Full scope of new directive unknown, but states vow to protect industry
Just days after California’s legal marijuana market opened to long lines and big sales, U.S. Attorney General Jeff Sessions on Jan. 4 issued a new memo on marijuana enforcement, repealing the Obama-era directive that limited prosecutions in states that have voted to legalize recreational, adult-use cannabis, prompting an outcry for the industry as well as politicians in the states that have legalized and regulated the substance.
The change means local U.S. Attorneys will once again make the decision on who and what to prosecute and how to best use Justice Department resources.
“Today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis and thwart violent crime across our country,” Sessions said in a press release.
Sessions’ memo cites principles established in 1980 as those to once again be followed, as opposed to what is known as the Cole Memo, issued by President Barack Obama’s Justice Department in 2013, which focused U.S. Attorney efforts on preventing the distribution of cannabis to minors, diversion into the black market and on efforts to curb driving under the influence while otherwise backing off voter-approved and well-regulated legalization measures.
The decision flies in the face of promises President Donald Trump made on the campaign trail when he called legalization a states rights issue, though it does follow the priorities of Sessions, who has famously said “good people don’t smoke marijuana” and routinely – and wrongly – blames cannabis use for increases in opioid overdoses and deaths.
Legalization is also increasingly popular among voters. A Gallup poll in October showed 64% of Americans support legalization for adults, including a majority of Republicans who were polled.
While it is still unknown exactly what it will mean for the nation’s fledgling, but rapidly growing cannabis industry, lawyers and politicians from the rec-legal states pledged to fight against any attempts to shutter cannabis businesses.
“Make no mistake: As we have told the Department of Justice ever since I-502 was passed in 2012, we will vigorously defend our state’s laws against undue federal infringement,” said Washington Governor Jay Inslee said in a statement, calling the announcement “an effort to scramble away form the problems they have been experiencing” by the Trump administration. “We will use every single power at our disposal to protect the mission statement Washington voters gave us.”
Washington Attorney General Bob Ferguson also vowed to “vigorously defend” the state’s industry. Ferguson also warned that move not only rescinds the Cole Memo, but also the Ogden Memo that protects medical marijuana businesses from prosecution.
Oregon Attorney General Ellen Rosenblum called Thursday’s announcement an “overreach” by the federal government and also said she would work to protect the will of her states’ voters.
“At the Oregon Department of Justice we will continue to make sure Oregon’s marijuana industry thrives under our carefully considered state regulatory requirements,” she said in a statement. “This is an industry that Oregonians have chosen — and one I will do everything within my legal authority to protect.”
In California, Attorney General Xavier Becerra said he plans to “vigorously enforce our state’s laws and protect our state’s interests.”
“Unlike others, we embrace, not fear, change. After all, this is 2018 not the 20th century,” he said.
In Colorado, Attorney General Cythia H. Coffman issued a statement expressing hope that the Justice Department will continue to focus efforts on combating the black and gray market, not those businesses following state laws.
Meanwhile, industry lawyers and policy advisers are still somewhat split on exactly what implications the new directive from Sessions will have.
For example, Matthew Schweich, interim executive director of the Marijuana Policy Project, warned that the move could lead to “federal agents raiding licensed, regulated and tax-paying businesses.” But Seattle-based cannabis attorney David Kerr of Fifth Avenue Law Group said he thinks that is “unlikely in the near term,” but admits that no one knows exactly how this will shake out.
Kerr also said that the Cole Memo also left it to the prosecutor’s discretion, so really, nothing has changed, however the Sessions memo does remove the state regulatory scheme as a deciding factor that weighs against prosecution.
“What remains to be seen is if the Sessions Memo is really going to leave it up to the individual Federal District Attorney or if the DOJ is going to prioritize enforcement of the Controlled Substances Act for marijuana, perhaps by picking off one or two big players and testing the waters,” he said.
Perry Salzhauer of the Green Light Law Group in Oregon echoed Kerr’s caution about overreacting to the announcement.
“While we expect a slight chill in investment into marijuana businesses in the short term, we really need to wait and see whether today’s rescission will be followed up with any actual new policy directives from Mr. Sessions’ office to the individual U.S. Attorneys, and how those, if any are issued, are implemented before we really understand the full scope of today’s announcement,” Salzhauer said in a statement.
There is still some measure of protection for medical marijuana operations through the Rohrabacher-Blumenauer Amendment (formerly the Rohrabacher-Farr Amendment) through which Congress prohibits use of federal funds to interfere with state medical marijuana laws, but it too may be in trouble. While the amendment was extended as part of the stop-gap budget measures passed to keep the government open, those measures expire Jan. 18 and the fate of that funding is unknown after that date.
For now, Kerr and other attorneys advise that cannabis businesses continue to operate as they have and wait for clarification from Washington, D.C.
“A licensee’s only protection was, and continues to be, strict compliance with the state regulatory scheme in which the licensee operates,” he said.