The South Dakota Capitol building in Pierre. (Seth Tupper/SD Searchlight)
The South Dakota Senate rejected two bills Wednesday that aimed to soften controversial drug laws.
One sought to help drug users avoid prison for failed drug tests; the other would have placed marijuana edibles and vape products in the same misdemeanor category as marijuana flower.
Senate Bill 201, which failed by a single vote, would have altered a law that lets judges levy felony penalties for drug ingestion. The potential for prison time would only appear on a third offense.
South Dakota is the only state with a separate and specific statute for felony ingestion.
Sen. Mike Rohl, R-Aberdeen, has sponsored similar bills on ingestion in the past. This time, Rohl amended his original bill on the day of its committee hearing with a rewrite that changed it from a proposal covering marijuana alone to one that covered indigestion of all types.
Rohl told lawmakers that Arizona allows for misdemeanor or felony penalties under a drug law that penalizes “possession or use.” Ten other states charge ingestion as a misdemeanor, he said, and 38 have no penalty for ingestion, a charge that typically follows a failed urinalysis or blood test.
Rohl said treatment is a better option than prison for drug users, particularly in light of South Dakota’s high rate of incarceration for drug crimes. Around 15% of women imprisoned in South Dakota are serving time for ingestion alone.
“We rank towards the bottom in terms of individuals who are arrested for drug crimes,” Rohl said. “We are the number one state in terms of people who are in prison for drug crimes.”
Rohl also cited the law’s disparate impact on Native Americans. In a state where less than 10% of the population is Native American, he said, 52% of the prisoners incarcerated for ingestion are Native.
Adjusting the law to focus on treatment would lead to better outcomes for addicts, he said.
“Addiction is something that goes beyond a crime. It’s an illness,” Rohl said.
Opponents accused Rohl of sneaking the amendment onto the floor by introducing his amendment on the day of the bill’s Health and Human Services Committee hearing last week. Helene Duhamel, R-Rapid City, told senators that Attorney General Marty Jackley opposes the bill and would have said so if not for the last-minute nature of the amendment.
“This is not the way to introduce controversial legislation: without even hearing opposition, and totally avoiding the Judiciary Committee,” said Duhamel, who chairs that committee.
Duhamel was among those who argued that people would swallow drugs before a traffic stop or jail booking to avoid a felony charge.
“In the last year, we have overdoses in our jails with people who swallow drugs before they were arrested,” said Duhamel, who works as spokeswoman for the Pennington County Jail.
Others noted that ingestion can be the crime of last resort for prosecutors who can’t make other charges stick.
“Realistically, our statistics look horrible. They do. But it’s a tool that our state’s attorneys are using,” said Sen. John Wiik, R-Big Stone City. “A lot of times there’s a lot of things people are charged with, but the one thing you cannot dispute is the drugs in their system.”
Rohl countered by saying that his amendment was posted the morning before his bill’s committee hearing, that the bill still allowed for penalties when warranted, and that overdoses are exacerbated by the current law.
“We do have instances of individuals that need medical attention and do not seek it because they will get a felony,” Rohl said. “And when our system is designed in such a way that the person would rather risk death than seek help, I think we need to evaluate how we’re helping these people, and how we can create a stronger community going forward.”
The bill failed on a vote of 18-17.
Rohl’s other proposal, Senate Bill 205, sought to remove marijuana products from the list of felony-eligible drugs in the state.
Currently, a person caught with up to 2 ounces of marijuana flower can be charged with a class 1 misdemeanor, punishable by up to a year in jail and a $2,000 fine. Someone caught with a single marijuana gummy can be charged with a felony.
“This is taking the equivalent amount of up to 1 ounce of marijuana and saying we’re going to charge that as a class 1 misdemeanor,” Rohl said.
Chicago rapper Chief Keef was famously charged with a felony after being caught with edibles at the Sioux Falls Regional Airport in 2017. The rapper pleaded no contest to the charge in 2019.
Rohl said he was simply working to align state law to treat cannabis products equally for those who keep drugs for personal use. Sen. David Wheeler, R-Huron, who ultimately voted for SB 201 and SB 205, told senators that current law unfairly penalizes a particular form of cannabis.
“We already say small amounts of marijuana is a misdemeanor. That’s been the law for decades. But if you have one gummy in your pocket, that’s a felony.” Wheeler said. “Two ounces of marijuana is a lot more than one gummy.”
Sen. Mike Diedrich, R-Rapid City, also decried the current law as inequitable.
“Why would one be charged out at the felony level of fentanyl, where the other would be charged out as a misdemeanor?” Diedrich said.
Sen. Al Novstrup, R-Aberdeen, pleaded with the body not to loosen drug laws. He cited a report from the Department of Public Safety that noted a spike in overdose deaths in the state.
“If we do this, it will increase individual usage,” Novstrup said.
Other opponents said prosecutors have and exercise discretion in cases involving marijuana edibles.
“Law enforcement, judges and prosecutors have judicial discretion, especially for the small amounts,” Duhamel said. “They find someone who has two gummies in their purse who’s left Colorado, they are not sending them to the penitentiary.”
SB 205 failed on a vote of 21-14.
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