HASHING IT OUT

The November Ballot Will Have Voters Answering the Question:

Should Marijuana Be Legalized in Alaska?

In the 1850s, Abraham Lincoln kept hammering away on a few basic points
about American law and society. One of those often-overlooked points was a
fairly simple one: Laws instruct citizens. Even if the citizens create
them, over time, laws inform public sentiment and eventually alter social
mores.

So what do citizens do when their laws send them mixed messages? How do
conflicting laws instruct a body politic?

If Lincoln was right, and laws really do instruct the public, what are
Alaskans to make of our state's marijuana laws? Over the last 25 years -
and especially the last six or seven - a sort of legal schizophrenia has
persisted in Alaska's courts with regard to marijuana, with two recent
rulings looming large over proposition 2 on November's ballot.

In 1990, Alaskans voted to criminalize all use of marijuana, but eight
years later they voted to legalize medical marijuana. Four years ago, a
ballot initiative that would not only legalize all marijuana use but also
set marijuana criminals free failed, but only by a narrow margin.

With November elections quickly approaching, the ongoing battle over
marijuana law in Alaska is heating up again as ballot proposition two puts
the big question to voters for the second time: Will marijuana be
decriminalized and regulated in Alaska?

The last time voters weighed in on this issue was in 2000. That ballot
proposal called for massive reforms such as amnesty and possible
restitution for marijuana criminals. In all, it proved too radical for a
majority of Alaskan voters, although it did win 41 percent of the vote that
year.

This time around, marijuana advocates have come down out of the clouds with
a more conservative ballot proposition that doesn't mention amnesty or
restitution. Instead, the new proposition leaves the door wide open for
legislators to regulate marijuana as they do alcohol and tobacco. In
addition, the ballot measure would make the legal age for marijuana use 21
instead of 18, which was the proposed age on the 2000 ballot.

And ballot measure 2 has some high-profile supporters this time around. The
initiative's sponsors include Tim Hinterberger, associate professor for the
University of Alaska's biomedical program, as well as former Alaska State
Legislators David Finkelstein and Bill Parker, who is also the retired
deputy commissioner for the Alaska Department of Corrections.

The measure has attracted outside interest -- and money. The Marijuana
Policy Project, a Washington, D.C.-based group, recently gave more than a
half-million dollars to Alaskans for Marijuana Regulation and Control. That
group has used the money to pay for a radio and television advertising
campaign to promote marijuana decriminalization and a "yes" vote on
proposition 2.

If the ballot measure passes, Alaska will be the first state in the country
to decriminalize marijuana. Alaska is one of nine states that, since 1996,
has adopted laws allowing limited use of medical marijuana.

Marijuana on Trial

State troopers have had to change their approach to marijuana growers and
users after several recent rulings from the Alaska Court of Appeals and the
Alaska Supreme Court.

The Alaska Supreme Court recently rejected a petition from the state
attorney general, Gregg Renkes, which sought greater power to enforce the
state's marijuana laws in private homes. Renkes filed a petition with the
Alaska Supreme Court on January 5th, asking the court to review the court
of appeals' ruling in Noy v. State. The Attorney General asked the court to
uphold the state's marijuana laws and to reverse the court of appeals'
decision overturning Noy's conviction.

In the petition, Renkes asserted that the Supreme Court "should not
continue to recognize a constitutional right to possess and ingest
psychoactive drugs in the home." The petition also stated that a 1990
ballot initiative "indicates that Alaska society is not prepared to
recognize private possession of marijuana as reasonable."

In August, the Alaska Court of Appeals upheld a 2002 superior court
decision in State v. Crocker that dismissed charges against Leo R. Crocker.

Crocker was found with marijuana plants, harvested marijuana and
marijuana-growing equipment at his residence in Homer after police executed
a search warrant. According to Homer District Court Judge M. Francis
Neville, the search warrant should not have been issued in the first place
and he suppressed the evidence against Crocker and dismissed the charge.

By a 2-1 decision, the Court of Appeals upheld Judge Neville's decision in
an Aug. 27 ruling this year, saying that the issue is what the state must
prove in order to obtain a warrant to enter and search a person's home.

The Appellate Court's opinion stated, "the issue arises because not all
marijuana possession is illegal," and cited two cases that have attracted
much attention since proposition 2 got on the ballot.

