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Law South Dakota


Well-Known Member
South Dakota Jury Acquits Tribal Cannabis Consultant of All Charges

Two years ago, the Flandreau Santee Sioux had high hopes of capitalizing on the collapse of mariuana prohibition by opening a resort where cannabis could be purchased and consumed on their reservation in South Dakota. It all ended in fire and tears as the tribe decided to burn its first cannabis crop rather than risk the wrath of state and federal officials. But yesterday a jury in Flandreau delivered an implicit rebuke to South Dakota Attorney General Marty Jackley, the marijuana resort's leading opponent, by acquitting a consultant who worked on the project of state drug charges.

Last year Jackley got a grand jury to charge Eric Hagen, a 34-year-old cannabis consultant from Colorado, with conspiracy to possess, possession by aiding and abetting, and attempted possession of more than 10 pounds of marijuana. Hagen faced up to 10 years in prison for each of the first two counts and up to seven and half years for the third. His business partner, Jonathan Hunt, had already pleaded guilty to a conspiracy charge. Hunt, who was more involved in the day-to-day operations of the tribe's marijuana grow, said he could not afford to fight the charges against him.

The Flandreau Santee Sioux project was inspired by a 2014 memo in which the Justice Department said it would treat tribally authorized marijuana businesses in Indian country the same as state-licensed marijuana businesses, meaning they would generally be left alone unless they impinged on "federal law enforcement priorities." Since South Dakota does not exercise criminal jurisdiction on Indian lands, except on state highways that traverse reservations, tribal officials figured that members who grew or sold marijuana in compliance with tribal law would not have to worry about state prosecution either.

But as Robert Odawi Porter, a tribal law specialist in Washington, D.C., explained in a 2015 interview, that grace does not extend to people from outside the tribe. "If you're a non-Indian on tribal lands, the state retains its criminal jurisdiction over you," Porter said. "I've been wondering why everybody who is looking to get into this business is called a 'consultant,' and I think it's an effort to distinguish between being a manager, owner, or person in control and a person who is just giving advice. I don't think it's a meaningful distinction to law enforcement."

Porter was right about that. Jackley even claimed that resort customers who were not members of the tribe could be arrested for consuming marijuana on the reservation or for possessing it internally after leaving the reservation. There also were rumors of an impending federal raid on the marijuana grow, notwithstanding the DOJ memo.

During Hagen's trial, his lawyer, Mike Butler, argued that there was no conspiracy, since the tribe openly legalized marijuana and announced its plans for a resort where people could enjoy it. Butler also maintained that Hagen merely offered advice and never actually possessed or sought to possess the marijuana, which belonged to the tribe. The trial lasted four days, and the jurors reached their verdict after deliberating for about two hours.

The fact that Hagen was acquitted in spite of his vulnerability under state law sends a pretty clear message to Jackley, a candidate for governor whom critics accused of grandstanding by making a show of fighting the resort. "He tanked our company by spreading lies and rumors, and it's upsetting," Hagen told the Associated Press. "This was simply a media ploy for Marty because he's running for governor in 2018." Jackley kept his game face, saying, "I do continue to urge our South Dakota tribes to make their own determination that marijuana grows of this nature can affect the public health and safety on their reservations and across our state."

Even as they burned the crop that Hagen helped grow, tribal officials talked about reaching an accommodation that would allow the project to proceed. "Tribal leadership is confident that after seeking clarification from the United States Department of Justice, it will be better suited to succeed," Seth Pearman, the tribe's general counsel, said in a November 2015 statement. "The Tribe will continue to consult with the federal and state governments, and hopes to be granted parity with states that have legalized marijuana. The Tribe intends to successfully participate in the marijuana industry, and Tribal leadership is undaunted by this brief sidestep." With the Justice Department under new, decidedly less weed-friendly management, that dream seems dead for the forseeable future.

Nice to see the fascists lose one.
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Well-Known Member
South Dakota medical marijuana advocate running for Congress

y The Associated Press

SIOUX FALLS, S.D. — A medical cannabis advocate known at the South Dakota Legislature for fighting for a non-intoxicating compound in marijuana to treat his son is planning an independent congressional bid.

George Hendrickson tells the Argus Leader that he hopes a conservative platform and pledge to reject money from political action committees will set him apart.

The 46-year-old from Sioux Falls says he would work to overhaul federal medical marijuana policy and push to consolidate federal agencies.

Related stories
Hendrickson’s son has a rare type of epilepsy, and he has advocated for looser state medical marijuana laws. Hendrickson says he wants to be a more responsive federal representative for residents.

