The de facto federal safe harbor for the nation’s burgeoning marijuana industry may be coming to an end with the release yesterday of a memorandum from U.S. Attorney General Jeff Sessions notifying the nation’s 93 U.S. attorneys that prior Department of Justice guidance specific to marijuana enforcement had been rescinded.i The prior guidance documents, often referred to collectively as the Cole Memos, effectively discouraged federal prosecutors from enforcing federal laws prohibiting the cultivation, distribution, and possession of marijuana in those states where marijuana had, in some form or another, been legalized.
The Attorney General’s decision to rescind the Obama-era policy leaves the nation’s cannabis industry in a legally confusing position. Eight states and Washington D.C. have legalized marijuana for recreational use while 28 more have laws on the books authorizing the drug for medical purposes. In a briefing with reporters, a senior Justice Department official said it was unclear whether the new directive would lead to more prosecutions, because that will be up to individual U.S. attorneys across the country. At this point, there are 93 U.S. attorney slots across the country. President Trump has nominated 58 people to fill those positions, 46 of whom have been confirmed by the Senate. Earlier this week, Sessions picked 17 more to serve in interim posts, including in Nevada, California and Washington, where marijuana is legal. The approach that each of the new U.S. attorneys will take to marijuana enforcement is unknown at this time. Thus, depending upon the vigor with which a U.S. attorney in a given district decides to pursue federal marijuana enforcement, cultivators, distributors and users whose activities are legal under state law may once-again be in legal jeopardy under federal laws.
Some Capitol Hill legislators, including a few Republications in legalized marijuana states, have already spoken out against Sessions’ decision to return to pre-Obama enforcement policies, and called upon President Trump to “overrule” Sessions. A number of pro-marijuana interest groups are renewing calls for a change to the nation’s Controlled Substances Act and related laws regarding the continued criminalization of marijuana cultivation, distribution and possession.