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Feature: Judge Throws Out Part of Alaska Marijuana Recriminalization Law, Up to An Ounce is Now Legal At Home

Gov. Frank Murkowski's two-year effort to recriminalize marijuana in Alaska hit a roadblock Monday when a Superior Court judge struck down the part of the law he pushed through the legislature earlier this year. Judge Patricia Collins threw out the section of the law that criminalizes the possession of marijuana for personal use in the privacy of one's home, but reduced the exempt amount from four ounces to one ounce. Collins also left intact portions of the law increasing penalties for marijuana offenses.

http://stopthedrugwar.org/files/murkowskiwalters.jpg
propaganda show by Gov. Murkowski and drug czar Walters
In a 1975 decision, Ravin v. State, the Alaska Supreme Court held that the state constitution's privacy provisions barred the state from criminalizing the possession of personal amounts of marijuana in one's home. A 1991 initiative recriminalized marijuana possession, but when that law was eventually challenged in 2004, the Alaska court's upheld Ravin, saying the popular vote could not trump the state constitution.

Ever since, Gov. Murkowski has worked to undo those decisions. Last year, a determined lobbying effort financed by the Marijuana Policy Project (MPP) managed to fend off action at the statehouse, but Murkowski managed to push the bill through earlier this year. Included in the law is a series of "findings" designed to demonstrate that marijuana is so much more dangerous now than in 1975 that the state Supreme Court will have to decide differently when it weighs the issue again.

"Unless and until the Supreme Court directs otherwise, Ravin is the law in this state and this court is duty bound to follow that law," Collins wrote in her decision as she granted summary judgment to the American Civil Liberties Union. The group had filed suit to block the law as soon as it became law in June.

"The drug war has wreaked havoc on the Bill of Rights and the US Constitution, but fortunately many state constitutions still shield individuals from drug war excess," said Allen Hopper, an attorney with the ACLU Drug Law Reform Project. "This ruling is incredibly significant from a national perspective, because there are a number of states with similar privacy rights in their constitutions that may afford protections to adult marijuana users."

"The state of Alaska has charted a different course from that of the federal government's failed policy on marijuana," said Michael MacLeod-Ball, executive director of the ACLU of Alaska. "This ruling affirms Alaska's commitment to fundamental privacy rights over reefer madness."

"We're certainly pleased we at least got a partial victory," said Bruce Mirken, communications director for MPP, which also chipped in on litigation costs. "And we're hopeful the Supreme Court will recognize the nonsensical nature of the findings the state wrote into the law in an effort to override the state constitution. But the court decision still left in place draconian new penalties for larger amounts and reduced the amount one can keep at home. The battle has begun, but it has a ways to go," he told DRCNet.

Alaska Department of Law spokesman Mark Morones told DRCNet the state would be quick to appeal the decision. "We are pleased the judge made an expeditious ruling," he said. "It's always been our position that the issue of the legality marijuana and the privacy debate really do have to go back to the Supreme Court for a final determination of the right to privacy and the state's safety interest in being able to prosecute marijuana cases. We plan to appeal expeditiously," Morones said.

In her decision, Collins explained that she limited it to the possession of less than one ounce because the ACLU argued that the only issue at stake in the case was the government's ability to regulate the possession of small amounts of marijuana. "No specific argument has been advanced in this case that possession of more than one ounce of marijuana, even within the privacy of the home, is constitutionally protected conduct under Ravin or that any plaintiff or ACLU of Alaska member actually possesses more than one ounce of marijuana in their homes," Collins wrote.

Department of Law spokesman Morones took heart in that portion of the ruling. "Our initial interpretation of this case at this point is that Judge Collins' decision makes it clear that the state has the ability to regulate marijuana use in amounts greater that one ounce," he said.

