John Hult, South Dakota Searchlight
It’s true that on paper, South Dakota’s cannabis laws are some of the strictest in the nation. It’s also true that judges rarely impose the most severe sanctions available in marijuana cases, and that marijuana charges have dropped off considerably in recent years.
Even so, thousands of South Dakotans continue to pick up charges, including felony ones, for possession of cannabis and cannabis concentrates.
Defense attorneys say that because the state lacks a mechanism for expunging pot charges unless a judge grants one at the time of a guilty plea, the state’s marijuana laws do damage, with or without jail or prison terms.
“Having a stigma of a felony arrest and facing a felony charge, even if it’s later reduced or dismissed, can often affect your ability to travel, your ability to get a job, and you might lose your job,” said Eric Whitcher, the Pennington County public defender.
In the coming weeks, voters will decide whether to upend or stick with the state’s cannabis norms. Initiated Measure 29, which would legalize cannabis possession for adult South Dakotans, is on the Nov. 5 ballot. Early voting began Sept. 20.
Backers of IM 29 say the enforcement of “harsh” cannabis laws wastes policing resources and threatens to take away citizens’ freedom for partaking of a drug they call less harmful than alcohol.
Opponents of the measure say those claims are overblown, that cannabis possession alone rarely results in serious penalties or jail time and almost never puts people in prison.
Both sides have valid points, based on a South Dakota Searchlight analysis of data from the Unified Judicial System (UJS), Department of Corrections (DOC), and interviews with prosecutors, defense attorneys, activists and defendants.
A Legislative Research Council fiscal impact statement on IM 29 did not calculate the cost to counties for the prosecution of felony pot charges, but the statement says counties would save $500,000 a year by removing misdemeanor cases from county dockets.
But those savings wouldn’t come by way of avoided jail time for people charged with pot possession. Instead, they’d come from clearing the clutter of pot possession charges from the court system’s lengthy to-do list.
Marijuana and jail, prison
Possession of 2 ounces or less of marijuana flower is a class 1 misdemeanor, punishable by up to a year in jail and a $2,000 fine.
Those penalties are higher than average in the region – the highest fine for similar crimes among South Dakota’s immediate neighbors is $1,500; the longest potential jail sentence is six months – but it’s the state’s felony possession statute that stands out more starkly on the national level.
According to the National Organization for the Reform of Marijuana Laws (NORML), South Dakota is one of five states where a person can be charged with a felony for the possession of concentrated cannabis products like vape pens, gummies or hash oil.
Vapes and gummies can also draw felony charges in Florida, Texas, Georgia and Alabama, according to NORML.
In practice, it’s exceedingly rare for South Dakotans to wind up in prison or jail for simple possession of any kind of cannabis product.
That’s even true for parolees on supervision. Drug use alone can draw mild to moderate sanctions for a parolee, but generally doesn’t constitute a “parole violation” – the sanction that returns a person to prison.
“We do not have any offenders who were violated from parole supervision solely for possession of marijuana,” Department of Corrections spokesman Michael Winder wrote in response to a records request from South Dakota Searchlight.
“A recommendation to violate parole is the final and most serious sanction available,” he added.
As of June 30, Winder wrote, there were 10 people in state prisons for pot-related crimes. Of those, three were serving sentences for possession of 10 or more pounds of pot. The remaining inmates were serving time on pot as well as other charges, or had violated parole.
County jail time for pot alone is similarly uncommon.
According to the Unified Judicial System, South Dakotans have served 5,450 days in jail on marijuana possession sentences since 2019. But in most of those cases, the defendant was at least initially charged with multiple offenses, often felony drug possession, before being sentenced to jail for pot as part of a plea deal.
In cases where possession of 2 ounces of pot or less was a defendant’s only charge during that same time period, South Dakotans served 220 days in jail. More than half those days were served by a single defendant who had a lengthy arrest history before picking up a standalone pot charge. She was never released from jail after her initial arrest, and was sentenced to 127 days in jail, which was the amount of time she’d served on the day the sentence was imposed.
Most jail time issued by judges in pot possession cases is suspended on the condition that defendants pay their fines and don’t break the law. In total, since 2019, judges have suspended 205,393 days of jail time for misdemeanor pot possession.
