Pubdate: Sat, 06 Sep 2003 Source: Anchorage Daily News (AK) Copyright: 2003 The Anchorage Daily News Contact: http://www.adn.com/ Details: http://www.mapinc.org/media/18 Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) Bookmark: http://www.mapinc.org/props.htm (Ballot Initiatives) Bookmark: http://www.mapinc.org/pot.htm (Cannabis) POT RULING No surprise: 1990 ban is invalid Surprise: APD will ignore ruling The state Court of Appeals made headlines last week with its ruling in a marijuana case. The justices said the right of privacy in Alaska's Constitution gives adult Alaskans the right to possess a small amount of marijuana for personal use in their own homes. The ruling shouldn't be a surprise. The Alaska Supreme Court has never reversed its ruling in Ravin v. State, a 1975 case that established a constitutional right to possess up to four ounces of marijuana in the privacy of one's own home. What is surprising is the very different way state troopers and Anchorage police reacted to the ruling. Troopers will obey it and stop pursuing cases under the four-ounce threshold. APD plans to overlook the ruling. It will try to develop other theories that allow it to pursue these small-scale possession cases, even though the "crime" being prosecuted contradicts the privacy rights enshrined in the Alaska Constitution. APD's reaction is ill-advised, even reckless. The department may not like what the appeals court did, but until a higher court says otherwise, the appeals court ruling is the law that governs Alaska courts and Alaska law enforcement. It's true, as APD might point out, that all marijuana possession violates federal law. If they are so inclined, the feds can prosecute marijuana possession cases that do not violate Alaska law. But that is a decision for the feds. If they want to devote law enforcement agents, prosecutors, public defenders, courts and prisons to small-time marijuana possession cases, that's their prerogative. Alaska courts cannot stop them. But APD is a law enforcement agency governed by Alaska law, and the courts have ruled Alaska law says adults possessing less than four ounces of pot in their own home are not committing a crime. It is courts, not cops, who are empowered to interpret the law. The issue here goes far beyond what may happen to an adult who has less than four ounces of pot in his home. No one's rights are safe if a law enforcement agency refuses to respect a court ruling protecting citizens' constitutional rights. The 1990 voter initiative to recriminalize marijuana possession used to give APD's approach to pot cases some legitimacy, but no more. As the appeals court noted, a voter initiative cannot eliminate a right that is grounded in the Alaska Constitution. It matters not whether the outright ban on marijuana was passed by voters or the Legislature. Either way, a statute cannot change the state's constitution as interpreted by the state Supreme Court. It's more difficult than that to revoke a constitutional right -- as it should be. There are two ways marijuana prohibitionists could have their way at the state level and revoke this particular constitutional right. One is to pass an amendment to the Alaska Constitution. That requires a two-thirds vote in both the state House and the state Senate, and approval by a majority of Alaska voters. The other way is to appeal this case, as the state plans to do, and hope the Alaska Supreme Court overturns its 1975 ruling. Getting the court to do that might be difficult. In the 1975 case, the state was unable to show that the harm of home marijuana use by adults justified the invasion of privacy needed to enforce prohibition. Marijuana opponents say that conclusion ought to be revisited. They point to information showing that, these days, the drug is more potent and therefore more harmful than it was in the 1970s. The appeals court ruling, meanwhile, shapes Alaska law on the subject. Unless and until the Supreme Court reverses itself or the Alaska Constitution is amended, law enforcement agencies should follow it. BOTTOM LINE: Neither a voter initiative, nor a law passed by the Legislature, nor a recalcitrant local police force can repeal the constitutional right of privacy. - --- MAP posted-by: Josh