A prosecutor and a public defender testify about adult-use marijuana coming to South Dakota

Capitol News Bureau
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PIERRE, S.D. (KELO) — A Fort Collins, Colorado, sheriff as well as the director of the Pennington County public defender’s office and the Clay County state’s attorney gave their perspectives Tuesday on what legalizing marijuana could mean in South Dakota.

They, along with worker’s compensation consultant James Marsh and South Dakota Municipal League executive director Yvonne Taylor, spoke to a subcommittee of the Legislature studying the topic.

Colorado’s passage of medical marijuana in 2000 and recreational marijuana in 2012 caused many problems for law enforcement, whether dealing with home-grow operations, impaired drivers, sick children, hash-oil explosions or homeless people, according to Larimer County Sheriff Justin Smith.

“We’re seeing a significant drug issue in our state. I think a lot of the country is,” he said.

In South Dakota, enforcement of marijuana laws has been a patchwork leading up to July 1, when medical marijuana will become legal, although medical cards won’t be available for another four-plus months.

“You have some prosecutors that simply are not prosecuting small amounts of marijuana, you have some who are,” public defender Eric Whitcher of Rapid City said. “You have police departments that are citing and releasing, some are arresting, some are letting it go. You’ve got some circuit court judges that deem a gummy or another edible a controlled substance, you have others that consider it marijuana. One of the aspirations that we should all look for I think in the law is that there’s equal treatment across county borders.”

Representative Mary Fitzgerald, whose spouse is Lawrence County State’s Attorney John Fitzgerald, pointed out that marijuana remains illegal at the federal level.

“What constitutional provision allows states to not follow federal law? In this case it would be this substance, controlled substance law. And so if states can pick and choose which laws they want to follow, what other laws should South Dakota not follow, what other federal law should South Dakota not follow?” she asked.

Representative Shawn Bordeaux, a member of the Rosebud Sioux Tribe, said the reservation’s western end is one side of U.S. 83 in White River. That creates jurisdiction issues for tribal and non-tribal law enforcement.

Whitcher said, “I’m hopeful we’re going to get more clarity but it’s probably going to take another decade to really work through all these state and federal discrepancies around this substance, because the laws are behind where the people are, and eventually the laws are going to catch up, but it’s going to be a little painful until we do.”

Said Bordeaux, “We have a broken system and we have to have the courage to try to go forth, so it’s one system for all of us and not, you can run across the street and get away from this law.”

Representative Rhonda Milstead, whose spouse is Minnehaha County Sheriff Mike Milstead, challenged Whitcher. He replied, “People are using the substance anyway. And I recognize that there’s a law against it, but most of the public doesn’t agree with the law and voted to change the law and are going to use it. They’re using it in other states.”

Prosecutor Alexis Tracy of Vermillion said she didn’t vote for Amendment A legalizing marijuana for people age 21 and older or for IM 26 legalizing medical marijuana. She said the sponsors of the medical marijuana measure were really trying to get recreational marijuana.

The state Department of Health plans to have medical-marijuana rules by the end of October and intends to start issuing patient cards in November. The legality of Amendment A has been challenged on procedural grounds and is being decided by the South Dakota Supreme Court. The legislative subcommittee, realizing A could be overturned or modified, plans to start working on a draft proposal in the coming weeks.

Tracy outlined some of the changes she would like. She called for the Legislature to pass a consistent definition of marijuana. She also wants underage marijuana possession to be treated the same as underage alcohol possession, wants smoking and growing marijuana to be kept out of public view, wants driving under the influence of marijuana to be a criminal offense, and wants edibles kept out of the hands of children.

She suggested the Legislature increase funding to the state court system for adult diversion services. And she agreed with Fitzgerald that it’s a constant test being a prosecutor.

“It’s horribly depressing to come home every day seeing people at their worst,” Tracy said. 

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