IM 29: If voters decriminalize marijuana, lawmakers would make the call on sales

John Hult, South Dakota Searchlight

The first thing to know about South Dakota’s recreational marijuana ballot measure is what it doesn’t do: legalize marijuana sales.

That would require later legislative action.

Initiated Measure 29 would lay the groundwork for that potential action by legalizing the possession, use and free distribution of up to 2 ounces of marijuana for adults 21 and older, which is currently a misdemeanor punishable by up to a year in jail.

It would also decriminalize marijuana edibles and cannabis concentrates, the possession of which is currently a felony in South Dakota punishable by up to five years in prison.

“Distribution” under IM 29 means “transfer without consideration of not more than the possession limit.” Under South Dakota law, the words “without consideration” mean “for free.”

In other words, only the free distribution of 2 ounces or less would be legalized by IM 29, not sales. The Legislature, during its annual January-to-March lawmaking session, would have the discretion to authorize sales.

The lack of provision for a retail market is tied to what happened the last time a majority of South Dakota voters backed recreational marijuana. In 2020, voters passed a constitutional amendment legalizing both recreational and medicinal marijuana, but it was overturned in court for violating the state constitution’s single-subject rule for ballot initiatives.

“We didn’t want to get dragged back into court on another single-subject challenge,” said Matthew Schweich of South Dakotans for Better Marijuana Laws, which is supporting the Nov. 5 ballot measure.

A separate medical marijuana initiative that passed in 2020 laid the groundwork for the state’s current medical marijuana program. In 2022, voters rejected a recreational marijuana measure.

Backers: Money saved, doors opened

The fiscal note on this year’s measure, prepared by the Legislative Research Council, points out passage would save counties $581,556 a year in prosecution, defense and incarceration costs associated with enforcement of the state’s current misdemeanor marijuana law. The fiscal note makes no mention of the costs associated with enforcement of the state’s felony possession statute for concentrated cannabis.

Distribution of more than 2 ounces would remain a crime under state law, but people 21 and older would be allowed to “gift” up to that amount of marijuana to others of age.

That’s not much different from measures passed in other states, Schweich said. Some marijuana ballot measures outline components of a retail market, but the onus for setting up retail regulations and tax structures for cannabis falls on lawmakers.

“There’s always been a lag period between the legalization of possession and retail sales,” Schweich said.

Fort Pierre Republican Rep. Will Mortenson, the House majority leader, said he’d expect the Legislature to take up regulations if voters pass IM 29. Some legwork has already been done on the issue. The state Senate passed a retail pot law in 2022, a few months after the state Supreme Court overturned the 2020 cannabis amendment. The bill died in a House committee.

“In the Legislature, we owe a duty to the people,” said Mortenson, who told South Dakota Searchlight he plans to vote against IM 29. “They’re our bosses, and if they pass Initiated Measure 29, we need to have a good faith effort to put in place a regulatory scheme.”

Conservative Legislature could punt on sales

That doesn’t guarantee a retail market, though. There are plenty of lawmakers, Mortenson said, who oppose legal cannabis on principle. Many prospective members of the 2025 Legislature rode to victory in the June 4 primary on the strength of more conservative platforms than their competitors.

One of them, Republican Travis Ismay of Newell, is unopposed for the District 28B House seat. Ismay tried unsuccessfully to put a measure on the ballot that would have asked voters to repeal the state’s medical marijuana laws.

Rhonda Milstead represents Protecting South Dakota Kids, a group working to prevent the law’s passage. She said she saw previous legislatures as more pot-friendly than the current one, and that the House and Senate could become even less amenable to marijuana after the election.

“You have a conservative legislature,” Milstead said. “Why would they set up a retail market for something they didn’t want in the first place?”

She expects lawmakers won’t be faced with the decision, though. A recent poll on the measure, sponsored by South Dakota News Watch and the University of South Dakota’s Chiesman Center for Democracy and released in June, showed 52% of voters opposed, 42% supportive and 7% undecided.

Milstead said church leaders, some of whom have also opposed November’s pro-abortion rights ballot measure, are among those working to get her organization’s message out.

She also thinks the state’s existing medical marijuana program will strike voters as sufficient to meet the needs of patients.

“I don’t think people are fired up about recreational marijuana,” Milstead said.

Opponents: Legal pot comes at a price

Opponents like Milstead are concerned about the increasing potency of marijuana and the impact on public health, upticks in marijuana use by minors in states that have legalized the drug for adults, and the contention that legalization pushes up crime rates.

“Legalizing marijuana has serious potential harm, risk for individuals, for communities and the state of South Dakota, with no identifiable benefits, as proven by state after state after state,” Milstead said during a recent debate on the measure in Mitchell. “This drug brings more poverty, more crime, more mental health issues, more youth at risk, more violence, more addiction.”

Milstead argues that any tax revenue that might flow into state coffers if lawmakers chose to create a retail market would be eclipsed by increased costs for law enforcement and addiction treatment. The group’s website maintains a list of talking points, studies on cannabis legalization and includes 10 “victims’ stories” involving people hit by drivers high on marijuana and other drugs. The group also points to increases in marijuana-related traffic fatalities in states that have legalized the drug.

Darci Jensen, an addiction counselor from Canton, told a group of reporters at an Oct. 11 press event for Protecting South Dakota kids that all her current underage clients struggled with marijuana. She believes legalization in so many states has changed the way kids view cannabis.

“The perception of harm has gone down across the country,” Jensen said.

Schweich and other proponents reject those arguments. During the debate, Schweich pointed to billions in tax revenue collected since state-level marijuana legalization began to take hold a little over a decade ago.

He also noted that driving under the influence would remain a crime if IM 29 passes, that legalization would allow lawmakers to regulate potency and product safety, and that the price of prohibition in time and treasure for taxpayer-funded law enforcement is too steep in a nation plodding steadily toward cannabis acceptance.

Thirty-eight states have medical pot, 24 and the District of Columbia have recreational pot, and the federal government is considering a change that would reclassify cannabis as a less harmful drug than its current classification under federal law.

“Whether we pass Measure 29 or not, cannabis already exists in South Dakota,” Schweich said during the Mitchell debate. “The question is, are we going to be pragmatic and take a common sense approach? Are we going to stick with an obsolete, failed policy of prohibition that has done nothing for us for a century?”