As things now stand in Alaska, possession of an ounce at home is okay, possession of up to four ounces is a misdemeanor, and possession of more than four ounces is a felony. Soon it will be time for the Alaska Supreme Court to definitively resolve the issue -- one more time. Both sides are already gearing up for the appeal, which will go directly to the Supreme Court. According to Morones, the process could take months or perhaps a year. In the meantime, Alaska once again stands as the only state in the nation where people can legally possess small amounts of marijuana.

Editorial: Not Playing by the Rules, Not Making Sense

David Borden, Executive Director, 7/14/06

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David Borden
Call me old fashioned, but I like it when rule-makers play by the rules. I like it when the law corresponds to reality, both in wording and interpretation. I like it when laws make sense.

I don't like it when legislators thumb their noses at their constitutions to enact laws they know don't pass muster. Unpopular Alaska Gov. Frank Murkowski's marijuana re-criminalization bill, partially struck down by a Superior Court judge this week based on the state Supreme Court's standing word, is a good example. The bill signed by California Gov. Arnold Schwarzenegger to change California's initiative-enshrined treatment-not-jail law in ways that contradict the voters' choice is another.

As worrisome as methamphetamine recipes floating around the Internet may be for some, the bill signed by Michigan Governor Jennifer Granholm aiming at those almost certainly flouts the First Amendment. Are they going to sue publishers of online, academic chemistry texts that happen to include information on this legally-prescribable schedule II substance?

I don't like "legal fictions" -- definitions in the law that have to then be dealt with as if they were real when in fact they're not. The much criticized asset forfeiture laws, in many of which a mere object is the entity that gets accused of the crime (allowing the government to take property from innocent owners) rely on that fiction for their justification. Another such fiction is laws in 21 states, including another from Michigan, that categorically equate certain drug activity with child abuse -- whether a child was actually abused or not.

It's important to remember that child abuse laws are already on the books -- if a child is getting abused, some form of intervention by the law to address the situation is appropriate. But if a parent, for example, takes some methamphetamine while at home in order to stay up late to meet a critical work deadline, but without acting aggressively or neglecting the family's needs, how is that child abuse? Many people take meth or similar drugs on prescription from their doctors for very similar purposes. Doing so without a prescription is illegal, and can certainly be disconcerting. Some meth users do become unstable or violent. But are the two situations really so very different -- inherently, by definition -- for the latter to qualify as child abuse, even if no actual abusive acts ever take place?

Even when meth is being manufactured, it's fictional to equate it with abuse categorically, the legitimate dangers of meth manufacturing notwithstanding. If chemicals are being handled in a way that subjects children to harm qualifying as abuse, and if it's done intentionally or with clear, willful recklessness, then it doesn't matter whether it's meth or another drug or the stuff in those bottles underneath your kitchen sink, it's still abuse (or perhaps endangerment). But the fact that it's a drug being manufactured is purely incidental.

It's not legal hair-splitting to say that, because applying the label of "child abuse" creates an appearance that the accused is a monster who probably belongs in jail and almost certainly shouldn't be entrusted with children. But that may not at all be the case; the user may be a responsible user who takes perfectly good care of the kids. The user may be addicted and need help, but never raise a hand against a son or daughter or place them in danger. Even the dealer or manufacturer may only be trying to get by in difficult economic circumstances -- the illegal activity may be what one is doing in order to provide better for the children. That's a sad circumstance, but it's a circumstance faced by many. Disconcerting, yes, but child abuse?

The most offensive thing about the California development is that it was a coalition of law enforcement groups and drug court judges who pressed for the bill. They don't like the restrictions Prop 36 put on them. But so what? They have the right to field their own counter-initiative (with private money, of course), if they think they could win it. They lost pretty badly the first time. But the voters spoke, and the state constitution says that counts.

I don't think our law enforcers -- judges, of all people -- should disrespect the constitutions whose tenets are intended to stand over and bind them. Though they claim to hold law in reverence, in this they have trampled it. Call me old fashioned, but I don't think that's good for our country.

