Lawmakers seek to test pot leniency in court

Detractors fear state may lose unique right to privacy to legislation

Posted: Sunday, February 05, 2006

Some Alaska lawmakers who are tired of the state's court-ordered leniency on marijuana possession say it's time to fire some heavy artillery at the state's judiciary.

With Gov. Frank Murkowski's blessing, they're making headway at the Capitol.

"I hate judicial activism," said Rep. Mike Kelly, R-Fairbanks, referring to both a U.S. Supreme Court ruling that made abortion legal and a landmark Alaska Supreme Court decision that allows residents to possess up to 4 ounces of marijuana.

"Anytime I can get a slug at one of those, I certainly don't want to lose the opportunity," he said.

This year the effort to recriminalize marijuana started the legislative session with some momentum, whereas last year the proposal was bogged down in committee hearings.

The effort slowed last week when the House objected to some of the Senate's provisions in a bill affecting both marijuana possession and methamphetamine manufacture. But lawmakers say it's likely provisions aimed at marijuana users will remain untouched when a conference committee focuses on the bill's meth details.

"Those people will immediately be in jeopardy of home invasion," Bill Parker, lobbyist for Alaskans for Marijuana Regulation and Control, said of people with a few ounces of pot.

Longtime supporters of legalizing marijuana say it's a shame that Alaskans could lose something that makes it unique in the nation.

"You want a little more elbow room, a little more privacy (in Alaska)," Parker said.

Behind the movement to control marijuana use in Alaska are a number of drug abuse and prevention counselors who say this action is long overdue.

"We've lost a lot of family and friends to the drug culture," said Lynda Adams, a former drug prevention counselor and a member of the Alaska Federation of Republican Women, which is backing the bill.

Keith Stroup, founder of the National Organization for the Reform of Marijuana Laws, said 12 states no longer treat minor marijuana offenses as crimes. No arrests are made for possession and users are not threatened with jail. Instead they pay a civil fine, similar to a speeding ticket.

But Alaska is the only state in which no citation or jail time is given for small amounts of possession.

A 1975 Alaska Supreme Court ruling known as Ravin vs. State allowed residents to keep small amounts of marijuana in their homes under a right to privacy protected in the Alaska Constitution.

The court didn't define a "small amount." The Alaska Legislature in 1982 passed legislation that said residents could have up to 4 ounces.

The right was challenged in 1990 with a ballot initiative approved by voters, criminalizing marijuana possession. Violators were issued citations and ordered to pay fines.

A Court of Appeals in 2003 ruled that prosecuting Alaskans for possessing marijuana was unconstitutional. The ruling continues to stand today.

"(Alaska) is the model. In fact, until federal law is changed, it's as far as you can go," Stroup said.

Stroup said there is no requirement that a state maintain a criminal penalty against marijuana smoking, even though the federal government has a law against it.

Last year, during Senate hearings on the bill, smokers said marijuana is no less harmful than abusing alcohol or tobacco.

"If more people came out and admitted they smoke marijuana, there would be less of a stigma," said Dan Grafford, who smokes it to deal with the pain from severe back injuries.

"Senators and legislators like to have a bourbon instead of smoking a joint so they don't see it from the perspective of the smoker," Grafford said this week.

But Adams, the former drug prevention counselor, said marijuana smoking is no longer a laughing matter. According to a University of Mississippi study, THC levels in Alaska pot were at 1 percent in the 1970s and now are at 14 percent.

"So we're not talking about the same marijuana," she said.

Parker of Alaskans for Marijuana Regulation and Control said researchers are not testing a cross-section of marijuana available in Alaska, which could show that THC levels in many samples are not as high as 14 percent.

Adams said marijuana presents health problems and can lead to domestic violence at home.

She added that kids are a focus as they often imitate their parents if they smoke it too.

"Our law gives the message (to kids) that it's OK to smoke marijuana," she said.

Four ounces can be divided into 392 joints, an amount that is far too much for private use, Adams said.

A person would have to smoke one joint every day for a year to polish off a 4-ounce bag of pot, said Chief Assistant Attorney General Dean Guaneli.

Also, after 60 days, marijuana begins to lose its potency and by 12 months it would useless to the smoker, Guaneli said. Therefore, he said, those with 4 ounces may have an intent to distribute.

Guaneli said earlier that he wants to use the bill to bust the growers - those who are running highly lucrative operations.

An ounce of marijuana in Alaska sells for $300 to $500; so 4 ounces can fetch $1,000 to $2,000, Guaneli said.

In 2004, an Alaska Court of Appeals decision hindered law enforcement's access to acquire search warrants, he said.

Criminalizing marijuana would allow police to get arrest warrants more easily so they can enter a grower's home by following up on tips of small amounts in possession, he said.

The Murkowski administration and legislators say making marijuana illegal is what their constituents want.

Ballot initiatives tried to legalize and regulate marijuana in 2000 and 2004, but were defeated. Parker said about 45 percent of Alaskans are on either side of the debate and feel strongly about it. But another 10 percent are on the fence.

"It's not clear at all what the majority of Alaskans want," Parker said.

Stroup said 26 million Americans smoke pot and 49 percent have smoked it at least once. He said he expects those numbers to go up in the future.

Even though there are enough pot smokers to call for legalization measures, Stroup said, politicians are slow to act for fear of being perceived as being soft on drugs.

"They're worried about sending the wrong signal to kids," Stroup said. His group does not advocate that minors smoke marijuana, he added.

Parker said Murkowski's push to criminalize pot could be a campaign ploy to get re-elected. Some Alaskans on the right are embarrassed because their state has loose laws on marijuana, he said.

A spokeswoman for the governor said there's more to his position.

"He believes marijuana is a dangerous drug and has disastrous effect on our communities," Becky Hultberg said.

The Murkowski administration and its Department of Law say they have a shot at overturning the 1975 court ruling.

The Alaska Supreme Court relies on the Legislature to monitor the harmful effects of controlled substances based on modern evidence, according to the Department of Law.

"The reasons have to be good enough to intrude on one's privacy," Guaneli said.

The state Supreme Court in 1978 did not allow possession of cocaine under the right to privacy because the Legislature presented evidence that it led to deaths in the cases of overdoses, he said.

Nevertheless, marijuana supporters maintain that the constitution will trump any attempt to criminalize marijuana.

"You cannot overturn a constitution right with a simple piece of legislation," Stroup said. "If Gov. Murkowski can't understand that I'm quite certain the Supreme Court of Alaska can explain it to him."

• Andrew Petty can be reached at andrew.petty@juneauempire.com.



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