Sponsored Post: The New Sheriff in Town Threatens to Crack Down on Cannabis

The following post is by Mark V. Osbeck (Clinical Professor of Law at the University of Michigan Law School and is coauthor of Marijuana Law in a Nutshell (West Academic Publishing 2017)) and sponsored by West Academic.

No one has ever accused Attorney General Jeff Sessions of being a friend of the cannabis industry. Even so, his announcement on January 4th that the Justice Department was retracting the Obama Administration’s so-called Cole Memo came as a surprise to many of us. And it certainly came as unwelcome news to the cannabis industry in legalization states.

The new “Sessions Memo” threatens to reverse the Obama Administration’s hands-off policy toward the states, whereby the Administration had effectively assured actors in the cannabis industry that they would not face federal prosecution so long as they complied with state law and met the 8 policy priorities that were set out in the Cole Memo. (Those priorities included such things as preventing the distribution of marijuana to minors, preventing its diversion to non-legalization states, preventing drugged driving, etc.) In place of those assurances, the Justice Department has now instituted a policy that stresses the illegal nature of cannabis possession and distribution under federal law but leaves enforcement decisions to the discretion of individual United States Attorneys.

The net effect of this change is to create considerable uncertainty among industry actors as to what they can expect in terms of a possible federal crackdown, and to leave open the very real prospect of patchwork federal enforcement across the legalization states. The latter seems particularly problematic in states such as California that have more than one federal judicial district; in these states, similarly situated industry actors located in different parts of the state (e.g., Los Angeles versus San Francisco) may be subject to radically disparate treatment.

Thus far, the various U.S. Attorneys in legalization states have been fairly non-committal about their intentions, although some have signaled a less aggressive approach than others. The U.S. Attorneys in Colorado and the Western District of Washington, for example, have indicated that they intend to continue enforcing the Controlled Substances Act in the same manner they did under the Obama Administration: focusing enforcement efforts on marijuana-related crimes that threaten public safety. But other U.S. Attorneys, such as Andrew Lelling of Massachusetts, have created fear in the cannabis industry by refusing to provide assurances that industry actors will be spared from federal prosecution. It seems likely that if different U.S. Attorneys do start enforcing the Controlled Substances Act in disparate ways, this will lead to an increased sense of urgency among cannabis-friendly members of Congress to find a legislative fix at the federal level to ensure uniform federal treatment.

Stay tuned; this could get interesting!