Roger Baron, professor emeritus at the University South Dakota School of Law, said he doesn’t believe the high court has shown a “particular propensity to be overly hostile” toward drug cases. But Baron also dinged the court for “extreme sentencing” in an op-ed published earlier this year, especially in the case of juvenile offenders.
“When you talk about the South Dakota Supreme Court, that court gives wide deference to whatever the trial judge does,” Baron said. “But in this case, they’re going to look at it brand-new.”
The court will first hear oral arguments in a challenge to Amendment A, a constitutional amendment passed by voters in November that would legalize recreational marijuana. While legally separate from the technical constitutional issues before Wednesday’s case, the court’s sterner demeanor on punishment, especially in front of drug crimes, was nevertheless most recently on display in a unanimous opinion, penned by Justice Janine Kern, who has been on the bench for six years.
A Yankton County man, Shawn Shelton, who faces at least 12 years in prison for selling a half-gram of meth in a school zone, has appealed his sentence, saying it was cruel and unusual.
Kern had none of it.
Calling Shelton a “habitual offender” and noting “even nonviolent drug offenses pose significant risks to the public,” the justice maintained the sentence “is not grossly disproportionate to his crimes, or cruel and unusual.”
Without strong exit polling data, it’s impossible to fully know what drove the beliefs of the 54% of voters last November who approved Amendment A, the act to legalize possession and tax the sale of pot in the state. Increasing national attention on the disproportionality of drug sentencing is seen among liberalizing attitudes toward marijuana, experts say.
In a Gallup poll last November, 68% of Americans support legalizing marijuana, with even Republicans split on the question.
Yet, South Dakota remains the only state where someone can face a felony for ingestion of a drug.
In briefs filed with the South Dakota Supreme Court prior to Wednesday’s oral arguments over Amendment A, attorneys stayed away from political arguments, instead claiming the law enforcement agents who sued to overturn the law at the behest of Gov. Kristi Noem lack standing and that the single-subject rule for constitutional amendments wasn’t violated by the measure’s text.
But buried in the 500-plus pages of briefs, a friend-of-the-court brief from the libertarian-leaning Cato institute, as well as other think tanks, makes the case to peel back South Dakota’s drug laws, which they say was the state’s shrewd decision to “break with the federal orthodoxy of marijuana prohibition.”
“In short, South Dakota’s Amendment A, while perhaps ‘experimental’ in terms of its drug laws, from a national perspective is in no way ‘novel,'” writes Patrick J. Lee-O’Halloran, a Minnesota-based attorney writing on behalf of Cato.
The brief also notes that between 2009 and 2018, authorities in South Dakota arrested more than 31,000 people for marijuana offenses, including 95% for possession.
“It’s absolutely true that South Dakota treats drug charges more harshly,” Martha Rossiter, a public defender in Pennington County, told Forum News Service on Tuesday, April 27. “I have so many people who have felony records filled with just possession charges.”
Rossiter said some counties do work to deter jail time. She observed 7th Circuit Court Judge Robert Mandel shows an “equilibrium about addiction,” so that persons suffering addiction get treatment.
But Rossiter said Mandel retires in June, and she doesn’t know who will fill his seat.
So Rossiter, like many public defenders across the state, will be watching what happens on Wednesday to see if a statewide constitutional amendment that promised to bring some relaxation in restrictions may, in fact, survive this legal challenge.