Lawmakers want to ditch criminal justice cost estimates

For nearly a decade, the state’s Legislative Research Council (LRC) has produced prison-jail cost estimates for bills that would impact the inmate population.

This session, lawmakers will be asked to repeal the law that requires them.

At least one of the law’s initial backers says that’s a bad idea for taxpayers.

House Bill 1003, the third bill on the House of Representatives docket for the 2023 session, was filed on behalf of the Legislature’s Executive Board. The bill includes an emergency clause, which means it would take effect immediately, rather than on the typical post-session enactment date of July 1.

The bill comes on the heels of a report by the LRC that says it lacks the data sources and time it needs to produce reliable cost estimates, and that some of its previous estimates have proven wildly inaccurate.

“You never get any good information out of them. If you’re not getting anything out of them and it’s taking staff time, it just slows up the work,” said House Speaker Hugh Bartels, R-Watertown, the prime sponsor of House Bill 1003. “And it creates a ton of work for the LRC.”

The report says the South Dakota framework for producing the estimates makes it difficult to produce them, but it does not conclude that repeal is the answer.

The state could take cues from the 19 other states that require cost estimates to improve the numbers, according to Jim Seward of the Council on Criminal Justice, who was an adviser to former Gov. Dennis Daugaard.

“It doesn’t seem wise to me, and it doesn’t seem evidence-based or data-driven to say ‘this is too hard, let’s get rid of it,’” Seward said. “Many other states seem to be doing it, and according to the LRC, they might have a better process.”

Cost calculation part of reform package

The cost estimate mandate was part of 2013’s Senate Bill 70, a massive criminal justice reform package meant to reduce or adjust penalties for nonviolent crimes and refocus the system on rehabilitation and community supervision. Daugaard signed the bill that year; the first of the 251 estimates produced since then appeared the following year.

The requirement has been adjusted since then. Among other tweaks, lawmakers voted to forgo cost estimates in misdemeanor cases.

The LRC’s October report on the estimates includes a rundown of how many had been produced each year and survey results from lawmakers on how the estimates impacted their decision-making. Most lawmakers reported reading the cost estimates and taking them into consideration, but relatively few reported casting a vote for or against a bill based on them.

Some lawmakers apparently bristle at the idea of considering prison and jail costs without some kind of certainty about the numbers.

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“The accuracy of these estimates is very difficult to achieve,” one unnamed lawmaker told the LRC. “There are just way too many variables. It’s easy to dismiss new proposed punishments when we always are concerned about putting a price on it.”

The report also includes a summary of the LRC’s available data sources, its time constraints during session and an explanation of the differences between South Dakota’s protocols and those used in the 19 other states that require cost estimates for criminal justice proposals.

In some states, for example, the department of corrections is responsible for tallying possible costs. In South Dakota, the job falls on the shoulders of the LRC, an agency whose analysts help lawmakers craft bills and answer research questions throughout the session and the year.

Data limitations exist in South Dakota

The LRC faces significant hurdles in producing cost estimates. South Dakota has no centralized database of criminal cases, convictions, jail sentences or prison sentences. That means the LRC’s “rapid response team” is forced to reach out to multiple agencies for data on existing charges before it can extrapolate possible costs of new penalties for existing crimes.

For new crimes, there’s even less data to work with. One bill noted in the report would have enhanced penalties for drug dealers based on convictions in other states.

“While there had been almost 1,000 convictions under the relevant statute … no database of information on their criminal backgrounds, including out-of-state convictions, was available in South Dakota,” the report says.

Of the 251 cost estimates that have been prepared since 2014, just 71 suggested that a bill would have a budgetary impact on prisons and jails. The report includes case studies on five that were ultimately passed and signed into law. Three found an impact, but none materialized after the laws took effect. The remaining two over- and underestimated the cost of the new laws to which they were attached.

The findings might lead lawmakers to conclude that the estimates were inadequate, LRC author Joey Knofczynski wrote.

“The varying results seen can just as simply be attributed to the difficulty of accurately predicting human behavior, particularly criminal behavior, using limited data,” the report says.

