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At 31 years old, Nick Tischler has spent nearly a third of his life in prison for drug charges.

In a letter he sent to The Daily Republic recently, Tischler wrote that if presumptive probation had been in place when he was first sentenced at age 18, he might have been able to get treatment, rather than being sent somewhere he said did not rehabilitate him.

“The years in the penitentiary taught me the code of conduct, taught me the rules to survive in prison,” Tischler wrote from the Davison County Jail. “What it did not do is prepare me for the real world. It has absolutely crippled me, chastised me; realistically, it institutionalized me.”

Presumptive probation was one of many changes made to the state’s criminal justice system as part of Senate Bill 70, also known as the Public Safety Improvement Act, which was passed in 2013. Now, it’s written into South Dakota law that courts are to sentence people convicted of a Class 5 or 6 felony to probation, unless there are aggravating circumstances in the case or if the person being sentenced is otherwise ineligible for probation.

Tischler was discharged from the Department of Corrections in May of 2018 but was arrested a total of four times in November and December. He’s now spent several months in the Davison County Jail as he awaits trial for charges of possession of a controlled substance, forgery and possession of an invalid license.

“If I was condemned at 18 years old to be broken and penitentiary bound, should one expect a rehabilitated me or a broken me after 10 years inside the South Dakota (State) Penitentiary?” Tischler wrote.

South Dakota Attorney General Jason Ravnsborg has made repealing presumptive probation one of his top priorities since he took office in January, arguing that the statute restricts power from law enforcement and courts.

But Senate Bill 19, which would have been a step toward implementing the repeal, failed with an 18-12 Senate vote on Feb. 22.

Ravnsborg told The Daily Republic in December, before he took office, that he admired SB 70’s goal of decreasing the state’s prison population, but that it had not been effective. He also said that by repealing presumptive probation, he hoped to use the possibility of prison time to incentivize lower-level drug offenders to work with law enforcement to track down and put away drug dealers.

Legislators estimated prior to the vote on SB 19 that repealing presumptive probation would cost the state an additional $4 million per year to house additional inmates, and with current facilities nearing capacity, an additional prison would have to be constructed, at an estimated cost of $14 million.

Ron Freeman, chief court services officer for South Dakota’s First Judicial Circuit, said that he’s seen an uptick in the number of people on probation in the circuit since SB 70 was passed, estimating the number of those on probation has increased by about 10 to 15 percent.

“I think we would definitely see an increase in the number of offenders sentenced to the penitentiary and, from what I am hearing, most likely a need for the state to build additional prison space,” Freeman said on what might happen if presumptive probation were repealed.

Freeman said that in fiscal year 2017, it cost $75.83 per day to house one inmate in the South Dakota State Penitentiary. Some of the state’s other facilities, however, cost significantly less.

In South Dakota, people on probation don’t have to pay supervision fees on top of their court-ordered fines and other payments, but the average daily cost to supervise someone on probation is $3.74, according to Freeman

As of Feb. 12, 13.64 percent of the state’s prisoners were incarcerated for possession of a controlled substance in schedules I or II, a Class 5 felony which includes the possession of drugs such as methamphetamine, according to the South Dakota Department of Corrections. More people are in prison for that charge than for any other.

The next most-represented charge in South Dakota’s prisons is unauthorized ingestion of a controlled substance in schedules I or II – also a Class 5 felony – of which an additional 9.48 percent of all inmates were convicted.

For those two charges, 890 people are currently serving time in one of South Dakota’s prisons – more than are incarcerated for rape, robbery, murder, manslaughter and burglary combined.

In total, drug offenders make up just under a third of the state’s current prison population, and 82 percent of those offenders are serving time for violating one of South Dakota’s 15 Class 5 or 6 felony drug statutes.

At the end of January, there were 2,930 people in South Dakota on either parole or supervision for a suspended sentence, meaning about 43 percent of people who have been convicted of a crime and haven’t yet completed their sentences are not currently serving prison time.

Freeman said that although slightly more people may be on probation now, because the Department of Social Services administers many of the community-based treatment programs implemented by SB 70, such as drug courts, Cognitive Behavioral Interventions for Substance Abuse (CBISA) and Moral Reconation Therapy (MRT), court services has not seen a drastic change in workload.

Freeman thinks it’s beneficial to send people to treatment programs rather than prison, though it depends on the person.

“People need to remember that prisons are for punishment,” he said. “Drug Court programs are intended to provide rehabilitation in the community with the additional expectation of accountability.”

Since May 2015, 25 people have graduated from the James Valley Drug and DUI Court, which meets regularly in Davison County. Of those 25, two are currently in prison for offenses committed after their graduation, and one is currently awaiting sentencing for drug charges.

Freeman also said that while presumptive probation does place some restrictions on sentencing, most people who have been placed on probation under it would have been placed on probation anyway if presumptive probation were not in place, and those who violate probation or commit subsequent offenses are not exempt from going to prison.

“Some of the folks that are on presumptive probation are under the impression that, ‘Well, I can’t go to the penitentiary because I’m on presumptive probation, and the court doesn’t have a choice,'” Freeman said. “Well we do have a choice, and if you aren’t going to follow the rules and we bring you back into court on a probation violation maybe once or twice, eventually the judge will get tired of seeing you, and you will go to the penitentiary.”