Voters in Alaska approved Ballot Measure 2 in November, legalizing recreational marijuana use and the establishment of a regulatory (taxable) framework around the sale of the drug. Under the legalization initiative, adults can legally possess up to one ounce of marijuana and cultivate up to six plants in their homes, and a commercial marketplace for marijuana would be developed. Why, then, does a new bill, Senate Bill 30, propose that anyone being prosecuted for marijuana possession, sale or manufacture could use the initiative as a defense? Why would anyone be being prosecuted in the first place? This is the question many voters and legislators are asking.
SB 30, which aimed to clarify the state's criminal marijuana laws, according to a report in the Alaska Dispatch News, would "retain the current prohibition against possession, sale and manufacture of marijuana. But it would add a provision allowing someone charged to use the recreational marijuana initiative as a legal defense in court."
The Dispatch News reported on a meeting of the House and Senate Judiciary Committees, held Monday:
"During the meeting, Sen. Bill Wielechowski, D-Anchorage, asked Hilary Martin, counsel with the Legislature’s legal services department who helped draft the bill, if a person carrying less than 1 ounce of marijuana could be arrested, charged and taken to trial under the provisions of the bill.Â
'Technically, that is a possibility,' Martin replied."
She added that the risk of prosecution was low, but concerned and confused legislators were not appeased. The state's deputy public defender, Tracy Wallenberg, said the bill's defense provision is "problematic." The Dispatch News cited Wallenberg as saying in her testimony: "Not only does it undermine voter intent, but it could result in inconsistent or discriminatory enforcement and drain state resources."
Tim Hinterberger, co-sponsor of Alaska's now-approved legalization initiative, wrote in a statement that SB 30 would "'eviscerate' the intent of the initiative," reported the Dispatch News. A statement Hinterberger made Friday also alleged that "the state has previously used this tactic to thwart the will of the voters in the case of medical marijuana, which passed by citizen initiative in 1998," cited the report.
In a letter to supporters, Hinterberger, who chairs the Campaign to Regulate Marijuana Like Alcohol (which is coordinated by the Marijuana Policy Project), said SB 30's defense provision is "a very bad development, against which we are pushing back."
"SB 30, in its current form, is particularly concerning," wrote Hinterberger. "It strips the initiative of fundamental protections and replaces them with mere defenses that would still require time in court and costly law enforcement resources." He encouraged supporters to contractor their state legislators to "politely let them know that the current draft of SB 30 fundamentally undermines the will of the voters."
A second draft of the bill is anticipated, but as the Dispatch News reported, Senator Lesil McGuire, R-Anchorage, chair of the Senate Judiciary Committee, "said she 'wrestled' with the idea, but ultimately settled with the defense language in the bill after conferring with legislative legal counsel. She said the counsel's office told her that based on the way Alaska state statutes are written, the “defense to prosecution” approach was the 'most comfortable' way of dealing with decriminalization."
“The point is to decriminalize it, to make it clear you can’t be prosecuted if you’re over 21,” she told the Dispatch News. “The way you get at it I’m sure will be a discussion between the committee.”
