South Dakota medical marijuana measure cast aside

July 29, 2004

Joe Kafka, Aberdeen News

PIERRE, S.D. - A proposal that would have allowed people who smoke pot for medical reasons to at least use a necessity defense in court was snuffed out Friday by officials who are studying all state criminal laws.

Switching to the subject of methamphetamines, the panel embraced a proposal that would ease penalties for light use of the drug but increase them for larger quantities.

The medicinal marijuana measure was offered by Republican Rep. Tom Hennies, former Rapid City police chief.

Hennies said he does not favor decriminalization of marijuana, but he said there is strong evidence that marijuana can ease chronic nausea and pain that is not helped by prescription drugs. Sometimes, he said, smoking marijuana is the only relief for critically ill people who are dying.

'We do a disservice to people who are in the throes of death to say they can take morphine and other opiates but you can't use marijuana,' Hennies said.

'Why would you even arrest a guy, who for his own medical purposes, smokes marijuana?'

Hennies' proposal, which failed 4-1, would not have prevented police from arresting people who use marijuana. But it would have allowed people to argue that they smoke pot for legitimate medical reasons, and doctors could be called to testify in their defense.

Hennies said 10 states have provisions for medicinal marijuana use.

Circuit Judge Tim Dallas Tucker of Madison said such a law would be a burden on judges and juries to decide on a case-by-case basis if people are smoking pot for actual medical reasons. If a medical defense is allowed in marijuana cases, it is tantamount to legalizing marijuana, he said.

'If you can be prosecuted and you have a defense, then it's legal,' Tucker said.

The judge of 17 years said marijuana use should only be legalized if done as a broad policy decision by the state Legislature. South Dakota lawmakers have soundly rejected that idea in past years.

Methamphetamine charges are piling up all over the state, said Dave Nelson, Minnehaha County state's attorney. State law should be revised to take into account the various levels of meth possession, he said.

At Nelson's suggestion, a subcommittee of the state Criminal Code Revision Commission decided Friday that possession penalties be tied to specific amounts of the drug. Existing law makes possession of any quantity of meth a felony punishable by up to 10 years in prison, Nelson said.

'I don't think one size fits all,' he said.

Nelson will devise a matrix of meth penalties, dependent upon amounts of the drug that people possess, for consideration by the subcommittee at its next meeting in August. Any proposal adopted by the full commission will be submitted to next year's Legislature.

Penalties for those who manufacture and sell meth should continue to be stiff, Nelson said. Those who are caught with huge amounts of meth should face prison terms ranging from 25 years to life, Nelson said.

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