Can you be arrested for growing hemp in SC?

A farmer in Harleyville, SC, was arrested and had his crop destroyed, based on what he says is a technicality after he had received a permit from the Department of Agriculture but did not give them GPS coordinates for one of his fields.

If a person grows or possesses hemp without a license, is that a crime? The law says that it’s “unlawful,” but is that the same as “criminal?” If it’s a crime, what’s the penalty? What about smokable hemp – is possession of smokable hemp a crime, or is it “unlawful” with no criminal penalties?

Can a person be convicted and punished for doing a thing that the law doesn’t say is a crime? If there is an argument that a person could, should that argument be resolved in favor of the state or the defendant? Are we going to convict people of crimes and send them to jail for conduct that the law doesn’t say is criminal?

Harleyville Farmer Arrested for Growing Hemp in SC

Police in Harleyville, SC, destroyed 10 acres of a farmer’s crop and arrested him last week based on a “mapping error:”

Law enforcement mowed down 10 acres of hemp near Harleyville on Thursday and arrested [a hemp farmer] — the first farmer in the state to be charged with growing the crop on unlicensed land.

Because of a mapping error, [the hemp farmer] is accused of violating the 2019 Hemp Farming Act.

Apart from being handcuffed, arrested, jailed, and then being forced to pay a $3000 bond to secure his release, the farmer estimates that law enforcement caused as much as $12 million in damage to his crop:

[The farmer] estimates that up to $12 million worth of hemp was turned into mulch in a matter of minutes. He is licensed by the state to grow the strain of cannabis. But GPS coordinates required by the Agriculture Department didn’t include one of his two fields.

He apparently went through the proper channels and applied for an amendment to his application to provide the GPS coordinates for the second field, but the Department of Agriculture denied his amendment. Then, the Dorchester County Sheriff’s Department showed up with a dozen squad cars to arrest him and destroy his crop.

The crime?

“Unlawful possession of hemp – 1^st offense,” a first in South Carolina as far as I know. But is it a crime?

Can You be Arrested for Growing Hemp in SC?

Clearly, you can be arrested for growing hemp in SC, whether it is a crime or not… the questions are whether it was a lawful arrest, whether the person can be convicted of a crime, and, if so, how would they be punished?

Law enforcement, attorneys, and prosecutors don’t know how a person would be punished for “unlawful cultivation of hemp” because SC law does not provide a penalty for it. SC law does not even call it a “crime.”

Attorneys familiar with the case and law enforcement couldn’t explain what fines or jail time he may face…

Pendarvis’ case will be prosecuted by the 1st Circuit Solicitor’s Office. But Don Sorenson, the assistant solicitor, said he had “never seen something like this before,” referencing the confusion with no clear punishment being attributed to the offense.

So, attorneys, cops, and even the assistant solicitor assigned to the case don’t know what the punishment would be if it was a crime. Why the confusion?

Is “Unlawful” the Same as “Criminal?”

SC Code Section 46-55-20(A)(1) says:

(A)(1) It is unlawful for a person to cultivate, handle, or process hemp in this State without a hemp license issued by the department pursuant to the state plan.

The word “unlawful” means an act that is prohibited by law. Many things are “unlawful” that are not “crimes.” Don’t believe me? The SC Attorney General has said so, stating in an AG opinion that “[t]he term ‘unlawful’ as you are well aware, is not synonymous with the term ‘criminal.’” Op. S.C. Att’y Gen., 1971 WL 17598 (Op. No. 3225).

That was a different Attorney General, in a different time. What does the Attorney General say about it today?

SC Attorney General Opinion on Smokable Hemp

When law enforcement asked the Attorney General for an opinion on whether they could arrest people for possessing smokable hemp (which is processed, packaged, and contains less than .3% THC), his office issued an opinion concluding that:

• It is a criminal offense to possess “hemp” with a THC content greater than .3% (because that’s marijuana, not hemp);
• It is unlawful for someone to possess unprocessed hemp without a license (this would also apply to cultivation of hemp without a license); and
• Smokable hemp is “unprocessed” and therefore it is unlawful to possess it without a license.

For the record, smokable hemp is absolutely processed:

Code Section 46-55-10(12) defines processing as “converting an agricultural commodity into a marketable form.”