Judge Blocks Law that Changes Treatment Initiative (California)

Location: 
United States
Publication/Source: 
Associated Press
URL: 
http://www.mercurynews.com/mld/mercurynews/news/breaking_news/15033430.htm

Tennessee Judge Throws Out State's Drug Tax Stamp Law

Publication/Source: 
Associated Press
URL: 
http://www.wbir.com/news/regional/story.aspx?storyid=35986

ACLU Alaska press release

And another ACLU item, this one about the Alaska victory that came as expected -- hopefully not just a short term victory, but only time will tell about that. Read our feature story in the Chronicle from about a month ago.
Adults Have Privacy Right to Use Marijuana in the Home, Says Alaska Judge in Landmark Ruling ACLU Wins Multi-Year Battle to Protect Alaska Residents From Drug War Excesses FOR IMMEDIATE RELEASE July 11, 2006 JUNEAU - In a landmark ruling, an Alaska state court judge has upheld adults' right to possess and use small amounts of marijuana within their homes. The American Civil Liberties Union, which challenged the law, said the ruling confirmed that the state constitution protects adults who use and possess marijuana in their homes from police surveillance, searches, arrest and prosecution. "The drug war has wreaked havoc on the Bill of Rights and the U.S. Constitution, but fortunately many state constitutions still shield individuals from drug war excess," said Allen Hopper, an attorney with the ACLU Drug Law Reform Project. "This ruling is incredibly significant from a national perspective, because there are a number of states with similar privacy rights in their constitutions that may afford protections to adult marijuana users." With the court's ruling, Alaska remains the only state in the nation in which adults are legally free to possess and use small amounts of marijuana within their homes. "The state of Alaska has charted a different course from that of the federal government's failed policy on marijuana," said Michael MacLeod-Ball, Executive Director of the ACLU of Alaska. "This ruling affirms Alaska's commitment to fundamental privacy rights over reefer madness." The ACLU filed suit against the State of Alaska after it passed a law earlier this year that would have re-criminalized adult use and possession of small amounts of marijuana within the home. Since 1975, the Alaska Supreme Court has repeatedly ruled that the state constitution's privacy provisions protect adults' possession of small amounts of marijuana in the home, and the state court's ruling relied in part on those decisions. A similar law was proposed in 2005 by Governor Frank Murkowski, but failed to pass following testimony by international, national and state scientific experts that adult use of marijuana is no more dangerous today than it was in 1975. In the 1975 ruling, the Alaska Supreme Court ruled in Ravin v. State that the state constitution's right to privacy protects adults who use and possess marijuana within the home from criminal prosecution. Judge Patricia Collins of the Juneau Superior Court relied on the Ravin decision to reaffirm that the relatively minor dangers associated with adult possession and use of small amounts of marijuana within the home do not justify government surveillance and searches of homes or criminal prosecution. Her ruling was issued late yesterday. The State of Alaska argued that since the 1975 Ravin decision, marijuana has become more potent and dangerous, justifying a revisiting of the Supreme Court's previous ruling. Judge Collins disagreed, stating in her opinion that the "[Ravin] decision is law until and unless the supreme court takes contrary action." The ruling is online at: www.aclu.org/drugpolicy/decrim/26112lgl20060711.html The ACLU's legal papers are available at: www.aclu.org/drugpolicy/decrim/26060lgl20060630.html Additional background information on ACLU of Alaska v. State of Alaska can also be found at: www.aclu.org/drugpolicy/decrim/26076prs20060630.html
Location: 
Juneau, AK
United States

Judge Invalidates Alaska Marijuana Recriminalization Law, As Expected

Publication/Source: 
Associated Press
URL: 
http://seattletimes.nwsource.com/html/localnews/2003118645_webpot10.html

Court Hears Pot vs. Privacy Pitches (Alaska)

Location: 
United States
URL: 
http://www.adn.com/news/alaska/story/7935837p-7829494c.html

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