Shantel Krebs and Dusty Johnson are competing in the Republican primary for the seat, while Tim Bjorkman is a Democrat in the 2018 contest.


Well-Known Member
Ballot Measure 'Typo' Could Cost South Dakota's Recreational Marijuana Campaign

A writing error might cost a ballot measure campaign its chances of legalizing recreational marijuana in South Dakota next year.

A marijuana advocacy group has been gathering signatures for four months in support of a ballot measure intended to legalize small amounts of marijuana.

The way the measure is worded, though, it would only legalize marijuana paraphernalia, not the drug itself, according to the state's official interpretation.

The measure's sponsor downplayed the problem as a "typo," one that could be fixed later by the courts or the Legislature. Fixing it before it goes to the ballot would force the group back to the starting line with only four months left to gather new petitions.

"There is a fix for it, so I'm not concerned about it at all," said Melissa Mentele, director of cannabis advocacy group New Approach South Dakota. "It's just a typo. It's one person's perception of grammar versus another's."

The measure strikes city and county ordinances that outlaw recreational cannabis, but it doesn't make the same specific change to state law.

Sponsors realized the problem after a Legislative Research Council's analysis in June examined potential cost savings to the state only from decriminalizing marijuana paraphernalia. The analysis assumed the state would continue charging offenders with possession of marijuana and, in turn, continue to foot the bill for fees for arresting and jailing offenders.

"We don't believe that the way that it is written actually legalizes it except for paraphernalia," Jason Hancock, director of the Legislative Research Council, said Monday.

Supporters could submit an amended proposal, restarting the clock, Hancock said, but that would void all existing ballot measure signatures.

"They're going to have to start over for gathering signatures," he said.

A new proposal could derail efforts to get the question on the ballot as the attorney general's office could take up to 90 days to publish an explanation. Those bringing ballot measure efforts must submit almost 14,000 valid petition signatures by November, leaving little room for error in the drafting and circulating process.

Mentele said she wrote the law based on existing statute and a legislative tweak would be enough to make the measure compliant with state standards. She said she was confident a court would uphold her intent and affirm that it legalizes possession of cannabis.

"It's a really simple question: how do you change every city, county and municipal law without changing state law?" she said.

The measure as written would save the state more than $2 million over the next decade in jail costs for those who would have been convicted for possession of marijuana paraphernalia, legislative analysts estimated.

Sens. Stace Nelson, R-Fulton, and Reynold Nesiba, D-Sioux Falls, said they worked with Mentele and Hancock to understand the discrepancies between the language submitted and the assessment of the measure.

If the measure is approved at the ballot and he is re-elected in 2018, Nesiba said he would be willing to bring legislation clarifying the bill's intent.

"I would be prepared to bring that amendment forward if needed," Nesiba said.

In the meantime, legislators can't touch the measure. And the political support for recreational marijuana in the Legislature likely isn't sufficient to approve a similar bill ahead of the 2018 election.

Nelson said that after talking through the situation with Mentele and Hancock he doubts much can be done to remedy the situation.

"I don't know of any way to help them change what they have right now," he said.

The opponent of recreational marijuana who represents Mentele's district said he was sympathetic to the ballot measure sponsor's concerns but likely couldn't justify voting to amend a voter-approved law down the road.

This is sad....just sad.


Well-Known Member
South Dakotans to vote on legalizing recreational marijuana in November election

South Dakotans will vote this year on whether to legalize recreational marijuana for adults 21 years and older.

Secretary of State Steve Barnett said Monday his office has validated a proposed constitutional amendment that would legalize marijuana for adults 21 and older and require the state Legislature to enact a hemp cultivation law.

Barnett said his office found the petition had enough valid signatures to put the proposal on the Nov. 3 ballot. A constitutional amendment requires 33,921 valid signatures to qualify for the ballot.

The measure would legalize, regulate and tax marijuana as well as require the Legislature to pass laws on hemp. South Dakota lawmakers passed a bill in 2019 to legalize industrial hemp, but Republican Gov. Kristi Noem vetoed it. Noem has promised another veto if lawmakers pass a hemp bill in 2020, saying law enforcement can’t differentiate between hemp and marijuana. Hemp is related to cannabis but does not contain enough THC to make someone high.

Citizens can still challenge the ballot validation, Barnett said. The deadline to file a challenge is 5 p.m. Central time Feb. 5.

