On May 10, 2017, Attorney General Jeff Sessions issued a memorandum establishing revised charging and sentencing policy applicable to the Department of Justice (the “Charging Memo”). The Washington Post quotes the Attorney General as saying “We are returning to the enforcement of the laws as passed by Congress, plain and simple.” Further, “These are drug dealers, and you drug dealers are going to prison.” The Charging Memo advises that prosecutors should charge and pursue the most serious, readily provable offense. The policy directs prosecutors to consider whether an exception is justified. All exceptions require documentation for the exception reasoning and approval.
The Charging Memo also requires that prosecutors disclose all facts that affect sentencing guidelines or mandatory minimum sentences. Prosecutors should recommend sentencing within the applicable advisory guideline range. Prosecutorial discretion advising a sentence outside the range also require documentation and approval.
The direct impact of the Charging Memo on state-regulated adult-use cannabis is unclear. There is probably little immediate impact to state-regulated medical cannabis programs because of the Rohrabacher-Blumenauer amendment to the FY 2018 appropriations bill. See our earlier coverage here.
The Charging Memo states that any inconsistent previous policy is “rescinded.” It footnotes other policy-oriented memoranda issued during the Obama presidency, but notably does not reference the 2013 Cole Memorandum. As of the date of this post, the Cole Memo remains posted on the DOJ website. Remaining on the website provides little comfort because the two footnoted memoranda, “Guidance Regarding § 851 Enhancements in Plea Negotiations” and “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases” both remain posted. Further, the DOJ webpage for former Attorney General Eric Holder’s Smart on Crime initiative notes that information may be outdated. Therefore, remaining on the website should not imply that any particular document reflects current policy.
The Cole Memo states that it applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning cannabis in all states. Some careful readers might conclude that the Cole Memo is arguably inconsistent with the Charging Memo. Specifically, the Cole Memo provides that prosecutors should use discretion in using its enforcement resources, and consider whether a cannabis operation is compliant with state law consistent with the outlined enforcement priorities. Notably, even the Cole Memo explicitly states that individuals and businesses cannot rely on it to avoid investigation or prosecution, even in the absence of the enforcement priorities.
At a minimum, the recently released Charging Memo reminds us all that the prosecutorial discretion framework outlined in the Cole Memo could face similar “reconsideration” by the new Attorney General. At the same time, it is inconceivable that this new guidance simply overlooked its impact on state-legal cannabis regimes. It is possible that the Charging Memo’s silence with respect to the Cole Memo is positive sign instead of a warning shot, but only time will tell.