in Minnehaha and Pennington counties in 2010, followed by legislation in 2015 that restricts scenarios in which a youth offender can be detained. The law also offers financial incentives for counties that provide “diversion opportunities” such as support counseling rather than detention for young offenders.

Pennington County’s diversion programs include a teen court, where offender cases are presented to a jury of their peers by teen volunteer attorneys, and a truancy prevention program that addresses the root causes of a child’s behavior and links students and families to social services as needed. These methods can be used for juveniles facing charges such as underage drinking, shoplifting, marijuana possession, simple assault and truancy.

The state juvenile corrections population has decreased from 520 individuals in Fiscal Year 2015 to 170 in Fiscal Year 2022, with judges more likely to utilize diversion programs, community supervision or house arrest with an ankle monitor unless offenders are viewed as a threat to public safety. In most of these instances, the child is expected to continue to attend public school, although some alternative education opportunities exist.

“A lot of times the child is released on conditions, and those conditions are going to involve going to school,” said Annie Brokenleg of the South Dakota Unified Judicial System, who serves as statewide coordinator of the state JDAI. “The judge is going to want that kid going to school, because that’s a protective factor for that kid.”

Schools want to see more accountability

These diversionary measures are a matter of concern for some school and law enforcement officials, who see a lack of accountability in the courts that can lead to a “revolving door” of the same juveniles getting arrested and then placed back under parental supervision and in school settings, sparking concerns about disruptions and campus safety.

Wade Pogany, executive director of the Associated School Boards of South Dakota, stressed to the Senate Judiciary Committee on Jan. 17 that the concern is with severe delinquency cases that administrators, teachers and counselors are not equipped to handle.

“We’re going to have kids who run away or vape or commit petty crimes; we can handle that,” Pogany said. “What we’re really talking about are kids who are repeat offenders involved with serious crimes. I really can’t understand how a student can be arrested on a firearms violation or grand theft auto and then be back in the school system again. It’s not every day, but it’s becoming more prevalent that we hear of these things happening.”

Emma Otterpohl, a deputy public defender in Minnehaha County who specializes in juvenile cases, disputed the notion that a youth on house arrest should not be in a school setting. Sometimes it is a simply a case of having run away from home in the past and requiring greater supervision, she said, rather than an indicator of high-level delinquency.

“Just because you’re on an ankle monitor doesn’t mean you’re automatically a threat or a danger to anyone,” said Otterpohl. “The judge hears all the evidence at the custody hearing and gets updates as the case proceeds. If the judge believed there was a level of threat to the school or the community, it’s less likely that the person would be out in the community. If it’s that serious or violent of an offense, they’re more likely to be held in custody.”

The legislative focus on juvenile corrections comes at a time of increased truancy and disciplinary episodes in schools, according to educators who testified during the summer study. Tom Culver, superintendent of the Avon School District in southeastern South Dakota, told lawmakers that he has seen a “drastic increase in excessive absenteeism” over the past decade and that “there appears to be a lack of consequences” in the juvenile courts.

There were 6,047 truancy complaints filed by South Dakota schools in 2021-22, an increase of nearly 300% from 10 years ago (1,558 in 2011-12), according to the Department of Education. Absenteeism rates have been on the rise since the pandemic, with 6.2% of students missing 30 or more days of instruction in 2021-22, up from 3.4% in 2018-19.

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Rob Monson, executive director of School Administrators of South Dakota, stressed that school officials don’t want to “lock kids up” but would like to see DOC’s other options, such as private placement programs, used more frequently for habitual offenders who could pose a safety risk at schools.

“If you’re saying our juvenile justice tool was successful because we’re not incarcerating as many kids as we have in the past, many people will look and say, ‘Wow, this has been a successful program,’” Monson said. “But looking through a different lens, that of a superintendent or school board member, you might say, ‘Yes, they’re not incarcerated, but these troublemakers are now in our hallways, and we do not have the programming and capacity to work with these students.’”

— This article was produced by South Dakota News Watch, a non-profit journalism organization located online at SDNewsWatch.org.

This article originally appeared on Sioux Falls Argus Leader: Legislators seek update to South Dakota juvenile justice assessment system