The Pew Charitable Trusts

Like a stoned driver crisscrossing the center line, Alaska has veered left and right on the issue of legalizing marijuana.

In the latest development, a citizens' initiative headed for a vote Nov. 2 would push Alaska further than any other state toward legalizing marijuana, condoning the possession, purchase or sale of hemp products by adults 21 years and older. The initiative also would enable the state to tax and regulate marijuana along the lines of alcohol and tobacco.

Alaska already gives more legal blessing to marijuana than any other state. Like eight other states, it approves of marijuana for medical use under a 1998 voter-passed initiative, and the state set up a registry for citizens who want the drug prescribed.

In addition, Alaska court rulings in 2003 and this year declared possession of up to four ounces of marijuana at home to be legal under the state Constitution's grant of a right to privacy. Selling or even giving marijuana to someone remains illegal, however, so the ruling has limited effect.

The 2003 Alaska Court of Appeals decision, which the state Supreme Court refused to overturn this fall, surprised state officials by invalidating a 1990 citizens' initiative that had re-criminalized marijuana after the state had experimented with legalization in the 1970s and 80s. The judges, reaffirming a 1975 state court ruling establishing privacy rights for marijuana use, concluded that the 1990 citizens' initiative - like any law enacted by the Legislature - cannot supersede the state Constitution.

In the year 2000, Alaska voters were presented a ballot initiative that also attempted to legalize marijuana but rejected it overwhelmingly. That measure not only would have legalized marijuana but also would have allowed restitution for violators' jail time or fines. Even proponents of that measure now admit they were overreaching.

This election year, legalization advocates are running television commercials largely funded by the Marijuana Policy Project of Washington, D.C. Opposition to Ballot Measure No. 2 just got organized last week with a visit to Anchorage by White House deputy drug czar Scott Burns. Republican Gov. Frank Murkowski, his wife and members of his administration have come out against the initiative.

The pro-legalization ads depict the war on drugs as a failed effort that wastes taxpayers' money and disrupts the liberty of otherwise law-abiding citizens. The message is that it's more practical to tax and regulate the drug.

"What we have now doesn't work," says Ken Jacobus, a lawyer who previously has represented the Republican Party of Alaska and now advises Yes On 2 Alaska, an advocacy group.

Jacobus, who says he doesn't smoke marijuana and thinks it's a bad product, describes the current state law as schizophrenic: While the state highest courts have sanctioned use of small amounts of marijuana at home, there's no way to legally acquire marijuana. Even getting it as a gift is illegal, so the law must be broken in order to lawfully have the drug, he observed.

Jacobus is vigorously countered by another Republican lawyer, former U.S. Attorney Wev Shea. Shea has written the anti-marijuana position in the official state voter's guide in past years, although he was barred from doing so this year because he was campaigning, unsuccessfully, for the Republican nomination for the U.S. Senate.

"Terrorism is attacking this nation from the outside, and doing its best to work its way in," Shea says. "Illicit drugs are ripping this nation apart from the inside."

He argues that marijuana dealers are targeting kids the same way the tobacco industry aimed at young people for years and that marijuana serves as a gateway drug to heroin and other dangerous controlled substances.

Shea also disputes Jacobus' argument that teen marijuana use declined in Holland because of legalization, saying he expects there would be an inevitable increase.

Shea contends that while the Alaska courts did not err as a matter of state constitutional law in finding that a right to privacy protects marijuana use, he says the justices should have given greater deference to federal law prohibiting marijuana use.

"All I can say is if I was on the Alaska Supreme Court, I would be arguing very strongly that they have no business making the decisions and trying to trump the Drug Enforcement Administration and the Food and Drug Administration in deciding which drugs are legal and which drugs are illegal," Shea said.

Jacobus predicts that if Alaska's initiative passes, state law enforcement resources would be redirected away from marijuana users toward "serious criminals."

Allen St. Pierre, executive director of NORML, a Washington, D.C., group that advocates for legalizing marijuana, said passage of the initiative would "to a very large degree nullify if not eliminate state, county and local law enforcement's nexus with marijuana." However, it also would set up a conflict with the federal Controlled Substances Act, which prohibits marijuana use, and would be sure to be challenged by the federal government, he said.

Although not in time to help Alaska voters, the U.S. Supreme Court in November will hear arguments in a California case that tests the reach of the federal marijuana ban in states with laws permitting medicinal marijuana use. The case questions whether federal enforcers have power under the U.S. Constitution's commerce clause to prosecute users when state law permits the use although not the sale of marijuana for pain relief.

That ruling will have repercussions not only for California, but also for Alaska and the other states with medicinal marijuana laws: Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington.

A proposal to allow marijuana for medical use is on the Nov. 2 ballot in Montana.

Bill McAllister is a Statehouse reporter in Juneau, Alaska.