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How marijuana legalization will impact the criminal justice system
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How marijuana legalization will impact the criminal justice system

Legalizing Marijuana Background Checks (copy)

South Dakotans should expect legal consequences if they're caught smoking or selling marijuana before new laws go into effect July 1 and will continue to face restrictions after that. 

“I caution people not to get ahead of themselves," said Mark Vargo, Pennington County State's Attorney.

People “should refrain from using marijuana until that constitutional amendment takes effect,” echoed Eric Whitcher, director of the county's Public Defender’s Office.

However the recreational amendment may also be voided if a judge agrees with the Pennington County Sheriff and Highway Patrol Superintendent that it violates the constitution. 

Sheriff Kevin Thom and Colonel Rick Miller filed a lawsuit last Friday in Hughes County that asks a judge to void the amendment that was approved by 54% of voters statewide and 59% in Pennington County. The lawsuit argues that Amendment A violates the South Dakota Constitution because it doesn’t follow the “one-subject rule” and because it’s actually a revision, not an amendment.

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Pennington County Sheriff Kevin Thom.

If the amendment is upheld there will still be age limits as well as restrictions on how much marijuana people can possess and sell, and in what locations and scenarios they can smoke it in. 

People with prior arrests or convictions related to possessing or selling soon-to-be legal amounts of marijuana will still have arrest records and convictions, including possible felony ones. Past arrests and convictions can make it harder find a job, housing and financial aid. It can also impact bond and sentencing if they're arrested and convicted for a new crime. 

Unlike some other states, South Dakota’s new marijuana laws don’t automatically erase relevant arrest records and convictions, or create a streamlined process like North Dakota. People will have to individually ask a court to expunge their arrest records or seek a pardon through the Board of Pardons and Parole and Gov. Kristi Noem. 

The new laws will create significant change even with all of the restrictions, said Whitcher and Brendan Johnson, a former U.S. Attorney who introduced Amendment A.

“I think the impact will be a reduction in arrests and law enforcement having more time to focus on higher priority cases,” Johnson said. “I anticipate significant economic savings and fewer lives being permanently damaged with arrest records.”


Attorney Brendan Johnson.

While most people convicted of possessing or selling small amounts of marijuana aren’t sent to prison, “going through the criminal justice system, regardless of what the outcomes is a stressful process,” Whitcher said. “It’s expensive, you lose work.”

He said defendants are often fined $400, a “significant amount of money for a lot of people.”

There will also be less “collateral consequences,” Whitcher said. He said some jobs and student aid programs bar people with marijuana convictions, even misdemeanors ones.

What the laws say

Recreational and medical marijuana are set to go into effect July 1 but the Department of Revenue has until April 1, 2022 to create rules and regulations related to sales.


The Department of Revenue's new website on marijuana. 

The constitutional amendment says that people 21 and older can posses, use, transport and sell paraphernalia and up to one ounce of marijuana. People who live in areas without licensed marijuana stores can have up to three plants.

It will be illegal to drive under the influence of marijuana and smoke it on school grounds, where tobacco is banned, and in public places. The amendment allows landlords and employees to ban renters and workers from using marijuana. Cities and counties can ban marijuana shops.

The amendment legalizes commercial growers, manufacturers and sellers. Recreational pot will have a 15% sales tax with the revenue being split between public schools and the state’s general fund.

The medical marijuana law allows people of any age to possess up to three ounces of marijuana if their doctor signs a document saying the drug will help them with a “debilitating medical condition or symptom.”

The patient will the receive a registration card from the Department of Health, which must set up its system in 140 days after the law goes into effect. Minors must receive permission from their parents or guardian to receive a card.

Patients can’t smoke in public or drive while under the influence. Schools, landlords and employees can’t reject cardholders unless it would jeopardize their federal funding or licensing.

What now?

Sheriff deputies "will continue to arrest for marijuana use/possession up to the point it is legal," Thom said in an email.

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"We will continue to exercise discretion in how we resolve issues involving marijuana offenders," Rapid City Police Chief Don Hedrick said in an email. "In recent years, we’ve adopted a strategy of citing offenders in possession of a personal-use amount of marijuana in lieu of arrest, as long as no other aggravating factors exist."

Vargo said prosecutors will be analyzing each new marijuana-related case to determine if it falls under conduct that will soon be legal or not. 

