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.

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.