On the evening of Jan. 9, 2025, people form a line at a Pennington County office in Rapid City just prior to 6 p.m., the beginning of testing hours for the 24-7 Sobriety program. Participants in the program submit to monitoring, such as urinalyses or breath tests, as part of their release from jail while awaiting trial or as part of their sentence. (Photo by Seth Tupper/South Dakota Searchlight)
South Dakota’s second most populous county has agreed it will no longer jail people who can’t afford to pay the daily fees attached to the state’s signature sobriety program.
Pennington County’s settlement in a federal class action lawsuit could impact the way counties operate the 24-7 program, which originated in South Dakota and has since spread to other states.
People accused of crimes involving drugs or alcohol can be assigned to the program and released as they await trial, or as part of their sentence, on the condition they submit to sobriety monitoring and pay for it.
The participation price varies based on the type of monitoring involved and how long a person takes part. Some people pay $2 a day for breath testing, while others pay $30-$42 a week for urinalysis drug testing or alcohol monitoring bracelets. Judges also permit participants to shift from one method to another along the way to better suit their financial or life circumstances.
Some people remain on the program for weeks or months, and occasionally for a year or more, depending on how long it takes for their case to work its way through the court system.
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The Pennington County settlement comes in a lawsuit filed in 2023 by a Rapid City man named Ricky Lookingback, who’d been ordered to participate in drug testing.
He was jailed for failure to pay a 24-7 fee, which he argued was a violation of constitutional prohibitions on jailing people for debt. He also alleged that he belonged to a class of individuals who’d been jailed for the same reason in Pennington County, and asked for a judgment on behalf of all class members.
Under the terms of the agreement, Lookingback and 37 others jailed for inability to pay program fees are members of the class and are each eligible for cash payments, with Lookingback in line for $10,000 and the others for $1,000 each. The settlement also dictates that no one can be jailed or threatened with jail time for their inability to pay program fees.
Class members will have the opportunity to object to the terms of the settlement at a hearing in February. A federal judge can then accept or reject the agreement, which has been signed by Lookingback and county officials.
Jim Leach, Lookingback’s Rapid City lawyer, said the settlement should put all South Dakota counties on notice that jailing the indigent is a civil rights violation and could draw a legal challenge.
“I’ve got nothing against the 24-7 program,” Leach said in an interview with South Dakota Searchlight. “From everything I can gather, it’s a really good program that has helped a lot of people. But nonetheless, the basic constitutional law in this country is that we cannot jail people for poverty.”
24-7 built on frequent testing, participant fees
Under the 24-7 program, testing fees are due at the time of testing or in advance.
In the cheapest and most common form of 24-7, people appear twice daily at a local jail to take breath tests for alcohol, at a cost of $1 per test. Those who fail a test or fail to show up can be put in jail, after which a judge decides whether to release them again.
More than 90,000 people have been on some version of the program since its launch, and hundreds participate every day. Its rollout began as a three-county pilot project in 2005 under the guidance of former Attorney General Larry Long, who’d tried it decades earlier as Bennett County’s state’s attorney.
In testimony before the Legislature in 2022, Long called it “the most efficient tool to reduce DUIs ever enacted in South Dakota.”
Driving under the influence arrests have not dropped dramatically since the program launched, but they also haven’t grown in line with the state’s population, which is 20% higher today than in 2005.
DUI arrests hit 11,612 in 2024, the last full year reported in the Department of Public Safety’s annual summary. That was the highest tally since 2007, the year the 24-7 program went statewide, when there were 11,756 DUI arrests.
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Long stepped down as attorney general in 2009 to become a circuit court judge. In an interview with South Dakota Searchlight, he said DUIs holding more or less steady is a sign that the program works.
The bigger impact, Long said, has been on felony drunken driving charges and alcohol-related traffic crashes.
In 2007, when the program went statewide, there were 1,092 felony DUI charges, each representing a third or subsequent offense. By 2017, the year he retired as a judge, that number had fallen to 699. In the last fiscal year, there were 468 charges for such repeat offenses, according to the Unified Judicial System.
Alcohol-related crashes, meanwhile, hit a record high of 630 in 2006, according to the Department of Public Safety. The highest tally since then was 535, recorded in 2021. In 2024, there were 458 such crashes.
Since its start in South Dakota, versions of the 24-7 program have spread to other states, including North Dakota, Montana, Wyoming, Wisconsin and Utah.
Constitutional concerns about jailing the program’s poorest participants have always been a sticking point, Long said, even for people who’ve generally supported the concept.
The price point for breath tests was set low intentionally, he said, in hopes of making the program accessible to the widest range of people.
From the start, Long advised the county sheriffs who run the programs that an inability to pay shouldn’t be enough to draw immediate sanctions.
