Special session could resolve or inflame years of debate about SD’s pre-statehood penitentiary

The South Dakota State Penitentiary in Sioux Falls, as seen on Jan. 9, 2023. (John Hult/South Dakota Searchlight)

When the South Dakota Legislature convenes for a special session Tuesday at the Capitol in Pierre, lawmakers will again be asked to answer a question that’s swirled for decades: Is it time to close the oldest parts of the state penitentiary?

A “yes” would mean a green light for the most expensive capital project ever funded by the state’s taxpayers.

A “no” could drag debate on the future of the 144-year-old building known as “the Hill” into another legislative session this winter.

Either answer will ripple through a state correctional apparatus that’s been subject to increasing scrutiny for the past four years.

The stakes, the stage

Republican Gov. Larry Rhoden needs two-thirds of lawmakers in each legislative chamber to approve his plan for a 1,500-bed, $650 million men’s prison in an industrial area in Sioux Falls. The state Constitution requires a two-thirds majority vote for spending bills.

Rhoden expects to have enough funding to build the prison without taking on any debt, due to money lawmakers have put into an incarceration construction fund the past several years and interest earned on that money.

On Labor Day, Corrections Secretary Kellie Wasko told Rhoden she’d resign on Oct. 20. Rhoden said he supported her, but also said he understood that her decision could help the prison win the support of the lawmakers who wanted her gone. 

Since then, the governor has released the prison’s layout, added answers to a prison-focused Frequently Asked Questions page and held phone calls with lawmakers to make his case. Last week, he pledged to create a rehabilitation task force if lawmakers say yes to the prison legislation, released a plan that says the prison will cost $154 million less than the one he couldn’t convince lawmakers to vote for in February, and released a letter from contractors guaranteeing a $650 million maximum price.

Ryan Brunner, an adviser to Rhoden, wrote a column addressing what he called “myths” about the project that delved into some of the same areas.

A Democratic lawmaker, Rep. Kadyn Wittman of Sioux Falls, wrote a column urging lawmakers to consider rehabilitation and new models for corrections.

Meanwhile, a cadre of state lawmakers called The Freedom Caucus pledged to oppose the prison, and at least one 2026 gubernatorial candidate — Republican Aberdeen businessman Toby Doeden — has done the same. 

On Friday, the Freedom Caucus said Rhoden’s rehabilitation task force should do its work before lawmakers vote on a new prison.

Another lawmaker, former corrections secretary and Republican Rep. Tim Reisch of Howard, wrote a column backing Rhoden’s plan. Three weeks ago, he was one of 19 House members who said they no longer trusted Wasko to lead the charge for a new prison. 

Path to prison began with Noem, but discussion predates her

Rhoden’s Frequently Asked Questions page points to 2021 as the starting line for the current discussions. 

That’s the year former Gov. Kristi Noem terminated penitentiary leadership at the Department of Corrections for alleged nepotism and accusations of harassment. No one was charged criminally, but the move quickened discussions about staff shortages and operational inefficiencies at the penitentiary, which was built prior to South Dakota statehood in 1881.

Governor announces $17 million deal for Sioux Falls prison site, subject to legislative approval

Questions about the building’s age, design deficiencies and capacity predate the Noem administration, however. 

During his first stint in the governor’s office in the 1980s, Bill Janklow successfully pushed to turn the former University of South Dakota campus in Springfield into the medium security facility now known as Mike Durfee State Prison. That decision was driven in part by an order from a federal judge to deal with overcrowding at the penitentiary, but also by the lack of suitable space for lower-risk inmates.

The state added maximum and minimum security units to the Sioux Falls penitentiary’s footprint during Gov. George S. Mickelson’s time in office. Those buildings would remain in service if lawmakers opt to build a new facility. 

In 2013, then-Gov. Dennis Daugaard championed a criminal justice reform package designed, at least in part, to keep enough people out of prison and under community supervision to forestall a penitentiary replacement. 

The state’s prison population never hit the 4,500-inmate figure Daugaard warned it might without his reforms, but growth didn’t cease. By the time Noem took office, the average daily population had hit highs of 3,900 — about 200 more than the 2013 average.

After the 2021 staff shakeup, the state commissioned a facilities assessment from a firm called the DLR Group. It concluded that the penitentiary was outdated, overcrowded and needed replacing. It also called for an additional women’s prison and listed more than a dozen other facility-related needs.

Lawmakers voted to begin putting money into an incarceration construction fund in 2022, and the year after that agreed to build a medium-security women’s prison in Rapid City.

Men’s prison location sparks controversy

The new women’s prison saw little pushback. That project, with a price of $87 million, broke ground in Rapid City on Oct. 16, 2023, and is still under construction.

One of the first whiffs of trouble for the men’s prison came 10 days earlier. That’s the day the Department of Corrections announced it would transfer $8 million to the state’s Office of School and Public Lands to secure title to 320 acres of agricultural land in southern Lincoln County for what it hoped would be a 1,500-bed facility.

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The land’s neighbors said they weren’t notified and had no input before the announcement. They’d soon form a nonprofit organization called Neighbors Opposed to Prison Expansion and sue the state in an attempt to force it to comply with local zoning rules. Its members held public meetings and testified against the project in Pierre, where lawmakers in 2024 continued putting money into the incarceration construction fund and approved spending for water and sewer infrastructure for a men’s prison.

The group of neighbors earned the backing of the lawmakers in their legislative district, including Sen. Kevin Jensen and Rep. Karla Lems, both Republicans from Canton. Lems voted against the 1,500-bed, $825 million prison on the Lincoln County site in February, contributing to a 35-35 tie that sunk the bill in the state House before it could reach the Senate. 

Jensen has said publicly that he plans to vote against the $650 million version on Tuesday.

Task force, consensus, remaining issues

Jensen’s the co-lead of a legislative summer study on recidivism, which aims to find ways to reduce the state’s inmate population by reworking prison operations and rehabilitation programs.

Lems has said that building a new prison without knowing if the state can reduce its need for beds might be “putting the cart before the horse.”

Lems, but not Jensen, served on Rhoden’s Project Prison Reset task force. That group, convened by Rhoden in the wake of the February prison vote failure, set the wheels in motion for the $650 million prison on the table this week. 

State lost $21 million on failed Lincoln County prison site, governor’s office says

The two Canton voices echo concerns raised by several other lawmakers. Among them are Wittman, the Democrat who penned an editorial about the need for a new approach to corrections.

When Rhoden announced his rehabilitation task force last Wednesday, Jensen called it overdue and poorly timed. 

Others question the need to vote this week on a prison they could revisit in three months, during the regular legislative session. Rep. Marty Overweg, R-New Holland, put himself in that camp. Last week, while saying he hadn’t made up his mind yet, he said most lawmakers are “pretty dug in” to their own positions in the run-up to the special session.

Those positions will be revealed Tuesday.

The special session begins when the Senate and House gavel in at 9 a.m. Central time. Rhoden is scheduled to deliver a speech to a joint session of both chambers at 9:30 a.m., after which debate is expected to begin.