Ravin Revisited: Do Alaskans Still Have a Constitutional Right to Possess Marijuana in the Privacy of Their Homes?

• Citation: Vol. 15
• Publication year: 1998

§ 15 Alaska L. Rev. 315. RAVIN REVISITED: DO ALASKANS STILL HAVE A CONSTITUTIONAL RIGHT TO POSSESS MARIJUANA IN THE PRIVACY OF THEIR HOMES?

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 315

RAVIN REVISITED: DO ALASKANS STILL HAVE A CONSTITUTIONAL RIGHT TO POSSESS MARIJUANA IN THE PRIVACY OF THEIR HOMES?

Andrew S. Winters

I. INTRODUCTION

II. RAVIN V. STATE

A. A Landmark Decision

B. Consideration by Other Courts of the Right to Possess Marijuana

III. IMPORTANCE OF RAVIN TO CONSTITUTIONAL LAW

A. "New Judicial Federalism"

B. Ravin's Role in Alaska's Constitutional Development

C. Ravin as a Model State Constitutional Decision

IV. THE VOTER INITIATIVE OF 1990: ALASKA VOTERS STRIKE BACK

A. The Voter Initiative of 1990

B. State v. McNeil

C. City of Boerne v. Flores: An Analogy to Federal Constitutional Law

V. CONSTITUTIONAL PRINCIPLES IN APPLYING THE RAVIN TEST

A. Preference for Autonomy

B. Requirement of a Definite Threat to the Public Welfare

C. Stare Decisis

VI. NEW EVIDENCE REGARDING THE EFFECTS OF MARIJUANA USE?

A. Health Consequences of Marijuana Use

B. Social Consequences of Marijuana Use

C. Harrison and Erickson Distinguished

VII. POSSIBLE WAYS TO RECONCILE THE CONFLICT?

A. Judicial Process

B. Executive Action

C. Legislative Action

VIII. CONCLUSION

FOOTNOTES

I. INTRODUCTION

Ravin v. State is one of the most well-known and controversial decisions ever rendered by the Alaska Supreme Court. In that 1975 opinion, the court held that the Alaska Constitution protects a privacy right to possess marijuana in the home for personal use. In 1982, the Alaska legislature codified Ravin by legalizing possession of up to four ounces of marijuana in a private place. However, in 1990, Alaska voters adopted a Voter Initiative that required the legislature to re-adopt the pre-Ravin flat prohibition on possession of marijuana, even in a private place.

Eight years after the passage of the Voter Initiative, it is still unclear whether private marijuana possession is legal under Alaska law. This Note revisits Ravin in an attempt to shed some [*pg 316] light on the issue. Part II describes Ravin and compares it to the decisions of courts in other jurisdictions that have faced a similar issue. Part III documents the prominence of Ravin, both in Alaska's constitutional jurisprudence and in state constitutional law more generally. Part IV examines the Voter Initiative of 1990, and concludes that it should not successfully recriminalize marijuana unless Ravin is found to have been based on invalid scientific premises. Part V looks at the constitutional principles that the Alaska Supreme Court established in Ravin for determining whether an invasion of privacy by the state is justified, while Part VI reviews the current scientific evidence on marijuana. Ultimately, the Note argues that the factual bases upon which Ravin was decided are still valid. Part VII ponders the various legal methods by which the current situation can be resolved. Finally, the Note concludes by arguing that, despite the Voter Initiative of 1990, Ravin should be respected as good law today.

