Cannabis in South Dakota

Cannabis in South Dakota is legal for medical use as of July 1, 2021, having been legalized by a ballot initiative on November 3, 2020.^[1][2] Prior to then, cannabis was fully illegal, with South Dakota being the only U.S. state which outlawed ingestion of controlled substances.^[3] Testing positive for cannabis can be a misdemeanor offense.^[4] South Dakota would have become the first state in US history to legalize recreational and medical cannabis simultaneously, but an amendment legalizing recreational marijuana that was approved in the same election was struck down as unconstitutional the following February. The challenge claimed the amendment violated Amendment Z, the "Single-Subject Rule". The decision was appealed to the South Dakota Supreme Court, which upheld the lower court's decision on November 24, 2021.^[5]

Attempts to delay the implementation of the medical marijuana program to January 2022 failed due to disagreements in the South Dakota state legislature; medical marijuana therefore became legal in July 2021 under the timeframe established in Initiated Measure 26.^[6][7]

South Dakota has one of the harshest cannabis laws in the United States. Possession of any amounts of edibles, hash, and concentrates is a Class 4 felony, punishable by up to 10 years in prison and a fine of up to $20,000.^[8][9]

History

Prohibition (1931)

As part of a larger trend nationwide to restrict cannabis, South Dakota banned the drug in 1931.^[10]

Decriminalization and repeal (1977)

In 1977, during a short-lived wave of decriminalization in the country, South Dakota decriminalized cannabis, but repealed that law "almost immediately" afterward.^[11]

Reform

Medical cannabis attempts (2006–2015)

Ballot initiatives to legalize medical marijuana appeared on the 2006 and 2010 election ballots in South Dakota, but failed both times. The 2006 initiative lost 52%-47%, while the 2010 initiative lost 63%-36%.^[12][13] Cannabis activist Emmett Reistroffer commented that the decrease of support in 2010 was due in part to the rise of the Tea Party movement and the presence of an anti-cigarette smoking bill on the same ballot.^[14]

In mid-2015, there was an effort to place yet another ballot initiative on the 2016 election to legalize medical marijuana, but unlike in 2006 and 2010, the Marijuana Policy Project did not anticipate financially supporting the initiative due to strong cannabis campaigns in other states requiring attention for that election.^[15]

Decriminalization attempt

In mid-2015, South Dakotans Against Prohibition (SDAP) began circulating petitions to put decriminalization of marijuana on the November 2016 ballot, reclassifying possession of 1 ounce (28 g) or less a civil, rather than criminal, infraction, and remove penalties for paraphernalia and consumption.^[16] However, SDAP failed to gather the 13,871 signatures necessary to place an initiated measure on the ballot^[17] and stated it would withdraw its petition.^[18]

2018 medical cannabis ballot initiative

In November 2017, activists turned in over 15,000 signatures, narrowly meeting valid signature requirements, in order to place medical cannabis on the 2018 ballot.^[19] The initiative failed to make the ballot due to an insufficient number of valid signatures. ^[20]

2020 cannabis ballot initiative

South Dakota Initiated Measure 26 was certified by the South Dakota Secretary of State for the 2020 ballot on December 19, 2019.^[21]

A vote on South Dakota Constitutional Amendment A was also held in 2020, which would have legalized the use of recreational marijuana in South Dakota.^[22]

Both measures, coming in effect on July 1, 2021, were passed by voters with a 69.9% margin in favor for Initiated Measure 26 and 54.2% for Constitutional Amendment A, respectively. South Dakota therefore would have become the first state to go from a prohibition state to a legalization state, leapfrogging their way around many obstacles that other states go through to legalize cannabis.^[23]

However, on February 8, 2021, a judge ruled in favor of a lawsuit that argued Amendment A was unconstitutional due to violating the state's single-subject rule for ballot measures. This prevented the legalization of recreational marijuana in South Dakota from going into effect, pending a higher court's decision.^[24] The case was subsequently appealed to the South Dakota Supreme Court, and the defendants submitted their initial arguments on March 10, 2021.^[25]

On November 24, 2021, the South Dakota Supreme Court ruled 4-1 that the Amendment A was unconstitutional, striking down recreational legalization. This decision was reached because of the state's rule requiring proposed constitutional amendments to be single-subject only.^[26]

2022 cannabis ballot initiative

In May 2022, pro-legalization activists in South Dakota collected and submitted enough signatures to put legalization on the November ballot (South Dakota Initiated Measure 27). The group South Dakotans for Better Marijuana Laws (SDBML) organized the petition drive.^[27] In the November 2022 election, the initiative was rejected with 52.92% voting no.^[28]

Recreational legalization on the Flandreau Santee Sioux Tribe reservation

Main article: Cannabis on American Indian reservations § Flandreau Santee Sioux Tribe

