Attorney General Sessions officially rescinds protections for cannabis businesses operating under state law
January 5, 2018
Yesterday, Attorney General Jeff Sessions issued a one-page Memorandum rescinding the Department of Justice’s position toward federal enforcement of marijuana laws against cannabis businesses operating legally under state law.
In 2013, then-Deputy Attorney General James M. Cole directed all U.S. Attorneys in what has been known as the “Cole Memo” to forego federal prosecution of state-legal cannabis businesses so long as their operations did not compromise specific federal priorities. These federal priorities included, among other things: preventing the distribution of marijuana to minors; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels, and, preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.
In rescinding the Cole Memo, AG Sessions reminds that existing federal law prohibits all cultivation, distribution and possession of marijuana, regardless of state law, based on “Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.” AG Session directs U.S. Attorneys that “[i]n 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.”
Sessions continues: “[t]hese principles require federal prosecutors . . . 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.” Accordingly, going forward, federal prosecutors will not be guided by the criteria set forth in the original Cole Memo, but instead must use their own investigative and prosecutorial discretion in deciding how to enforce federal marijuana laws within their respective jurisdictions. Sessions concludes that any previous nationwide guidance specific to marijuana enforcement – i.e., the Cole Memo – is unnecessary and immediately rescinded.
To date, state medical marijuana patients and providers still have protections through a federal spending provision – known as the Rohrbacher-Blumenauer Amendment – which prohibits the Department of Justice from spending funds to interfere with the implementation of state medical cannabis laws. The Amendment, however, is set to expire January 19, 2018.
In short, the legality of recreational and medical cannabis in the U.S. has become simultaneously crystal clear, and, as clear as mud. Marijuana remains illegal across the country, in all forms and for all uses. The Department of Justice makes no distinction between medical cannabis oil administered to children to treat seizure disorders, and a dime bag sold on the black market. Yet, in giving individual U.S. Attorney’s the discretion whether to prosecute marijuana activity, AG Sessions’ memorandum will likely result in greater confusion and inconsistent enforcement of federal law.
How individual U.S. attorneys will choose to exercise Sessions’ new guidance remains to be seen. Moreover, there remains the prospect that Congress may continue to deny budget authorization to the Justice Department to pursue state-legal medical marijuana programs. At this time, it is unclear how such budget blocking will interact with Sessions’ new directive.
The Regulated Substances Blog is intended to keep readers current on developments regarding medical cannabis legalization and regulation and is not intended to be legal advice. If you have any questions, please contact author Peter Murphy at pmurphy@eckertseamans.com, Daniel Clearfield at dclearfield@eckertseamans.com, or any other member of our Regulated Substances Group.