South Dakota voters in November also will decide a measure to allow medical marijuana for patients with serious health conditions. The measure would allow patients with chronic or debilitating health conditions to use and possess up to 3 ounces of marijuana. They would need to get a registration card from the state’s Department of Health.
Matthew Schweich, deputy director for the Marijuana Policy Project, said South Dakota will become the first state to vote on both medical marijuana and adult-use legalization initiatives on the same ballot.

Schweich said the recreational marijuana proposal “will greatly benefit the people of South Dakota by ending the injustice of arresting otherwise law-abiding adults for marijuana offenses” as well as allow law enforcement to focus on fighting serious crime, generate new tax revenue for the state and create jobs.

Eleven states have legalized marijuana for adults. Another 22 states have enacted medical marijuana laws.


Well-Known Member
South Dakota voters to decide future of medical and recreational marijuana in the state

To legalize, or not to legalize? That is the question South Dakotans will answer when it comes to marijuana in the state. In November, voters will decide on Constitutional Amendment A and Initiated Measure 26.
Amendment A would legalize, regulate, and tax marijuana as well as require laws ensuring access to medical marijuana. IM 26 would establish a medical marijuana program for qualifying patients. On Wednesday, South Dakotans for Better Marijuana Laws held a Zoom news conference to make its case to legalize it. However, local law enforcement has questions about the implications of approving the amendment and initiated measure.
South Dakotans for Better Marijuana Laws want voters to say yes to cannabis in the state.

“The outright prohibition on cannabis does not work,” Brendan Johnson, former U.S Attorney and member of Better Marijuana Laws, said.
Supporters include Johnson and Chuck Parkinson , who worked for President Reagan’s administration on the frontlines of the famed War on Drugs.
“I’ve come to the conclusion after all these years, we’ve spent hundreds and hundreds of millions of dollars and really gotten no results and we’ve ruined lives. We have taken away productive citizens who cannot get jobs, because they may have a drug conviction on their case file,” Parkinson said.
During its news conference, group members said legalizing and regulating marijuana would free up prisons and jails, and they also cited a legislative research council study estimating it would bring in $30 million of tax revenue by 2024.
“Of course that does not mean we favor no restrictions on cannabis. We certainly do,” Johnson said.
KELOLAND News spoke with the public information officer for the Sioux Falls Police Department about concerns over this.
We know from experience, drug use has harmful and impairing effects. We’ve seen a lot of different issues from drug use,” Sam Clemens said. “Not just from meth and heroin, there’s obviously a lot of attention on that, but we’ve also seen a lot of crimes with marijuana.”
The decision is up to the voters, but Clemens hopes law enforcement will continue to be a part of the discussion now and in the future when it comes to enforcing any potential reform.
“Anytime somebody’s talking about a big change like that, there’s obviously a lot of stakeholders involved and I think getting perspective from law enforcement can be very valuable,” Clemens said.


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Staff member
South Dakota Could Pass Two Marijuana Ballot Measures In November

Marijuana is on the ballot in South Dakota this year. This is a state that has the dubious distinction of being the only one to twice defeat a medical marijuana initiative. And it has another dubious distinction: It’s the only state where people get prosecuted for having marijuana show up on a drug test.

That South Dakota has reactionary drug laws is not surprising; it is a pretty reactionary state. It voted overwhelmingly for Trump in 2016, and Republican Gov. Kristi Noem has (in)famously discussed adding the president’s likeness to Mt. Rushmore with him. The state’s congressional delegation is all-GOP, including Senate Majority Whip John Thune, and Republicans control both houses of the legislature as well, holding a supermajority in both for nearly a quarter-century.

Still, not one but two marijuana initiatives managed to find enough support to make the ballot, and local organizers supported by national reform groups New Approach PAC and the Marijuana Policy Project (MPP) are hoping that marijuana’s momentum can overcome rock-ribbed Republican recalcitrance on the prairie come November.

The first, Initiated Measure 26, led by New Approach South Dakota, would create a medical marijuana program for patients with doctor-certified specified debilitating medical conditions. Patients could possess up to three ounces and grow up to three plants — or more if a doctor okays it. The state Department of Health would create and enforce rules and regulations.

The second, Constitutional Amendment A, would legalize up to an ounce for adults 21 and over and set up a system of taxed and regulated cultivation and sales. It would allow people to grow up to three plants at home — but only if there are no retail sales outlets in their local government jurisdiction. The amendment would also require the legislature to legalize the sale of hemp and create a state medical marijuana program by April 1, 2022.

