South Dakota limits the use of marijuana to medical purposes for persons suffering from specific illnesses. The use of the drug for recreational purposes is currently prohibited even though voters approved adult-use marijuana in the 2020 elections. South Dakota would have made history as the first state in the United States to legalize medical marijuana and adult-use marijuana in the same year if the election results were upheld.
South Dakota Constitutional Amendment A was a cannabis legalization initiative that appeared on the November 3, 2020, general election ballot in South Dakota. The proposal, which passed with 54% of the vote, would have legalized recreational marijuana in South Dakota on July 1, 2021. Additionally, Amendment A mandated that by April 1, 2022, the South Dakota State Legislature establish a medicinal marijuana program and legal hemp sales.
Amendment A proposed to:
Legalize possession of up to an ounce of marijuana for adults 21 as well as cultivation of up to 3 marijuana plants, if the individual lives in a city or town without a retail marijuana business.
Charge the State Department of Revenue with developing a licensing and regulatory framework for adult-use marijuana enterprises, including growing facilities, testing laboratories, and retailers.
Give local governments the ability to impose extra restrictions and licensing on enterprises selling adult-use marijuana.
Establish a 15% tax on non-medical marijuana sales; once administrative costs are covered, half of the revenue collected would go to South Dakota public schools, with the balance going to the general fund.
Require the legislature to adopt laws for hemp and medical marijuana.
On February 8, 2021, Judge Christina Klinger determined Amendment A to be unconstitutional, saying that it violated the state's requirement for ballot initiatives to be single-subject. The judgment, however, has been appealed to the state supreme court, which heard oral arguments on April 28, 2021. Unfortunately, the supreme court also declared that Amendment A is unconstitutional. In October 2021, proponents of marijuana legalization in South Dakota came up with another ballot measure to legalize recreational marijuana, known as Initiated Measure 27. Sadly, the majority of South Dakota voters rejected the voters’ initiative in the November 2022 midterm elections.
Similarly, South Dakota voters approved Initiated Measure 26 in the 2020 elections, allowing medical marijuana use as well as the sale, distribution, manufacture, and cultivation of cannabis for those suffering from debilitating ailments. This law took effect on July 21, 2021.
Initiated Measure 26:
Directs the South Dakota Department of Health to create a registration system for individuals who meet certain criteria, such as those who suffer from extreme pain, seizures, muscular spasms, or nausea.
Mandates patients to obtain a written certification from a physician who is certified to administer medications.
Allows registered patients to possess up to three ounces of marijuana, with extra allowances for infused products and grown plants if the Department of Health and the patient's physician agree.
Establishes a licensing and regulatory framework for medicinal marijuana growing facilities, dispensaries, manufacturing facilities, and testing labs that will be managed by the Department of Health.
Mandates the adoption of rigorous regulations governing product packaging and labeling and places restrictions on medical marijuana businesses' advertising.
Prohibits the Department of Health from disclosing private patient information for any purpose other than enforcing the initiative's provisions.
Grants local governments the power to enact new rules governing medicinal marijuana businesses.
South Dakota prohibits driving under the influence of marijuana. The state considers driving while impaired a Class 1 misdemeanor and will punish offenders with jail times and fines. Other than having their driving licenses revoked for 30 days to one year, offenders convicted of Class 1 misdemeanors for the first time may be imprisoned for up to one year and fined up to $20,000. An offender may also be ordered to pay restitution for any damages caused. South Dakota also prohibits possession between half a pond to less than a pound of cannabis. The state considers the offense as a Class 5 felony, punishable by up to 5 years in prison and a $10,000 fine.
South Dakota does not prohibit felons from obtaining medical marijuana cards. However, designated caregivers are required not to have been convicted of any disqualifying felony offense. A disqualifying felony offense is defined in South Dakota as a violent crime that was classified as a felony in the jurisdiction in which the individual was convicted. To purchase medical marijuana from a licensed dispensary in South Dakota, you must hold a medical marijuana card, be over the age of 18, and have a licensed physician's prescription.
Legal marijuana sales are only going to start in South Dakota after the Department of Health and Department of Revenue establish guidelines for licensing and the marketplace. As of December 2022, South Dakota has licensed 117 dispensaries, 139 cultivators, 16 manufacturers, and two marijuana testing labs.
The South Dakota Legislative Research Council estimates that gross marijuana sales would reach $49.3 million in the first year of the legalization of recreational marijuana. The Council also puts sales to nearly triple during the first three years of legalization, with estimates projected to reach $145.6 million in that period.
The Council also noted that through a 15% tax on marijuana sales, revenue accruing to the government would total $10.7 million in the first year, including fees and taxes. That figure is estimated to climb up to $19.5 million a year later, and then to $29.3 million in the third year.