Jail officials in Minnehaha and Pennington County said it’s nearly unheard of for someone to serve time in a county jail for pot possession alone.
“I can confidently say nobody has sat in jail on just possession of marijuana, 2 ounces or less, since at least 2021,” said Minnehaha County Jail Warden Mike Mattson, who operates the jail serving South Dakota’s largest metropolitan area.
Charges fell after 2020, started climbing again in 2023
A lack of jail terms isn’t for a lack of charges. Since 2019, 23,873 misdemeanor pot possession charges have been filed in South Dakota.
The highest number in that five-year period came in 2019, when 6,514 were filed. By 2022, that figure had dropped by more than half, to 2,598.
Charges began to creep back up in 2023, reaching 3,499. By mid-August this year, 2,241 charges had been filed, on pace to once again climb above 3,000 for the year.
That could be the result of the increased availability of cannabis, according to Brookings County State’s Attorney Dan Nelson. Nelson offers nearly all of his first-time pot possession offenders a diversion program that scrubs charges from their records after they take a class, do 10 hours of community service and avoid new criminal charges for 13 months.
The state’s medical marijuana program went live in the summer of 2022, Nelson noted, and there’s growing acceptance of the drug in some quarters as more states legalize it.
“Maybe the why is just because there’s more of it out there,” Nelson said.
A similar trend is apparent in felony marijuana charges, although court data on those charges offer an incomplete picture of their prevalence.
Blind spots in felony pot data
South Dakota’s felony drug possession laws do not distinguish between individual drug types.
The possession of pot gummies is a violation of the same statute – possession of a controlled substance – that bans heroin, methamphetamine or cocaine, and it’s punishable by up to five years in prison.
But the Unified Judicial System does track drug types, to an extent. The UJS says there have been 56,641 charges filed for possession of a controlled substance filed since 2019, a figure that does not include distribution or ingestion charges.
“Charges” do not necessarily equate to individual defendants. Individual people can face multiple charges, and charges can be dismissed and refiled for a number of reasons as a case moves through the system.
Of the charges filed for possession of a controlled substance since 2019, 1,795 were for “marijuana” or “marijuana wax.” Those numbers fell in 2021 and 2022, but began to climb in 2023. In 2019, there were 303 felony pot charges; in 2023, there were 420.
Those figures represent a fraction of felony pot charges. The UJS only tracks certain drug types, and prosecutors often file charges using terms that aren’t included in those tracked categories.
Prosecutors in Minnehaha County, for example, often charge people caught with gummies or vape pens with possessing “delta-9 tetrahydrocannabinol,” which is the high-inducing chemical compound in marijuana. In other jurisdictions, indictments use terms like “THC wax” or “hash oil.”
The UJS doesn’t have a category for any of those terms. As a result, clerks of court might log the drug type in such charges as “other” or “unknown.”
It’s unclear how many felony drug charges labeled “other” or “unknown” involve cannabis, but a Searchlight analysis of case data suggests a significant figure.
Taken together, 12,176 charges were filed under “other” or “unknown,” representing the second-largest number of felony possession charges filed since 2019, behind methamphetamine.
The only way to find out which drug is involved in an “unknown” or “other” case is to open the criminal file at a county courthouse and read the indictment or criminal complaint. Those documents are not accessible online.
A random check of more than 200 felony possession cases with charges labeled “other” or “unknown” in the UJS data found 84 that involved cannabis. The tags “other” and “unknown” were also applied to charges for psilocybin mushrooms and prescription drugs like Ativan and Valium, and occasionally to charges for drugs like methamphetamine, which do have a line item in the court system’s database.
The cases with felony pot charges uncovered in those spot checks most often ended in one of two ways: with guilty pleas to misdemeanor pot or ingestion charges in exchange for a dismissal of more serious ones, or with suspended sentence deals in which a defendant admitted to a felony on the promise it be scrubbed from their record after a period of good behavior, the payment of fines and other conditions imposed by a judge.
That’s not a surprise to Roberts County State’s Attorney Dylan Kirchmeier.