Code Section 46-55-10(9) says that “[u]nprocessed or raw plant material, including nonsterilized hemp seeds, is not considered a hemp product.”

The processing of smokable hemp that converts it from “an agricultural commodity into a marketable form” includes:

The flower (buds) must be harvested (cut from the larger plant). The flower must then be trimmed (extra leaves must be trimmed away from the flower before it is dried and cured). Then it must be dried and cured (it is not smokable until it is dried, and it’s a harsh smoke if it isn’t cured properly). Then, it is packaged for sale.

Once the hemp flower has been harvested, trimmed, dried, cured, and packaged for sale, it has been “converted into a marketable form” (processed) and is now a hemp product.

Which means it is not “unlawful” to possess or sell smokable hemp in South Carolina (be aware that some law enforcement officials disagree…). Cultivating a field of hemp without a license, technicality or not, may be “unlawful.” Which still leaves the question: What is the difference between “unlawful” and a crime?

The legislature could have made cultivation of hemp a crime, but they chose to call it “unlawful” instead. They could have included penalties for the cultivation of hemp, but they did not. We can assume they did not include penalties because they did not make a crime.

What would the penalty be if it was a criminal act? SC law says that “when no punishment is provided by statute the court shall award such sentence as is conformable to the common usage and practice in this state.”

Except, there is no “common usage and practice in this state” for prosecution of hemp farming. We don’t prosecute people for growing crops. The closest analogy would be cultivation of marijuana, except it’s not marijuana. Will we put hemp farmers in prison for decades for growing an industrial crop that is no longer classified as a controlled substance under state or federal law?

Void for Vagueness

The “void for vagueness doctrine” is a “constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.”

In this case, the proscribed conduct is defined well enough – don’t grow hemp unless you have a license from the Department of Agriculture. Is a statute “void for vagueness” in the context of a criminal prosecution when the statute is unclear as to whether the prohibited conduct is a crime or a civil violation?

The Rule of Lenity

Any prosecution for cultivation of hemp (or possession of smokable hemp) is going to have a problem with statutory interpretation – what did the legislature mean when they said “unlawful” instead of “a crime?” Why did they not provide penalties if they intended it to be criminal as opposed to a civil violation?

There are several “rules of statutory interpretation” that courts apply, including “the Rule of Lenity,” which means “in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.”

Maybe it was intended to be a civil violation, or maybe it was intended to be a criminal violation? That’s not good enough for a person who is facing prosecution, a criminal record, loss of property, and a possible prison sentence. When there is doubt, it must be resolved in favor of the criminal defendant.

Another rule is that the “legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.” Every criminal statute in the SC Code says that the proscribed conduct is a “crime,” a “misdemeanor,” or a “felony.” Most define that crime as a felony or misdemeanor in the text of the statute and include a statutory penalty for violation of the crime, and yet that language has been omitted from the 2019 Hemp Farming Act.

The legislature understands the term “unlawful” has a much broader definition than the term “criminal,” including a wide range of civil violations. Within the same law, legislators also included a provision expressly making it a crime to attempt to disguise marijuana operations through their proximity to a hemp farm:

Section 46‑55‑60. An individual who manufactures, distributes, dispenses, delivers, purchases, aids, abets, attempts to, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with the intent to manufacture, distribute, dispense, deliver, or purchase marijuana, in a manner intended to disguise the marijuana due to its proximity to industrial hemp, is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years, fined not more than three thousand dollars, or both. The penalty provided for in this section may be imposed in addition to any other penalties provided by law.”

If they intended for “unlawful cultivation of hemp” to be a crime, they would have said so. Instead, they said it was “unlawful,” with no provision for a penalty and no reference to whether it was a misdemeanor, felony, or even a crime.

Drug Crimes Defense Attorney in Charleston, SC

Charleston, SC marijuana defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC. If you’ve been charged with any marijuana offense in South Carolina, including:

• Simple possession,
• Possession with intent to distribute,
• Distribution,
• Manufacturing, or
• Trafficking in marijuana,

If you have been charged with or are under investigation for “unlawful cultivation of hemp,” selling smokable hemp, or possessing smokable hemp, we want to help.

Call now at (843) 808-2100 or send us a message for a free consultation about your case.