Legalizing marijuana can also help the South Dakota government save on the expenses on the criminal justice system in the state. According to the South Dakota Legislative Research Council, the cost of jailing a person in the state is $90.26 per day. Based on this estimate, and the number of marijuana arrests in South Dakota between 2007 and 2018, a study conducted by the South Dakota for Better Marijuana Laws estimates that each marijuana arrest costs South Dakota approximately $4,000. By legalizing cannabis, South Dakota can cut down heavily on the costs associated with supporting the criminal justice system.
According to a research carried out by South Dakotans for Better Marijuana Laws and based on statistics from the United States Department of Justice's Uniform Crime Reporting (UCR) Program, 31,883 individuals were arrested in South Dakota between 2009 and 2018 for marijuana-related offenses. 95 percent of these charges were for possession of two ounces or less.
In 2018, approximately one out of every 10 arrests (4,218 out of 44,389) made in South Dakota was for a marijuana offense. The study also reported that more than 60% of marijuana arrests were among individuals aged 25 years old or younger. 2007-2016 arrest data for South Dakota also shows that of all marijuana arrests involving 8 ounces or less, the vast majority involved less than 7 grams; more than 40% of these were for a gram or less. According to the FBI Crime Data Explorer, there were only 3,120 marijuana-related arrests out of the total 36,647 arrests reported by South Dakota law enforcers in 2020. In 2021, marijuana-related arrests reduced to 1,682 out of 37,774 arrests.
With sales of medical cannabis only just beginning, and recreational marijuana legalization still being decided, it is not yet clear what impact the legalization would have on crime rates in South Dakota. However, statistics from other states where cannabis has been legalized seem to indicate that legalization has helped to decrease violent crime rates, DUI arrest rates, and other related crimes.
As part of a wider nationwide trend in the United States, South Dakota banned cannabis in 1931. South Dakota decriminalized cannabis in 1977, amid a brief wave of legalization across the country, but overturned the law shortly thereafter. In 2006, medical marijuana made its first appearance on the election ballots in South Dakota. The 2006 Initiative was tagged Measure 4. It proposed the provision of safe access to medical marijuana for certain qualified persons. South Dakota voters voted 52.3% - 47.7% not to pass the Initiative.
In 2010, a medical marijuana initiative (Initiated Measure 13) made the South Dakota ballot. Initiated Measure 13 proposed to authorize the possession, use, and cultivation of marijuana by and for persons with specified debilitating medical conditions registered with the Department of Health. Voters in South Dakota voted 63%-36% not to pass the measure.
In 2015, a group known as South Dakotans Against Prohibition (SDAP) circulated petitions to place marijuana decriminalization on the November ballot. The group proposed reclassifying the possession of 28 grams or less of marijuana as a civil offense, rather than a criminal offense or infraction. However, SDAP failed to collect the required 13,871 signatures to put an initiated measure on the ballot. Later, the group withdrew its petition.
In another medical cannabis ballot initiative, activists in South Dakota gathered more than 15,000 signatures as of November 6, 2017, which was the deadline for signature submission. However, the South Dakota Secretary of State announced on April 16, 2018, that not enough of the submitted signatures were valid. Consequently, the Initiative failed to qualify for the 2018 ballot. Per South Dakota laws, at least 13,871 of those signatures are required to be valid for the measure to qualify to be placed on the 2018 ballot. This Initiative was led by a group known as New Approach South Dakota.
In December 2019, Initiated Measure 26 was approved by the secretary of state for the 2020 ballot. Voters passed Initiated Measure 26, by 69%-31%, thereby making marijuana legal for medical use in South Dakota. In 2020, South Dakota voters also approved Constitutional Amendment A, which was proposed to legalize, regulate, and tax recreational marijuana in the state, by 54%-46%. Constitutional Amendment A also sought to establish a medical marijuana program and legal hemp sales by April 1, 2022.
Following a legal challenge, Circuit Court Judge Christina Klinger on February 8, 2021, declared Amendment A unconstitutional, ruling that it violated South Dakota's single-subject requirement for ballot proposals. Earlier in 2018, South Dakota voters had passed Amendment Z which amended the state constitution to establish that future proposed constitutional amendments may embrace only one subject. It also required proposed amendments to be presented and voted on separately.
The Circuit Court judge stayed the implementation of recreational marijuana legalization in South Dakota awaiting a higher court decision. The case was contested at the South Dakota Supreme Court, where the defendants presented their opening arguments in March 2021. On April 28, 2021, the South Dakota Supreme Court heard oral arguments in the matter.
Cultivation of marijuana in the United States, the early 17th century.