PIERRE, S.D. — Following a string of overdose deaths inside South Dakota prisons, state lawmakers have approved a bill that increases penalties for bringing drugs into state prisons and also imposes stricter penalties on inmates who ingest them.
Both the South Dakota House and Senate passed Senate Bill 42, which strengthens penalties for the ingestion, possession with intent to deliver and delivery of controlled substances inside state prisons.
Under the legislation, people who bring alcohol or marijuana into a prison would face a Class 6 felony, while bringing in any prescription, nonprescription drug or controlled substance would be a Class 3 felony.
“The State Penitentiary is a place for rehabilitation and is supposed to be a sober environment,” said Rep. Tim Walburg, R-District 8. “While rehabilitation is important, so is the accountability for individuals who use and encourage the use of controlled substances while in the penitentiary. It jeopardizes everyone’s chances to succeed and to be held accountable.”
While no one disputed the increased penalties for those trafficking drugs into prisons during the House’s vote, discussion did surround increasing penalties for those ingesting illicit drugs while in prison.
Last year, the Legislature reduced first- and second-offense ingestion of controlled substances from a Class 5 felony to a misdemeanor. Supporters of the change said it could help people seek treatment without the long-term consequences of a felony conviction.
Rep. Jim Halverson, R-District 21, said he initially supported that change but now believes it was a mistake.
“I thought that by reducing that penalty to a misdemeanor, they could go get help,” Halverson said. “But I was wrong as I thought about it. The only way they can get to those places is if they go through a circuit court system, which is going to require a felony on their record.”
Under the new bill, inmates who ingest illicit drugs inside state correctional facilities would once again face a Class 5 felony charge.
Walburg said the change is needed because misdemeanor penalties are difficult to enforce for inmates already under the supervision of the Department of Corrections.
“No punishment currently exists for these crimes under South Dakota state law,” Walburg said. “This is because an inmate or parolee cannot be punished for a misdemeanor under this conviction, as inmates and parolees cannot legally serve county jail time or be supervised by probation while simultaneously under the Department of Corrections for parole.”
The House approved the bill on a 55-11 vote. Rep. Kadyn Wittman, D-District 15, was among those opposed.
“My concern is with individuals who are struggling with substance use disorder, using again, and then having an additional felony and an additional penalty put on top of them,” Wittman said. “I fear that we are further penalizing individuals who are struggling with addiction.”
As Emily’s Hope previously reported, eight people died from drug overdoses inside South Dakota prisons in 2025. Attorney General Marty Jackley, who sponsored the bill, said stronger penalties are needed to deter drugs from entering correctional facilities. Charges have been filed in four of the eight deaths.
The bill now heads to the governor’s desk.