Can green win in red South Dakota? Perhaps the state isn’t as red as it seems, said Michael Card, an associate professor of political science at the University of South Dakota.

“There are more no-party voter registrations now,” he said in a phone interview. “Within five years, independents will probably come close to catching up to Republicans. Democrats are fleeing the party because they don’t win.”

“Our campaign is really bipartisan; this isn’t a partisan issue,” said Melissa Mentele, director of New Approach South Dakota, which is leading the effort for the medical marijuana initiative. “It doesn’t matter what your party is; this is something that has brought so many people together,” she said in a phone interview.

And it’s no longer the last century or even the last decade, pointed out MPP campaigns coordinator Jared Moffat, who is working with South Dakotans for Better Marijuana Laws in support of both initiatives.

“It’s been 10 years since the last attempt to reform South Dakota’s marijuana laws through the ballot, and in that time, a lot has changed,” he said in an email exchange. “Support for marijuana policy reform has increased significantly in every part of the county and 11 states have adopted adult-use legalization laws — and they’re working well. No state has made a serious attempt to repeal those laws. We also have recent internal polling of South Dakotans that suggests we have a great shot at passing both initiatives.”

“We’ve had six years of education leading up to this medical marijuana initiative, the same bill has been sponsored twice in the legislature, it’s been debated publicly, there’s been a lot of media, and I think it’s time,” said Mentele. It will take a nice, slow, steady march to victory,” she added.

When queried about the need for a separate medical marijuana initiative, she bristled just a bit.

“We need to press forward with both,” she said. “Legalizing adult use is beneficial to the economy, but I’m a patient advocate; I’m about things like teaching people how to move off of opioids and pharmaceuticals, and when adult use programs come on board they tend to swallow medical programs. We don’t want that to happen. We want two distinct markets with a tax break for patients. The people who aren’t medical can buy it and pay taxes, but a true medical marijuana program passes savings on to patients.”

So, will both pass, will one pass, will neither pass?

“If I had to predict, expecting high turnout for the presidential race, you’re looking at Sioux Falls and Minnehaha County, the largest county in the state voting for it, and probably Brookings and Clay counties [home of South Dakota State University and the University of South Dakota, respectively], and Union County, and the reservation counties,” said Michael Card, associate professor of political science at USD in a phone interview.

But that means a whole lot of South Dakota counties likely won’t be voting for either medical or recreational marijuana this fall. Still, with the Sioux Falls metro area population of 266,000 constituting nearly 30% of the entire state population, that makes up for a number of sparsely-populated, more conservative counties. It’s going to be competitive.

“I wouldn’t be surprised if the constitutional amendment passed because of the inclusion of industrial hemp and the taxation of marijuana,” said Card. “If I were leading the campaign, I’d be telling people this is a tax you don’t have to pay. It’s also being supported by a former US attorney, Brendan Johnson.”

But, Card said, it’s also possible that voters could reject legalization and just pass medical marijuana. “Our population is aging, we’re seeing more patients, and even for many youth there are medicinal uses, so the idea that they could vote down legalization and approve medical is certainly plausible,” he said.

“The governor is very strongly against marijuana in any way, shape, or form,” said Card. “She kept the South Dakota legislature from adopting a farmers’ hemp cultivation bill. She drew a line in the sand and said no way.”

Noem is not alone in opposing marijuana reforms; the usual suspects are also out to block it. In July, the South Dakota Medical Association came out against both initiatives and will write the opposition statement that will appear on the general election ballot. The association maintains that marijuana is a hazardous drug and a public health concern.

Also in July, the legalization initiative drew organized opposition in the form of a ballot committee calling itself NO Way on Amendment. That group is led by David Own, the president of the state Chamber of Commerce and Industry. He is being joined by law enforcement, public officials, and social work leaders.

“South Dakota’s current marijuana laws aren’t working, and they are not serving South Dakotans’ best interests,” argued Moffat. “Amendment A and Measure 26 will fix what’s broken and establish a commonsense approach that provides relief to patients, improves public safety, and strengthens South Dakota’s economy.”

The campaign is still honing messages for key voters, he added, but will likely emphasize the need for tax revenues in the face of economic downturns and the need to get marijuana out of the criminal justice system. He noted that one out of 10 arrests in the state in 2018 was for marijuana. The campaign will also make the argument that passage of the constitutional amendment is necessary to protect medical marijuana from legislative chicanery, as happened with a campaign finance law approved by voters in 2016 and gutted in Pierre.

