Thanks to rulings by the state Court of Appeals and Supreme Court, Alaska is the only state in the union to have legalized the possession of up to four ounces of marijuana in one's home. It is also a state where there is strong popular sentiment in favor of the outright legalization of marijuana, as evidenced by last fall's regulation initiative, which was defeated, but still gained the support of 44% of voters.
This state of affairs sticks in the craw of Republican Gov. Frank Murkowski and the state's law enforcement establishment, and in January Murkowski introduced a bill to recriminalize the possession of marijuana, and incidentally, increase penalties for a number of marijuana offenses. The state Senate Health Education and Social Services Committee has set hearings for next Tuesday and Thursday, and drug reformers are scrambling to ensure that legislators get more than a one-sided attack on marijuana.
That is certainly what Gov. Murkowski and his allies in the legislature have in mind. The bill presented to the legislature contains in its preamble a lengthy list of alleged dangers from marijuana that is right out of the US drug czar's playbook. Marijuana is more potent than before, the bill finds, and it "has many adverse health and social effects, and there is it evidence it has addictive properties similar to heroin." While the list of alleged marijuana-related problems is lengthy, the governor's bottom line is that "the legislature finds that marijuana poses a threat to the public health that justifies prohibiting its use and possession in this state, even by adults in private."
That language is a direct reference to the Alaska Supreme Court and Court of Appeals decisions, beginning with Ravin in 1975, that found the harms from marijuana to be so minimal as to allow its private home use by adults to be protected by the state constitution's privacy provisions. The Ravin decision was the law of the land in Alaska until 1990, when Alaskans in a referendum voted to recriminalize the plant. But a popular vote does not trump the state constitution, and while it took 13 years for a case to challenge the 1990 vote to make its way to the state's high courts, once it did, Alaska jurists reaffirmed their earlier ruling in Ravin.
For a state political establishment grasping at straws in its effort to bust pot smokers, Ravin and associated rulings left one last opening: In those cases, the courts weighed the evidence about marijuana's harmfulness and found it to be not especially so, but added that the issue could be revisited in the event that new information on the drug was presented.
As with the 1990 initiative, the passage of a bill recriminalizing marijuana does not trump the state constitution. The bill was written precisely to provoke a court challenge, said Chief Assistant Attorney General Dean Guaneli. "If the bill passes, as we think it will, we expect that someone charged with possession of under four ounces will ask that the case be dismissed based on the state Supreme Court and Court of Appeals decisions," Guaneli explained. "We will then have an opportunity to present to the court the same information we are presenting to the legislature and we will ask the courts to defer to the legislature's judgment that marijuana is something the legislature has good grounds to criminalize. We expect to prevail," he said.
"We get constitutional challenges all the time; the question is whether we think we can win them, and with this bill, we think we can," he told DRCNet. "Alaska's courts have said as early as the 1975 Ravin decision that if things change, the state can come back and ask them to revisit the issue. We believe that things have changed. Not only has marijuana become more potent and thus more dangerous, but the patterns of usage have also changed a lot. In Alaska, half of those people admitted to drug treatment whose primary drug is marijuana are kids aged 12 to 17. We think there is a real problem with youth in Alaska having access to marijuana. We have studies showing that use by Alaska natives in rural villages is three times the national average," Guaneli continued. "We think it is important for the legislature, the public, and the courts to know these facts, and we think they all combine to justify the legislature prohibiting marijuana."
Thus, next week's hearings will be designed to make the case that marijuana is so harmful that Alaska courts must change their minds. While staffers for the Alaska Senate Health Education and Social Services Committee, which will host the hearings, were unable or unwilling to provide a list of witnesses, drug reformers expect the worst and are preparing a counterattack. Last week, the American Civil Liberties Union (ACLU) Drug Policy Project sent out an urgent message seeking assistance in combating exaggerated claims of marijuana's dangerousness. Along with the state ACLU, local marijuana activists, and the Marijuana Policy Project (htp://www.mpp.org), the ACLU Drug Policy Project is scrambling to present countervailing witnesses next week.
"We and the ACLU and the folks in Alaska who have been involved in this for a long time have been working together to coordinate strategy and to assemble testimony and witnesses for the hearings," said MPP communications director Bruce Mirken. "We are scrambling to see who is available," he told DRCNet. Given Alaska's remoteness, said Mirken, witnesses may be able to testify by teleconference.
Mirken was not impressed with Murkowski's attempted end-run around the Alaska courts. "This is essentially a strategy to do something completely phony, which is to try to overrule the constitution with a statute. They are trying to create a legal basis to do that by making the preposterous claim that the court decisions don't count anymore because marijuana is somehow different than it was in 1975," he growled. "They are trying to back this phony legislative maneuver with a collection of phony arguments and fabricated facts. What we will do in these hearings is present evidence and testimony that shows these claims to be absolute utter nonsense."
Thirty years after the groundbreaking Ravin decision, Alaska politicians and lawmakers continue to try to overturn it. Next week's hearings are unlikely to be the end of it. Unless Alaska legislators can be convinced to leave well enough alone, Alaska's marijuana policy wars will once again be headed for the courts.