CHAPTER 26-8D
JUVENILE JUSTICE--PUBLIC SAFETY IMPROVEMENT
26-8D-1 Definitions.
26-8D-2 Fiscal incentive program for diversion opportunities--Requirements--Allotment of moneys--Report.
26-8D-3 Treatment for juvenile system involved youth.
26-8D-4 Collection and report of treatment program referral and completion data.
26-8D-5 Evaluation and recommendations to improve outcomes for Native American children in juvenile justice system.
26-8D-6 Report of evaluation and recommendations.
26-8D-7 Juvenile Justice Oversight Council established.
26-8D-8 Council--Purpose--Members.
26-8D-9 Council--Sunset--Meetings--Tasks.
26-8D-10 Community response teams--Purpose--Members--Confidentiality of records.
26-8D-11 Promulgation of rules regarding community response teams.
26-8D-12 Report of nonidentifying aggregate data for jurisdictions where community response team established.
26-8D-13 Recipients of community services--Liability.
26-8D-14 Findings of fact and conclusions of law justifying need for extended detention.
26-8D-15 Unified Judicial System semiannual report to oversight council--Contents.
26-8D-16 Unified Judicial System semiannual report to oversight council on probation.
26-8D-17 Placement in group care facility--Performance-based reimbursement--Juvenile corrections facilities to operate programs to achieve treatment goals and release to aftercare.
26-8D-18 Placement in residential treatment center or intensive residential treatment center--Performance-based reimbursement.
26-8D-19 Department of Corrections semiannual report to oversight council--Contents.
26-8D-20 Department of Corrections semiannual report to oversight council on aftercare.
26-8D-21 Juvenile justice detention cost-sharing fund created.
26-8D-22 Participating and nonparticipating counties.
26-8D-23 Reimbursement of participating counties.
26-8D-24 Amount of reimbursement.
26-8D-25 26-8D-25. Repealed by SL 2019, ch 125, § 1, eff. June 28, 2019.
26-8D-1. Definitions.
Terms used in this chapter mean:
(1) "Community response team" or "team," a support team tasked with finding viable community resources to help rehabilitate children alleged to be delinquent and children alleged to be in need of supervision in community-based settings who are at risk for commitment to the Department of Corrections;
(2) "Juvenile cited violation," designated delinquency or children in need of supervision violation handled by law enforcement with the uniform traffic ticket pursuant to § 23-1A-2;
(3) "Juvenile Justice Oversight Council," the council established by § 26-8D-7;
(4) "Quality assured," monitored to determine the extent to which individuals delivering treatment to juveniles are administering that treatment consistently and as designed;
(5) "Recidivism," for the Department of Corrections for the purposes of this chapter, within one year, two years, or three years of discharge from the custody of the Department of Corrections, a juvenile commitment or conviction in adult court for a felony resulting in a sentence to the Department of Corrections. For the Unified Judicial System for the purposes of this chapter, the term means being adjudicated delinquent while on probation or adjudicated delinquent or convicted of a felony in adult court within one year, two years, or three years after discharge from juvenile probation;
(6) "Risk factors," characteristics and behaviors that, when addressed or changed, affect a child's risk for committing delinquent acts. The term includes prior and current offense history, antisocial behavior, antisocial personality, attitude and thinking about delinquent activity, family dysfunction, low levels of education or engagement in school, poor use of leisure time and recreation, and substance abuse;
(7) "Specialized transition services," independent living; foster care; respite; crisis stabilization; short-term assessment; a residential setting intended to transition the juvenile from a residential treatment center, intensive residential treatment center, or more restrictive group care or juvenile corrections facility; or other transitional setting authorized by the secretary of the Department of Corrections;
(8) "Treatment," when used in a juvenile justice context, targeted interventions that utilize evidence-based practices to focus on juvenile risk factors, to improve mental health, and to reduce the likelihood of delinquent behavior; and
(9) "Validated risk and needs assessment," a tool scientifically proven to identify factors for delinquency and predict a child's risk to reoffend.
Source: SL 2015, ch 152, § 1; SL 2023, ch 87, § 1.
26-8D-2. Fiscal incentive program for diversion opportunities--Requirements--Allotment of moneys--Report.
The Department of Corrections shall provide a fiscal incentive program to incentivize county use of diversion opportunities. To receive funding from the fiscal incentive program, a county must submit an application to the department before September first of each year.
The application must include data on the number of children annually referred by the county to a diversion program and the number of children referred that successfully complete a diversion program. For each child referred to diversion, the application must specify the type of program or type of diversion the child was referred to, the name and location of each diversion provider, and whether the child completed the diversion program.
