State marijuana law in Supreme Court's hands

http://www.adn.com/crime/story/351736.html

ORAL ARGUMENTS: ACLU has challenged a 2-year-old law as intrusion on

privacy.

By ANNE SUTTON

The Associated Press

Published: March 21st, 2008 12:29 AM

JUNEAU -- An effort to recriminalize marijuana is in the hands of the

Alaska Supreme Court after the high court heard oral arguments

Thursday.

The latest round in a decades-old battle over the drug revolves around

a 2-year-old state law that would make illegal the personal at-home

use of small amounts of marijuana in Alaska.

A lower court struck down part of the law two years ago, saying it

conflicts with past Supreme Court decisions. The state Department of

Law appealed the case.

This week special assistant attorney general Dean Guaneli reprised his

argument that the new law contains findings by the Legislature on the

dangers of marijuana that were not considered by the court in the

past.

"It's a different kind of drug, it's a different era and the

Legislature considered all that and reached its decision," said

Guaneli after the hearing.

The American Civil Liberties Union of Alaska challenged the law on the

grounds that the state constitution and its privacy provisions protect

adults who use marijuana in their homes.

Attorneys said the state has failed to prove that public health has

suffered in Alaska as a result of the court's 1975 landmark decision,

known as Ravin v. State.

"The effect of Ravin has been that privacy rights are respected.

Nothing relevant has changed since 1975," said ACLU staff attorney

Adam Wolf.

MATTER OF PRIVACY

The state law at issue was approved by the 2006 Alaska Legislature,

spurred on by then-Gov. Frank Murkowski. The idea was to trigger a

constitutional challenge and ultimately overturn the Ravin decision.

In gearing up for a court fight, Murkowski and the Legislature

included in the bill a set of findings meant to prove that marijuana

has increased in potency since the original Supreme court decision,

and therefore had become more dangerous.

When the law took effect that June, the ACLU sued the state and Juneau

Superior Court Judge Patricia Collins struck it down one month later,

saying the new law conflicted with past constitutional decisions of

the Supreme Court. Collins limited her decision to possession of less

than 1 ounce of marijuana, even though the state law increases

penalties for possession of more than that amount.

The Alaska Constitution has a special guarantee of privacy from

government interference. And the Ravin decision said that right-to-

privacy outweighs any social harm that might be caused by the personal

at-home use of small amounts of marijuana. While the decision was not

absolute, the court said the state would have to clear a very high

hurdle to justify interfering with that right to privacy.

The state is using the legislative findings to argue that time has

come.

DRUG'S STRONGER, MORE DANGEROUS

Guaneli said that marijuana's psychoactive ingredient, known as THC,

is far more potent than before, that pregnant women in Alaska use

marijuana at a higher rate than the national average and that 10

percent of users become psychologically dependent on the drug.

He said he wanted to dispel the notion that the use of marijuana is OK

"if all you do is step over the threshold of your home before you

light up."

The ACLU, however, argued that the court should not bow to politically

motivated findings that were tailor-made for the case.

Wolf said the independence of the judiciary was at stake and the court

"needs to look with extreme skepticism at the Legislature's findings"

before it considered overturning decades of precedence protecting

Alaskan's right to privacy.

The ACLU is joined by two individual plaintiffs. A 54-year-old woman

referred to as Jane Doe uses marijuana to treat pain caused by a

neurological illness, according to the ACLU.

She and another plaintiff, a 42-year-old woman referred to as Jane

Roe, won't list their real names because they fear prosecution under

the new law.

The court is expected to rule on the case within a year. The justices

could remand the case back to the lower court for trial.