PIERRE, S.D. (July 7, 2021) – Last week, medical marijuana became legal in South Dakota despite ongoing federal cannabis prohibition

Voters overwhelmingly approved Measure 26 legalizing medical marijuana 69.2 percent to 38.8 percent during last November’s general election. The ballot measure establishes a medical marijuana program for patients with qualifying conditions. Patients will be able to possess up to three ounces of marijuana and can grow up to three plants. The measure also establishes a licensing program for commercial production of medical marijuana and sales through licensed dispensaries.

The state won’t begin issuing medical marijuana cards and state-licensed dispensaries won’t begin operating until next fall at the earliest, but as of July 1, medical marijuana users will enjoy some protection under the law, The South Dakota Department of Public Safety has issued guidelines law enforcement must follow when dealing with people who identify as medical marijuana patients. Police will not arrest individuals in possession of marijuana who meet certain qualifications. Under the guidelines, law enforcement “will not, at the scene of a stop or interaction, arrest a South Dakota resident who is unable to present an unexpired medical cannabis card,” as long each of the following apply.

  • The individual possesses no more than three ounces of natural and unaltered marijuana, as defined by SDCL 22-42-1;
  • The individual claims at the time of the interaction that the medical cannabis is to treat or alleviate a debilitating medical condition as defined by the Department of Health;
  • The individual produces printed or electronic documentation relative to the debilitating medical condition from a licensed medical doctor.

South Dakota voters also approved a constitutional amendment to “legalize regulate and tax marijuana, and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.” A judge struck down the measure in a lawsuit authorized by Gov. Kristi Noem. The South Dakota Supreme Court is expected to rule on the suit in the near future.

EFFECT ON FEDERAL PROHIBITION

While marijuana has become more widely accepted across the U.S., under federal law, it remains illegal. As we’ve seen with immigration sanctuary cities, when state and local enforcement ends, the federal government has an extremely difficult time enforcing their acts.

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Despite federal prohibition, South Dakota voters approved medical marijuana and removed a layer of laws punishing the possession and use of cannabis in the state, but federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New YorkNew MexicoVirginia and Connecticut legalized marijuana through legislative action.

With 36 states allowing cannabis for medical use, and 18 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.


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