Each qualifying county shall receive an allotment of funds based on the number of children referred by the county that complete a court-approved diversion program at a rate of seven hundred and fifty dollars per child. If the number of children completing a diversion program statewide results in an amount that exceeds the allotted funds, the allotted amount for each county must be prorated. The department shall transfer payments to counties on or about November first each year.
The department shall report data collected from participating counties semiannually to the Juvenile Justice Oversight Council.
Source: SL 2015, ch 152, § 5; SL 2024, ch 100, § 1.
26-8D-3. Treatment for juvenile system involved youth.
The Department of Social Services may provide for and implement treatment for juvenile system involved youth. The Department of Social Services, in coordination with the Department of Corrections and Unified Judicial System, shall identify community-based treatment to be made available to juveniles with justice system involvement based on the needs of the youth. The Unified Judicial System and the Department of Corrections shall annually provide aggregated risk factor data to the Department of Social Services. Any treatment identified for implementation shall be quality assured and shown through research or documented evidence to reduce recidivism and other juvenile risk factors.
In cooperation with the Department of Corrections and the Unified Judicial System, the Department of Social Services shall establish a juvenile treatment referral process incorporating a risk and needs assessment tool for use by the Unified Judicial System and Department of Corrections, and supplemental mental health and substance abuse screening tools.
The Department of Corrections and Unified Judicial System shall use a validated risk and needs assessment, and either a mental health or substance abuse assessment, or both, if the risk and needs assessment indicates a mental health or substance abuse issue, to guide referrals to interventions identified under this section, consistent with the process established by the Department of Social Services.
Source: SL 2015, ch 152, § 6.
26-8D-4. Collection and report of treatment program referral and completion data.
The Department of Social Services shall collect data, in the aggregate and by provider, on the number of juveniles referred to treatment, the number and percent of juveniles completing treatment and not completing treatment for juveniles receiving treatment paid for by the Department of Social Services pursuant to this chapter. The Department of Social Services shall report this information semiannually to the oversight council and regularly review the information, data, and other performance measures with the Unified Judicial System and Department of Corrections.
The Department of Social Services shall provide the Unified Judicial System and Department of Corrections with treatment program referral and completion data in the aggregate, by provider, and on the individual level.
Source: SL 2015, ch 152, § 7, eff. Jan. 1, 2016.
26-8D-5. Evaluation and recommendations to improve outcomes for Native American children in juvenile justice system.
The Department of Tribal Relations, in coordination with necessary state agencies, treatment providers, law enforcement, and stakeholders, shall evaluate and make recommendations to the oversight council to improve outcomes for Native American children in the juvenile justice system. Options for consideration may include sharing of treatment resources, information sharing about children under probation supervision, and joint supervision.
Source: SL 2015, ch 152, § 8.
26-8D-6. Report of evaluation and recommendations.
The Department of Tribal Relations shall report to the oversight council by December 31, 2016, the progress of the evaluation required by § 26-8D-5. The Department of Tribal Relations shall submit its final recommendations to the oversight council, the Governor, the Chief Justice, and the Legislature by July 1, 2017.
Source: SL 2015, ch 152, § 9.
26-8D-7. Juvenile Justice Oversight Council established.
There is hereby established a Juvenile Justice Oversight Council responsible for monitoring and reporting performance and outcome measures related to the provisions set forth in this chapter.
Source: SL 2015, ch 152, § 11.
26-8D-8. Council--Purpose--Members.
The Juvenile Justice Oversight Council is created for the purpose of providing an independent review of the state juvenile justice system and providing recommendations to the Legislature, Governor, and Chief Justice. The oversight council consists of the following nineteen members:
(1) The Governor shall appoint the following six members:
(a) A representative from the Department of Corrections;
(b) A representative from the Department of Social Services;
(c) A representative from a youth care provider;
(d) A representative from the Department of Tribal Relations;
(e) A member of law enforcement; and
(f) One at-large member;
(2) The Chief Justice shall appoint the following six members:
(a) A juvenile justice defense attorney;
(b) Two circuit court judges;
(c) A juvenile court services officer;
(d) A representative from the State Court Administrator's Office; and
(e) One at-large member;
(3) The president pro-tempore of the Senate shall appoint the following two Senators:
(a) A member of the Senate Judiciary Committee; and
(b) One other member of the Senate;
(4) The speaker of the House of Representatives shall appoint the following two Representatives:
(a) A member of the House Judiciary Committee; and
(b) One other member of the House of Representatives;
(5) The South Dakota Superintendent's Association shall appoint one representative from a large school district and one representative from a small school district; and
(6) The attorney general shall appoint one state's attorney.
