WHEN THE SMOKE CLEARS

Reason Magazine/March 1983...p.33-36 by Michael Dunham

"Why should you be bound by rules that say, 'Do not handle! Do not
taste! Do no touch!' Such proscriptions deal with things that perish in
their very use. They are based on merely human precepts and doctrines.
While these make a certain show of wisdom in their affected piety,
humility, and bodily austerity, their chief effect is that they indulge
men's pride." COLOSSIANS 2:20-23


On May 27, 1975, the Alaska Supreme Court announced a unanimous
decision in the case of Ravin v. State. The ruling held that under the
Alaska constitution, the individual's right to privacy takes precedence
over any legitimate reason the state might have for prohibiting the
personal possession and use of marijuana. Some people panicked at the
decision. "Dark days are ahead....God help the young people of Alaska,"
wrote one. Another predicted a future of "broken homes, broken spirits,
heart-aches, grief, yes, and untimely deaths." Nearly eight years have
passed since Ravin--enough time to assess whether the legalizing of
personal possession and use of marijuana has had the predicted effects--or
any effects--on Alaskans.

The legal opinion that fostered the state's unique approach to
marijuana reflects the social character of Alaska's residents. Less than a
lifetime ago, most people inhabiting the then-territory lived a lifestyle
that was almost neolithic. The changes since then have been breath-taking.
It was only in the 1930's that the indigenous people were first
outnumbered by immigrants--often restless persons who disliked their former
environments enough to make a radical change. In each ensuing decade,
census data indicate that newcomers have outnumbered those who lived in
Alaska before that decade. The ballooning immigration has created an aura
of constant novelty and the feeling that anything is possible.

A dwindling group remembers Alaska before statehood when to enter
the territory, one had to show a birth certificate and submit to batteries
of vaccinations. Alaskans had to rely to a great extent on their own
abilities and had to take responsibility for their own actions. Doctors
and hospitals were rare. Few communities ever saw a judge or a court.
With practically no law enforcement, there were very few enforced laws.
The territorial generation had the rare opportunity to devise its
own government, constitution, and laws at the time of statehood in 1959.
Many of the most conservative territorials were and are radically skeptical
of official government pronouncements and strongly defensive of their
private lives. One Fairbanksan expressed typically territorial sentiments
when, after criticizing the way some of his neighbors lived, he added,
"But I don't tell people what they can do on their property, because then
they might get the idea that they can tell me what to do on my property."
The territorial generation constituted an electoral majority for
the last time in 1972. In the August primary in that year, there ran on
the ballot a proposed constitutional amendment that read simply: "The
right of the people to privacy is recognized and shall not be infringed.
The legislature shall implement this section." This referendum passed by a
wide margin, and the right to privacy became Article I, Section 22 of the
constitution of the state of Alaska.

By this time, the territorials were beginning to share power with
their own sons and daughters and the first wave of 1970's immigrants. As a
rule, the immigrants of the '70's were quite young; at the end of the
decade, the median age of Alaskans was 26, the second youngest of any
state. Many of the newer residents were veterans who had first-hand
experience in Vietnam with both government absurdity and abundant
marijuana. They were in a generation that would soon interpret the right
to privacy in a way not entirely foreseen by the territorial generation.
The catalyst for the change was the arrest of Irwin Ravin at the
end o 1972. Ravin was stopped by Anchorage police for a taillight
violation. When instructed to sign the citation, he refused. A search was
conducted a small amount of marijuana was discovered, and Ravin was charged
with possessing the substance. He was not totally unprepared for the
event; a lawyer himself, he had previously discussed the possibility of a
defense based on the right of privacy with fellow attorneys Collin
Middleton and Robert Wagstaff. All three agreed that the time was ripe for
a test case.

The trial was held in May 1973. Middleton and Wagstaff provided
pro bono counsel for the defense, with legal and financial assistance from
the Alaska affiliate of the American Civil Liberties Union and from the
National Organization for the Reform of Marijuana Laws. A number of local
and national authorities were brought in to testify on the assortment of
medical and social issues that are perennially attached to the subject,
such as the relationships between marijuana and crime, mental illness,
reproduction, general health, and public safety. At the conclusion of
testimony, Wagstaff moved for dismissal, arguing before the court:
"We have shown that there is no compelling state interest of any
kind other than oppression, historical bigotry, and hysteria that justifies
its intrusion into a protected area and makes criminals out of those who
have, in fact, committed no particular crimes. Under the authority of the
Alaska Constitution, under our right to privacy....before the state can
regulate the use and possession of particular substances, there must be a
compelling state interest."

The district judge denied the motion to dismiss and was upheld by
the Superior Court; so Ravin appealed to the Alaska Supreme Court. The
resolution of the appeal took two years.

