Attorney General Sessions announced he is rescinding the Cole Memorandum regarding federal enforcement of marijuana laws, reversing the 2013 rule designed to restrict federal prosecution of those behaving legally under state law.
Sessions released his one-page memorandum sent to all United States Attorneys on Tuesday, instructing his army of political appointee prosecutors to give no special consideration to activities that relate to marijuana, as had been done since the Cole Memorandum was issued. This represents a sea change in federal treatment of activities surrounding the production, distribution, and sale of marijuana and marijuana-related goods, now a several-billion-dollar industry. Absent some other changes, this revocation throws the entire enterprise into chaos, as in some federal districts the mere possession of a joint could be prosecuted federally, while in others, a multi-million-dollar marijuana farm may be left alone.
Stocks of companies that deal with marijuana have cratered after the release, as people cannot know if they own a piece of a promising new market or the ghost of same. Perhaps they will now be subject to indictment and prosecution under the RICO laws for helping finance a criminal organization. It all depends on how their local U.S. attorney wishes to proceed.
The federal government’s drug classification system is political, not scientific, as is its refusal to recognize marijuana as having any medicinal value. When states started liberalizing their marijuana laws to accommodate the needs of patients who refused to abide by federal intransigence on medical marijuana, that presented a serious problem. While many things prohibited at the state and local level are not addressed by federal law, few acts that are illegal federally are legal at the state and local level. Here we have an activity that is not just merely not prohibited, as are most activities but expressly made legal, often through direct democracy and citizen initiative. What to do?
The Cole Memorandum
The Justice Department decided the consequences of the federal government continuing its course on marijuana, in the face of these changes would produce unacceptable consequences. The Cole Memorandum was designed to remove or reduce the threat to the legitimacy of federal authority, including scorn from a public whose will was thwarted, as well as going from collegial relations with state and local law enforcement to hostile ones. It told federal prosecutors that marijuana activities operating legally under state law should be left alone:
[E]nforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.
The memo yielded significant results. In a country with rapidly growing marijuana markets, according to the U.S. Sentencing Commission, federal marijuana prosecutions are down 50% since 2012.
Sessions’ revocation of this attempt to make a workable path through our federal and state laws on this issue opens a Pandora’s box on state-legal marijuana. Let's remember that twenty-nine states and the District of Columbia currently have laws broadly legalizing marijuana in some form. His memo encourages more marijuana prosecutions, reminding prosecutors in the first paragraph of the one-page document that “Congress has generally prohibited the cultivation, distribution, and possession of marijuana.” Sessions finishes his opening paragraph with a reminder that “[t]hese statutes reflect Congress's determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”
Sessions has long been a dogged prohibitionist on marijuana, claiming that “good people don’t smoke marijuana”, and that “[o]ur nation needs to say clearly once again that using drugs will destroy your life.” As we reported, Sessions stated he would “review and evaluate” the basis and effectiveness of the Cole Memorandum during his confirmation process.
First Broken Campaign Promise
President Trump, while known as teetotaler personally, previously indicated he would leave pot alone. After the Republican Presidential Primary debate in Colorado, then-candidate Trump, stated:
In terms of marijuana and legalization, I think that should be a state issue, state-by-state.
That, apparently, was then. At Tuesday’s White House Press Briefing, Secretary Sanders was asked “does President Trump see marijuana as a states issue or a federal issue?”
The President believes in enforcing federal law. That would be his top priority, and that is regardless of what the topic is. Whether it’s marijuana or whether it’s immigration, the President strongly believes that we should enforce federal law.
The move that the Department of Justice has made — which, my guess is, what you’re referencing — simply gives prosecutors the tools to take on large-scale distributors and enforce federal law. The President’s position hasn’t changed, but he does strongly believe that we have to enforce federal law.
To be clear, enforcing federal law would include raiding all the thousands of dispensaries now operating legally under state law. This means arresting all their customers, employees, suppliers, owners, bankers, landlords, stockholders, etc., etc. as they are all, in fact, acting in open defiance of federal law which as General Sessions reminds us Congress has prohibited. The federal criminal law provides for life sentences for cultivation and distribution and yes, even the death penalty for extremely large sales and production.
Silver Lining?
The failure of Congress to address this disparity is what has left us with this mess. Perhaps the market chaos and future prosecutions which will surely be outrageous to many and inconsistently applied may spur them to act.
This week 40 million Americans gained access to legal marijuana at the state level when California, by voter mandate, legalized the plant. How can they peacefully exist in a federal system that makes some large percentage of them felons, with an advisory to federal prosecutors to have at them?
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