The oversight council shall select a chair and a vice chair every two years. Appointed members shall serve two-year terms and may be reappointed.
Source: SL 2015, ch 152, § 12; SL 2016, ch 146, § 3, eff. Mar. 25, 2016; SL 2023, ch 88, § 2.
26-8D-9. Council--Sunset--Meetings--Tasks.
The oversight council terminates on June 30, 2031, unless the Legislature continues the oversight council for a specified period of time. The oversight council shall meet semi-annually or at the call of its chair or at the request of a majority of its members. The oversight council may:
(1) Review the juvenile justice system for changes that improve public safety, reduce recidivism, hold youth accountable, provide better outcomes for children and families, and control juvenile justice costs;
(2) Review performance measures and outcome measures required by this chapter and proposed by the Department of Corrections, Unified Judicial System, and Department of Social Services, and recommend any additional measures needed to identify outcomes in the juvenile justice system;
(3) Review performance measures and outcome measures submitted semiannually by the Department of Corrections, Unified Judicial System, and Department of Social Services pursuant to §§ 26-8D-4, 26-8D-12, 26-8D-15, 26-8D-16, 26-8D-19, and 26-8D-20;
(4) Review efforts by the Department of Social Services to ensure delivery of treatment in rural areas and related performance measures, and statewide availability of evidence-based programs and practices involving cognitive behavioral health and family therapy programs for justice-involved youth;
(5) Assess implementation and infrastructure to support the sustainability and fidelity of evidence-based juvenile justice programs, including resources for staffing;
(6) Track progress and make recommendations to improve outcomes for Native American children in the juvenile justice system;
(7) Review the payments of the diversion incentive program to counties, pursuant to § 26-8D-2, and performance-based reimbursement payments to group care and residential treatment centers pursuant to §§ 26-8D-17 and 26-8D-18;
(8) Review training related to juvenile justice for educators, law enforcement, probation, attorneys, corrections, program providers, and judges;
(9) Review proven truancy and diversion models and best practices and make recommendations for statewide implementation; and
(10) Prepare and submit an annual summary report of the performance and outcome measures that are part of this chapter and any recommendations for improvements related to juvenile justice to the Legislature, Governor, and Chief Justice.
Source: SL 2015, ch 152, § 13; SL 2020, ch 109, § 1; SL 2023, ch 88, § 1.
26-8D-10. Community response teams--Purpose--Members--Confidentiality of records.
The presiding judge of each judicial circuit may appoint one or more community response teams to assist judges by recommending viable community-based interventions for children alleged to be delinquent and children alleged to be in need of supervision. Each team appointed must include the court services officer in the jurisdiction where the team is to operate, a representative of a public school district in which the team is to operate, and designees of the secretaries of the Departments of Social Services and Corrections. Each team may include one or more representatives of the public. The Unified Judicial System shall maintain a record of the membership of each team and report nonidentifying data to the oversight council. The team may operate telephonically or through electronic communications.
The records prepared or maintained by the team are confidential. However, the records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the Unified Judicial System in the course of their duties; the attorney for the child and child's parents, guardian, or other custodian; the state's attorney prosecuting the case; and to any person specifically authorized by order of the court. The record of the team may only be released to a third party upon good cause shown to the satisfaction of the court that the release is necessary and the information contained in the record is not available elsewhere.
Source: SL 2015, ch 152, § 14, eff. Jan. 1, 2016; SL 2023, ch 87, § 2.
26-8D-11. Promulgation of rules regarding community response teams.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding formation of a community response team and the procedures to be followed by the team.
Source: SL 2015, ch 152, § 15, eff. Jan. 1, 2016.
26-8D-12. Report of nonidentifying aggregate data for jurisdictions where community response team established.
The Unified Judicial System shall provide semiannually to the oversight council the following nonidentifying aggregate data for any jurisdiction where a community response team has been established:
(1) Number of referrals to the team by each judicial circuit;
(2) The number and percent of referrals by each judicial circuit where the team recommendation is provided;
(3) The number and percent of cases where the team located a community based alternative;
(4) The recommendation of the team for each case; and
(5) The disposition of the court.
Source: SL 2015, ch 152, § 18, eff. Jan. 1, 2016.
26-8D-13. Recipients of community services--Liability.
