Justice Department Rescinds Obama-era Marijuana Guidance

Attorney General Jeff Sessions speaks during a news conference at the Justice Department in Washington, Friday, Dec. 15, 2017, about efforts to reduce violent crime.

Attorney General Jeff Sessions speaks during a news conference at the Justice Department in Washington, Friday, Dec. 15, 2017, about efforts to reduce violent crime. AP Photo/Carolyn


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The move by U.S. Attorney General Jeff Sessions stirs uncertainty for states that have legalized cannabis sales and production.

WASHINGTON — U.S. Attorney General Jeff Sessions on Thursday rescinded Obama-era guidelines for states that regulate the production and sale of marijuana, drawing a sharp rebuke from public officials in places that have legalized recreational and medical pot.

The decision has the potential to create new confusion and uncertainty within the cannabis industry and for state policymakers in the near term. But experts point out that it could also force Congress to come up with clearer federal standards for legalized marijuana.

And, notably, Sessions stopped short of calling for an all out clamp down on marijuana retailers or growers that are following state rules, instead leaving it up to U.S. attorneys to take the lead on enforcement. 

"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 statement.

While that may be the case, officials in states with firmly established marijuana industries and regulatory systems were swift to criticize the attorney general's decision. "We will vigorously defend our state’s laws against undue federal infringement," said Washington Gov. Jay Inslee, a Democrat. Legal, recreational pot sales began in Washington in 2014.

The governor expressed frustration that the Justice Department's move came after Sessions has refused offers from him and from Washington state's attorney general, Bob Ferguson, to meet in order to discuss marijuana policy. "He has disregarded the input that we and other state leaders have provided to his department," Inslee added.

U.S. Sen. Cory Gardner, a Colorado Republican, was also irked by the attorney general's action.

"Before I voted to confirm Attorney General Sessions, he assured me that marijuana would not be a priority for this Administration," he said. "Today’s action directly contradicts what I was told, and I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made."

State-regulated retail sales of medical and recreational cannabis in Colorado cleared $1 billion in the first eight months of last year.

Sessions says in a one-page memorandum issued Thursday that, when it comes to marijuana-related activity, federal prosecutors should follow the same principles that govern all federal prosecutions. He adds that previous department guidance specific to marijuana enforcement is unnecessary and is to be rescinded immediately.

Among this earlier guidance is what's known as the "Cole Memo."

Authored by former Deputy Attorney General James M. Cole in 2013, the memorandum says that if states set up strong marijuana regulatory regimes, which adhere to certain federal priorities, then law enforcement efforts related to the drug will be largely left to state and local authorities. Some of the priorities included preventing the distribution of marijuana to children, ensuring revenues do not go to criminals and keeping pot from moving across state lines.

With marijuana still illegal under federal law, the document offered a set of guidelines, and a degree of reassurance, for states setting up systems to allow for the legal, regulated use of pot.

Along with Colorado and Washington, Alaska, California, the District of Columbia, Maine, Massachusetts, Nevada and Oregon have passed laws allowing for the personal possession and consumption of marijuana by adults, according to NORML, a group that advocates for the regulated legalization of marijuana.

A total of 29 states and the District of Columbia had enacted laws that permit people to use marijuana for medical purposes as of September of last year, according to the National Conference of State Legislatures.

Legal sales of recreational pot began in California earlier this week

“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change," state Attorney General Xavier Becerra said in an emailed statement Thursday. 

"We intend to vigorously enforce our state's laws and protect our state's interests," he added.

Robert Mikos, a law professor at Vanderbilt University and an expert on federalism and drug law, offered a somewhat restrained take when asked by phone Thursday about the significance of Sessions rescinding the marijuana enforcement guidance.

"I think it's important not to read too much into it," he said. "He didn't instruct United States attorneys, federal prosecutors, to necessarily go out there and crack down on the state-licensed marijuana industry. Or to start enforcing the federal marijuana ban more aggressively."

"He sort of left that to their discretion," Mikos added.

Professor Douglas Berman, at Ohio State University's college of law, said he suspects U.S. attorneys are more apt to be strategic, rather than heavy-handed, in using latitude they gain from the Cole Memo rollback.

"That still should worry an awful lot of the industry that arguably could be called 'brazen' in their confidence," he added. "But I doubt we're going to be seeing even hundreds, let alone thousands, of new prosecutions in federal court for marijuana offenses."

Nothing in the Cole Memo or other previous Department of Justice policy prohibited prosecutors from targeting state-regulated pot retailers, processors or growers, notes Franklin Snyder, a professor at Texas A&M University School of Law.

"Removing it doesn't give them any more authority, but it does signal that the leadership in the Justice Department is more comfortable with having them go after marijuana businesses," he said.

Snyder does think the policy change could dim enthusiasm among large investors on Wall Street, or in Silicon Valley, who might have otherwise pumped money into cannabis ventures.

"If you're a Silicon Valley billionaire, a slight increase in the chance that you might go to prison for 20 years may be enough to keep you from putting more money into the business," he said.

One constraint that would limit drastic, new enforcement actions against state-licensed marijuana businesses is a budget rider that restricts the Justice Department from spending money to block states from implementing medical cannabis laws.

It is not a given, however, that this provision will be extended when Congress next passes spending legislation to keep the government running. A stopgap funding measure expires on Jan. 19.

Sessions wrote to congressional leaders earlier this year to voice his opposition to the rider, making a case that drug traffickers have operated in the U.S. under the guise of state medical marijuana laws. The attorney general has made clear in the past that he believes marijuana is dangerous and should not be legalized. 

Mikos highlighted that there are political realities to consider when it comes to stepping-up enforcement against regulated pot, especially for U.S. attorneys serving in states where they might one day want to run for office. "It'll be interesting to see if any local U.S. attorneys actually state what they're going to do," he said. "They may just avoid this."

The way Snyder sees it, Sessions' revamp of DOJ marijuana policy puts appropriate pressure back on Congress to dictate the federal government's stance on pot.

"Congress has been allowed to kind of dodge the issue," he said.

For now, the effects of the Justice Department's policy change remain to be seen for states and businesses.

"It is a possibility that six months from now nothing has changed," said Alex Kreit, a professor at the Thomas Jefferson School of Law in San Diego. 

"It's also entirely possible," he added, "that six months from now individual United States attorneys' offices have almost all said 'we're going to use our power to try and crack down and shut down these state laws.'"

This story has been updated.

Bill Lucia is a Senior Reporter for Government Executive's Route Fifty and is based in Washington, D.C.

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