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Alaska wrestles with legalizing pot

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Alaska is pondering changes to its marijuana laws.

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Alaska is pondering changes to its marijuana laws.

ANCHORAGE, Alaska — For more than 30 years, Alaska’s libertarian streak made it the only state in which it was legal, under some circumstances, to smoke marijuana just for the fun of it.


Then along came voters in Colorado and Washington state. Last year, both states passed initiatives legalizing pot and setting up rules for production, sales and taxation.


Now backers of a similar initiative in Alaska say they are close to giving Alaskans the same opportunity to just say yes. They’re nearly halfway to reaching their goal of getting 45,000 signatures by Dec. 1, about 15,000 more than the number needed to put the measure on the 2014 primary election ballot, according to Timothy Hinterberger, the measure’s main sponsor.


The initiative would add a new seven-page chapter to Alaska’s statute books, making it legal for adults at the age at which they may buy beer to also possess up to an ounce of pot anywhere, except where a property owner banned it. It would set up a state regulatory body to oversee cannabis farms, dealers and advertising, and ensure that products don’t end up with juveniles or the black market. The initiative would impose a $50-an-ounce excise tax that would be collected between the greenhouse and the store or factory.


Employers would still be able to ban smoking or possession at work and prevent employees from being high on the job. Driving under the influence would still be illegal, and local governments could outlaw pot growing and sales — but not possession — by local option. Police officers would have to stop their current practice of seizing small amounts of marijuana when they encounter it. The measure would authorize retail pot shops but not dope dens, parlors or bars.


"In a free society, prohibition of popular substances is just bad public policy," Hinterberger said.


Since Lt. Gov. Mead Treadwell ruled June 14 that the initiative could proceed to the signature-gathering phase, the measure has been gaining support, Hinterberger said. Momentum accelerated, he said, with the announcement Aug. 29 by the U.S. Justice Department that it wouldn’t enforce federal drug laws against possession, production and sale of pot in states where it was legal and where well-managed controls exist.


"I’ve had a lot of people talk to me about that since then," Hinterberger said. "I think that shows that we are on the right track in thinking that things are really changing, both in federal policy as well in public sentiment. It eliminates one of the arguments you sometimes hear against an initiative like ours — it doesn’t matter what we do locally as a state because the feds will still step in."


The Justice Department "guidance" to its 93 U.S. Attorneys, including Karen Loeffler in Anchorage, notes that Congress "has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs and cartels."


But the advisory directed local federal law enforcement officials to focus on big priorities, not simple possession or legalized marijuana grow and sale operations. Those priorities include preventing pot from falling into the hands of youngsters, targeting criminal traffickers, and preventing cultivation on public lands or the possession of pot on federal property, including military bases.


In the cases of states that have legalized pot, the Justice Department expects them to block interstate sales, the guidance said. If states fail to enact "robust" enforcement of marijuana restrictions, the Justice Department said it would challenge them in court and bring criminal prosecutions under federal law.


Loeffler said the U.S. Attorney’s office in Alaska already focuses on the big trafficking cases and ignores small possession crimes unless related to another violation, like a felon in possession of a firearm."We don’t have the resources or the time or the priorities to prosecute simple possession and use of marijuana — we never have, just because we have other things to do," Loeffler said.


Alaska’s story on marijuana has been one of twists and turns, with alternating efforts at liberalization and recriminalization, depending on the mood of the day.


In 1972, as the youth of the ‘60s who hadn’t dropped out were becoming young professionals, Alaska voters overwhelmingly passed one of the most important amendments to the state constitution: a guarantee of the right of privacy. Four months later, Homer resident Irwin Ravin arranged for police to bust him with two joints in his pocket.


Ravin, who died in Anchorage in 2010 at the age of 70, became synonymous with marijuana liberalization when the Alaska Supreme Court dismissed his case in 1975. Making Alaska the only state with legalized marijuana, it ruled 5-0 that the state law banning possession violated the newly approved right of privacy, at least for small amounts in a person’s home. The state could still bar use of pot in public or by minors, the court said, and could restrict sales and the quantity that a person could possess.


It took the Legislature seven years to figure out how to implement that decision. In 1982, it set the legalized "small amount" at 4 ounces or four plants; anything more than that was a misdemeanor.


Soon, however, the "War on Drugs" raging in the rest of the United States came to Alaska. The state Senate, then dominated by Republicans, urged complete recriminalization. The House, run by Democrats, stymied their efforts. Frustrated by gridlock, opponents of legalization sponsored a ballot measure in the Nov. 6, 1990, general election that restored criminal penalties to possession of any amount. It passed with 54 percent of the vote, 105,263-88,644.


Few prosecutions were brought under the law, however. Superior courts rejected it as a violation of the Ravin decision, but it didn’t reach an appellate court until 2003, when the Alaska Court of Appeals agreed it was unconstitutional. The Alaska Supreme Court refused to hear any more of it, letting the Court of Appeals decision stand.


Meanwhile, in 1998, a medical marijuana initiative took nearly 59 percent of the vote, making Alaska the sixth state to allow people with serious diseases to register for legal pot to control nausea and pain. But unlike some states that allowed "dispensaries" to flourish as de facto pot markets, Alaska never provided a legal means to obtain marijuana for medicinal purposes.


Buoyed by their success on the medical marijuana initiative, supporters tried for full-scale legalization in 2000. But they proposed a ludicrously broad measure that suggested paying reparations to anyone busted for marijuana and requiring the state to expunge the records of anyone charged criminally for pot. Some experts thought the law would have required even the Supreme Court to erase all references to the name "Ravin" in its decisions. The initiative failed, getting less than 41 percent of the vote.


A more limited legalization measure in 2004 again failed, but by a closer vote, 44 percent to 56 percent.


Gov. Frank Murkowski, in office from 2002 to 2006, said he was determined to overturn the Ravin decision and proposed that the Legislature pass a new law criminalizing all possession and issue findings describing the danger of even small amounts. The law passed in 2006 and just as quickly a Juneau Superior Court judge struck it down. The Alaska Supreme Court, though, said the judge acted prematurely — she had ruled before anyone had been busted.


Apparently no one has since. So that’s where the law stands now: a ban on possession of small quantities is written into law, but the law is clearly unconstitutional, said Joshua Decker, acting executive director of the ACLU of Alaska.


"The Legislature did try to pare back Ravin, but that’s not how it works in our democracy," Decker said. "Courts get the last word in defining constitutional rights and Ravin was a constitutional decision, so that’s not something the Legislature has the ability to overrule or restrict."


Anchorage Police Chief Mark Mew said that while possession of marijuana remains against the law, "the Ravin decision effectively blocked the state from prosecution of simple possession of less than four ounces." If officers encounter a small quantity, they’ll seize it as contraband and the department will eventually destroy it, Mew said.


State law enforcement officials didn’t respond to requests for comment.


A spokeswoman for Gov. Sean Parnell said he would likely not comment on the ballot measure. "The governor doesn’t weigh in on initiatives," said the spokeswoman, Sharon Leighow.


Sen. Hollis French, a Democratic candidate for governor in 2014 and a one-time prosecutor, said he was leaning against the initiative.


"If I had to vote today, the former prosecutor in me would vote no," he said in an email. "The Washington and Colorado experiments with legalization may shed more light on the question in time for the vote next August."


Independent gubernatorial candidate Bill Walker, a long-term Republican, said he opposed the measure.


"My conservative values don’t take me there," he said.


— 2013 Anchorage Daily News

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