A bill looking to clarify Alaska's criminal marijuana laws appeared to only stupefy legislators and supporters of the measure Monday by making the state's already complicated marijuana laws even more confusing.
In a joint meeting of the House and Senate judiciary committees Monday, Alaska legislators asked questions of the drafters of Senate Bill 30, which looks to update laws related to criminal enforcement of marijuana. While certain points of the bill appear relatively straightforward -- clarifying the definition of marijuana, making it illegal to have open marijuana containers in a vehicle -- a section dealing with the heart of the law updating criminal statutes related to personal possession and manufacture drew serious concern.
The bill 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.
How exactly the bill's phrase, "defense to prosecution," would play out in the real world was the subject of much of Monday's discussion.
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.
"Technically, that is a possibility," Martin replied.
But such possession was made legal by the initiative, Ballot Measure 2, which voters approved in November.
Martin added that if the person was within the bounds of the initiative, SB 30 would allow them to invoke the initiative to win in court. In any event, Martin said, prosecution was a "low risk" for anyone possessing 1 ounce or less.
But Tracy Wallenberg, deputy public defender with the state's public defender agency, said SB 30 is "problematic" in its defense provisions. Not only does it undermine voter intent, she testified, but it could result in inconsistent or discriminatory enforcement and drain state resources.
"Setting up in this way uses resources that may not be necessary given the initiative's intent," she said.
Supporters of the ballot initiative agreed. In a statement outlining their concerns, initiative co-sponsor Tim Hinterberger wrote that SB 30 would "eviscerate" the intent of the initiative.
"This is a lesser protection than what the voters have mandated, and 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," he said in a statement Friday. "We are not suggesting that is the intent of this bill, but it is an issue proponents are particularly sensitive to given the history of marijuana policy in Alaska."
Legislators on both sides of the aisle also appeared concerned with the defense provisions violating the will of voters. Sen. Lesil McGuire, R-Anchorage, chair of the Senate Judiciary Committee, noted that Martin would get "two auditions" on the bill, and said that the committee would be "looking forward" to another draft of the proposed law, though it was unclear Monday what that might look like.
In an interview Friday, McGuire acknowledged concerns over the defense provisions. She 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 said Friday. "The way you get at it I'm sure will be a discussion between the committee."
McGuire said that part of allowing the defense language is to move the bill through the Legislature quickly. The bill is one of three involving marijuana the Senate Judiciary Committee plans to introduce this session. The second will deal with creating a marijuana control board housed within the Alcoholic Beverage Control Board, which is currently tasked with developing marijuana regulations. The third bill will be an omnibus bill dealing with everything else -- including advertising, zoning and other regulatory issues.
McGuire said the criminal aspects needed to be dealt with first, since the personal possession portion of the law goes in to effect Feb. 24. Hearings on SB 30 will continue through the week, with another meeting scheduled for Wednesday.
Bruce Schulte, spokesman for the Coalition for Responsible Cannabis Legislation, understood the pressure of why the bill was introduced with the convoluted defense language. Still, the group, whose focus is on representing marijuana industry through the regulatory process, had serious concerns about the provisions as they were outlined Friday.
"I think (SB 30) was imperfect out of necessity," Schulte said. "We think people should be comfortable engaging in these things in their own homes and not having to go to court. Even if charges are dismissed, lives (would be) severely disrupted and we don't see that as an acceptable outcome."
Schulte, who was invited to testify Monday, said afterward that he felt more comfortable after watching legislators react to the bill. He suspects a more modest version of the bill to be on the way soon.
"They had two directions to take and most would agree they picked the wrong one," Schulte said.
Alaska Dispatch Publishing