The Continuing Vitality of Ravin v. State: Alaskans Still Have a Constitutional Right to Possess Marijuana in the Privacy of Their Homes

• Publication year: 2012

§ 29 Alaska L. Rev. 175. THE CONTINUING VITALITY OF RAVIN V. STATE: ALASKANS STILL HAVE A CONSTITUTIONAL RIGHT TO POSSESS MARIJUANA IN THE PRIVACY OF THEIR HOMES

Alaska Law Review
Volume 29, No. 2, December 2012
Cited: 29 Alaska L. Rev. 175

THE CONTINUING VITALITY OF RAVIN V. STATE: ALASKANS STILL HAVE A CONSTITUTIONAL RIGHT TO POSSESS MARIJUANA IN THE PRIVACY OF THEIR HOMES

Jason Brandeis ^[*]

INTRODUCTION

Alaska has a unique personal-use marijuana law that has sparked legal debate for nearly forty years. In 1975, in Ravin v. State, ^[1] the Alaska Supreme Court held that the Alaska Constitution's right to privacy protects an adult's ability to use and possess a small amount of marijuana in the home for personal use. ^[2] The Alaska Supreme Court thereby became the first-and remains the only - state or federal court to announce a constitutional privacy right that protects some level of marijuana use and possession. ^[3] With that landmark decision, the court planted the seeds of a jurisprudential philosophy that would grow to place a primacy on individual privacy rights and would forever wed the concepts of privacy and marijuana in Alaska constitutional lore.

Now in the fourth decade since Ravin was issued, the legal status of marijuana ^[4] in Alaska sits in an odd position. Personal use and possession of marijuana in the privacy of the home remain protected by Ravin and its progeny, but the current Alaska criminal code prohibits possession of any amount of marijuana, ^[5] as does the federal Controlled Substances Act (CSA). ^[6] Despite these statutory bans, Alaska courts continue to recognize that "not all marijuana possession is a crime in Alaska." ^[7] This tension between state court decisions and state and federal statutes continues to raise questions as to the rights of the individual, the responsibilities of law enforcement, and the continuing vitality of the Ravin decision.

Such confusion is not new or unexpected. In a 1998 Alaska Law Review note, Andrew S. Winters asked "Do Alaskans still have a constitutional right to possess marijuana in the privacy of their homes?" ^[8] Winters correctly concluded that Ravin "should be respected as good law." ^[9] Much happened since that note was written: Alaska voters approved a medical marijuana law, ^[10] Alaska courts issued several opinions concerning personal marijuana use, ^[11] and the state legislature attempted to recriminalize all marijuana possession, ^[12] resulting in high-profile litigation ^[13] and leaving statutes on the books that run directly counter to Ravin. ^[14] Additionally, the recent uptick in the number of other jurisdictions that have passed medical marijuana laws, ^[15] or have otherwise decriminalized or legalized marijuana, ^[16] has renewed interest in the relationship between state laws that permit some marijuana use and the CSA, which still completely bans it. ^[17] It is therefore time to ask, and answer, that question again.

This Article seeks to clarify the current status of Alaska law governing personal use and possession of marijuana and to identify the future precedential value of Ravin. The Article is broken into four main parts. Part I briefly chronicles the history and development of Alaska's personal-use marijuana law, focusing on major court decisions and key pieces of legislation involving the intersection of the right of privacy and marijuana. Part II explains how ripeness, prosecutorial discretion, and stare decisis combine to insulate Ravin from being easily overturned. Part III discusses ongoing issues related to administering and implementing Ravin, including the roles the state courts and legislature continue to play in defining the scope of personal use of marijuana, the ability of law enforcement officials to investigate suspected marijuana grow operations based on the perception of marijuana odor, and the importance of ensuring objective review of the science underlying marijuana policy in Alaska. Part IV examines how the rights protected under Ravin lawfully exist in light of the CSA's marijuana ban. The Article concludes that Ravin retains its vitality and should be respected as good law unless and until the Alaska Supreme Court rules otherwise.

