When admonished by his mother to "Stop running in the house!" six year old Calvin, from the wonderful Bill Watterson comic strip Calvin and Hobbes, after a pause, responded "The rule's on the books, but it would take all of their resources to enforce it." On he ran. This captures the federal government's long term relationship with marijuana. A federal prosecutor has significant legal tools with which to charge marijuana crimes, from simple possession of the drug to the nation’s sophisticated conspiracy and racketeering laws. However, none of the 93 U.S. Attorneys' Offices throughout the country has ever prosecuted all charged marijuana offenses federally, nor could they. Thus, even before today's highly fascinating marijuana legal environment, there existed a prosecutorial decision, an exercise of discretion, regarding which crimes would be adopted for federal prosecution. Historically, these decisions were driven by local policy or the perceived impact on crime by the use and sale of marijuana. To be clear, under federal law, all manufacture, distribution, and possession of marijuana is illegal in the US. It is inaccurate to say that marijuana is legal in certain states. Rather, some states, over half of them as of this writing, have legalized marijuana for medical or recreational purposes. Nevertheless, the US government has been unwavering on the matter and includes marijuana on the list of Schedule I controlled substances. This means that, in the federal government’s view, marijuana has no legitimate purpose. The list of Schedule I drugs also includes heroin, LSD, and ecstasy, amongst others.
Likely prompted by the wave of state legalization efforts, on August 29, 2013, the Justice Department issued a press release and guidance regarding when DOJ would exercise its authority in this area. This was a big step. In sum, DOJ said that in states that had legalized marijuana and set up appropriate regulatory structures around its manufacturer, distribution, and use, the federal government would decline to prosecute people or businesses under applicable federal laws. The DOJ memo setting forth the Department’s thinking on this listed a number of exceptions where it would step in and investigate, including distribution to minors, distribution involving other drugs or firearms, use or distribution on federal lands or properties, and other enforcement priorities. On February 14, 2014, the Treasury Department followed suit with similar guidance. This was considered important because most banks would not, and still do not, take money from marijuana businesses, even those that are in "lawful" states, because of the compliance risk. In sum, President Obama’s DOJ and DOT stayed largely out of the area in states where marijuana was "legal" for either medical or recreational use, as long as the states had appropriate regulations and protections surrounding the new state legality of marijuana and its byproducts. That said, those who operated in this space did so under the benevolence of a federal government that could prosecute all such conduct if it changed its mind and chose to do so.
The next question is obvious. Under a new President and a new Attorney General at DOJ, what can those who operate in this area within the borders of "legal" states expect? This is a not immaterial question. By some estimates, in one recent month in Colorado, "legal" marijuana sales reportedly topped 125 million dollars. Some marijuana distributors operate from fancy, almost Apple-like, store fronts and have websites. The tax revenues from these businesses are significant and important to state budgets. The new White House Press Secretary Sean Spicer very recently indicated that the rules are going to change. Mr. Spicer previewed that there would be "greater enforcement" in the marijuana area. On another occasion, he said that people can expect more enforcement regarding recreational use of marijuana. Although, on that occasion, he directed the reporter asking the question to reach out to DOJ, as it would be making these decisions. President Trump himself said that he does not view medical use of marijuana as a priority enforcement area for his administration. The new head of DOJ, Attorney General Jeff Sessions, was critical of the loosening of marijuana enforcement during the Obama administration. That said, during AG Sessions’ confirmation hearing, he indicated that he did not see marijuana use as a top priority for the Department under his leadership. However, in contrast, just this week AG Sessions previewed the possibility of expanded enforcement in this area. He indicated that:
"Most of you probably know I don’t think America is going to be a better place when more people of all ages and particularly young people start smoking pot," Sessions said during an exchange with reporters at the Justice Department. "I believe it's an unhealthy practice and current levels of THC in marijuana are very high compared to what they were a few years ago."
"We're seeing real violence around that," Sessions said. "Experts are telling me there's more violence around marijuana than one would think and there's big money involved."
He went on to say:
"I'm definitely not a fan of expanded use of marijuana. States they can pass the laws they choose. I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not."
Thus, this entire fascinating area, characterized by tension between federal and many state governments, is now even less clear than it was two months ago. The DOJ memo referenced above has not been revised or withdrawn, but there are clear signals from the current administration that those in the marijuana trade are standing on ground that is about to shift. A few guesses are possible. First, if there is increased enforcement, it is likely to be in the recreational space before the medical. Second, the itemized exceptions from the Obama era DOJ memo, above, are likely to receive even more attention from this DOJ than was the case during the Obama administration. Third, any DOJ investigation of a marijuana business is likely to look closely into the target business’s compliance record with state regulations. Such compliance, or lack thereof, could seriously impact whether charges are brought against the business and the structure of any settlement. Businesses and individuals in the marijuana trade should operate with care, as well as vigilance to what Washington is saying and doing. They clearly should not be doing anything unusual or aggressive to draw the attention of federal prosecutors. No running through the kitchen with scissors.