The campaign is in decent financial shape in small-market South Dakota and ready to do battle, said Moffat.

“With significant in-state and national support, as well as an expanding small-dollar fundraising effort, we are feeling good about the campaign budget at this point. Compared to other states where there are competitive national races, we expect our advertising dollars will go pretty far in South Dakota,” he said. “We never want to underestimate the opposition. Right now, it’s not clear what they are willing to spend, in terms of both money and political capital, to fight us. My sense is that they’re not willing to expend much, but that could change. We’ll have to see.”

Indeed. Early voting starts September 18.


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Staff member

Marijuana Accounts For One In Ten South Dakota Arrests, New Report Shows Ahead Of Legalization Vote

Marijuana arrests in South Dakota are common, costly and carried out on a racially disproportionate basis, a new report released by advocates for a legalization measure on the state’s November ballot shows.

In fact, nearly one in 10 of all arrests in the state in 2018 were for cannabis offenses, with 95 percent of those cases concerning simple possession. There were 31,883 marijuana arrests in South Dakota from 2009 to 2018.

That’s according to an analysis of federal crime data, which was published by South Dakotans for Better Marijuana Laws on Tuesday.


Via South Dakotans for Better Marijuana Laws.

The campaign says the report underscores the urgent need for voters to approve the adult-use legalization measure.

Most of the possession arrests were for seven grams or less, and about 40 percent were for one gram or less.

Importantly, the data shows that—as is the case across the country—marijuana enforcement has had a disparate impact on people of color, despite comparable rates of consumption among white people.

On average, black residents and Native Americans have been more than five times as likely to be arrested for cannabis compared to white people over the 10-year period the report examines.

“In 2018 Native Americans accounted for 10.3 percent of the population, but they comprised 19 percent of those arrested for marijuana possession,” the analysis found. “In 2018 Blacks accounted for 2.9 percent of the population, but they comprised 9.8 percent of marijuana possession arrests.”


The report also broke down costs for arresting and incarcerating people over marijuana. The South Dakota Legislative Research Council determined that the state spends $90.26 for every day a person is jailed.

In 2018, there were 4,218 people jailed for cannabis offenses. So assuming each person spent 15 days in jail, South Dakota would be spending $5.7 million on marijuana-driven incarceration. If they spent 90 days in jail, that rises to $34.3 million. And if the maximum one-year sentence for possession of eight ounces or less was doled out, it would cost the state $139 million.

Former U.S. Attorney Brendan Johnson, a sponsor of the initiative, discussed the report during a virtual event on Tuesday.

“When we see that one in 10 arrests in South Dakota are for marijuana, we know that it is taking a huge economic toll on our state—not only in terms of taking productive citizens out of the workforce, but also in terms of the day-to-day law enforcement costs associated with enforcing this prohibition,” he said.

Beyond jail time and fines, the analysis also noted that—while difficult to quantify—there are additional costs to those caught up in the criminal justice system because of marijuana.

These arrests “often lead to other harmful consequences that can follow an individual long after formal punishments are completed.”

“In South Dakota, depending on the nature of the offense, these can include: loss of eligibility for adoption or foster parenting; loss of eligibility for public housing; loss of eligibility for Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance to Needy Families (TANF); difficulties securing employment due to employer discrimination; barriers to professional licensure; loss of educational aid; revocation of driver’s license; and loss of the right to possess a firearm.”

This report comes weeks before South Dakota voters will get to decide on separate ballot measures to legalize cannabis for adult use and for medical use. And according to a poll recently released by opponents of the policy change, about 60 percent of voters support the broader reform proposal and more than 70 percent back the narrower medical-focused initiative.

The group behind that poll tried to make the case that it revealed confusion among the electorate, as many respondents said they favor the recreational measure because of the therapeutic applications of cannabis.

Johnson said he disagreed with how the opponents characterized their findings and that he feels that many voters are supportive of the recreational initiative because it would make permanent changes through a constitutional amendment.

“I think that there are an awful lot of people that support both medicinal and recreational,” he said. “I think there are an awful lot of people that realize we need a constitutional amendment, or want to see a constitutional amendment, to make sure that those protections are in place.”

The separate medical cannabis legalization measure that voters will decide on would make a statutory change to allow patients suffering from debilitating medical conditions to possess and purchase up to three ounces of marijuana from a licensed dispensary.

Under the adult use initiative, people 21 and older could possess and distribute up to one ounce, and they would also be allowed to cultivate up to three cannabis plants.

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