“Unless there’s something else involved, my standard approach is to offer a plea to a lesser charge,” Kirchmeier said of felony marijuana cases.
Diversion programs avoid strain on system
Kirchmeier said felony pot cases most often include charges for other drugs or other crimes. That’s why he doubts legalizing gummies or vapes, as IM 29 would do, would save him a ton of time or money.
“I’d be handling those cases anyway,” Kirchmeier said.
Usually, anyway. Standalone felony arrests for vape pens or gummies do land on his desk sometimes. The Sisseton-area prosecutor said his approach to plea deals in those situations “really depends on the defendant.”
“If it’s a young kid that’s never been in trouble before and it’s their first time with any sizable amount of trouble, a lot of times I’ll handle those with deferred prosecution agreements,” he said. “I tell them, ‘Be good, keep your nose out of trouble for a year, and if I don’t see you again, (the charge) is not coming back.’”
Like Kirchmeier and any other prosecutor in the state, Nelson has flexibility in how to manage pot cases. Nelson said his use of diversion in pot cases has probably saved his county a million dollars over the past four years.
With limited tax dollars for law enforcement, he said, pot possession cases are less worthy of investment than drug dealing, theft or violent crime.
“It’s a triage approach, because we only have so much manpower on the policing side, the court system side,” Nelson said. “We can’t just track down every single drug user and not simultaneously neglect some of our responsibilities as it relates to violent crime, or some of the harder drug dealers or on domestic violence.”
The absence of prison or jail terms in most pot possession cases doesn’t equate to a lack of impact. Especially when it comes to felony charges, for which defendants are often assigned county-funded public defenders.
When asked if legalizing marijuana would save counties more money, Nelson said he’s not sure the savings to law enforcement would be worth the potential costs of legitimizing marijuana use. He’s seen more pot-related DUIs in recent years, and he said legalization wouldn’t improve matters there. He also wonders what legal weed might mean for students, employers or the mental health system.
“Part of it is, ‘What are the societal trade-offs if pot becomes legal?’” Nelson said. “What are the other costs, the hidden costs, if we normalize people using marijuana?”
Impacts on users
Even felony charges that end with deferred prosecutions or diversions can put a strain on defendants, according to Minnehaha County Deputy Public Defender Aaron Gehrke.
A person caught with a joint in Sioux Falls gets a citation and a court date. A person caught with a gummy goes to jail, at least initially.
“You get arrested, your vehicle gets towed, you get hauled in front of a judge, you have to get a bond and all of that,” said Gehrke, who represents clients charged with marijuana felonies.
South Dakota Searchlight reached out to several people charged with felony pot possession after 2019. None of those who responded were willing to speak about their case on the record.
David Blackburn was, though. Blackburn is a manager for Royzzz, a medical cannabis company with dispensaries in Sioux Falls and Yankton. His boss, Roy Nielsen, is pushing for the passage of IM 29 by offering pro-pot information at his dispensaries and contributing to the measure’s sponsor, South Dakotans for Better Marijuana Laws.
Blackburn told South Dakota Searchlight he was working as a welder in Freeman when he was arrested for felony pot possession in 2016. He was on the way to work, but he was late. He’d put on his welding jacket on his way out the door, on top of his winter coat.
“The cop pulled me over because I had my windows down, and he thought it was suspicious that I had my windows down in the winter,” Blackburn said.
He didn’t make it to work. Instead, he found himself in jail in Mitchell and charged with felony pot possession after a drug dog alerted to marijuana flower and “an empty vaporizer cartridge” in his trunk.
He’d lost his job by the next day, he said. He wound up pleading guilty to the felony charge in a deal that suspended two years of prison time in exchange for a period of good behavior, the payment of fines and a court-ordered drug class.
He struggled to find steady work after that, instead doing “random pick-me-up jobs with whoever would hire me” until South Dakotans voted in 2020 to legalize medical marijuana.
Not long after that, Blackburn was working for a different dispensary company in Sioux Falls. He moved to Royzzz earlier this year to help open the dispensary he now manages.
“If it wasn’t for the fact that I work where I work now, it would have absolutely ruined my life,” Blackburn said.