Battle over Pot Possession in Alaska Is Back in the Courts

By Phillip S. Smith, Drug War Chronicle. Posted April 2, 2008.

For more than 30 years, Alaska's courts have held that the state constitution's privacy protections barred the state from criminalizing adults possessing and consuming small amounts of marijuana in the privacy of their homes. Although voters passed an initiative recriminalizing marijuana in 1991 and more than a decade passed before the courts found that measure unconstitutional, Alaska's courts have never wavered from the landmark 1975 decision in Ravin v. State that legalized home possession.



That has never set well with prohibitionists, as evidenced by the 1991 initiative. Two years ago, after the courts restated their adherence to Ravin, then-Gov. Frank Murkowski (R) tried again to undo the status quo. Then, he managed to push through the legislature a bill that would once again recriminalize marijuana possession, and he stacked it with a series of "legislative findings" based on one-sided science designed to make the case that the nature of marijuana had changed so dramatically since the 1970s that Alaska's courts should rethink their position.

But when that law took effect in June 2006, the ACLU of Alaska sued the state, and Juneau Superior Court Judge Patricia Collins struck it down that summer, saying it conflicted with the state supreme court's decision in Ravin. The state appealed, and last Thursday, the state Supreme Court heard oral arguments in the case.

Former Assistant Attorney General Dean Guaneli came out of retirement to reprise his old role as lead man in the Alaska law enforcement establishment's effort to undo the Ravin decision. It's not your father's marijuana, he argued, saying that it is far more potent than before, that pregnant women in Alaska are more prone to using marijuana than elsewhere in the country, and that 10% of users become dependent on the drug. All of this, he argued, is sufficient for the state high court to revisit and reverse its decision in Ravin.



The ACLU, representing itself and two anonymous plaintiffs, however, argued that the court should not bow to politically motivated findings that were tailor-made for the case. The court "needs to look with extreme skepticism at the legislature's findings" before overturning decades of decisions protecting Alaskan's rights to privacy, said ACLU attorney Jason Brandeis during the hearing.

The court will not issue a decision on the case for six months to a year, but it was being watched with interest by observers across the country. Marijuana law reform proponents in particular are hoping that Alaska will continue to be in the vanguard.

"Alaska currently has the best marijuana laws in the country -- it's perfectly legal to possess small amounts in your home -- and it would be a terrible setback if this court were to reverse a decision in place for more than 30 years," said Keith Stroup, founder of the National Organization for the Reform of Marijuana Laws (NORML). "But so far, the courts there have held it is unconstitutional to attach penalties to the private use of marijuana."

"This is a very important case that deals with some fundamental legal principles," said Jason Brandeis, who argued the case along with Adam Wolf of the national ACLU's Drug Law Reform Project. "First, there is the matter of stare decisis, respect for precedent. What we are asking the court to do is respect the precedent of Ravin and continue to rule that absent a really good reason, the state can't invade the sanctity of the home and preclude adults from engaging in certain types of conduct," he said.

"The state says it has new evidence that marijuana is dangerous, and that justifies the state piercing the sanctity of the home, but our position is simply that they don't have the scientific evidence to support that claim," said Brandeis. "The question is whether adults using marijuana at home rises to a level of social harm that justifies abrogating their privacy rights. We don't think so."

While the Alaska ruling will be important as an example to the rest of the country, said Stroup, it will also have a practical impact. "One reason this case is so important is that so long as it is legal to have small amounts at home, even if the police smell marijuana, that's not probable cause for arrest or a search warrant," he pointed out. "That's important."

For Ravin to be overturned, said Brandeis, the court would have to find a "close and substantial" relationship between preventing an adult from smoking marijuana at home and the state's interest in protecting the public health and safety. A ruling like that would be "a big step backwards," he said. "It would be a big blow to our privacy rights, and we take our privacy very seriously up here."



Brandeis refused to predict the outcome of the case, but sounded confident. "It's pretty clear the court knows what the issues are," he said. "There were a lot of questions about what level of deference the court should give the legislative findings, and I think we presented strong arguments that the court should not defer in this situation."

Stroup was not quite as cautious. Despite what he described as Gov. Murkowski's "reefer madness" and the legislative findings it inspired, Stroup pronounced himself confident that Ravin will be upheld. "I don't think we'll lose this," he said. "I have no reason to believe the Alaska Supreme Court will do anything differently than it did in Ravin."

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Phillip S. Smith is a writer and editor for Drug Reform Coordination Network.

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