I. THE HISTORY AND DEVELOPMENT OF ALASKA'S PERSONAL-USE MARIJUANA LAW

A. The 1970s and 1980s: Ravin and the Legislative Response

In August 1972 the Alaska Constitution was amended to include an explicit right of privacy. ^[18] That December, Irwin Ravin was arrested and charged with violating an Alaska statue prohibiting possession of marijuana. ^[19]

Ravin challenged the constitutionality of the law, arguing that his conduct was protected by both the state and federal right of privacy. ^[20] Ravin's challenge asserted that the available scientific evidence showed that marijuana was "a relatively innocuous substance" and if marijuana was not all that harmful, the state could not prove that it had a sufficient interest in prohibiting its use and possession. ^[21] The Alaska Supreme Court agreed with him to a certain extent. In Ravin v. State, the court identified a limited right to possess marijuana within the sphere of the Alaska Constitution's broader right to privacy. ^[22] The court held that "possession of marijuana by adults at home for personal use is constitutionally protected" ^[23] because the state could not "meet its substantial burden and show that the proscription of marijuana in the home is supportable by achievement of a legitimate state interest." ^[24]

The court did not reach this conclusion lightly. The justices pored through scientific evidence on marijuana use and its health and social effects and found "no firm evidence that marijuana, as presently used in this country, is generally a danger to the user or to others." ^[25] Weighing "the relative insignificance of marijuana consumption as a health problem[,]" ^[26] the importance of respecting the sanctity of the home, ^[27] and the fact that personal autonomy is uniquely prized in Alaska, ^[28] the court did not see the requisite "close and substantial relationship" between the state's asserted interest (protecting the public from the ills of marijuana use) and the means chosen to advance that interest (a state law prohibiting all possession and use of marijuana). ^[29] A blanket marijuana prohibition simply went too far - the available scientific evidence did not "justify intrusions into the rights of adults in the privacy of their homes." ^[30] The state's marijuana ban was also out of line with what the court described as a basic tenet of a free society: "the authority of the state to exert control over the individual extends only to activities of the individual which affect others or the public at large." ^[31]

The court did, however, recognize that marijuana use was not completely harmless or without risk. ^[32] The state had a legitimate, achievable interest in proscribing marijuana use among drivers, whose ability to safely operate a vehicle would be lowered, and among "adolescents who may not be equipped with the maturity to handle the experience prudently. . . ." ^[33] Those factors, combined with the narrow scope of the decision itself, meant that the state could still regulate and prohibit most types of marijuana activity without running afoul of the right to privacy. Ravin did not extend to protect possession or use of marijuana in public, driving under the influence of marijuana, buying or selling marijuana, possession of marijuana in an amount indicative of an intent to sell, or any marijuana activity involving minors. ^[34]

More importantly than its distinctive approach to marijuana possession, Ravin was a historic decision because it was the first Alaska Supreme Court opinion to meaningfully define the scope of the Alaska Constitution's right to privacy. ^[35] Ravin established the principle that the Alaska Constitution provides greater protection for individual privacy rights than does the United States Constitution, a principle that has become a cornerstone of Alaska jurisprudence. ^[36]

Simultaneous with Ravin, the Alaska Legislature decriminalized marijuana. ^[37] The new law allowed adults to possess one ounce or less of marijuana in public and any amount of marijuana for personal use in private with no criminal penalty. ^[38] Such possession would only subject the offender to a "civil fine of not more than $100." ^[39] But this still presented a constitutional conflict as conduct that Ravin declared as shielded from government intrusion remained subject to state-sanctioned consequences through imposition of a civil fine. ^[40]

In 1982, the Legislature resolved the conflict by revising the state criminal code to omit any civil or criminal penalty for an adult's possession of less than four ounces of marijuana for personal use in the home. ^[41] This revision fully embraced and codified the Ravin decision. ^[42]

B. The 1990s: Ballot Initiatives, Recriminalization, and Medical Marijuana

The statutory decriminalization of marijuana in Alaska lasted only eight years. At the November 6, 1990 statewide general election, Alaska voters faced a ballot initiative that would make all marijuana possession in Alaska illegal. ^[43] The language of the initiative was explicit and "in no uncertain terms" meant to wipe out the rights provided under Ravin. ^[44] This highly-contested political issue, strongly supported by the federal government, garnered "a good deal of...