Earlier today, Attorney General Jeff Sessions issued a memorandum to all U.S. Attorneys in which he rescinded, effective immediately, several previous U.S. Department of Justice (DOJ) guidance documents* related to marijuana enforcement. The most notable of these now-rescinded memoranda is the 2013 Cole Memorandum (Cole Memo).
By way of background, in 2013, Deputy Attorney General James Cole directed U.S. Attorneys to utilize their resources prudently, and to use discretion before prosecuting those using medical marijuana in compliance with their state’s laws. The Cole Memo represented a major shift in drug enforcement, and after its issuance, federal marijuana prosecutions declined in states that had authorized certain marijuana activity.
While the exact impact of Sessions’s decision to roll back the Cole Memo and other Obama-era marijuana policies is unclear, it could mean increased federal enforcement in states that have marijuana laws on their books. Despite marijuana’s federally-illegal status, more than 50 percent of states have adopted medical marijuana laws, and eight of those states and the District of Columbia have also enacted recreational or “adult use” statutes. What today’s announcement means for those states, and for businesses and individuals in those states, remains to be seen. In describing the impact of his memo, Sessions said that it “simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.” Given Sessions’s potentially broad interpretations of the terms “criminal organizations” and “growing drug crisis,” there is now even more uncertainty and apprehension in the cannabis space.
Also unclear is how enforcement of federal drug laws in states that have authorized certain cannabis activity will occur given the current prohibition on the expenditure of DOJ funds to prevent states from implementing medical marijuana laws. As some may know, the so-called “Rohrabacher-Blumenauer” amendment (formerly known as the “Rohrabacher-Farr" amendment), which has been in place since December 2014, states that DOJ may not use its funding to prevent certain states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The most recent iteration of Rohrabacher-Blumenauer protections, extended via the stopgap budget deal signed into law by President Trump in late December, are set to expire on January 19th if not renewed. Sessions’s rescission of the Cole Memo and other marijuana enforcement policies adds even more confusion to the already sticky conflict between federal and state marijuana laws.
In response to Sessions’s decision, U.S. Sen. Cory Gardner (R-Colo.) said that he is “prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made” prior to his confirmation, referring to the apparent pledge that Sessions made to Gardner not to roll back the Cole Memo. Gardner has been joined by a large, bipartisan group of members of Congress, senators, and governors who are also pushing back against Sessions.
Despite his well-known and longstanding opposition to marijuana, Sessions’s move is a bit surprising given public opinion polling data around marijuana and the fact that 2018 is an election year. Last October, Gallup reported that 64 percent of Americans were in favor of marijuana legalization, the highest level of support recorded in nearly 50 years. Per Gallup, while “Democrats and independents have historically been much more likely than Republicans to say marijuana should be legalized…[in 2017] for the first time, a majority of Republicans express[ed] support for legalizing marijuana.” During the October 2017 polling period, 51 percent of Republicans polled said that marijuana should be legalized, up nine percentage points from 2016.
We are continuing to monitor developments in this area, and will provide updates as more information becomes available.
*Previous guidance that is now rescinded includes: David W. Ogden, Deputy Att'y Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009); James M. Cole, Deputy Att'y Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011); James M. Cole, Deputy Att'y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013); James M. Cole, Deputy Att'y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014); and Monty Wilkinson, Director of the Executive Office for U.S. Att' ys, Policy Statement Regarding Marijuana Issues in Indian Country (Oct. 28, 2014).