In mid-2015, the Flandreau Santee Sioux Tribe, located in eastern South Dakota, stated their intent to begin growing cannabis on one authorized site on their reservation, and commenced selling the product on 1 January 2016, following a vote of tribal authorities which decided 5–1 to legalize cannabis.^[29] Facing legal uncertainties, the tribe destroyed millions of dollars worth of marijuana on November 7, 2015.^[30]

References

1. Sneve, Joe (November 3, 2020). "South Dakotans vote to legalize medical marijuana". Argus Leader. Archived from the original on November 4, 2020. Retrieved November 4, 2020.
2. Sneve, Joe (November 3, 2020). "Recreational marijuana passes in South Dakota". Argus Leader. Archived from the original on November 4, 2020. Retrieved November 4, 2020.
3. Gross, Scott (February 5, 2017). "Only in South Dakota, possession by ingestion". KOTA-TV. Retrieved December 9, 2017.
4. Walker, Mark (May 5, 2016). "Report: S.D. drug laws hurt prison reform efforts". Argus Leader. Retrieved December 9, 2017.
5. The Associated Press (November 24, 2021). "South Dakota's Supreme Court rules against legalization of recreational marijuana". NPR. Retrieved February 6, 2022.
6. . March 10, 2021. Archived from the original on March 10, 2021.
7. Vondracek, Christopher (March 10, 2021). "With South Dakota lawmakers at impasse, medical marijuana program approved by voters in November looking more viable". grandforksherald.com. from the original on March 11, 2021.
8. "Did you know possession of THC edibles is still a felony in SD?". Kolbeck Law Office. March 11, 2019. Retrieved May 16, 2021.
9. "South Dakota Laws and Penalties". NORML. Retrieved May 16, 2021.
10. Richard Davenport-Hines (November 10, 2003). The Pursuit of Oblivion: A Global History of Narcotics. W.W. Norton. pp. 240–. ISBN 978-0-393-32545-4.
11. David R. Bewley-Taylor (March 22, 2012). International Drug Control: Consensus Fractured. Cambridge University Press. pp. 169–. ISBN 978-1-107-37907-7.
12. "South Dakota Medical Marijuana, Initiative 4 (2006)". ballotpedia.org.
13. "South Dakota Medical Marijuana, Initiative 13 (2010)". ballotpedia.org.
14. "Medical marijuana gains a strategy in S.D." Argus Leader. November 23, 2014.
15. Seth Tupper Journal staff. "Medical marijuana: a look at ballot's chances of passage in South Dakota". Rapid City Journal.
16. Kevin Burbach, Associated Press (July 30, 2015). "Campaign to ease South Dakota marijuana laws kicks off". Argus Leader.
17. Kevin Larsen, KCCR Radio (November 1, 2015). . KCCR Radio. Archived from the original on March 4, 2016. Retrieved November 8, 2015.
18. Anndrea Anderson (November 5, 2015). "Ballot Petitions: Some Turned In, Some Still Circulating, One Withdrawn". KDLT TV.
19. "1 of 3 marijuana initiatives passes first hurdle for South Dakota 2018 ballot". The Cannabist. November 7, 2017.
20. "South Dakota Medical Marijuana Initiative (2018)". Ballotpedia.
21. South Dakota Initiated Measure 26, Medical Marijuana Initiative (2020), Ballotpedia. Accessed December 20, 2019
22. "South Dakota voters will decide whether or not to legalize marijuana in the state". Keloland. Retrieved October 30, 2020. South Dakota voters will decide whether or not to legalize marijuana in the state.
23. "Voters in NJ, Arizona, three other states legalize potential $2.5 billion-plus marijuana markets". Marijuana Business Daily. November 4, 2020. Retrieved November 4, 2020. South Dakota made history Tuesday when it became the first state to legalize both medical and adult-use marijuana on the same day.
24. "South Dakota judge rejects amendment legalizing marijuana". Associated Press. February 8, 2021. from the original on February 8, 2021.
25. "Pot advocates make first arguments in Supreme Court appeal". from the original on March 11, 2021.
26. "South Dakota's Supreme Court rules against legalization of recreational marijuana". NPR. November 24, 2021.
27. Jaeger, Kyle (May 3, 2022). "South Dakota Activists Turn In Signatures To Put Marijuana Legalization On The Ballot". Marijuana Moment. Retrieved May 3, 2022.
28. Kang, Taiyler S. Mitchell, Tim Paradis, Hanna. "Results: South Dakota voters reject the legalization of marijuana use for adults". Business Insider. Retrieved May 23, 2023.{{cite web}}: CS1 maint: multiple names: authors list (link)
29. Garcia, Regina (June 17, 2015). "South Dakota Indian tribe plans to sell marijuana by Jan. 1". Thecannabist.co. Retrieved July 12, 2015.
30. "Developing: Santee Sioux Tribe Burning Millions In Marijuana". KELO-TV. November 7, 2015. Retrieved November 7, 2015.