Thanks to everyone for having patience during Highly Informed's hiatus. We start back up this week with an intriguing question from "Lago Prano": "I know authorities have been saying that selling pot is illegal, but what about buying it? Is the act of buying pot against the law if you don't buy too much?"
This question opens up a few interesting implications for anti-drug policy itself, but we'll keep the discussion focused on Alaska. The short answer is no; the very act of handing someone money in Alaska and receiving a legal amount of cannabis is not illegal for the person handing over the money.
Although all of this is hypothetical and there has been no specific case to test the question in an Alaska court, it appears that there is little risk of being charged with the crime of "purchasing marijuana." First off, Alaska statutes contain nothing explicitly declaring the purchase itself of a controlled substance a criminal act on the part of the buyer.
Laws intended to deter use of cannabis have historically focused on possession rather than purchase. But with limited possession now legal in Alaska for those over 21, that deterrent has disappeared when it comes to allowable weights.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
Cynthia Franklin, an attorney and the director of the state Alcoholic Beverage Control Board, the agency tasked with creating an initial framework for Alaska's legal cannabis industry, said in a phone interview that she's not aware of any state that criminalizes the purchase of a controlled substance.
"The laws of the states I am licensed to practice law, Texas, Colorado and Alaska, and the federal Controlled Substances Act only concern possession and delivery," she said.
However, Franklin's role here is that of a regulator, not a criminal prosecutor, and she noted that whether or not buyers are acting illegally in purchasing legal amounts of pot isn't a question the board will be addressing.
"There are some areas where we're not going to be writing rules, and this is one of them," she said. "This is really a criminal question."
'Try not to be paranoid'
From a theoretical standpoint, it makes sense there wouldn't be a criminal law against an illicit controlled substance transaction itself. Stripped down to the barest bones, a transaction is a very abstract thing. It's just an instant, a moment in time when goods or services and payment pass each other.
The very moment that a transaction springs into existence can't easily be touched or recorded, and that moment may even be delayed or obscured if there is any lag time between the time the goods are given over and the money changes hands -- think of J. Wellington Wimpy, the hamburger-loving character in the Popeye comic strip, who "would gladly pay you Tuesday" for a burger today.
From a practical standpoint, gathering evidence on a hypothetically illegal purchase of personal-use-level marijuana would also be very difficult outside of the very moment it happens, especially since most such illicit transactions are done with cash and don't usually come with a receipt.
"Before, if we found two people buying and selling, we'd charge them both. They were in possession," said Alaska State Troopers public information officer Megan Peters in a phone interview.
But now that some amount of possession is legal for adults in Alaska, Peters said, she couldn't provide a direct answer and that no one would be able to answer a hypothetical. Troopers would have to treat each situation as it happened. "At this point in time, if troopers came upon that, they'd have to consult with the Department of Law."
"Just try not to be paranoid," she said. "It's all about the totality of the circumstances."
Those circumstances could be anything, and Peters couldn't discuss any specific ones. But charges of some kind would be more likely in a hypothetical case where the totality of evidence indicated that someone got, say, a pound of cannabis in exchange for, let's say, a bunch of stolen firearms or off-the-books halibut. But the risk of some sort of charges would be lower if, say, the situation is more like troopers encounter someone at the very moment the person is buying an eighth-ounce with money.
Substance-ive dilemma
For Franklin, the uncertainty for law enforcement gets at the heart of a broader dilemma Alaska faces when it comes to legalized, taxed and regulated cannabis: How can something listed as a controlled substance be treated as a regulated product at the same time?
"I think this points out the tricky part of moving a substance from being illegal by nature to having illegality around the substance," she said. "This would be more clear if we had specific criminal provisions around marijuana like we do around alcohol."
"Alcohol is regulated substance, and heroin for instance is a controlled substance," she clarified. "Just like alcohol, the question for law enforcement is what conduct is happening around that substance, rather than the possession of that substance itself. Which is why marijuana should be outside the Controlled Substance Act. It's not whether the marijuana is there, but what is happening around it."
Franklin mentioned Senate Bill 30 (currently before the House Judiciary Committee after passing the Senate) as something that intended to address the dilemma posed by the emergence of a brand-new regulated industry. At first, among other changes, it proposed to remove cannabis from the controlled substances act, but that original bill changed a great deal last session and is still in process. The current version, generally speaking, would change criminal codes relating to cannabis, allow for a local option in established villages, and bar cannabis-related establishments from operating in the unorganized borough, but it would keep cannabis a controlled substance on Alaska's schedule VI.
Franklin also said that even though a buyer is not at risk for criminal charges, Alaskans should consider that more may be at stake than just individual freedom. In obtaining cannabis from unlicensed vendors before a commercial system is in place, she said, customers may be setting back the effort to establish a regulated industry and legal market.
"If you participate in the black market as a consumer, you are potentially contributing to issues with the marijuana industry," she said. "Each one of those transactions, the likelihood increases that we won't have a marijuana industry."
As the time ticks down to the statutory deadline for Alaska's initial system to be in place, and as the pressure increases, Franklin said, individual consumers participating in whatever gray market exists at the time might contribute to a result they don't want, from a larger perspective.
And that gray market does exist, however tentatively. There have been a number of openly operating cannabis-related or cannabis-friendly businesses (everything from testing labs to hookah lounges), opening doors and then voluntarily closing them after warnings from regulators. And others, including cannabis delivery services and other operations directed at getting cannabis to people who want it, are operating, despite officials consistently saying there are no such legal businesses without a licensing and regulatory framework in place.
If people can't wait for the legal framework and obtain marijuana from unlicensed businesses, Franklin said, they risk creating negative impressions in the minds of people still opposed to legalized pot, and furthermore, "they are contributing to a fight in the January 2017 legislative session about whether to repeal."
Whether that fight will happen is anyone's guess, as are the prospects for further clarity in state law, but in the meantime and unless something changes, the act itself of purchasing a legal amount of cannabis is not illegal for a buyer over 21.
Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.