Any child required to participate in a community service program is not an agent or employee of the recipients of these services. Any recipient of community service, described in §§ 26-8C-7 and 26-8B-6, does not have to provide the child with reemployment assistance insurance pursuant to title 61 nor with workers' compensation insurance pursuant to title 62. Each recipient and the recipient's officers, agents, and employees are immune from any cause of action for civil damages brought by the child, parents, guardians, or any third party if the cause of action arises from any act of commission or omission by the recipient or any of its officers, agents, or employees or any act of commission or omission by the child and the acts arise out of or are in connection with a community service program, except if the cause of action is the result of gross negligence or willful and wanton misconduct of the recipient or its officers, agents, or employees and except to the extent that the recipient has purchased liability insurance. Nothing in this section relieves any individual child from responsibility for the child's individual acts.
Source: SL 2015, ch 152, § 21; SL 2019, ch 216, § 33.
26-8D-14. Findings of fact and conclusions of law justifying need for extended detention.
If a judge orders more than fourteen days of detention in a thirty-day period pursuant to § 26-8C-7 or 26-8B-6, the court shall enter findings of fact and conclusions of law to include in the dispositional decree justifying the need for extended detention.
Source: SL 2015, ch 152, § 22.
26-8D-15. Unified Judicial System semiannual report to oversight council--Contents.
The Unified Judicial System shall report semiannually to the oversight council:
(1) The number of juvenile probation admissions;
(2) The number of juveniles for whom a request for extension is made;
(3) The number and percent of juveniles for whom extensions are granted;
(4) The number of requests for extension;
(5) The number and percent of requests granted;
(6) The reason for discharge and length of probation for juveniles discharged from supervision; and
(7) The recidivism rate.
The Unified Judicial System shall report semiannually to the oversight council the number of children placed in a detention facility pursuant to subdivisions 26-8C-7(5) and 26-8B-6(3) and the duration of each detention stay. The Unified Judicial System shall report semiannually to the oversight council the number of children eligible for informal adjustment and informal action pursuant to § 26-7A-11.1, and the number and percent of children for whom good cause is found for the state's attorney to proceed on a petition if the child is otherwise eligible for informal adjustment and informal action pursuant to § 26-7A-11.1. The Unified Judicial System shall report semiannually to the oversight council the number of children summoned to court on a juvenile cited violation pursuant to § 26-7A-126, the number of children summoned to court on a juvenile cited violation referred for informal adjustment and informal action pursuant to § 26-7A-127, and the number petitioned under § 26-7A-127.
Source: SL 2015, ch 152, § 24, eff. Jan. 1, 2016.
26-8D-16. Unified Judicial System semiannual report to oversight council on probation.
The Unified Judicial System shall report semiannually to the oversight council the number and percent of juvenile probationers who received a graduated response, the number and percent of juvenile probationers receiving a formal allegation of a probation violation, the number and percent of juveniles whose probation is revoked, and the action taken as a result of the revocation.
Source: SL 2015, ch 152, § 26, eff. Jan. 1, 2016.
26-8D-17. Placement in group care facility--Performance-based reimbursement--Juvenile corrections facilities to operate programs to achieve treatment goals and release to aftercare.
The Department of Corrections, pursuant to the provisions of chapter 26-11A and § 26-8C-7 or 26-8B-6, may place a child in a group care center operated and maintained by a nonstate entity only in accordance with a performance-based reimbursement rate structure as provided in the provider contract and as provided by this section.
If a provider is able to substantially accomplish the treatment goals and release a child from group care within the performance expectation period, a performance-based reimbursement payment shall be included in the payment allocation. The maximum performance-based reimbursement payment shall be allocated when a provider is able to substantially accomplish the treatment goals and release a child within three months. A diminished performance-based reimbursement payment shall be allocated when a provider is able to substantially accomplish the treatment goals and release a child in more than three months but less than four months. The performance-based reimbursement payment is in addition to the provider reimbursement rate as established by the Department of Social Services.
The Department of Corrections shall determine the need for placement in a group care facility upon admission and review the placement monthly thereafter. Upon finding that the child is no longer in need of placement, the child shall be released to aftercare pursuant to § 26-11A-12. If the child cannot be released to aftercare at no fault of the provider, a performance-based reimbursement payment shall be added to the payment allocation as long as the provider otherwise qualifies for that payment.
If a provider terminates a child prior to substantial completion of the treatment goals and the Department of Corrections transfers the child to another facility, the transferring provider does not qualify for a performance-based payment under this section for that child.
Juvenile corrections facilities maintained and operated by the Department of Corrections shall design and operate programs to achieve substantial accomplishment of treatment goals and the release to aftercare within three months.
