Big news for the cannabis industry, in those states in which it has so far been legalized: the federal shoe has dropped and the “Cole Memo” has been rescinded.
No question this means more uncertainty across the nation for legalized marijuana businesses, as the prior “détente” between federal and state law enforcement looks to have eroded. My take, though, is that the U.S. Department of Justice has in effect endorsed—at least for now—a decentralized approach to enforcing federal marijuana laws.
In a memo sent today to federal prosecutors, United States Attorney General Jeff Sessions rescinded and reversed formal statements issued by the Obama administration—including the Cole Memo. Those Obama-era statements advised against bringing marijuana prosecutions in states where recreational or medical use is legal under state law. Until today, the Cole Memo in particular provided a certain level of comfort to the legalized marijuana industry that the federal government would allow states to chart their own paths with respect to cannabis regulation, so long as they followed federal priorities, such as prohibiting the sale of cannabis to minors.
It also won’t be lost on businesses and consumers involved in the legalized cannabis industry that today’s memo from Attorney General Sessions emphasizes that federal law prohibits not just the cultivation and distribution, but also the mere possession of marijuana.
But here’s the rub, which suggests to me there is more going on in the Department of Justice than a wholesale reversal of federal policy: the Sessions memo instructs U.S. Attorneys for each different federal district to exercise discretion in weighing whether to bring charges in any particular marijuana-related case. Prosecutors, Mr. Sessions said, should take into consideration the Department of Justice’s limited resources, the seriousness of the alleged crime, the deterrent effect that legal action could impose, and “the cumulative impact . . . on the community.”
I think this means that, at a local level, the responses of federal prosecutors and law enforcement are likely to vary widely, as different U.S. Attorneys exercise “local” discretion in bringing marijuana-related charges.
In Western Washington, U.S. Attorney Annette L. Hayes issued a statement in response to the Sessions memo in which she focuses on (1) the discretion allocated to U.S. Attorneys by the memo and (2) the need for marijuana enforcement to focus on “organized crime, violent and gun threats, and financial crimes.” Ms. Hayes’ statement reads as follows:
Today the Attorney General reiterated his confidence in the basic principles that guide the discretion of all U.S. Attorneys around the country, and directed that those principles shepherd enforcement of federal law regarding marijuana. He also emphasized his belief that U.S. Attorneys are in the best position to address public safety in their districts, and address the crime control problems that are pressing in their communities. Those principles have always been at the core of what the United States Attorney’s Office for Western Washington has done – across all threats to public safety, including those relating to marijuana. As a result, we have investigated and prosecuted over many years cases involving organized crime, violent and gun threats, and financial crimes related to marijuana. We will continue to do so to ensure – consistent with the most recent guidance from the Department – that our enforcement efforts with our federal, state, local and tribal partners focus on those who pose the greatest safety risk to the people and communities we serve.
In the work that I and my colleagues undertake in representing clients throughout the marijuana industry—including retailers, producers, processors, consultants, and laboratories, and their investors—we will monitor how today’s announcement plays out.