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Privacy Advocates Fight Criminalization of Pot in Alaska
1.1.07The New Standard

Until last week, possessing marijuana in the home was a private matter for Alaskans.

Your privacy is strictly respected. But on Friday, June 2, Alaska Governor Frank Murkowski signed a law attempting to reverse a 1975 Alaska Supreme Court decision, Ravin v. Alaska, which had established that the state’s privacy laws protected residents using marijuana in their homes.

Murkowski, who has been attempting re-criminalize the drug for the last year, sighted the supposed increasing potency of marijuana and the growing number of adolescent users as rationale for promoting and signing HB 149.

"When the courts have said personal use of this drug is okay in Alaska, that sends the wrong message to young people," Murkowski said in a statement. "We believe House Bill 149 will allow the state to successfully defend the outlawing of today’s stronger and more dangerous marijuana in the courts."

The American Civil Liberties Union (ACLU) of Alaska is suing the state, alleging the new law is an unconstitutional invasion of privacy.

"With the stroke of a pen, the governor has signed away Alaskans' right to be free from unwarranted government intrusion into the home," said Michael Macleod-Ball, the ACLU-Alaska's executive director, in a written statement. "This legislation is an end-run around the constitution, and we intend to put a stop to it."

Home marijuana use has been repeatedly protected by Alaskan courts, in spite of a 1990 ballot initiative to re-criminalize the drug. As of 2004, Alaskans over 21 years old could legally possess up to four ounces of marijuana. The sale of the drug is not protected.

"With the stroke of a pen, the governor has signed away Alaskans' right to be free from unwarranted government intrusion into the home."Under Murkowski’s law, however, home marijuana users could now be subjected to police surveillance and searches, criminal sanctions and possible jail time.

The ACLU of Alaska’s plaintiffs, Jane Doe and Jane Roe, are anonymous for fear that their marijuana use could now lead to prosecution.

The new law does not make an exception for people who use marijuana for medical purposes, despite a ballot measure in 1998 that removed criminal penalties on the use and cultivation of marijuana by patients who could prove a medical need.

Plaintiff Doe, who according to court documents suffers from a chronic neurological condition called Reflex Sympathetic Dystrophy, says she uses marijuana for medical purposes.

"Even if the legislature makes marijuana illegal, I will continue to use and possess it in my home," said Doe, in a declaration accompanying the lawsuit claiming her condition would worsen without the drug.

The ACLU is also troubled by what it sees as the legislature’s attempt to usurp the judiciary by passing the law.

In a letter to Alaska’s Attorney General David W. Marquez, the state ACLU branch blasted the law for undermining the system of checks and balances: "This legislature may not overturn a decision of the judiciary by legislative fiat simply because it disagrees with the interpretation that has been given by the highest court."

Home marijuana use has been repeatedly protected by Alaskan courts, in spite of a 1990 ballot initiative to re-criminalize the drug.In 1993, a superior court judge set a precedent for upholding the 1975 Supreme Court interpretation despite ballot measures to overturn it.

Judge Michael A. Thompson ruled at the time: "The legislature – nor for that matter the people through the initiative – cannot 'fix' what it disliked in an interpretation of that document by legislation. The only way to 'fix' the Constitution is by the amendment process or a new convention."

Along with the lawsuit, the ACLU is asking a Juneau Superior Court judge for a temporary restraining order and preliminary injunction to block enforcement of the law.