Pubdate: Thu, 20 Jun 2013
Source: Anchorage Press (AK)
Copyright: 2013 Anchorage Publishing, Inc.
Author: Scott Christiansen


Alaska's marijuana reformers are back, this time offering a wholesale
legalization of the drug in a state once known as the most permissive
in the nation when it comes to smoking pot. Last week the group called
Campaign to Regulate Marijuana cleared its first hurdle with an
approval from Lieutenant Governor Mead Treadwell to circulate a
petition and put the legalization of pot on the August 2014 primary
election ballot. If the petitioners are successful, voters will be
asked to pass a seven-page law that legalizes and regulates the
production, sale and possession of marijuana on a footing somewhat
similar to alcohol.

"The idea of this initiative is to treat alcohol and marijuana about
the same," said Bill Parker, one of the initiative's sponsors and a
former member of the Alaska State House who debated marijuana policy
in the 1970s and early 1980s.

Parker is retired from the Alaska Department of Corrections. He was
deputy commissioner of Corrections in the 1990s. He believes marijuana
is less harmful than alcohol and that marijuana prohibition is
expensive and impractical. "There are probably a couple hundred
thousand people in this state who know, firsthand, something about
marijuana. I don't know if the campaign changes them or not, but we
are going to see," Parker said.

The organizers believe Alaska voters will follow a trend of states
that have decriminalized marijuana. But few of those states have a
history similar to Alaska's, where courts decriminalized pot and the
political system pushed back to re-criminalize it. Parker sounds
optimistic despite the history. "I have got to believe that it is
soaking in, bit by bit, that the war on drugs does not work," Parker
said. "It is time to stop ignoring the elephant in the room."

The proposed law would allow local communities to opt-out of various
levels of legalization. A city or borough could prohibit growing
marijuana, manufacturing products from the plant or operating retail
sales within local boundaries. A community could limit hours of sale
and it could pass those prohibitions by ordinance or by voter
initiative. Parker said the authors wanted a local option to protect
the rights of communities that prohibit alcohol.

"Because they have a right to opt-out on alcohol, we thought we would
extend that to them for marijuana," Parker said, adding he is not sure
if alcohol prohibitions work.

"Does it work? I don't know, frankly. Prohibition on any level is
pretty tough, but I guess a town that wants to be dry would probably
want to be marijuana-free, too. I guess if we want to treat it like
alcohol we have to take the bitter with the sweet," Parker said.

Alcohol prohibitions are common in rural Alaska, where many villages
have opted to go dry. Even in Anchorage, the bars and liquor stores
close earlier than the state-required last call at 5 a.m. But the
proposed legalization of pot would not allow a community to ban
smoking the plant entirely. That's because Alaska courts have
consistently ruled in favor of privacy when it comes to small amounts
of marijuana in the home, for use by an adult.

State criminal statutes say otherwise, but the statutes have not
changed significantly since a 2003 court decision said that outright
prohibition of marijuana is not enforceable under the Alaska
Constitution. In a case called Noy v. State, the Alaska Court of
Appeals wrote that, "Alaska citizens have the right to posses less
than four ounces of marijuana in their homes for personal use." The
decision referenced the landmark 1975 Alaska Supreme Court opinion
called Ravin v. State, in which possession of "a small amount" of
marijuana in a person's home was protected.

The Appeals Court, in the 2003 Noy opinion, limited enforcement of
Alaska's marijuana prohibition. The judges explained in the opinion
that even though Alaska voters criminalized marijuana by initiative,
they didn't have the power to make an unconstitutional law. The power
of the initiative process is equal to that of the legislative process,
no more and no less. The Appeals court wrote: "just as the statutes
enacted through the normal legislative process must not violate the
constitution, the statutes enacted by ballot initiative must not
violate the constitution."

Jason Brandeis, a lawyer and professor at University of Alaska Justice
Center, said the ruling reinforced what he called "the Ravin
doctrine," which limits how far the state can intrude into the private
lives of adults. Cops don't get search warrants in Alaska based solely
on evidence of personal use in a home -- it takes evidence of a
commercial pot farm or other serious crime.

"Ravin, and the other cases, don't really allow for a way or means for
you to procure marijuana other than growing it yourself," Brandeis
said. "If you leave your home or travel outside your home you are not
protected within the bubble of Ravin anymore."

In a 2012 paper for Alaska Law Review, Brandeis wrote that the
somewhat confusing state of Alaska marijuana law is similar to a "dead
letter law" -- a law that stays on the books after the courts have
ruled it unconstitutional. There is one important difference with
Alaska's prohibition of pot. The prohibition was passed, by voters and
later by the Alaska Legislature, after the courts said the right to
privacy was more important than the state's need to ban marijuana.
Brandeis has represented marijuana advocates in the past, but says his
paper for the law review was academic and he tried to approach it in
an objective fashion.

"Marijuana law has a number of moving pieces," Brandeis said. "But
when you talk about privacy, the state can only reach into your life
so far."