In the meantime, in early 1975, the state legislature prepared a
bill to decriminalize the private possession of marijuana. Governor Jay
Hammond threatened to veto the bill unless changes were made to restrict
use in public, in vehicles, and by juveniles. As amended, the bill made
possession of any amount in private, or up to one ounce in public, a civil
offense carrying a maximum fine of $100. Possession of more than an ounce
in public was a criminal misdemeanor. Sale remained a felony.
Decriminalization received legislative approval on May 16, 1975.
With the tacit assent of the Republican administration, the
Republican-sponsored bill was thus set to become law without the governor's
signature.

At this point the first significant public comment was heard. The
Anchorage Times, the state's major paper, urged its readers to "put heat
on Hammond to veto the bill." The Alaska Peace Officers Association also
pushed for a veto. But Hammond responded:

"It is hypocritical to criminally punish users of marijuana while
legally sanctioning the use of alcohol....In any event, I could not now
veto without the legislature concluding that I had broken my word....such a
course of action would not only be intellectually dishonest but became
unavailable to me because of circumstances."

The debate would surely have grown more acrimonious but for the
Ravin decision, announced only 10 days later.

"Why should my liberty be restricted by another man's conscience?
I CORINTHIANS 10: 29

Written by Chief Justice Jay Rabinowitz, the decision noted first
that although the US Supreme Court had inferred some rights of privacy from
the Constitution, it hadn't recognized any right to own or ingest
marijuana. Nor had courts in Hawaii, Michigan, and Massachusetts accepted
that "smoking marijuana was....locatable in any 'zone of privacy.'" The
Massachusetts Supreme Judicial Court, for example, had said that "there is
no constitutional right to become intoxicated."

Traditionally, courts have considered some rights to be
fundamental, not to be overridden by government unless there is a
"compelling state interest." Rabinowitz reviewed some fundamental rights
of privacy and concluded, "We would hold that there is no fundamental
right, either under the Alaska or federal constitutions, either to possess
or ingest marijuana."

But that was not the end of the issue. Even if marijuana use and
possession isn't protected as a privacy right, said Rabinowitz, the court
must take into account the relevance of where the use and possession occur,
specifically, "if there is any area of human activity to which a right of
privacy pertains more than any other, it is the home." Rabinowitz declared
that the Bill of Rights is very clear on this issue. The Third Amendment
guarantees against quartering of troops in a private home in peacetime.
The Fourth Amendment establishes the right of citizens to be "secure in
their...houses...against unreasonable searches and seizures." And "there
exist a 'myriad' of activities which may be lawfully conducted within the
privacy and confines of the home, but may be prohibited in public."

From this, Rabinowitz inferred that Alaskans do have a right to
privacy that encompasses the "possession and ingestion of substances such
as marijuana in a purely personal, non-commercial context in the home
unless the state can meet its substantial burden and show that proscription
of possession of marijuana in the home is supportable by achievement of a
legitimate state interest."

But what "legitimate state interest" could there be? How could
personal use of marijuana in the home affect the "public welfare" and
thus be vulnerable to state prohibition? Rabinowitz noted that the state
had presented scientific and medical reports of potential danger from
marijuana use but that "in almost every instance...reports can be found
reaching contradictory results."

And he read between the lines: "Possibly implicit in the state's
catalogue of possible dangers of marijuana use is the assumption that the
state has the authority to protect the individual from his own folly, that
is, that the state can control activities which present no harm to anyone
except those enjoying them." But earlier privacy cases, he pointed out,
had established "that the authority of the state to exert control over the
individual extends only to activities of the individual which affect others
or the public health or safety, or to provide for the general welfare. We
believe this tenet to be basic to a free society."

The court accepted two legitimate state concerns--the potential for
harm caused by drivers under the influence of marijuana and the possibility
that use of the substance might spread among adolescents--but "these
interests are insufficient to justify intrusions into the right of adults
in the privacy of their own homes." Such intrusions had to cease--and did,
with the Ravin ruling.

"God did not make death, nor does he rejoice in the destruction of the
living. For he fashioned all things that they might have being; and all
the creatures of the world are wholesome, and there is not a destructive
drug among them." --WISDOM 1: 13-14

For years, advocates of marijuana prohibition have argued that the
dangers ascribed to the plant are far more threatening to the fabric of
American life than are legal constraints on its use and sale. It has been
suggested that if people were allowed to smoke marijuana with impunity, the
country would end up populated by a majority of addicted criminals; drivers
would run amok on the streets and highways; the national socioeconomic
machinery would slow to a halt as otherwise productive citizens spent their
time in a haze; children would become unteachable; lung, brain, and
chromosome damage would be widespread.

For eight years, [this was written in 1983] people in Alaska have
been allowed to smoke marijuana and it is difficult if not impossible to
find any data to support the most dire predictions. One is less aware of
the presence of marijuana in Anchorage than in most major cities in other
states. Complete strangers have offered to sell me marijuana in Houston,
Honolulu, and Seattle--but never on the streets of Anchorage or Fairbanks.
Despite personal legalization, public display is negligible.

