Today, United States Attorney General Jeff Sessions has scuttled Obama-era federal law enforcement policy on marijuana. Effective immediately, the seminal Cole Memorandum and related guidance previously issued by the Justice Department have been rescinded. A copy of Sessions’ January 4, 2018, one-page memorandum announcing this policy shift can be found here.
Sessions, a strong critic of marijuana, has strongly hinted since his appointment that he would revisit federal enforcement policy regarding this Schedule I drug. Even so, the Attorney General’s announcement does not portend that federal enforcement in states where medical and recreational marijuana legislation has been passed is imminent. Sessions stated that future prosecutions are left to the discretion of individual U.S. Attorneys’ offices.
In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions…. These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.
Sessions’ about-face policy shift, however, has drawn sharp criticism from several members of Congress. Senator Cory Gardner (R-Colorado) tweeted his displeasure, threatening repercussions: “I am prepared to take all steps necessary, including holding [up] DOJ nominees….” Senator Lisa Murkowski (R-Alaska) also took to Twitter to decry the policy shift noting, “Over the past year I repeatedly discouraged Attorney General Sessions from taking this action and asked that he work with the states and Congress if he feels changes are necessary. Today’s announcement is disruptive to state regulatory regimes and regrettable.” Congressional Cannabis Caucus co-chair Representative Earl Blumenauer (D-Oregon) was even more blunt in his criticism, observing that Sessions’ edict is contrary to the opinion of a “majority of Americans – including a majority of Republican voters – who want the federal government to stay out of the way,” and that today’s policy change “is perhaps one of the stupidest decisions the Attorney General has made.”
Congressional outrage aside, if anything can be read from the tea leaves of Sessions’ announcement, consider today’s statement from U.S. Attorney Bob Troyer regarding marijuana prosecutions in Colorado:
Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions. The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state. We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.
Placing U.S. Attorney Troyer’s statement in context, while Sessions’ announcement may be shocking to many, it should not be construed to suggest that enforcement actions have not been taking place despite the Obama-era policy of lesser enforcement. In November 2014, the U.S. Attorney’s Office for the District of Alaska secured a conviction against an Alaskan resident for establishing a significant marijuana cultivation operation in his home. In May 2015, the U.S. Attorney’s Office for the District of Colorado secured a guilty plea against a Colorado resident for sending marijuana through the U.S. Mail. In November 2017, a labor union organizer was successfully prosecuted by the U.S. Attorney’s Office for the Northern District of California for money laundering of allegedly illegal drug proceeds through the banking system.
Moreover, while Sessions is clearly signaling that there is a new sheriff in town, he must rely upon his deputies to instill law and order throughout the land. These attorneys’ past prosecutions suggest that the Cole Memorandum’s enforcement priorities may still hold considerable sway going forward. Therefore, prudent marijuana businesses should keep these priorities in mind:
- Prevent the distribution of marijuana to minors;
- Prevent revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Prevent the diversion of marijuana from states where it is legal to other states;
- Prevent state authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Prevent violence and the use of firearms in the cultivation and distribution of marijuana;
- Prevent drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Prevent the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Prevent marijuana possession or use on federal property.
While not established policy anymore, conduct in compliance with these (former) enforcement priorities, as well as all applicable state and local laws and regulations, may be less likely to attract the attention of the “sheriff” in your town.