“What I used to say during my presentations was ‘if you skip or if you fail, you go to jail,’” said Long. “You don’t go to jail for not paying.”
Long acknowledged, however, that local officials may not have always followed that guidance.
There are no statewide statistics on how many people may have been jailed for failure to pay 24-7 fees, according to the Attorney’s General’s Office, since counties manage their own programs. During debate on a bill to alter the program in 2022, administrators said punishment for failure to pay alone is a rarity, based on reports from counties.
Fees still too much for some
The 24-7 fees may be fairly low, but they’re still more than some people have, said Leach.
Lookingback was and remains homeless, Leach said, and he was placed in a version of 24-7 that required him to take three drug tests each week, at a cost of $10 per test.
Court documents in the case, filed by Pennington County, say Lookingback was released from jail and ordered to sign in to the program and did not on multiple occasions in 2023. On those occasions, the county said, he was sanctioned for failure to appear for testing.
In the fall of that year, he was again ordered into the program. On Sept. 23, 2023, he showed up but didn’t have the $10 needed to pay the fees. As a result, Leach said, Lookingback found himself again incarcerated at the Pennington County Jail.
If a judge accepts the settlement agreement, Pennington County will pay Lookingback $10,000 for that incarceration, and will set aside another $37,000 for the 37 other people who were found to have been jailed for their inability to pay.
Leach will be required to “make reasonable efforts” to contact the 37 people, who were identified in county records obtained over the course of the lawsuit. Any money that goes uncollected, the settlement says, will be given to a nonprofit organization called the Public Justice Debtor’s Project. The New York-based nonprofit works to address issues related to the jailing of defendants for unpaid court fees across multiple jurisdictions.
Leach can ask the judge to order Pennington County to pay attorney’s fees, but the settlement says he’s entitled to none of the money the county’s already promised to pay through the agreement.
Helene Duhamel, spokeswoman for the Pennington County Sheriff’s Department, said in a statement the settlement “clarifies that 24-7 Sobriety Program participants who have not paid the court-ordered fees” won’t be incarcerated.
“Instead, individuals who have not paid the 24-7 Program fees may be reported to the courts or supervising authority,” Duhamel said. “Any sanction decisions for nonpayment would be set by the court.”
A judge can look at each case individually to determine if the person who didn’t pay on a given day truly could not afford to, or if they were able to pay and didn’t. Participants can be sanctioned under the latter circumstance, under the terms of the settlement, but not for a legitimate lack of funds.
The settlement applies to the 37 known members of the class, Leach said, but the class also includes any people who “have been or will in the future be incarcerated in Pennington County, threatened with incarceration or sanctions, based in whole or in part on inability to pay the fees required to participate in the 24-7 Program.”
The county currently has 352 people in the program.
Other counties, statewide impacts
Lucas Oyler, the program’s former state coordinator, told lawmakers in 2022 that an inability to threaten jail for failure to pay might cause county sheriffs, who administer 24-7 tests, to opt out of participating in the program.
Leach said he doubts that. He said the majority of people who wind up involved in the criminal justice system, even those deemed income-eligible for a court-appointed lawyer, are able to pay $2 a day.
“But at the same time, there’s a certain group of people who are just poor,” Leach said, in ways that are “far beyond anything” most people have experienced.
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Minnehaha County Sheriff Mike Milstead was among the first sheriffs to use 24-7, and he’s been following the Pennington County lawsuit closely.
The policy for 24-7 participants in Minnehaha County, he said, is built around an understanding that an inability to pay doesn’t justify an immediate jail stay.
“If a person has been released from jail and ordered by a judge to comply with the 24-7 program as a condition of release but cannot pay,” Milstead wrote in an email to South Dakota Searchlight, “then it is up to the judge to decide whether bond should be revoked, modified, or remain.”
In response to questions from South Dakota Searchlight on how counties ought to proceed in the face of the successful class action lawsuit, Attorney General Marty Jackley issued a statement saying his office intends to let counties decide the right approach.
“While we cannot dictate how an agency operates its program,” Jackley wrote, “we are committed to supporting them in ensuring compliance with state statutes and administrative rules.”
Long, the former attorney general who launched the program, said a case can be made that counties — or even community organizations — would benefit in the long run if they decide to pay 24-7 fees for the indigent, who might be “among the ones who’d most benefit from it.”
Keeping habitual drinkers or drug users sober can reduce visits to the emergency room, Long said, as well as business losses from theft.
“There is some community benefit to keeping these folks sober,” Long said.
EDITOR’S NOTE: South Dakota Searchlight has engaged attorney Jim Leach, who is quoted in this story, in a past legal matter.
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