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DOJ Seeking to End Marijuana Prosecutions?

On his way to what looks so far to be a quick confirmation, Attorney General nominee William P. Barr made a firm commitment to reverse course on federal marijuana prosecutions. A Trump/Barr Justice Department would not prosecute marijuana cases provided state law is being followed. The many thousands of Americans who depend on the marijuana industry for income, enjoyment, and medicine can breathe a little easier.

Barr’s statements on the issue came in response to both Sens. Kamala Harris (D-CA) and Cory Booker (D-NJ) in his appearance before the Judiciary Committee and its new chairman, Lindsey Graham (R-SC).  Barr told Booker:

“My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole Memorandum.”

Cole Memo Resurrected

Here Barr brings in a legal maxim from the civil law world to apply to federal criminal law. Since the buyers, sellers, and growers of marijuana have relied on the federal government’s Cole Memorandum, it wouldn’t be right to go after them now. [perfectpullquote align=”right” bordertop=”false” cite=”” link=”” color=”” class=”” size=”24″]…a brief history lesson on state-legal marijuana.[/perfectpullquote]

To understand the significance, we may need a brief history lesson on state-legal marijuana. Marijuana is now illegal under federal law. You can get federal time for possessing any amount, from a joint to a pound, of weed. When a significant number of states changed their marijuana laws, the Obama/Holder DOJ changed course as well. Obama started his presidency with a vengeance against marijuana dispensaries and users. The feds raided compassionate care clinics with abandon, putting the screws to those who had the misfortune of being in their gunsights. Obama and his Attorney General, Eric Holder, surprised many by being far less tolerant of marijuana than the preceding George W. Bush administration.  As Washington and Colorado voters ushered in new laws regulating marijuana like alcohol, something needed to change with federal prosecutions, and the Cole Memorandum, issued by Obama’s Deputy Attorney General James Cole, provided a solution.

The memo lays out under what circumstances federal prosecutors should bring marijuana charges. In a nutshell, if you’re an adult following all state laws dealing with other adults following all state laws, you will not be molested by federal authorities. Issued in August of 2013, the Cole memo produced a near immediate bottoming out of federal marijuana prosecutions.

In January of 2018, Donald Trump’s then-Attorney General Jeff Sessions revoked the Cole memo.

Surprisingly intransigent on cannabis, Sessions revealed himself to be an unrepentant prohibitionist when he stripped prior protections for those in states where marijuana is legal. He seemed to have done so without permission from his boss.

President Trump has announced that he would likely support Booker’s proposed legislation removing blanket marijuana prohibitions.

Nolle Prosequi

While Barr did not address that particular bill, he did remonstrate legislators about their need to act:

“The current situation is untenable and has to be addressed. It’s almost like a backdoor nullification of federal law.” And later:  “You can imagine an existing administration and attorney general start cutting deals with states to say, ‘We’re not going to apply the federal law – some gun law or other law – we’re not going to apply that in your state.’”

Barr was questioned by Booker first. His answers indicated he would drop the Sessions policy, but Harris, to her credit, asked for a direct answer to the question: Would he prosecute marijuana crimes where state law was followed? No.

“To the extent people are complying with the state laws … we’re not going to go after that.”

It’s hard to overstate the significance of that short statement to the nearly 200,000 Americans who support themselves working in the marijuana industry, to say nothing of those whose lives depend on using marijuana medicinally, for aches and pains through fighting wasting diseases. While the legal position is far too tenuous to say business can breathe a sigh of relief, it certainly can back down from DEFCON 1. According to a new analysis, the industry will be worth $20 billion to $35 billion by 2020, depending on the passage of new laws supporting legalization.

Reefer Madness

If Trump joins Harris in support for Booker’s legislation, we might finally take some major strides away from the holy mess of drug prohibition. Democrats seem ready to increase liberty here, but are Republicans? They should be. The drug war is a big government boondoggle with an insatiable appetite for spending while delivering negative results with devastating side effects.

“Even if one takes every reefer madness allegation of the prohibitionists at face value, marijuana prohibition has done far more harm to far more people than marijuana ever could.  — William F. Buckley, Jr.”

Barr served as U.S. Attorney General from 1991 to 1993 during the George H.W. Bush administration.  A vote on his nomination is not yet scheduled, but approval seems pro forma at this point, as Republicans control the Senate and can pass his nomination with zero support from Democrats.

Read More From Scott D. Cosenza, Esq.

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