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Two measures of interest to drug reformers are on the South Dakota ballot. Initiative 1 would legalize industrial hemp production, but it is the other measure, Constitutional Amendment A, that has gotten notice from around the country. Amendment A would allow defendants in criminal cases to effectively seek jury nullification by arguing that the law under which they are charged in invalid, unfair, inapplicable or just plain dumb.

Matthew Ducheneaux, a Lakota Indian who was arrested for smoking marijuana for medical reasons, has been the poster-child for the effort. Ducheneaux was convicted after South Dakota courts refused to allow him to use a medical necessity defense. But Amendment A supporters are currently engaged in a search for the most outrageous examples of courtroom abuse and are offering $2,002 for the worst case. The winner, if that's the right word, will be announced October 31.

Amendment A is opposed by the South Dakota legal establishment. Both major party candidates for attorney general are united in opposition, as is the South Dakota Bar Association and the South Dakota Trial Lawyers Association. While its supporters, led by Bob Newland of Hermosa, are low on funds, they are high on energy and have argued the question in public forums and newspaper commentaries across the state.

There have been no published polls on Amendment A, and Newland told DRCNet he couldn't tell what will happen on Election Day. But Newland added that the opposition had only recently been agreeing to debates. "It's just now that the lawyers are coming out to face us," he said. "They wouldn't be doing that if they didn't think they were losing, so we're feeling pretty good about that."

Although Amendment A has stirred more interest than the industrial hemp initiative, both have been largely ignored as the state focuses on the highly contested battle for the US Senate seat currently held by Democrat Tim Johnson, who is being challenged by Republican John Thune in a race that has seen out-of-state money pour in in what is widely viewed as a surrogate battle between Senate Majority Leader Tom Daschle (D-SD) and President Bush.

The Sioux Falls Argus Leader, the state's largest newspaper, reported that its poll showed the hemp initiative losing with only 21% of the vote, leaving Newland mystified. "Our poll last year showed 85% approval, but that was a push poll, so that figure is probably too high. But the results were so encouraging we thought we had it in the bag," he said. "I find the Argus Leader numbers very hard to swallow, but all I can say, I guess, is that we're somewhere between 21% and 85% approval."

Amendment A on the ballot:

Title: An amendment to Article VI, Section 7 of the Constitution, relating to the rights of a criminal defendant.

Attorney General Explanation: The Constitution currently guarantees certain rights to a person accused of a crime. Amendment A would amend the Constitution to state that a criminal defendant may argue the merits, validity, and applicability of the law, including sentencing laws.

A vote "Yes" will change the Constitution.

A vote "No" will leave the Constitution as it is.

Full Text of Constitutional Amendment A:

That Article VI, section 7 of the Constitution of the State of South Dakota, be amended to read as follows:

§ 7. In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf; and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed; and to argue the merits, validity, and applicability of the law, including the sentencing laws.

Title: An initiated measure adopting a law relating to industrial hemp (cannabis).

Attorney General Explanation:

Initiated Measure 1 proposes a law that would make it legal under state law, but not under federal law, for a person to plant, cultivate, harvest, possess, process, transport, sell or buy industrial hemp (cannabis) or any of its by-products with a tetrahydrocannabinol (THC) content of one percent or less.

A vote "Yes" would adopt the state law.

A vote "No" would leave state law as it is.

Full Text of Initiated Measure 1:

Any person may plant, cultivate, harvest, possess, process, transport, sell or buy industrial hemp (cannabis) or any of its by-products with a tetrahydrocannabinol (THC) content of one percent or less.

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