II. RAVIN V. STATE

A. A Landmark Decision

In Ravin v. State, the Alaska Supreme Court was asked to decide the constitutionality of an Alaska statute proscribing the possession and use of marijuana. ^[1] Irwin Ravin was arrested and charged with possession of marijuana. Ravin filed a motion to dismiss, arguing that his right to privacy, as protected by both the U.S. and Alaska Constitutions, includes the right to possess marijuana for personal use. ^[2] The motion was denied by both the district and superior courts, and Ravin appealed to the Alaska Supreme Court. ^[3]

The Alaska Supreme Court first reviewed the principal United States Supreme Court opinions dealing with the right to privacy and concluded that they do not recognize any privacy right to possess marijuana, because "the federal right to privacy only arises in connection with other fundamental rights." ^[4] The court did not stop there however - it conducted a separate inquiry into the [*pg 317] extent to which the Alaska Constitution protects privacy. ^[5] In a previous decision, Breese v. Smith, ^[6] the court had declined to decide whether a school-imposed hair-length regulation violated the federal constitution, ^[7] but nevertheless held that the regulation was prohibited by the Alaska Constitution. ^[8] The Breese court reasoned that "the right 'to be let alone' - including the right to determine one's own hairstyle in accordance with individual preferences and without interference of governmental officials and agents - is a fundamental right under the constitution of Alaska." ^[9] Soon after Breese, Alaska amended its constitution to establish that "[t]he right of the people to privacy is recognized and shall not be infringed." ^[10] Based on Breese and the new state constitutional provision, the court in Ravin recognized that the Alaska Constitution, unlike the federal constitution, protects privacy, or the "right to be let alone," as an independently existing right. ^[11]

Despite recognizing the specific guarantee of privacy provided by the Alaska Constitution, the court held that this guarantee does not include an absolute fundamental privacy right to possess marijuana. ^[12] It distinguished Breese by clarifying that "[f]ew would believe they have been deprived of something of critical importance if deprived of marijuana, though they would if stripped of control over their personal appearance." ^[13]

Although the Ravin court refused to recognize a general right of privacy to possess marijuana, it did single out possession in the home as deserving special consideration. ^[14] The court reasoned that "[i]f there is any area of human activity to which a right to privacy pertains more than any other, it is the home." ^[15] In support of this view, the court cited portions of the federal Bill of Rights, ^[16] various Alaska statutes, ^[17] and the distinct "character of life" in Alaska. ^[18] [*pg 318] Just a year earlier, in Gray v. State, ^[19] the court already had held that the Alaska Constitution protects from legislative intrusion "the ingestion of food, beverages or other substances" in the home. ^[20] Therefore, it was a fairly modest step in Ravin for the court to conclude that

the citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass 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. ^[21]

More specifically, the court stated that the state had the "greater burden of showing a close and substantial relationship between the public welfare and control of ingestion or possession of marijuana in the home for personal use." ^[22]

To determine whether the state had met its "substantial burden," the court proceeded to review the evidence presented at trial by both parties pertaining to the effects of marijuana use. ^[23] It considered evidence put forth by the state: that marijuana use damages the immune system, sexual functioning, and chromosomal structure; produces an extreme panic reaction; leads to a lack of motivation; causes violent criminal behavior; results in experimentation with more dangerous drugs; and leads to long-term psychological problems and addiction. ^[24] However, after conducting a thorough examination of the scientific evidence behind all of the state's arguments, the court concluded the following:

[*pg 319] It appears that the effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates and amphetamines. Moreover, the current patterns of use in the United States are not such as would warrant concern that in the future consumption patterns are likely to change. ^[25]

The court emphasized that it did not endorse the choice to possess or consume marijuana. ^[26] Nevertheless, it ultimately found that "no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown." ^[27]

In reaching this conclusion, the court acknowledged that marijuana use in certain contexts does pose a threat to the general welfare. ^[28] For instance, the court made clear that the state was still justified in prohibiting juvenile marijuana use, driving while intoxicated due to marijuana, and private marijuana possession of amounts indicative of an intent to sell. ^[29] Ultimately, however, it found that these harms "standing alone" do not create "a close and substantial relationship between the public welfare and control of ingestion of marijuana or possession of it in the home for personal use." ^[30] In 1982, the Alaska legislature codified Ravin in the state's criminal code by legalizing possession in a private place of up to four ounces of marijuana. ^[31]

B. Consideration by Other Courts of the Right to Possess Marijuana

With the Ravin decision, Alaska became the first...