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Tuesday, February 14, 2017

Could Jeff Sessions Stifle State Marijuana Reforms?

Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.”  The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think  a challenge to most reforms would clearly fail.) 

However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.

First, since 2014, Congress has barred the DOJ from using appropriated funds “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The quoted language has been inserted in riders to omnibus spending bills for the last couple of budget cycles. Although the rider language is not terribly clear, the Ninth Circuit has interpreted it as barring the DOJ from prosecuting anyone for actions that comport with state medical marijuana laws. This means that, at least until the current rider expires later this year, the DOJ probably couldn’t initiate legal action against state licensed medical marijuana suppliers. Even recreational marijuana suppliers might be off limits under the Ninth Circuit ruling if they also serve the medical market (as they do in several states) -- though that's an untested proposition.

Second, even if AG Sessions demands a crackdown on marijuana, it’s not clear that the 93 United States Attorneys – i.e., the ones who can actually bring prosecutions – will necessarily oblige him. For the time being, many of those USAs are holdovers from the Obama Administration, and they might not share Sessions’ antipathy toward marijuana. But even after Trump has a chance to replace them, there is no guarantee that his USAs would necessarily heed Sessions’ demands regarding marijuana enforcement. USAs have a degree of independence from the AG and central DOJ. And if asked to do something that is locally unpopular – like crack down on the marijuana industry in a legalization state – some USAs might balk, either because they believe it's the right thing to do or because they aspire to local political office and fear alienating large local constituencies who support state reforms. 

Third, the DOJ has very limited resources. The DEA, the unit within the DOJ that has primary responsibility for enforcing federal drug laws, has only about 5,500 agents total – and they’re responsible for policing all drugs (licit and illicit), worldwide.  As I have written elsewhere, even before the Obama Administration first adopted a deferential enforcement policy toward marijuana in 2009, the DOJ couldn't take on all of the marijuana cases that had previously been handled by reform states. The task facing the DOJ has not gotten any easier in the intervening years. There are now 44 states (including DC) that have legalized some form of marijuana, including 29 that have full-fledged medical marijuana laws (and 9 of those have recreational marijuana laws). That’s an awful lot of ground for the DOJ to cover with only limited resources, especially when the agency is also attempting to crack down on various other offenses (immigration, etc.). To be sure, the DOJ could (eventually) make life difficult for some marijuana suppliers. But I think the number of prosecutions (and other legal actions) the agency could undertake would be too small to make much of a dent in the state legalized marijuana market (even given harsh sanctions).

Ultimately, AG Sessions might be able to forestall reforms at the federal level –– assuming he has some clout in Congress. For example, he might be able to block or at least delay passage of federal legislation that would enable banking with the marijuana industry. However, I don’t think Sessions will be able to stifle state marijuana reforms.   

Posted by Robert Mikos on February 14, 2017 at 05:05 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink


With Bitcoin and similar cryptocurrencies, the horse is already out of the barn for any attempt to lock marijuana retailers out of a functional banking system. These cryptocurrencies aren't as easy to use as traditional banks, but the prospect of legal weed may be as motivating as the prospect of downloadable porn was in the 90's when it comes to learning how to use a new technology.

For comparison, look at history of porn bans. The enforcement of such bans used to take the form of police raids on shops and denials of building permits, and case law reflected that with "local community standards". Then digital delivery made enforcement much more laborious and even successful prosecutions (like Max Hardcore in 2008) don't make any noticeable impact on the industry and, as far as I know, didn't launch the career of any of the prosecutors involved. For better or worse, the ubiquity of internet porn is a triumph of decentralized cyberpunk methods over government law enforcement.

Now cyberporn is the prototype for decentralized resistance generally. The first generation of gold-backed digital currencies, which ran on ordinary servers, got crushed by the Feds, only to be replaced by Bitcoin and other cryptocurrencies. When copyright cartels shut down file sharing websites, bittorrent appears. Mass-scale government snooping on cloud computing services is defeated by peer-to-peer and client-side encryption protocols. The developers of these protocols are very conscious of law enforcement methods and careful to make them resistant.

It is not hard to imagine how cyberpunk methods can make life difficult for any federal prosecutor who wants to enforce marijuana bans in opposition to local popular opinion. Right now marijuana shops operate in the open; they could operate by delivery service. Right now the ownership of dispensaries is public record; they could be owned by anonymous syndicates governed by digital signatures (as copyright-pirate sites often are). Right now the currency used in commerce is tied to the Federal Reserve; a state can issue a cryptocurrency redeemable in legal weed. Right now the telephone companies are obliged to hand over massive amounts of metadata to the Feds; this can be replaced by an app that obfuscates who is calling whom to greatly complicate criminal investigations. And so on.

This effect cuts both ways, by the way, and an industry can centralize to cooperate with law enforcement. The FTC and FCC spent years playing whack-a-mole with telemarketing phone spammers, but investigations and prosecutions were too slow and expensive to put a dent in the problem. Eventually, the phone industry established standards to establish more central control over what goes in the caller ID field. Now, when you sign up for a VOIP service you have to prove you have control over a phone number before you can use it as caller ID. This has made phone spammers easy to detect and services like NoMoRobo can automatically filter out the egregious abusers.

Posted by: M. Rad. | Feb 16, 2017 11:17:04 PM

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