Daugaard adviser: Pausing to consider costs worthwhile

Seward was among those who helped craft the 2013 bill that placed the cost estimates on the books. Also on the team were Dusty Johnson, now a U.S. representative, who was chief of staff to Daugaard at the time; and Tony Venhuizen, a newly elected state representative from Sioux Falls who recently stepped down from the Board of Regents.

The group built SB 70 based on a series of intensive work group sessions with members of all three branches of state government, who dove into the state’s criminal justice data with the help of the Pew Charitable Trusts. Pew’s analysis of evidence-based practices fed into a lengthy report on the potential budgetary and public safety consequences if South Dakota continued to incarcerate nonviolent offenders at higher levels than surrounding states.

Corrections costs had ballooned to $100 million by 2011, up from $26 million in 1991. Yet South Dakota’s crime rates weren’t much better than states that spent less.

“South Dakota wasn’t more safe than North Dakota, even though we had more people in prison,” Seward said.

The cost estimate provision was just one piece of the bill, which had the backing of every branch of government and marked one of Daugaard’s most significant legislative victories.

The overarching goal of the bill was to tamp down costs while preserving public safety. But while drug crimes and some other crimes have dropped in recent years, corrections costs have continued to grow.

Gov. Kristi Noem’s proposed corrections budget for fiscal year 2024, not accounting for proposals to build a new women’s prison and budgeting for a new state penitentiary, stands at $125 million – $10 million higher than the previous year.

Seward sees cost estimates as an important part of the legislative process. A study group of public safety stakeholders could use the LRC report as the basis for improving the estimates and bringing the protocols for producing them closer to those used in other states, Seward suggested.

Given that lawmakers have already altered the cost estimate law more than once and that lawmakers themselves reported reading and considering the numbers, Seward sees a fix as more useful than a “knee-jerk” repeal.

“If conservatives don’t want to think about cost, we probably need to have a more foundational discussion,” Seward said. “I think all legislators owe it to their constituents and to the state to take a careful look at corrections costs. They’re a huge part of the state budget.”

Lawmakers: estimates slow legislative process

Sen. Lee Schoenbeck, R-Watertown, who serves as Senate president pro tempore and chairs the Executive Board, is the prime sponsor of HB 1003 in that chamber.

Revising the cost estimate requirement or shifting responsibility to another agency wouldn’t make the estimates worthwhile, Schoenbeck argued, because lawmakers need answers more quickly than any research agency can produce defensible numbers.

It takes several days to produce the estimates for bills or amendments, and all bills need their cost estimates by “crossover day” on Feb. 22, the last day for legislation to pass its house of origin.

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Those time constraints limit the value of a prison-jail impact statement, Schoenbeck said.

“We can tell that there is no way during a 36 or 37 day legislative session, where you need the answer in 48 hours, that you can accurately predict how many people might be incarcerated,” Schoenbeck said. “It’s not physically possible during the session to do that.”

The emergency clause on the bill means that if passed, lawmakers will be able to move through the session without pausing to consider the potential cost of crime-related proposals. That could be meaningful for incoming Sen. Brent Hoffman, R-Sioux Falls, who plans to submit a “truth in sentencing” bill – which Schoenbeck said he supports – that would require inmates to serve 85% of their sentences for violent crimes and 100% of their sentences for murder or manslaughter. Currently, most inmates are parole eligible after serving around a third of their sentences but can be forced to serve longer terms before a chance at parole if they commit violent crimes or have significant criminal histories.

Hoffman’s bill would only apply to newly sentenced defendants. Schoenbeck and Hoffman both acknowledged that judges are likely to adjust their initial sentences downward in light of the new scheme if the bill passes, but there could still be an impact on prison costs.

But both lawmakers said a cost estimate would be more distracting than instructive for bills like Hoffman’s. The proposal is in draft form, but “it’s written to address the greatest concerns of law enforcement and our citizens,” Hoffman said.

“Citizens simply don’t want violent offenders released early only to commit additional violent crimes, as we’ve too often seen in the media,” he said. “There must be serious consequences for serious crimes, and we’re working on it.”

This article originally appeared on Sioux Falls Argus Leader: Lawmakers want to ditch criminal justice cost estimates