Prosecutors won't automatically charge or dismiss such cases but will instead "be holding it up against that lens (of the new laws) and then making individualized decisions.”

Vargo said many low-level marijuana offenses are currently eligible for diversion programs. 

Mark Vargo (copy)

Pennington County State's Attorney Mark Vargo

Possessing up to one ounce of marijuana, which will be legal if Amendment A goes into effect, is currently a misdemeanor punishable by up to one year in jail. Selling less than one-half ounce of marijuana is also punishable by up to one year in jail. But selling between that and an ounce is a Class 6 felony punishable by up to two years in prison.

Whitcher said he believes law enforcement and prosecutors should use their discretion and not arrest or charge people for activities that will soon be legal.

The voters made it clear they "don’t want to be spending state resources in prosecuting, arresting, jailing and fining people who are using marijuana," he said.

Law enforcement across the state is already preparing for changes once the laws go into effect. 

"We are working closely with our law enforcement partners to deal with some of the challenges that will likely be presented to public safety, especially the impact that this might have on DUI, on distribution to minors (under 21) and the dangers of" people trying to extract THC in home labs, Vargo said. "The good news is we’re not the first state to do this” and can look at other states to see what they did right and wrong.

"Based on training and experience, deputies determine if there's probable cause for an arrest," Thom said of how deputies will handle cases after July 1. Hedrick said he's still working with Vargo's office and the Attorney General's office to develop an enforcement plan.


Whitcher's office handles about 4,000 misdemeanor cases each year and he expects to see a reduction in more than 300 cases if both the amendment and law go into effect on July 1. 

Whitcher and Vargo say another change is how law enforcement can conduct searches and seizures. 

"If you only have a joint in the ashtray for instance, and you have no other information, then you would have no reason to search because you would have no reason to believe that a crime had been committed," Vargo said. If officers see a large amount of marijuana, that gives them reason to further search property. 

Searches that used to begin with officers seeing any amount of marijuana sometimes led to officers finding evidence of more serious criminal activity, Whitcher said. 

"There will be fewer searches that are going to happen" so "we might see a reduction in our overall (cases) because of the new status of marijuana," he explained. 

Eric Whitcher

Eric Whitcher, director of the Pennington County Public Defender’s Office.

Driving under the influence of marijuana will still be illegal. Thom and Hedrick said their deputies and officers are already trained in recognizing what impairment looks like and there are field sobriety tests for marijuana.

Both say they are afraid legal marijuana will lead to more traffic crashes and fatalities. 

Studies show that driving while high significantly impairs driving ability, according to the National Institutes of Health

"Several meta-analyses of multiple studies found that the risk of being involved in a crash significantly increased after marijuana use — in a few cases, the risk doubled or more than doubled," the NIH says. "However, a large case-control study conducted by the National Highway Traffic Safety Administration found no significant increased crash risk attributable to cannabis after controlling for drivers’ age, gender, race, and presence of alcohol." 

People on pre-trial release, probation and parole risk being sent back to jail or prison for breaking any law. They will no longer risk violating that condition by smoking or selling legal amounts of marijuana. 

However judges and the Department of Corrections can still make special orders for defendants to not use marijuana, just like they can with alcohol. Both Vargo and Whitcher say they imagine this will only be a condition if marijuana use is the root cause of the person's criminal behavior, which Whitcher says is not common.

"We see alcohol as a cause for many issues in the criminal justice system. We simply don’t see that with marijuana," Whitcher said.

The Journal asked a judge, Gov. Kristi Noem and the Board of Pardons and Parole if they will automatically grant requests for expungements, paroles and pardons for people arrested or convicted of marijuana offenses that are no longer crimes, or if they will use the same decision making criteria as it did before.

Craig Pfeifle, presiding judge for the 7th Circuit, said expungements are guided by state law so judges would still need to follow the typical procedure, which involves a waiting period before people can apply followed by a hearing. 

The Parole Board also says it will have to follow state laws and rules when it comes to paroles and clemency (the step before a pardon from the governor). 

"The Parole Board makes recommendations to Governor Noem. She carefully reviews each case and recommendation on an individual basis and often agrees with the Board," spokesman Ian Fury said. 

Johnson said lawmakers or voters could pass a new law that streamlines or automates the expungement and pardon process for relevant marijuana arrests and convictions. 

— Contact Arielle Zionts at

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