There has been no increase in automobile deaths or aircraft
accidents since Ravin; in fact, those rates are stable or declining. There
have been no unexplained epidemics of infectious diseases, birth defects,
or infant deaths. Alaska's crime rate--ferociously high since the arrival
of the first immigrants--is growing at a much slower pace than it did prior
to the decision and currently reflects the national norms more closely than
at any time since such statistics were first gathered. (See charts, p. 34)
There is no evidence that young people are using marijuana any more
frequently now than they did before Ravin. The most authoritative
post-Ravin survey of drug use by Alaskan high school students was being
conducted at press time by Bernard Segal of the University of Alaska
(REASON was unable to obtain preliminary results from the Anchorage school
district) But less formal reports consistently indicate that early
predictions of a generation lost to marijuana simply haven't come to pass.
SAT scores for Alaskan students are the highest in the nation and
since Ravin have occasionally bucked the national trend of declining
scores. The learning abilities, or at least the test-taking abilities, of
Alaska's young people do not seem to be suffering unduly.
The point is certainly not that these statistics are the result of
the Ravin decision. What is beyond dispute, however, is that no measurable
social problem has resulted from allowing adults the freedom to use
marijuana.

There might even be some benefits. One positive consequence of
Ravin is undoubtedly the feeling of relief that Alaskans who use marijuana
must feel now that they are no longer "criminals." It is of course
impossible to know just how many citizens have benefited from the lifting
of the legal stigma; but if the percentage of Alaskans who have ever smoked
is no greater than the national average of 30 percent, this would mean that
more than 110,000 individuals who would be on the wrong side of the law
elsewhere are left alone in Alaska.

Finally, because Ravin protects possession of marijuana only for
personal use-- which means that smuggling and sales are still illegal--many
Alaskans have chosen to take up home cultivation as the most convenient way
to obtain their private supply. (In some rural areas, where outdoor
growing is possible and wild specimens (sic) are plentiful, a majority of
the citizens may actually be subsistence growers and cultivators.) This
too benefits a state such as Alaska where, with no significant
manufacturing or agriculture, in-state revenue is totally dependent on the
export of limited natural resources. Each time a home-grown subsistence
product is used in place of an imported black-market consumer product,
money that would otherwise be winging its way elsewhere stays within the
local economy.

"It is not what goes into a man's mouth that makes him impure; it
is what comes out of his mouth....Do you not see that everything that
enters the mouth passes into the stomach and is discharged into the
latrine?"---MATTHEW 15:11, 17

It would be wrong to think that marijuana is no longer a political
issue in Alaska. Last year, conservative pressure groups succeeded in
pushing through new legislation that reinstitutes criminal penalties for
possession for more than four ounces of marijuana. It went into effect in
October; but Ravin defense attorney Robert Wagstaff contends that the new
law runs afoul of the Ravin decision and would probably be declared an
unconstitutional invasion of privacy if and when it is ever enforced.
Indeed, Tom Fink, the Republican gubernatorial candidate last year and an
opponent of legalization, observed in an Anchorage Times column that it
would probably take a constitutional amendment to override the Ravin
ruling. Although there is clearly opposition to unrestricted personal
marijuana use, such a constitutional amendment is not an immediate
prospect.

In a sense, Alaska was the obvious place for the legal frontier of
marijuana legalization to be crossed. Much of the territorial generation
and the immigrants of the '70's shared a belief that there is no way to
restrict intimate personal activity without undermining for all the
citizenry the most important freedoms of the republic, and they accept that
prohibitions based on misinformation--no matter how well intended--will
only aggravate whatever harm to the public is attributed to such private
behavior.

Alaska's population shift is still continuing, creating new
political coalitions and majorities. There's no way of knowing whether the
immigrants of the '80's will identify with the attitudes and convictions of
the earlier Alaskans, or what form this identification might take.

But the evidence of the past eight years is noteworthy. Using
Alaska as a sort of laboratory, the Ravin decision has put old myths to a
practical test. What has been demonstrated, if any demonstration was
needed, is that legalization of marijuana has not brought an era of
pandemonium and debauchery to Alaska. People are leading their lives much
as they did before. The sun rises and sets just as regularly in Alaska as
it did before Ravin. In fact, the only discernible difference it has
brought is that fewer Alaskans are now being punished for minding their own
business.

"Be lawful, not full of laws. More restrictions mean weaker
people....more laws mean more violators....The people are rebellious when
rulers meddle in their affairs."
---TAO TEH CHING 57, 75

>>>This was written in 1983. Bear that in mind when reading it.

"It is hypocritical to criminally punish users of marijuana while legally
sanctioning the use of alcohol...."
Former Alaska Gov. Jay S. Hammond, 1975


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