In a memorandum issued on January 4, 2018, Attorney General Jeff Sessions reversed an Obama-era policy that the Department of Justice (DOJ) would not devote resources to the prosecution of persons acting in compliance with state cannabis laws. Most notably, Attorney General Sessions’s memorandum (the Sessions Memo) rescinded the 2013 guidelines issued by Deputy Attorney General James Cole, commonly known as the Cole Memo, which stated that, while the DOJ is committed to enforcing the Controlled Substances Act (CSA), it is also committed to focusing its limited investigative and prosecutorial resources on more significant threats in the most effective, consistent, and rational way. The Cole Memo enumerated certain enforcement priorities related to cannabis that remained important to the federal government, including the distribution of marijuana to children, revenue from the sale of marijuana going to criminals, and the diversion of marijuana from states where it is legal to states where it is not.
The Sessions Memo departs from Cole Memo policies, deeming them unnecessary in light of the general prosecutorial principles set forth in the US Attorneys' Manual. Attorney General Sessions’s reversal of the Cole Memo was foreshadowed by his longstanding anti-cannabis position, as well as his active agenda as US Attorney General, which has included (i) assembling a task force to investigate links between cannabis and violent crime; (ii) restarting a civil forfeiture program that gives state police departments greater leeway to seize property of those suspected of a crime, even if they are never subsequently charged with or convicted of one; and (iii) on January 3, 2018, appointing 17 interim US attorneys, including in districts in Nevada, California, and Washington, all states that have legalized marijuana.
It is too early to assess the practical effect of the Sessions Memo and whether, in response, US Attorneys’ offices in states that have legalized cannabis use will initiate new prosecutions of cannabis businesses and users. Adding to the uncertainty, on January 19, 2018, the bipartisan Rohrabacher-Blumenauer Amendment to the federal omnibus appropriations bill, which bars use of federal funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana," is set to expire. While some observers believe that Congress will extend the Rohrabacher-Blumenauer Amendment, the Attorney General has actively opposed any restrictions on DOJ appropriations related to CSA enforcement and, in May 2017, he personally appealed to congressional leadership to allow the amendment to lapse.
It is likely no coincidence that the Sessions Memo was issued within days after California's voter-approved cannabis adult use program took effect on January 1, 2018. California state lawmakers, as well as the state’s executive branch, were quick to make known that they are prepared to defend the will of California’s voters and the cannabis industry. California Insurance Commissioner Dave Jones issued the following statement: "I condemn in the strongest possible terms Attorney General Jeff Sessions['s] decision to rescind the Cole Memo. California voters decided to legalize adult use of cannabis in 2016. I stand with the voters of California in defending California's efforts to legalize cannabis.” Attorney General Sessions’s action has also resuscitated California legislation (AB 1578) that would prohibit the state’s public safety agencies from assisting the federal government with enforcement actions against the state's regulated cannabis industry.
Meanwhile, Colorado’s cannabis program, the longest-standing and most successful cannabis program in the US, was also scrutinized by Attorney General Sessions's cannabis task force and is similarly vulnerable to new federal prosecutions. Colorado lawmakers and elected officials from both sides of the aisle have expressed opposition to the Sessions Memo, and Republican US Senator from Colorado Cory Gardner issued a statement that the decision “has trampled on the will of the voters.” The Sessions Memo signals that the federal government could wield the CSA to shut down the cannabis industry in every state that has legalized marijuana, setting up a potential battle of federal power versus states’ rights.
US Attorneys are anticipated to have different interpretations of the intent and significance of the Sessions Memo. For example, the newly-appointed US Attorney for Massachusetts, Andrew Lelling, issued a statement this week indicating that his office was prepared to “aggressively investigate and prosecute bulk cultivation and trafficking cases, as well as individuals who use the federal banking system illegally.” In Colorado, however, US Attorney Bob Troyer indicated that the US Attorney's Office in Colorado does not plan to change its stance on marijuana prosecutions
For the US's nascent but rapidly growing cannabis industry, these policy developments add another layer of uncertainty to what was an already complex legal landscape. The Sessions Memo could mean a rise in federal criminal prosecutions and civil forfeiture actions for violations of federal laws relating to cannabis. At the same time, however, the Sessions Memo could catalyze additional support for continued inclusion of the Rohrabacher-Blumenauer Amendment in federal appropriations bills. Attorney General Sessions’s action may even lead to increased pressure on Congress to remove marijuana from Schedule I of the CSA. In any event, for those currently participating in the US cannabis industry, while not without risk, vigilant compliance with state laws and regulations remains the best course of action. Dentons will continue to closely monitor these policy developments and any resulting enforcement actions.