In the now-famous 1975 case, Ravin v. State, the Alaska Supreme Court held
that the privacy provision of Alaska's constitution protects an adult's
right to possess and use a limited amount of marijuana in the home. In 1982
the Legislature said anything under four ounces is considered personal use.

But the Ravin ruling was in 1975. Fifteen years later, in 1990, Alaskans
voted to pass an initiative outlawing all amounts of marijuana, a measure
that seemed to fly in the face of Ravin.

Alaskans continued to send themselves mixed messages by passing a ballot
initiative in 1998 that legalized medical use of marijuana, although the
measure seemed to have little effect on law enforcement and prosecution
across the state.

The 1990 ballot measure was challenged in Noy v. State, a case similar to
State v. Crocker. David Noy was contacted at his home by North Pole Police,
who told him they smelled growing marijuana. Police searched the residence
and found approximately 11 ounces of harvested marijuana and five immature
plants. However, police found no evidence or signs that Noy was engaged in
cultivating marijuana for commercial purposes.

At trial, however, the state did not present the harvested marijuana as
evidence, relying instead on testimony and photographs of his grow
operation. Police put all Noy's harvested marijuana, including stocks of
the plant, in a paper bag.

Since the jury was instructed that stalks of the plant are not considered
marijuana, and the bag containing Noy's harvested marijuana was not
presented as evidence at trial, the jury found Noy not guilty of possessing
eight ounces or more but found him guilty of possessing less than eight ounces.

Noy appealed the decision, and in August 2003 the Alaska Court of Appeals
ruled in his favor. The appellate court reversed the Fairbanks District
Court's decision because it relied on a statute that makes it a class B
misdemeanor to possess less than a half-pound of marijuana. But that
statute was not consistent with the Alaska Constitution as interpreted in
Ravin, the court said, and as long as the amount of marijuana is less than
four ounces and intended for personal use in the home, it is protected by
the state constitution.

Enforcing Marijuana Law

If proposition 2 passes, it will undoubtedly change the way law enforcement
approaches growers and users. Recent Alaska Supreme Court and Alaska Court
of Appeals decisions have already influenced the way police and state
troopers do their jobs, and proposition 2 will complicate things further.

Capt. Edward Harrington, commander for the Alaska Bureau of Alcohol and
Drug Enforcement for the Alaska State Troopers, said he was not pleased to
hear about proposition 2.

"It makes our job more difficult," Harrington said. "[Marijuana use] is
still against the law. The state has diminished that law, but as law
enforcement officers we'll continue to enforce it."

Harrington thinks there are still too many unanswered questions surrounding
the issue of marijuana decriminalization, particularly its role in criminal
activity, a sentiment shared by many law enforcement officers and state
legislators.

"A lot of it boils down to education. What role does marijuana play in
society? How often is it involved in crimes? These are serious questions,"
Harrington said.

Since the Crocker decision, Harrington said probable cause in marijuana
cases has become an issue; Troopers have been denied warrants because there
was not enough probability.

"In the past, we may have had a tip that someone was growing and the smell
would be enough to get a search warrant," Harrington said. "Now we have to
be sure there is more than four ounces to get a warrant. It's a higher
threshold for us to reach to come up with probable cause."

Still, Harrington maintains his troopers aren't after private stashes of
marijuana but commercial quantities, in which case growers like Noy
shouldn't have to worry about police searches.

"Possession of small amounts of marijuana is pretty low on our priority
list," Harrington said. "We're looking for the big producers and distributors."

But according to the Federal Bureau of Investigation's Uniform Crime
Report, there were more than 5,600 marijuana arrests in Alaska from 1998 to
2002. Only 599 of those were for selling and growing pot, which means about
90 percent of the arrests were for possession only.

And the number of grow operations is down from last year, Harrington said.
During fiscal year 2003 there were 113 grow operations busted statewide.
For fiscal year 2004, only 92. But those numbers don't necessarily mean
there are fewer grow operations in the state, there is just more attention
being paid to them.

"Marijuana growing operation numbers have gone down somewhat over the past
four years because meth labs have gone up," Harrington said. "We only have
so many investigative resources in the Valley, so if we're doing more meth
labs, we're doing less of other kinds of investigation."