Specialized transition services are exempt from the performance-based reimbursement rate structure.
After January 1, 2019, the Department of Corrections may promulgate rules, pursuant to chapter 1-26, to continue or create additional or alternative performance-based reimbursement period timeframes.
Source: SL 2015, ch 152, § 32, eff. Jan. 1, 2016.
26-8D-18. Placement in residential treatment center or intensive residential treatment center--Performance-based reimbursement.
The Department of Corrections, pursuant to the provisions of chapter 26-11A and § 26-8C-7 or 26-8B-6, may place a child in a residential treatment center or intensive residential treatment center only in accordance with a performance-based reimbursement rate structure as provided in the provider contract and provided by this section.
If a provider is able to substantially accomplish the treatment goals and release a child from residential or intensive residential treatment within the performance expectation period, a performance-based reimbursement payment shall be added to the payment allocation. For those providers that substantially meet the treatment goals and release within three months, a maximum performance-based reimbursement payment shall be added to the payment allocation. For those providers that substantially meet the treatment goals and release within five, seven, or nine months, a diminished performance-based reimbursement payment, which decreases as length of stay increases, shall be added to the payment allocation.
The provider contracts shall provide how the Department of Corrections may use state general fund dollars in the performance expectation allocation. The performance-based reimbursement payment is in addition to the provider reimbursement rate as established by the Department of Social Services.
The Department of Corrections shall evaluate monthly the need for continued placement in a residential treatment center or intensive residential treatment center. Upon a finding that the child is no longer in need of placement, the child shall be released to aftercare pursuant to § 26-11A-12 or specialized transition services. If the child cannot be released to aftercare at no fault of the provider, a performance-based reimbursement payment shall be added to the payment allocation as long as the provider otherwise qualifies for that payment.
If a provider terminates a child prior to substantial completion of the treatment goals and the Department of Corrections transfers the child to another facility, the transferring provider does not qualify for additional performance-based reimbursement payment under this section for that child.
After January 1, 2019, the Department of Corrections may promulgate rules, pursuant to chapter 1-26, to continue or create additional or alternative performance-based reimbursement period timeframes.
Source: SL 2015, ch 152, § 33, eff. Jan. 1, 2016.
26-8D-19. Department of Corrections semiannual report to oversight council--Contents.
The Department of Corrections shall report semiannually to the oversight council the number of children committed, number of recommitments, the average length of stay in residential placement in total and by provider, and average length of commitment among children discharged from the Department of Corrections.
Source: SL 2015, ch 152, § 34.
26-8D-20. Department of Corrections semiannual report to oversight council on aftercare.
The Department of Corrections shall report semiannually to the oversight council the number and percent of juveniles violating aftercare, the number and percent of juveniles whose aftercare is revoked, and the action taken as a result of the revocation.
Source: SL 2015, ch 152, § 36.
26-8D-21. Juvenile justice detention cost-sharing fund created.
The juvenile justice detention cost-sharing fund is hereby created in the Department of Corrections for the purpose of assisting counties with increased costs due to increased juvenile detention expenses paid by counties.
Source: SL 2015, ch 152, § 42.
26-8D-22. Participating and nonparticipating counties.
Any county that provides the Department of Corrections with documentation showing juvenile detention bed days paid by the county for calendar years 2013, 2014, and 2015 by March 1, 2016, is considered a participating county. All other counties are nonparticipating counties. A nonparticipating county may become a participating county in subsequent years by submitting the data in this section and complying with the requirements in § 26-8D-23.
Source: SL 2015, ch 152, § 43.
26-8D-23. Reimbursement of participating counties.
Beginning on March 1, 2017, and March first of each year thereafter, each participating county shall submit to the Department of Corrections the number of juvenile detention bed days paid by the county in the preceding calendar year. Only a participating county is eligible for reimbursement from the juvenile justice detention cost-sharing fund. The participating counties shall be determined on an annual basis.
Source: SL 2015, ch 152, § 44.
26-8D-24. Amount of reimbursement.
The Department of Corrections shall compare the number of detention bed days each county paid in the preceding calendar year to the average number of detention bed days paid in calendar years 2013, 2014, and 2015. If the days paid in the calendar year in question exceed the average, the Department of Corrections shall pay the county two hundred dollars per day for each day exceeding the average. If the amount owed the participating counties exceeds the amount of money in the fund, the amount reimbursed per bed day shall be prorated to fulfill all requests.
Source: SL 2015, ch 152, § 45.
