Medicinal use of pot can continue in Alaska

July 21, 2005

Peter Porco, Anchorage Daily News

Alaskans can continue to register with state health authorities to smoke marijuana for medicinal reasons despite a U.S. Supreme Court decision last month that upheld federal laws banning the drug.

The state attorney general, David Marquez, has advised the Alaska Department of Health and Social Services that the court's June 6 decision does not forbid the agency from registering medical marijuana users, according to a statement Marquez issued Thursday.

In the immediate wake of the high court's decision, the state was contemplating suspending the medical marijuana registration program, among a range of actions it could have taken in response, Alaska Department of Law spokesman Mark Morones said Thursday.

The administration of Gov. Frank Murkowski is known to be hostile to another category of legal use under Alaska laws, in which recreational users can have up to four ounces of the drug within their homes. That limited legal use was reaffirmed in 2004 by the state's Court of Appeals, which cited the Alaska constitution's privacy provision.

Medical users envisioned the court's decision as new ammunition for states that wanted to suppress all use of the drug.

At least two states with medical marijuana programs, Oregon and California, suspended their registration programs after the court issued its ruling. Both states recently resumed the programs after their legal authorities reviewed the court's action.

All use of marijuana is banned under federal law everywhere in the country.

Alaska is one of 10 states that authorize marijuana use for medical reasons, providing the user provides a doctor's prescription and registers with the state. That exception to state law was authorized by a voters' initiative in 1998. About 200 people are now registered in the program, according to Morones, the Law spokesman. About 570 have been registered since the beginning.

The case before the Supreme Court, Gonzales v. Raich, was brought by California users of medical marijuana trying to assert a state's right to regulate such use over federal prohibition.

The court decided that the Commerce clause of the U.S. Constitution trumped state laws, asserting federal authority to ban use of the drug despite its legality within a state in certain circumstances.

Within the Supreme Court's ruling, Alaska found its legal haven in what Marquez called a 'narrow constitutional question.'

'We start with the presumption that our state statutes are valid,' he said. 'Absent a clear statement in Raich that federal law pre-empts a state's ability to regulate the possession and use of marijuana for medical purposes, Alaska's registration scheme should continue to remain in effect.'

Marquez warned Alaskans, however, that any possession, distribution or use of dope remains a crime under U.S. law.

Federal law enforcement authorities in Alaska said last month that the court's ruling would not lead to increased prosecution of minor users; they're interested in major traffickers. They reiterated that posture Thursday.

Marquez's statement 'is not going to change anything,' said FBI Special Agent Eric Gonzalez.

The Washington, D.C.-based Marijuana Policy Project, which had threatened to sue Alaska and Oregon if they suspended their medical-marijuana registration, said the state's decision was welcome, though not surprising.

'What Alaska and now all 10 of the medical marijuana states have said essentially is the Supreme Court decision does nothing on the state level,' said Bruce Mirken, a Marijuana Policy Project spokesman. 'It's essentially business as usual. ... This was a real clear-cut decision, and the question is why a couple of states took so long.'

Marquez also issued a 'talking points' memorandum, listing reasons why marijuana should be illegal under all circumstances except authorized medical use. Those reasons include the drug's high potency today compared with 30 and 40 years ago and its increasing use among students as young as 11.

Murkowski's proposed legislation, which did not advance in the last legislative session, would make possession of any amount of non-medical dope at home illegal under state law. The proposal would not affect registered medical marijuana users.

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