The current initiative offers broad legalization that would put many
arguments about privacy aside. Pot would be legal for adults, but not
legal to smoke in public. The state could enforce rules against
unlicensed sales or illegal manufacturing of, say, cookies or caramels
laced with pot, but Alaska law would be on par with the law in
Washington and Colorado. Voters in those two states approved
recreational marijuana in 2012. So far, Colorado is ahead in terms of
announcing regulations. Sixteen other states have either
decriminalized marijuana or allowed its use if prescribed by a doctor.

The legalization initiative would not allow people to smoke marijuana
in public. It would require anyone transporting a small amount to keep
it sealed and hidden from view. It also leaves intact the prohibition
against driving while stoned. It would require the state to create a
marijuana control board to regulate and license production and sales.
Alternatively, the state could enlist the current Alcoholic Beverage
Control Board to do that job. The initiative also includes an excise
tax. Commercial growers would collect $50 per ounce when marijuana is
sold to a manufacturer or retailer. If the state doesn't enact
regulations -- which seems likely given Alaska's history of
conflicting pot laws -- local communities would be allowed to move
forward and regulate marijuana by ordinance.

The initiative has yet to attract organized opposition, but there is
little doubt it will. Between 1990 and 2004, Alaskans voted on
marijuana law four times and in most cases campaigns were hard fought
and ended with prohibition reinforced or preserved by healthy margins.
One exception was a 1998 election in which voters passed a medical
marijuana law that allows patients with a doctor's prescription to
possess the drug. In some states, card-carrying medical marijuana
patients can purchase the drug at licensed shops. Alaska has no such
system. Here, patients must grow their own pot or have it provided by
a designated caregiver.

The initiative would certainly make it easier for registered medical
patients to access the drug. "If there are no restrictions on anybody,
than certainly medical users will have better access," said Tim
Hinterberger, another sponsor of the initiative. Hinterberger is a
University of Alaska professor who teaches anatomical science to
medical students and conducts research in molecular biology.

Hinterberger smokes pot, he says, "in small amounts," and has been
interested in marijuana reform since he was a teenager. He was
involved in a failed 2004 legalization campaign.

"I've always thought that our drug laws, especially for cannabis, were
just a bad idea," Hinterberger said. "For most people who try cannabis
it is the only illegal drug that they ever use. So really, for most
people, it's not a gateway but an ending point for their drug

He suggested legalization could help prevent the use of more dangerous
drugs, because pot smokers would no longer have to buy their drug on a
black market. "It seems likely that if it were made legal it would
reduce the interaction of cannabis users with vendors of other illegal
substances," Hinterberger said.

The sponsors say they looked at Alaska alcohol laws and recent
marijuana reforms in other states. They also tout a poll conducted by
the firm Public Policy Polling that showed 54 percent of Alaska voters
polled either strongly support or "somewhat support" legal marijuana
for adults when sold by state-licensed dealers. The New York Times has
described Public Policy Polling as a company that conducts polls "for
liberal and Democratic clients," while conservative web sites have
attacked the firm and accused it of having a liberal bias. The company
has tracked bizarre questions, such as an approval rating of God and
asking if hipsters should be taxed for being annoying. It also
conducts a media trustworthiness poll.

Mason Tvert, communications director of the national group Marijuana
Policy Project, said Public Policy Polling has delivered consistently
accurate polls on marijuana issues. Tvert was involved in a 2005 local
initiative in Denver that removed all city penalties for marijuana.
Colorado voters turned down a similar statewide initiative in 2006,
Tvert said. Some local governments voted to make marijuana their
lowest priority for police over the next couple of years. In 2012,
Colorado legalized pot for recreational use statewide.

The numbers from the pollsters and at elections go in one direction,
Tvert said. "Up -- Always up, up, up. We have heard of the voter
fatigue concept, but I think it is a lot easier for insiders or folks
in the media to get fatigued about a policy issue," he said. "When you
think of it from the perspective of the voter, it's once a year and
one policy question. I guess it's just not that much to get fatigued

Colorado and Washington are both working on regulations for
recreational marijuana sales. Colorado seems to be ahead on that
front, it has a marijuana tax division within its department of
revenue and retail dispensaries for medical marijuana patients. In
May, regulations for recreational pot sales were unveiled in Colorado
and retail trade could start in January 2014. The federal government
has taken a hands-off approach to medical marijuana dispensaries in
recent years. It's unclear how the U.S. Department of Justice will
react to legal recreational marijuana in those two states. Alaska
could get a preview of how conflicting federal and state laws are
reconciled -- if they are reconciled -- before they are asked to vote
on the issue.

Tvert, said prohibitionists in Colorado argued the new law would make
marijuana too accessible. He dismisses that wholesale -- pot is
already easy to obtain, he says. "Some might argue that we are going
to be the least permissive state, because it is going to be more
controlled," he said. "It will be treated like any other product for
adults that is regulated and controlled." He said there have been few,
if any, negative results of the vote last fall.

For Tvert the vote to legalize warranted a victory lap. He delivered
some light-hearted gloating with a dash of sarcasm in an interview
with the Press. "You know I've got to wash the sky off my car every
day," Tvert said. "It just keeps falling."
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