Sessions to end leniency that let legal pot boom
Obama era’s hands-off-states prosecution policy rescinded
WASHINGTON — President Donald Trump’s administration freed federal prosecutors Thursday to more aggressively enforce marijuana laws, effectively threatening to undermine the legalization movement that has spread to six states, most recently California.
In a move that raised doubts about the viability and growth of the burgeoning commercial marijuana industry, Attorney General Jeff Sessions rescinded a policy from the administration of President Barack Obama that had discouraged federal prosecutors from filing charges of marijuana-related crimes in states that have legalized sales of the drug. In a statement, Sessions said the Obama-era guidance undermined “the rule of law” and the Justice Department’s mission to enforce federal statutes. “Today’s memo on federal marijuana enforcement simply directs all U.S. attorneys to use previously established prosecutorial principles that
them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country,” he said.
In a briefing with reporters, Justice Department officials refused to say whether they intended for federal prosecutors to carry out a federal crackdown on marijuana dispensaries, or whether the Trump administration was merely creating ambiguity to chill growth of a commercial marijuana industry with a divided legal status.
They denied that the timing was connected to California’s legalization of marijuana, which went into effect Monday and is projected to bring in $1 billion annually in tax revenue within several years. And, the officials said, Thursday’s action might not be the only step toward greater marijuana enforcement. The department has the authority to sue states on the grounds that state laws regulating pot are unconstitutional, pre-empted by federal law.
Asked about the change, White House press secretary Sarah Huckabee Sanders said only that Trump’s top priority is enforcing federal law “and that is regardless of what the topic is, whether it’s marijuana or whether it’s immigration.”
But the move seemed certain to increase the confusion about whether it is legal to sell, buy or possess marijuana in the United States. Federal law has long prohibited those activities, and in 2013, after voters in Colorado and Washington state voted to decriminalize marijuana for recreational use, the Justice Department deliberated about how to handle the resulting disconnect between state and federal law.
Ultimately, Obama’s administration decided not to sue such states, and the Justice Department issued a policy memo instructing federal prosecutors to de-prioritize marijuana-related prosecutions in those states — except in certain cases, such as when there were sales to children, gang-related activity, or diversions of the product to states where it remained entirely illegal.
That guidance was known as the “Cole memo” after the then-deputy attorney general who issued it, James Cole.
The federal government’s hands-off approach allowed a new industry to flourish in states that had decided to legalize and regulate marijuana use and sales for recreational and medical use. In Colorado, one of the first states to broadly legalize the drug for adult use, marijuana sales now top $1 billion a year, and thousands of people work in the industry, in jobs ranging from “bud trimmers” to marijuana tour guides for out-ofstate visitors.
Huge farming warehouses sprouted up inside old industrial neighborhoods, and companies that produce marijuana-laced candies, infusions and drinks have largescale production facilities — all of which may now have a bull’s-eye on their backs.
“I do expect to see the larger investors and businesses targeted,” said Kevin Sabet, a prominent critic of legalized marijuana and former drug-control policy official in the Obama administration, who praised Sessions’ step. “I’m not sure whether local mom-and-pop marijuana shops will be affected.”
Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers who have taken advantage to illegally grow and ship the drug across state lines, where it can sell for much more.
Marijuana advocates argue those concerns are overblown and contend that legalizing the drug reduces crime by eliminating the need for a black market. They quickly condemned Sessions’ move as a return to outdated drugwar policies that unduly affected members of minority groups.
Sessions “wants to maintain a system that has led
to tremendous injustice … and that has wasted federal resources on a huge scale,” said Maria McFarland Sanchez-Moreno, executive director of the Drug Policy Alliance. “If Sessions thinks that makes sense in terms of prosecutorial priorities, he is in a very bizarre ideological state or a deeply problematic one.”
California joins Colorado, Washington, Oregon, Alaska and Nevada in its legalization of recreational marijuana. Massachusetts and possibly Maine are expected to begin sales this year.
Oklahoma Gov. Mary Fallin said Thursday that voters will decide whether medical marijuana will be legal in the state in a June 26 election.
Sessions was a vocal opponent of marijuana legalization as a U.S. senator from Alabama. At his confirmation hearing in January, he said he saw some value in how the Obama administration evaluated whether to spend resources on prosecuting marijuana cases in states that had legalized the drug.
“I won’t commit to never enforcing federal law,” he said, “but absolutely it’s a problem of resources for the federal government.”
Still, he suggested, there was legitimate criticism that prosecutors may have shied away from potential cases that they should have filed under the exceptions listed in the Cole memo.
The Justice Department’s move is likely to have the biggest effect on major funding sources for marijuana retailers and large-scale growing and production operations, said legalization critic Sabet, who is president of an advocacy group called Smart Approaches to Marijuana.
“It puts the industry on notice in these states who thought they had cover from the states and the feds,” he said. “All these people are going to wake up today with a bit of a heartache because they thought they were scot-freewhen, in reality, they’re not.”
Several lawmakers representing states that have legalized marijuana reacted angrily to the news. Among them, Sen. Cory Gardner, R-Colo., accused Sessions of violating promises he had made, and threatened retaliation.
“This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states,” Gardner wrote on Twitter, adding: “I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”
In an interview, Gardner said that while he personally opposed marijuana legalization, his state voted otherwise.
“I talked to Jeff Sessions today, and we are going to have a conversation next week,” Gardner said. “Let’s just say, there was no reconciliation of differences.”
Another lawmaker, Rep. Earl Blumenauer, D-Ore., who is co-chairman of the Congressional Cannabis Caucus, called for people to mobilize and push back against the Justice Department decision.
“This is outrageous,” Blumenauer said. “Going against the majority of Americans — including a majority of Republican voters — who want the federal government to stay out of the way is perhaps one of the stupidest decisions the attorney general has made.”
Cannabis entrepreneurs in the mountain West and on the West Coast said they were left feeling uncertain about their future after waking up to the news that Sessions was changing the state of play.
“Instantly my phone blew
up,” said Krista Whitley, founder and chief executive officer of Las Vegas-based Altitude Products, which sells recreational and medicinal cannabis products.
“Everyone was calling and texting and asking for guidance. I think it certainly makes everyone insecure and adds a layer of confusion to an already complex landscape,” she said.
“What we’re looking for in this industry is some level of confidence in where the future lies, and some level of security.”
She said the Sessions decision could scare away some investors who had been eager to participate in what has been dubbed the “green rush” of the booming marijuana industry.
Andrew Freedman, former director of marijuana coordination for the Colorado governor — he was known as the state’s “marijuana czar” — said he wasn’t surprised by the news from Washington because “Sessions always wanted to create chaos in the industry.”
He said that under the Obama-era guidance, there remained tension between federal and state law but there was at least guidance about how states and the fedprovide
eral government could align their priorities. The Sessions decision will lead to more confusion even as states continue to allow legal, regulated marijuana industries, he said.
Freedman said of the attorney general: “I think he truly believes that marijuana legalization is a threat to how he sees drug policy in the world — which is a 1980s mindset. That the best way to stop drug use is to criminalize it and put people in jail.”
Jane Stinson, part owner of the retail marijuana shop Enlighten Alaska in Anchorage, called Thursday’s action confusing and worried that it could harm her business. The change, she said, “can have so many ripple effects we just don’t know.”